EFFector Online January 7, 1992

 ########## ########## ########## |                AMERICA ONLINE FLAP|

########## ########## ########## |                A sensible position|

####       ####       ####       |                                   |

########   ########   ########   |                         COMPUSERVE|

########   ########   ########   |                A sensible decision|

####       ####       ####       |                                   |

########## ####       ####       |      SUN MICROSYSTEMS GRANT TO EFF|

########## ####       ####       | A new and improved eff.org in 1992|

                                                                     |

             THE EFF PIONEER AWARDS: CALL FOR NOMINATIONS            |

                                                                     |

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EFFector Online           January 7, 1992          Volume 2, Number 3|

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     In this issue:

THE AMERICA ONLINE FLAP

  SUN MICROSYSTEMS MAKES MAJOR EQUIPMENT GRANT TO EFF

  THE COMPUSERVE CASE

      THE EFF AND FREE ENTERPRISE

      EFF at SCAT

  THE FIRST ANNUAL PIONEER AWARDS:CALL FOR NOMINATIONS

    

       -==--==--==-<>-==--==--==-

    

THE AMERICA ONLINE FLAP

    

Three weeks ago, Roger Dietz of Fremont, California, revealed to the

media that he had received GIF files of sex acts via email to his

account on America Online.  The files apparently featured people who

were underage.

Dietz, an adult, had been posing as a gay 13-year-old boy in the public

chat rooms of America Online for some time.  His announcement that what

appeared to be "kiddie porn" was sent to him caused a number of news

organizations such as CNN, local and national newspapers, and Newsweek

to follow up on the story.

As many participants of the nets know, the "discovery" that computer

networks contain and transmit adult material via email, and sometimes as

files accessible to members of the network or BBS is something that

recurs with some regularity on both the public and commercial systems.

When it does, it poses severe problems for the managers of those networks.

Although explicit sexual material has been part of the American scene

for many years, the fact that it can be transmitted through computer

networks is news to many people.  When the material is reported to

involve underage people, most people feel uneasy, mystified, and angry.

Since the technology and legal nature of email is not well understood by

the majority of citizens, many people wonder why the management of

computer networks cannot actively police their systems to odious or

potentially illegal material.  Faced with this problem, Steve Case,

President of America Online, said to Newsweek's John Schwartz: "People

ask, 'How can you permit this? It's the same question that could be

asked of the postmaster general."

Going into more detail online, Case posted the following message to all

members of America Online:

-------------------------------------------------

Message to AO members from Steve Case:

RESTATEMENT OF OUR POLICY

I'd like to remind all of you that we have established rules regarding

the use of this service, which we call "Terms of Service." These rules

are posted in the online customer support area.  Our goal is to foster

the development of an "electronic community" that honors the principles

of freedom of expression, while also recognizing that some community

standards are needed for the service to grow.

Recently two troubling problems have come to our attention.  The first

is a report that some members are using the service to commit illegal

activities.  A member has forwarded to us copies of messages he received

which contained graphic files that may constitute child pornography.

Because a member chose to forward these files to us, we were able to

intervene and we are working with the authorities to pursue the matter.

We obviously were unaware of this act until the files were forwarded to

us, as our policy is that all private communications -- including

e-mail, instant messages, and private chat rooms -- are strictly

private, and we do not, will not, and legally cannot monitor any private

communications.  But if we are alerted to a potential offense and we are

sent evidence, as we were in this particular case, we will vigorously

pursue the matter.

This first problem dealt with the illegal use of private communications.

The second deals with the abuse by a handful of members of the public

communications features.  Recently, there has been an increase in online

behavior that we -- and we think most members -- find to be offensive.

This has included the use of vulgar language in public areas (chat rooms

and/or message boards), the creation of inappropriate screen names

and/or room names, and the sending of unsolicited, harassing Instant

Messages to some members.

Our desire is to trust the judgment of our members, and to err on the

side of free expression.  We don't want to aggressively police public

areas to make sure everyone is abiding by the Terms of Service.

However, we aren't going to let this type of unwanted behavior by a few

ruin the service for us all. Let this serve as a warning to those few

people who are creating the problem: shape up or ship out.

            Steve Case, President

            America Online, Inc.

(reposted by permission of America Online)

-------------------------------------------------

       -==--==--==-<>-==--==--==-

    Reviving A Computer After A Fire

If a computer's plastic casing has not been deformed by the heat, which

begins to happen at 250 degrees F, then the computer will work.

  --Dean Sheridan, electronics technician and deaf actor,

         Torrance, California.**

       -==--==--==-<>-==--==--==-

  SUN MICROSYSTEMS MAKES MAJOR EQUIPMENT GRANT TO EFF

We are pleased to announce that Sun Microsystems has awarded The

Electronic Frontier Foundation a substantial equipment grant for 1992.

This grant will enable us to go forward with a number of technical

upgrades and other projects we have been putting off for some time due

to the limitations on our equipment.

For many months, the trusty Sun 4/110 (eff.org) which handles almost all

our Internet traffic (including the EFF's anonymous ftp archives, the

mailing lists we host, our USENET feed, and our WAIS server) has been

pushed to its limits.  In order to upgrade our systems and provide

better service to the net and our members, we began last summer to

pursue a grant from Sun Microsystems that would allow us to modify and

upgrade our system.

The major feature of the grant is a new SPARCStation 2, as well as an

upgrade to a SPARCStation 2 from our current 4/110.  With two machines,

each more powerful than our current system, we will be able to provide

more and faster ftp, WAIS, and mailing list service without making the

system unusable for "normal work".

In addition, we have been granted a SPARCStation IPX (to be used for

software development), two SPARCStation ELCs, which will be used for

administrator workstations (allowing us to run window systems, long

compiles, and the like without bogging everything down), and a large

amount of additional disk space (much of which will go to ftp archives,

additional WAIS databases, and the like).

We are making the final arrangements now, and hope to have the new

machines phased in over the course of February.  (People who have been

using 192.88.144.3 or 'eff.org' for ftp or WAIS please note that that

address *will change*.  Use ftp.eff.org or wais.eff.org, respectively,

instead, as those will always point to the right machine for the job.)

The Electronic Frontier Foundation would like to extend its heartfelt

thanks to all the people at Sun Microsystems for this strong vote of

confidence in our mission and our work.

       -==--==--==-<>-==--==--==-

Brenner's Rule of Pausing Programmers

If an expert pauses while testing a new program, that's where the

beginner will fail. -- Norman Brenner, Fleetwood, New York **

       -==--==--==-<>-==--==--==-

    

  THE COMPUSERVE CASE:

   A STEP FORWARD IN FIRST AMENDMENT PROTECTION FOR ONLINE SERVICES.

   By Mike Godwin (mnemonic@eff.org)

By now you may have heard about the summary-judgment decision in Cubby,

Inc. v. CompuServe, a libel case. What you may not know is why the

decision is such an important one. By holding that CompuServe should not

be liable for defamation posted by a third-party user, the court in this

case correctly analyzed the First Amendment needs of most online

services. And because it's the first decision to deal directly with

these issues, this case may turn out to be a model for future decisions

in other courts.

The full name of the case, which was decided in the Southern District of

New York, is Cubby Inc. v. CompuServe. Basically, CompuServe contracted

with a third party for that user to conduct a special-interest forum on

CompuServe. The plaintiff claimed that defamatory material about its

business was posted a user in that forum, and sued both the forum host

and CompuServe. CompuServe moved for, and received, summary judgment in

its favor.

Judge Leisure held in his opinion that CompuServe is less like a

publisher than like a bookstore owner or book distributor. First

Amendment law allows publishers to be liable for defamation, but not

bookstore owners, because holding the latter liable would create a

burden on bookstore owners to review every book they carry for

 defamatory material. This burden would "chill" the distribution of

books (not to mention causing some people to get out of the bookstore

business) and thus would come into serious conflict with the First

Amendment.

So, although we often talk about BBSs as having the rights of publishers

and publications, this case hits on an important distinction. How are

publishers different from bookstore owners?  Because we expect a

publisher (or its agents) to review everything prior to publication. But

we *don't* expect bookstore owners to review everything prior to sale.

Similarly, in the CompuServe case, as in any case involving an online

service in which users freely post messages for the public (this

excludes Prodigy), we wouldn't expect the online-communications service

provider to read everything posted *before* allowing it to appear.

It is worth noting that the Supreme Court case on which Judge Leisure

relies is Smith v. California--an obscenity case, not a defamation case.

Smith is the Supreme Court case in which the notion first appears that

it is generally unconstitutional to hold bookstore owners liable for

content. So, if Smith v. California applies in a online-service or BBS

defamation case, it certainly ought to apply in an obscenity case as well.

Thus, Cubby, Inc. v. CompuServe sheds light not only on defamation law

as applied in this new medium but on obscenity law as well. This

decision should do much to clarify to concerned sysops what their

obligations and liabilities are under the law.

----------

Highlights of the CompuServe decision (selected by Danny Weitzner):

"CompuServe's CIS [CS Information Service] product is in essence an

electronic, for-profit library that carries a vast number of

publications and collects usage and membership fees from its subscribers

in return for access to the publications. CompuServe and companies like

it are at the forefront of the information industry revolution. High

technology has markedly increased the speed with which information is

gathered and processed; it is now possible for an individual with a

personal computer, modem, and telephone line to have instantaneous

access to thousands of news publications from across the United States

and around the world.  While CompuServe may decline to carry a given

publication altogether, in reality, once it does decide to carry a given

publication, it will have little or no editorial control over that

publication's contents.  This is especially so when CompuServe carries

the publication as part of a forum that is managed by a company

unrelated to CompuServe.  "... CompuServe has no more editorial control

over ... [the publication in question] ... than does a public library,

book store, or newsstand, and it would be no more feasible for

CompuServe to examine every publication it carries for potentially

defamatory statements than it would for any other distributor to do so."

"...Given the relevant First Amendment considerations, the appropriate

standard of liability to be applied to CompuServe is whether it knew or

had reason to know of the allegedly defamatory Rumorville statements."

Cubby, Inc. v. CompuServe, Inc. (90 Civ. 6571, SDNY)

       -==--==--==-<>-==--==--==-

       Writing A Computer Program

No good computer program can be written by more than ten people; the

best programs are written by one or two people. -- Phil A. Schrodt,

Associate Professor, Northwestern University, Evanston, Illinois **

       -==--==--==-<>-==--==--==-

    

      THE EFF AND FREE ENTERPRISE

   by Mitchell Kapor

    

[Over the past few weeks, there has been a thread in our Internet

discussion group, comp.org.eff.talk, about the EFF's position regarding

free enterprise and the future of the National Public Network.  As can

often happen in this volatile medium, there was some confusion over

where the organization stands on this issue. To clarify this, EFF

President, Mitchell Kapor, wrote the following response to the group.]

I post this to clear up confusion about EFF positions which may have

been created by posters imputing positions to the EFF.

The EFF does not believe the U.S. government should own or control a

national public network. We do not believe that the Internet or NREN

should be extended by government fiat into everyone's home.

In the context of the Internet, we would like to see a transition as

speedy as possible to private ownership, management, and control of

network facilities which serve or could serve competitive markets.  If

university access to networks is to be subsidized, it should be on the

basis of direct grants to institutions which are to be used for the

purchase of network services.

What keeps the Internet glued together today is access to common network

facilities provided through NSF-subsidized or free connections to a

backbone network owned and controlled by a single private entity, ANS.

The NSF recently announced that in 1993 it would begin a transition to a

regime in which there would be multiple backbone awardees. This will

bring affairs one step closer to a truly open regime. It should be

pointed out that the NSF and other agencies are interested in

stimulating the development of networking regimes (such as gigabit

networks) which are at the leading edge of technology, hence

pre-competitive state. This provides one principled rationale for

government involvement.

With respect to the public switched telephone network, over the next

decade,or as soon as technology permits, we should move away from

government mandated local exchange monopolies and toward competitive

provision of local telephone service. After a period of time, if there

is real competition,and we avoid the dangers of explosive decompression

>from sudden removal of all government controls, it should be possible

to deregulate.

At the same time, development of the market for content-based

information services could be spurred long before that with the

deployment of a ubiquitous, affordable platform based on ISDN. We see no

purpose in delaying this for either local loop competition or the

development of a universal, national broadband network, both of which

are far off (and both of which we support). To do so will likely require

government action, through some combination of legislation and FCC and

state regulation.  It was in this narrow context and no broader one that

we originally advocated the appropriateness of regulation to achieve

these ends.

       -==--==--==-<>-==--==--==-

      The Professional Tools Rule

Engineers and computer programmers need equipment equal to one year's

earnings to work at top speed.  Anything less slows them down.

    -- William Blake, engineering manager, New Haven, Connecticut**

       -==--==--==-<>-==--==--==-

    

      EFF at SCAT:

      Speaking to the Special Computer Attack Team

     by Mike Godwin

[One of the jobs of the Electronic Frontier Foundation is to build

bridges between different communities with an interest in computer-based

communications.  One of the most important communities is law

enforcement.  In December, Mike Godwin, staff counsel for EFF,spoke to a

meeting of the Special Computer Attack Team (SCAT). This is his report.]

The Special Computer Attack Team is a joint federal-state organization

whose mission is to share information and resources in handling computer

crime in that region. I met with them at their invitation in Indianapolis.

I spoke for over two and a half hours, and we touched on most of the

civil-liberties issues with which EFF is concerned.

I told SCAT that perhaps the main things they'd heard about EFF is that

it was a hacker defense fund and is suing some government agents and

prosecutors. I explained that we *aren't* a "hacker defense fund," and

stressed that being alert to the issues I would raise in my presentation

is a way of minimizing the risk of a lawsuit in their cases.

We discussed the issues raised by seizing equipment. "You can't seize

equipment under a search warrant that you don't have probable cause to

believe is evidence of a crime," I said.

They responded by talking about forfeiture laws.

"Can you seize forfeitable stuff that's not evidence under an

*evidentiary* search warrant?" I asked them.

They admitted that this was improper procedure.

I went on to explain that the reason this improper procedure is almost

never questioned is that, when law-enforcement agents engage in this

kind of improper, overbroad search, the cost of litigation to recover

invariably exceeds the cost of the equipment. At present the major

remedy for overbroad searches is the Exclusionary Rule--the Supreme

Court-imposed rule that says that improperly seized evidence can't be

used in court.

But the problem is that the Exclusionary Rule is *no remedy at all* in

cases in which the government seized items that were *not* evidence.  If

you are a defendant your lawyer won't expend time and effort to seek

suppression of the "evidence" of the illegally seized laser printer if

the printer is not in fact incriminatory.

These considerations left me with making what were essentially *moral*

arguments that law enforcement should limit its seizures since from a

legal standpoint, they have few risks. "Everyone in this room has sworn

to uphold the law," I said. "Upholding the law means not seizing as

'evidence' equipment and other items that you don't have probable cause

to believe *is* evidence."

We also talked about searches of third-party non-targets.(Steve Jackson

Games is a case in point about what can go wrong in a search of a third

party). I said, "Imagine how it feels when, although you would have

gladly cooperated with an investigation if asked, the police come and

seize your BBS and shut it down." Even if they weren't worried about

about legal action, I argued, they should worry about public faith in

law enforcement when they run roughshod over law-abiding citizens.

In addition, I pointed out that duplicate computer files are admissible

as evidence under federal law, and using duplicate files is a way of

making searches less intrusive. But it was clear from the discussion

that ensued that most of the people at this meeting hated not seizing

the equipment.  They admitted that they found it "convenient" to take

computers away to examine at leisure. When I became a bit angry about

"convenience" trumping the right to a reasonable, particular search, one

of the attendees "explained" that by "convenient" he meant "necessary in

some cases."

Finally, I told the SCAT members that the law shouldn't treat a

third-party sysop differently than it treats IBM; if a subpoena is good

enough to get computer records from IBM, it's also appropriate for a

third-party sysop of a hobbyist BBS. They seemed to accept this.

Overall, I came away from the Indianapolis presentation with two

feelings.  First, I was certain that we had made a good impression on

them, that they'd found the presentation thought-provoking and

informative, that we may had won some of them over on some issues.

Second, I was depressed because I realized how few legal remedies there

are for the victims of overbroad computer seizures, be they suspects or

third parties. We have a long way to go here, complicated by the fact

that most seizure and forfeiture decisions in recent years have been

built on drug cases. I can only hope that as computer-based

communication becomes more and more part of mainstream American life,

policy makers will realize the need for new remedies and protections.

       -==--==--==-<>-==--==--==-

Dealing with A Computer

When dealing with a computer, a good rule to remember is to treat it as

you would a small, retarded (but very obedient) child. -- Bob Horton,

consultant and writer, St. Petersburg, Flordia **

       -==--==--==-<>-==--==--==-

    THE ELECTRONIC FRONTIER FOUNDATION'S FIRST ANNUAL PIONEER AWARDS

  CALL FOR NOMINATIONS

   (Attention: Please feel free to repost to all systems worldwide.)

In every field of human endeavor,there are those dedicated to expanding

knowledge,freedom,efficiency and utility. Along the electronic frontier,

this is especially true. To recognize this,the Electronic Frontier

Foundation has established the Pioneer Awards.  The first annual Pioneer

Awards will be given at the Second Annual Computers, Freedom, and

Privacy Conference in Washington, D.C. in March of 1992.

All valid nominations will be reviewed by a panel of outside judges

chosen for their knowledge of computer-based communications and the

technical, legal, and social issues involved in networking.

There are no specific categories for the Pioneer Awards, but the following

guidelines apply:

   1) The nominees must have made a substantial contribution to the

      health, growth, accessibility, or freedom of computer-based

      communications.

   2) The contribution may be technical, social, economic or cultural.

   3) Nominations may be of individuals, systems, or organizations in

      the private or public sectors.

   4) Nominations are open to all, and you may nominate more than one

      recipient. You may nominate yourself or your organization.

   5) All nominations, to be valid, must contain your reasons, however

      brief, on why you are nominating the individual or organization,

      along with a means of contacting the nominee, and your own contact

      number. No anonymous nominations will be allowed.

   6) Every person or organization, with the single exception of EFF

      staff members, are eligible for Pioneer Awards.

You may nominate as many as you wish, but please use one form per

nomination. You may return the forms to us via email to

             pioneer@eff.org

You may mail them to us at:

             Pioneer Awards, EFF,

             155 Second Street

             Cambridge MA 02141.

You may FAX them to us at:

             +1 617 864 0866

Just tell us the name of the nominee, the phone number or email address

at which the nominee can be reached, and, most important, why you feel

the nominee deserves the award.  You can attach supporting

documentation.  Please include your own name, address, and phone number.

We're looking for the Pioneers of the Electronic Frontier that have made

and are making a difference. Thanks for helping us find them,

The Electronic Frontier Foundation

              -------EFF Pioneer Awards Nomination Form------

Please return to the Electronic Frontier Foundation via email to:

          pioneer@eff.org

or via surface mail to EFF 155 Second Street, Cambridge, MA 02141 USA;

or via FAX to +1 617 864 0866

Nominee:_________________________________________________________________

Title: __________________________________________________________________

Company/Organization:____________________________________________________

Contact number or email address: ________________________________________

Reason for nomination:___________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

_________________________________________________________________________

Your name and contact number:____________________________________________

_________________________________________________________________________

Extra documentation attached: _______

    -------EFF Pioneer Awards Nomination Form------

    

       -==--==--==-<>-==--==--==-

      Designing a Computer System

Making a design change when a computer system is nearly complete will

cost about ten times as much as making the change before the work has

started. -- Clifton Royston, programmer/analyst, Nukualofa, Tonga**

       -==--==--==-<>-==--==--==-

    MEMBERSHIP IN THE ELECTRONIC FRONTIER FOUNDATION

In order to continue the work already begun and to expand our efforts

and activities into other realms of the electronic frontier, we need the

financial support of individuals and organizations.

If you support our goals and our work, you can show that support by

becoming a member now. Members receive our quarterly newsletter,

EFFECTOR, our bi-weekly electronic newsletter, EFFector Online (if you

have an electronic address that can be reached through the Net), and

special releases and other notices on our activities.  But because we

believe that support should be freely given, you can receive these

things even if you do not elect to become a member.

Your membership/donation is fully tax deductible.

Our memberships are $20.00 per year for students, $40.00 per year for

regular members.  You may, of course, donate more if you wish.

Our privacy policy: The Electronic Frontier Foundation will never, under

any circumstances, sell any part of its membership list.  We will, from

time to time, share this list with other non-profit organizations whose

work we determine to be in line with our goals.  But with us, member

privacy is the default. This means that you must actively grant us

permission to share your name with other groups. If you do not grant

explicit permission, we assume that you do not wish your membership

disclosed to any group for any reason.

---------------- EFF@eff.org MEMBERSHIP FORM ---------------

Mail to: The Electronic Frontier Foundation, Inc.

         155 Second St. #23

         Cambridge, MA 02141

I wish to become a member of the EFF  I enclose:$__________

            $20.00 (student or low income membership)

            $40.00 (regular membership)

            $100.00(Corporate or company membership.

                    This allows any organization to

                    become a member of EFF. It allows

                    such an organization, if it wishes

                    to designate up to five individuals

                    within the organization as members.)

    [  ] I enclose an additional donation of $___________

Name:______________________________________________________

Organization:______________________________________________

Address: __________________________________________________

City or Town: _____________________________________________

State:_______ Zip:________ Phone:(    )_____________(optional)

FAX:(    )____________________(optional)

Email address: ______________________________

I enclose a check [  ].

Please charge my membership in the amount of $_____________

to my Mastercard [  ]  Visa [  ]  American Express [  ]

Number:____________________________________________________

Expiration date: ____________

Signature: ________________________________________________

Date:______________________

I hereby grant permission to the EFF to share my name with

other non-profit groups from time to time as it deems

appropriate   [ ].

                       Initials:___________________________

       -==--==--==-<>-==--==--==-

   Avoiding Mistakes

When writing a software program, your chances of making a mistake double

with each telephone interruption. --R.L. Liming, Indianapolis, Indiana**

** These "rules of thumb" are from NEVER TRUST A CALM DOG and other

Rules of Thumb by Tom Parker (Harper/Collins, 1990). Reprinted by

permission of the author.

=====================================================================|

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                  The Electronic Frontier Foundation                 |

                 155 Second Street, Cambridge MA 02141               |

              Phone: +1 617 864 0665 FAX: +1 617 864 0866            |

                     Internet Address: eff@eff.org                   |

 Reproduction of this publication in electronic media is encouraged  |

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