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EFFector - Volume 1, Issue 3 - Case Updates, by Mike Godwin

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***           EFF News #1.03  (March 7, 1991)            ***
***       The Electronic Frontier Foundation, Inc.       ***
***                        Welcome                       ***
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Editors:  Mitch Kapor  (mkapor@eff.org)
          Mike Godwin  (mnemonic@eff.org)

REPRINT PERMISSION GRANTED: Material in EFF News may be reprinted if you
cite the source.  Where an individual author has asserted copyright in
an article, please contact her directly for permission to reproduce.

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***            EFF News #1.03: EFF update                ***
***                   By Mitch Kapor                     ***
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EFF Report
Compiled by Mitch Kapor
1/15/91 - 2/28/91


*** CASE UPDATES, by Mike Godwin***
	
Len Rose 

	EFF's support and Mitch's independent funding of Len's defense 
have led to good results. Our efforts have limited the extent to which 
Len is being made an example of, and the extent to which he can be 
used as justification for increased law-enforcement activity in this area. 
Had we not intervened in Len's support, it seems likely not only that 
he would have faced far harsher penalties after a plea bargain or trial, 
but also that bad law would have been made by his federal and state 
cases.


Acid, Optik, and Scorpion

	"Acid Phreak" and "The Scorpion" received preindictment 
letters from federal prosecutors in New York, while "Phiber Optik" was 
indicted by a state grand jury. Phiber's case has been resolved; he pled 
guilty to a misdemeanor count, and at this writing his sentence is 
expected to be limited to community service when he is sentenced on 
April 4. 

	EFF has chosen not to become involved in these cases at this 
early stage, primarily because it is unclear whether the cases will raise 
important Constitutional or civil-liberties issues, but we are tracking 
them closely.


Washington v. Riley

	Although we initially favored involvement in this case, EFF's 
legal committee later decided that prudent management of our 
financial and legal resources dictated that we withhold our formal 
involvement here. This case raises important issues, but control of our 
costs and management of our time has forced us to make some hard 
decisions about investing in new cases, and in this light we determined 
that this case would not represent the best investment of our limited 
resources.

	We have remained in touch with Riley's attorney, however, and 
we have offered to act informally as a legal and technical resource for 
her to the extent it does not detract from our work on other projects; 
she has accepted our offer.


Other

	Other important legal matters are currently receiving 
considerable attention.  Because these are of a sensitive nature, we will 
not be able to disclose details until some time in the future.  Please bear 
with us.


*** LEGAL CASE MANAGEMENT, by Mitch Kapor ***

	On February 6,  Harvey Silverglate, Sharon Beckman, Tom 
Viles, and Gia Baresi (all of Silverglate and Good), Mike Godwin, and I 
all had dinner together at Harvey's house.    We reached a number of 
important conclusions about improving the effectiveness and reducing 
the cost of the legal programs of the foundation. 

	S&G want are willing to allocate additional people to the EFF 
account in order to have some extra capacity to handle peak loads.  
Tom Viles will be working with us.  He's very ACLU-knowledgeable.  
He is serving on a national ACLU committee which has just 
recommended that the ACLU take a position on national info 
infrastructure. 

	S&G sees EFF as being its ongoing client, as opposed to their 
usual mode of operation which is to represent an individual or 
organization for a particular case.  In essence,  S&G is becoming the 
EFF's outside litigation counsel.  With both parties located in Boston, it 
will make coordination more convenient and less expensive.  They 
have also agreed to work at a very large discount from their usual 
client fee schedule.
	
	We discussed streamlining the legal review process.  Everyone 
felt that it's wasteful and inefficient to have several lawyers looking 
into each possible new case and to have conference calls for making 
decisions.  Mike and Sharon are going to prepare a joint plan on how 
we will manage the legal process efficiently.  Now that there are fewer 
parties involved and that all of the lawyers are in town, it should be 
simpler. 	 	


*** LEGAL AND POLICY PROJECTS, by Mitch Kapor ***

Sysop liability

	We are engaged in an internal discussion about the limits of 
sysop liability. We hope to build a consensus on what the law should 
be in this area in order to provide a philosophical framework for 
whatever action we choose to take in current and future BBS seizure 
cases. 


Massachusetts Computer Crime Bill

	We are once again working with the Mass. Computer Software 
Council in an effort to pass a progressive computer crime bill which 
protects civil liberties as well as security interests.  Two different bills 
have been filed: one is our bill, while the other has serious problems of 
overbreadth.  Sharon, Mike, and I are all working on this.  Sharon has 
prepared testimony which will be used in public hearings nest week.  
There will be a series of briefings for legislators and other other parties 
as well.


Guidelines for Computer Search and Seizure

	Previously Terry Gross and Nick Poser of Rabinowitz, Boudin 
had developed a series of guidelines for the conduct of computer-based 
searches for an ABA sub-committee working on this issue.  
Subsequently, Mike Godwin revised those for a paper and presentation 
to be given at the Computer Virus conference upcoming shortly.  At 
the recent CPSR Policy Roundtable, it became apparent that we needed 
to take more of top-down approach in order to gain adoption and 
implementation of these guidelines by federal and state law 
enforcement agencies.

	We are now in the process of structuring an important project, 
to be led by Mike, which will target the FBI and other key agencies for a 
series of events to formally develop and present our finding and 
recommendations.  Jerry Berman of the ACLU has offered to assist us 
in navigating our way through the bureaucratic maze in Washington.


Computer Bulletin Boards, Computer Networks, and the Law

	In addition to the computer crime bill work and development of 
search guidelines, the third major legal project is to develop a position 
on the legal issues surrounding computer bulletin boards.  There has 
already been a great deal of discussion about this issue on the net on 
the Well's EFF conference.  There have been a small number of law 
papers published on the subject as well.  Nothing to date though has 
offered a comprehensive proposal as to how to  place  BBSes and 
network carriers in the same legal framework as print publications, 
common carriers, and broadcasters.

	This project, which will involve a collective effort of all EFF 
principals, and which is being driven by Mike, will seek to identify both 
the fundamental common aspects  and  differentiating attributes  of 
digital computer media as compared with their predecessors.  This will 
be done in order to propose basic approaches to issues of government 
censorship, rights and restrictions  of private network carriers and 
system operators to control content ("private" censorship) and 
liabilities of system operators and users for activities and 
communication using network facilities.

	This is an ambitious undertaking, which will commence with a 
formal issues development process, the deliverable of which will 
initially take some written form such as a published paper or position 
statement.  We will attempt to incorporate input from many groups in 
this process in order to develop a consensus.

	As a starting point, I offer the notion that a computer bulletin 
board ought to be treated as a legal hybrid.  For certain purposes, e.g., 
the right of the publisher to be free from government censorship of 
content, it should be treated as though it were a print publication.  But 
a BBS operator should have less liability for the content of the board 
than the publisher of a magazine.  In many cases it is simply 
impossible, given the volume of posting, for a sysop to review new 
postings in advance.  The principled way to defend such a hybrid 
approach would be to show that the elements of the legal treatment 
desired are related to the particular attributes of the system itself and 
reflect, in each case, a desirable public policy goal.

	The ACLU is beginning to take an interest in this area. We will 
work cooperatively with them.


Other

	There are other worthwhile projects competing for attention as 
well.  In an informal feedback session to the EFF held at the CPSR 
Roundtable, there was a great deal of interest in a project to educate 
users of computers networks about their rights and responsibilities.  
There is also interest in understanding successful techniques in the 
self-management of "virtual communities" which lessens the necessity 
for external sanctions.   My current judgment is that our "policy 
research" plate is already full and that undertaking these or other 
subjects will have to be deferred.  

CPSR FOIA Requests  

	Mike Godwin attended a meeting in Washington between 
representatives of the Secret Service and David Sobel and Marc 
Rotenberg of CPSR. This meeting, initiated by the Secret Service, took 
place for the purpose of helping the agency define the scope of CPSR's 
two FOIA requests concerning, respectively, Sundevil and non-
Sundevil computer-crime investigations by the Secret Service. Mike 
took part in the discussion, and is supporting CPSR's FOIA effort by 
seeking privacy releases from individuals who may be named in the 
files CPSR is seeking. 

The EFFECTOR

	The first issue of the EFFector print newsletter is at the printer.  
Gerard van der Leun contributed much time and energy to seeing this 
through.  I think we will all be very pleased with its maiden voyage.  
EFFector is aimed at an audience not already assumed to be intimately 
familiar with issues on the electronic frontier.  

	The newsletter will be distributed to people on our mailing list 
who have sent us postal  addresses, every Well subscriber, and all 
participants at the Computers, Freedom, and Privacy conference.  We 
are printing about 10,000 copies.

	The production values are very professional without looking 
too slick or glitzy.  (Gerard was able to persuade a graphic designer to 
develop the format and design the first issue for virtually nothing).  I 
think it communicates our basic concerns and positions quite well.  
There is a piece by Barlow on the origins of the EFF.  I have my "Why 
Defend Hackers" article.  There are features on "20 Things You Can Do 
to Advance the Electronic Frontier" culled from postings on the Well, 
a Washington update by Marc Rotenberg, and many other worthwhile 
items.

	We are aiming for a four times yearly publication frequency.  
Beginning with issue two we will work out a subscription / 
membership plan and arrangement.


EFF NEWS

	Mike published issue 1.02 of EFF News which contained excerpts 
from a dialog on the Well about searches and seizures, reader 
responses to our article on Prodigy, and an announcement of the CFP 
conference.


EFF Host System

	The system is now fully connected to the Internet.  Mike and I 
are using some better tools for managing mail and news which are 
having a major payoff (for me at least).


Director of Communications Job

	A job description for this position was circulated on the net and 
to people whom I thought were likely to know good candidates.  So far 
I have received about 25 inquiries, which exceeded my expectations.  I 
expect to follow up on this matter intensively this week.  At the same 
time, Gerard van der Leun and I are discussing ways he can be 
substantively involved in the EFF's publication and public education 
activities.  Gerard has drafted a detailed plan of attack (strategy and 
tactics) for the director of communications.


Online Services


	Comp.org.eff.talk has reached critical mass as a Usenet 
newsgroup, with discussions proceeding autonomously. Mike has been 
following the newsgroup, occasionally contributing to the discussions 
and answering questions, but allowing the group to take its own 
directions.

	The Telecom Forum on Compuserve has opened with an EFF 
section.  Documents for the data library have been ported from the EFF 
Host.  Scott  and Marilyn Loftesness are the hosts.  EFF Well 
participants with Compuserve accounts have been alerted and 
encouraged to drop in.

	John and I will be appearing on a live Genie conference on 
Sunday May 12th at 9 P.M.  Tom Sherman organized this.


Publications Plan

	Gerard van der Leun has been developing a strategic plan for an 
EFF publications department.  I share here some of his thoughts.

	Purposes of EFF electronic and print publications:

-	to spread the word about the EFF
-	to alert the membership and the media to activities of the EFF
-	to increase active and supporting membership
-	to persuade and enlighten those who do not currently support 
the EFF
-	to argue persuasively for the positions of the EFF
-	to cover costs of all publications thru donations or sales of 
materials

	In addition to the print and online projects you are familiar 
with, he suggests we use brochures and pamphlets to create an impact.  
"Crime and Puzzlement" could be transformed into an informative 
short item which would provoke reflection of the part of many people.  
It and other items would be published ad hoc and used as part of 
membership packages and as handouts at key conferences and 
computer shows.

	Gerard's work will give whoever fills the Director of 
Communications role a big jump start.


CPSR Policy Roundtable 

	The event was a great success.  We encountered the FBI face-to-
face in the person of Al Bayse.  This prompted us to work toward 
developing some concrete material on how the FBI and other law 
enforcement agencies could conduct computer-based investigations 
and searches more effectively and in a way which is fully respectful of 
civil liberties.


"Freedom and Responsibility on Computer Networks"

	The Computer Science and Telecommunications Board (CSTB) 
approved my proposal to hold a strategic forum in the area of freedom 
and responsibility on computer networks.  The proposal now must be 
approved by the higher-ups at the National Research Council, but this 
is more or less a formality.  The forum will consist of an invitational 
workshop and a public forum on these issues.  There will be some sort 
of report or publications produced at the end of the process which will 
bear the imprimatur of the National Academy of Science, whose 
findings carry a lot of weight in Washington.  I expect to serve on the 
steering committee of this project.

FINANCIAL

501c3 Application

	We were contacted by the IRS for routine followup information 
on our application.  We responded promptly.  It is usual that once 
applications reach this stage of active consideration they move through 
the pipeline quickly.  I am cautiously optimistic that we will have our 
tax-deductible status granted in March or April.

Membership and Fundraising

	Once we receive our tax-deductible status, we will be in a better 
position to conduct an active fund-raising program.  It is a high priority 
for the Board to set a strategic direction for the long-term financial 
support of EFF once the seed funding runs out in mid-1992.  We have 
to consider a wide range of alternatives which include individual and 
corporate donations, a membership campaign, and other creative 
alternatives.


ARTICLES AND APPEARANCES

Scientific American

	I will be writing a 3500 word article with the pseudo-title "Civil 
Liberties in Cyberspace" for the September issue of Scientific American.  
This is to be a single topic issue devoted entirely to computers and 
computer networks.  I intend to provide an overview of the civil 
liberties issues we are confronting on the electronic frontier.


American Bar Association

	The ABA held their mid-year meeting in Seattle on February 
10th.  I appeared on a panel concerned with the future of the Bill of 
Rights and spoke to civil liberties issues on computer networks.  The 
turn-out at this event was modest, as was the impact, and I would not 
repeat it.


PSI Tech

	On February 15th I spoke about the EFF to the PSITech user 
group.   PSI is a commercial TCP/IP internetworking company. 
Attendees included system managers from NYU, Columbia, and other 
NYC area universities and research institutions.


National Council of Churches of Christ

	During the same trip in which Mike attended CPSR's meeting 
with the Secret Service, he also spoke at a New York meeting of the 
National Council of Churches of Christ, at their invitation. The 
audience, which was composed of members of several technically 
oriented subcommittees of this ecumenical organization, and they 
listened with interest as Mike discussed the social and civil-liberties 
implications of computer-based communications. The NCCC already 
sponsors a network called "ECUNET," so there was interest in how this 
network might serve as the basis for an online virtual community. 

Whole Earth Review

	Mike Godwin has written both a review of Tom Forester's 
computer ethics book and a short article on EFF and electronic 
communities for an upcoming issue of  Whole Earth Review.


Stanford

	Wednesday, January 30th.  I spoke to Dennis Allison's class.  The 
speech was broadcast over the Stanford campus and industry affiliate 
TV network.


UPCOMING EVENTS

Esther Dyson Personal Computer Forum

	Tuscon, March 12.  John Barlow will be speaking to the 
luminaries of the PC industry about the EFF.  Mitch will be attending.


Computer Freedom and Privacy Conference

	Upcoming March 25-29 in San Fransisco.  Mitch, Mike, John, 
Harvey Silverglate, and Sharon Beckman are all planning on 
attending.  The EFF will be sponsoring Craig Neidorf, Steve Jackson, 
and Optik (partial support).


American Society for Industrial Security

	Washington, D.C. April 17th.  Speech by Mitch.


Xerox PARC

	On 3/29 John and I will be speaking at Xerox PARC.


Boston Computer Society

	I will be speaking to the Telecommunications user group about 
the EFF on Monday April 22nd.


Asilomar Microcomputer Conference

	On April 24-26, I will be attending and speaking about the EFF.  
John is also attending.  Asilomar is an invitational event sponsored by 
the IEEE which is a small, informal, interactive forum for people 
involved in the design and applications of microcomputers.  


Federal High-Tech Crime Investigation Committee

	At the invitation of Gail Thackeray, I will be appearing in 
Tuscon at a meeting of this committee in June.  The committee 
consists of about 35 law enforcement professionals from various 
federal agencies.


From John Barlow:

	'April Fool's Day: (appropriately) I  will be banquet speaker at the  
Multimedia Roundtable in Los Angeles.  I will  talk about "thickening  
Cyberspace", the process by which we introduce a greater sense of  
presence to the digital domain and  will take up a number of the issues  
relating to EFF. I'm also part of an Intellectual Property panel the  
next day.

	'April 16: I will orate over more digestion at the Annual 
Conference on High Speed Computing in Salashan, Oregon. Title of the
speech is  "Civilizing Cyberspace." The themes will be as familiar as the  
phrase, but may be news to some of these boys.

	'April 20: I will be speaking at the 2nd Conference on Cyberspace 
in Santa Cruz on the usual stuff.

	'May 7: I will give the keynote at the Department of Energy's 
Computer Security Group Annual meeting in Concord, California.

	'June 4: Same deal for the Pacific Military Computer Conference 
in Hawaii.

	'And so on and so forth.

	'Somewhere in there I hope to get a book finished too.'






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USENET readers are encouraged to read this publication in the moderated
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here is found in comp.org.eff.talk.

This publication is also distributed to members of the mailing list
eff@well.sf.ca.us.

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The EFF has been established to help civilize the electronic frontier;
to make it truly useful and beneficial to everyone, not just an elite;
and to do this in a way that is in keeping with our society's highest
traditions of the free and open flow of information and communication.

EFF News will present news, information, and discussion about the world
of computer-based communications media that constitute the electronic
frontier. It will cover issues such as freedom of speech in digital
media, privacy rights, censorship, standards of responsibility for users
and operators of computer systems, policy issues such as the development
of national information infrastructure, and intellectual property.


Views of individual authors represent their own opinions, not
necessarily those of the EFF.

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