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EFFector - Volume 8, Issue 2 - EFF Sues to Overturn Cryptography Restrictions


EFFector - Volume 8, Issue 2 - EFF Sues to Overturn Cryptography Restrictions

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EFFector Online Volume 08 No. 02     February 23, 1995
A Publication of the Electronic Frontier Foundation         ISSN 1062-9424

In This Issue:
EFF Sues to Overturn Cryptography Restrictions
EFF Opposes Scientology Censorship and Attacks on System Operators
Jefferson Ascendant: Information Technology & Decentralization
Calendar of Events
What YOU Can Do

* See or, /pub/Alerts/ for more
information on current EFF activities and online activism alerts! *


Subject: EFF Sues to Overturn Cryptography Restrictions
First Amendment Protects Information about Privacy Technologies

February 21, 1995
San Mateo, California

In a move aimed at expanding the growth and spread of privacy and
security technologies, the Electronic Frontier Foundation is sponsoring a
federal lawsuit filed today seeking to bar the government from restricting 
publication of cryptographic documents and software.  EFF argues that 
the export-control laws, both on their face and as applied to users of 
cryptographic materials, are unconstitutional.

Cryptography, defined as "the science and study of secret writing,"
concerns the ways in which communications and data can be encoded to
prevent disclosure of their contents through eavesdropping or message
interception.  Although the science of cryptography is very old, the
desktop-computer revolution has made it possible for cryptographic
techniques to become widely used and accessible to nonexperts.

EFF believes that cryptography is central to the preservation of
privacy and security in an increasingly computerized and networked
world.  Many of the privacy and security violations alleged in the
Kevin Mitnick case, such as the theft of credit card numbers, the
reading of other people's electronic mail, and the hijacking of other
people's computer accounts, could have been prevented by widespread
deployment of this technology.  The U.S. government has opposed such
deployment, fearing that its citizens will be private and secure from
the government as well as from other vandals.

The plaintiff in the suit is a graduate student in the 
Department of Mathematics at the University of California at Berkeley 
named Daniel J. Bernstein.  Bernstein developed an encryption equation, or 
algorithm, and wishes to publish the algorithm, a mathematical paper 
that describes and explains the algorithm, and a computer program that 
runs the algorithm.  Bernstein also wishes to discuss these items at 
mathematical conferences and other open, public meetings.

The problem is that the government currently treats cryptographic software 
as if it were a physical weapon and highly regulates its dissemination.  Any 
individual or company who wants to export such software -- or to publish 
on the Internet any "technical data" such as papers describing encryption 
software or algorithms -- must first obtain a license from the State 
Department.  Under the terms of this license, each recipient of the licensed 
software or information must be tracked and reported to the government. 
Penalties can be pretty stiff -- ten years in jail, a million dollar
criminal fine, 
plus civil fines.  This legal scheme effectively prevents individuals from 
engaging in otherwise legal communications about encryption.

The lawsuit challenges the export-control scheme as an ``impermissible
prior restraint on speech, in violation of the First Amendment.''
Software and its associated documentation, the plaintiff contends, are
published, not manufactured; they are Constitutionally protected works of
human-to-human communication, like a movie, a book, or a telephone
conversation.  These communications cannot be suppressed by the government
except under very narrow conditions -- conditions that are not met by the
vague and overbroad export-control laws.  In denying people the right to
publish such information freely, these laws, regulations, and procedures
unconstitutionally abridge the right to speak, to publish, to associate
with others, and to engage in academic inquiry and study.  They also have
the effect of restricting the availability of a means for individuals to
protect their privacy, which is also a Constitutionally protected interest.

More specifically, the current export control process:

  * allows bureaucrats to restrict publication without ever going to court;

  * provides too few procedural safeguards for First Amendment rights; 

  * requires publishers to register with the government, creating in 
    effect a "licensed press";
  * disallows general publication by requiring recipients to be 
    individually identified; 

  * is sufficiently vague that ordinary people cannot know what conduct 
    is allowed and what conduct is prohibited; 

  * is overbroad because it prohibits conduct that is clearly protected 
    (such as speaking to foreigners within the United States); 

  * is applied overbroadly, by prohibiting export of software that 
    contains no cryptography, on the theory that cryptography could be added
    to it later; 

  * egregiously violates the First Amendment by prohibiting private
    speech on cryptography because the government wishes its own opinions
    on cryptography to guide the public instead; and  

  * exceeds the authority granted by Congress in the export control laws 
    in many ways, as well as exceeding the authority granted by the

If this suit is successful in its challenge of the export-control laws, it
will clear the way for cryptographic software to be treated like any other
kind of software.  This will allow companies such as Microsoft, Apple,
IBM, and Sun to build high-quality security and privacy protection into
their operating systems.  It will also allow computer and network users,
including those who use the Internet, much more freedom to build and
exchange their own solutions to these problems, such as the freely
available PGP encryption program.  And it will enable the next generation
of Internet protocols to come with built-in cryptographic security and
privacy, replacing a sagging part of today's Internet infrastructure.

Lead attorney on the case is Cindy Cohn, of McGlashan and Sarrail in San
Mateo, CA, who is offering her services pro-bono.  Major assistance has
been provided by Shari Steele, EFF staff; John Gilmore, EFF Board; and Lee
Tien, counsel to John Gilmore.  EFF is organizing and supporting the case
and paying the expenses.

Civil Action No. C95-0582-MHP was filed today in Federal District
Court for the Northern District of California.  EFF anticipates that
the case will take several years to win.  If the past is any guide,
the government will use every trick and every procedural delaying
tactic available to avoid having a court look at the real issues.
Nevertheless, EFF remains firmly committed to this long term project.
We are confident that, once a court examines the issues on the merits,
the government will be shown to be violating the Constitution, and
that its attempts to restrict both freedom of speech and privacy will
be shown to have no place in an open society.

Full text of the lawsuit and other paperwork filed in the case is available 
from the EFF's online archives.  The exhibits which contain cryptographic 
information are not available online, because making them publicly available 
on the Internet could be considered an illegal export until the law is struck 
down.  The non-cryptographic exhibits and other documents including the
complaint, as well as a series of letters between Bernstein and various
government people regarding crypto export are available at:, /pub/EFF/Policy/Crypto/ITAR_export/Bernstein_case/, 1/EFF/Policy/Crypto/ITAR_export/Bernstein_case

Press contact:  Shari Steele, EFF:, +1 202 861 7700.

For further reading, we suggest:

The Government's Classification of Private Ideas: Hearings Before a
Subcomm. of the House Comm. on Government Operations, 96th Cong., 2d
Sess.  (1980)

John Harmon, Assistant Attorney General, Office of Legal Counsel,
Department of Justice, Memorandum to Dr. Frank Press, Science Advisor to
the President, Re:  Constitutionality Under the First Amendment of ITAR
Restrictions on Public Cryptography (May 11, 1978).  [Included in the
above Hearings; also online as

Alexander, Preserving High-Tech Secrets:  National Security Controls on
University Research and Teaching, 15 Law & Policy in Int'l Business 173

Cheh, Government Control of Private Ideas-Striking a Balance Between
Scientific Freedom and National Security, 23 Jurimetrics J. 1 (1982)

Funk, National Security Controls on the Dissemination of Privately
Generated Scientific Information, 30 U.C.L.A. L. Rev. 405 (1982)

Pierce, Public Cryptography, Arms Export Controls, and the First
Amendment: A Need for Legislation, 17 Cornell Int'l L. J. 197 (1984)

Rindskopf and Brown, Jr., Scientific and Technological Information and
the Exigencies of Our Period, 26 Wm. & Mary L. Rev. 909 (1985)

Ramirez, The Balance of Interests Between National Security Controls and
First Amendment Interests in Academic Freedom, 13 J. Coll. & U. Law 179

Shinn, The First Amendment and the Export Laws: Free Speech on
Scientific and Technical Matters, 58 Geo. W. L. Rev. 368 (1990)

Neuborne and Shapiro, The Nylon Curtain: America's National Border and
the Free Flow of Ideas, 26 Wm. & Mary L. Rev. 719 (1985)

Greenstein, National Security Controls on Scientific Information, 23
Jurimetrics J. 50 (1982)

Sullivan and Bader, The Application of Export Control Laws to Scientific
Research at Universities, 9 J. Coll. & U. Law 451 (1982)

Wilson, National Security Control of Technological Information, 25
Jurimetrics J. 109 (1985)

Kahn, The Codebreakers:  The Story of Secret Writing. New York:  
Macmillan (1967)  [Great background on cryptography
and its history.]

Relyea, Silencing Science: national security controls and scientific 
communication, Congressional Research Service.  Norwood, NJ: 
Ablex Publishing Corp. (1994)

John Gilmore, Crypto Export Control Archives, online at

EFF Crypto Export Control Archives, online at, /pub/EFF/Policy/Crypto/ITAR_export/, 1/EFF/Policy/Crypto/ITAR_export


Subject: EFF Opposes Scientology Censorship and Attacks on System Operators

An Open Letter to the Church of Scientology (CoS) and the Net 
from the Electronic Frontier Foundation (EFF)

Over the past several days, the Electronic Frontier Foundation
has received several reports from system administrators and
others about threats of lawsuits they have received from
attorneys for the Church of Scientology and the closely
associated Religious Technology Center and Bridge Publications,
Inc.  These threats apparently are designed to convince sysadmins
to discontinue the carriage of certain newsgroups that involve
discussions of the Church of Scientology and its teachings, solely
on the ground that some of the messages sent through these
newsgroups allegedly involve infringements of CoS copyrights or
other intellectual property rights.

EFF has also received a letter from CoS stating that it would
not use the threat of lawsuits against sysadmins if there were
any other way to deal with allegedly wrongful messages.

EFF believes there is a better way to deal with allegations of 
wrongful messages -- and that using the threat of litigation to 
shut down entire newsgroups, or to persuade sysadmins who
have not originated any allegedly wrongful messages to shut down 
newsgroups, is itself highly inappropriate.

Electronic communications are in their infancy, and most of the
providers are not big corporations with substantial funds to
spend on expensive litigation, but rather small operators who
cannot afford protracted litigation, even if they are in the
right.  The mere threat of a lawsuit could result in some sysadmins 
refusing to carry all sorts of contentious newsgroups simply because 
they could not afford to put on a case to show that they should not 
be held responsible for another party's alleged wrong.  

Rather than attempting through threats of lawsuits to induce 
innocent sysadmins to censor speech, Church members are 
encouraged to participate in Usenet discussions to make their views 
known and refute erroneous posts -- in other words, to answer 
allegedly wrongful postings with more speech.  As U.S. Supreme Court 
Justice Louis Brandeis articulated in 1927: "If there be time to 
expose through discussion the falsehood and the fallacies, to avert 
the evil by the processes of education, the remedy to be applied is 
more speech, not enforced silence."  If CoS claims that a
copyright violation or other wrong not remediable by speech has
been perpetrated by a particular person, then it should confine
its legal threats to that person -- not direct them at an innocent
sysadmin who did no more than forward a message, and certainly 
not at the innocent participants of a newsgroup seeking to exchange 
views through the newsgroup channel. Even if CoS cannot determine 
the identity of the person perpetrating an alleged wrong against it, 
that provides no excuse for cutting off the free flow of information 
over the net.

Events like these show us how important it is to search for new
paradigms for handling disputes that arise from time to time. 
We think the better way to handle this dispute would be to
submit the claims and counterclaims to arbitration or
mediation, perhaps in a proceeding conducted over the net
among the parties to the newsgroup discussion. EFF offers its
services to help find an appropriate mediator or arbitrator
who would be available online for this purpose. Any party to
this dispute that refused to participate in such a forum would,
of course, have to explain why it had done so if a case were
brought in a more traditional court.

Meanwhile, we urge CoS to leave the innocent sysadmins out of
their fight.  We urge CoS not to take actions designed to cut off
the free flow of information through the net.  Where there are
legitimate disputes about particular messages or the wrongful
actions of particular individuals, those can and should be
addressed -- perhaps most efficiently through the new
communications medium itself.


Since this letter was written, CoS obtained a search warrant and raided 
the home of Dennis Erlich, a former CoS minister, whom CoS accuses of 
copyright violations.  Erlich believes his rights to have been violated 
in several ways (e.g. CoS allegedly damaged his computer equipment and
deleted files in the course of the raid).  CoS also obtained restraining 
orders against not only Erlich but also Erlich's Internet access 
provider, BBS sysop Tom Klemesrud, and Klemesrud's own service provider, 

EFF sought and found pro-bono legal representation for Klemesrud, and
is still seeking counsel for Erlich.

CoS has filed a lawsuit against Erlich and both service providers, 
seeking damages compensation of $120,000 per infringement.

In a Feb. 21 hearing, Klemesrud and Netcom were successful in 
having restraining orders against them lifted.

In a related incident, CoS was able to convince the Finnish authorities 
to present anonymous remailer operator Johan (Julf) Helsingius with a 
search warrant that allowed them to force Helsingius, who operates one of 
the most used privacy-protecing mail servers in the world,, 
to reveal the identity of a remailer user, also accused of copyright 
violation by CoS. 

Documents from the legal cases referred to above are archived
at :, /pub/EFF/Legal/Cases/CoS_v_the_Net/, 1/EFF/Legal/Cases/CoS_v_the_Net

We currently have Klemesrud's statement, which makes a strong and very 
well-worded case for liability protection for system operators - a case 
the judge apparently agreed with, as well as Erlich's statement, which 
was made without legal represenation, but which alleges clearly that CoS
misrepresented many facts in seeking their search warrant and in 
obtaining the restraining orders.  Also archived at the above sites is 
CoS countering press release, which consists largely of ad hominem 
attacks on Erlich, as well as a sound critique of this statement by David 

Klemesud, who called the raid on Erlich "a stunning affront on First 
Amendment rights by a vile and dangerous cult masquerading as a religion",
presentated a declaration at his hearing, which states, among other things:

   Because of the nature of the bulletin board system and 
   its method of operation, it is impossible for me to
   prevent any one from accessing the bulletin board under 
   an assumed name...Thus I have no way of preventing
   Dennis Erlich, whom I know to be a subscriber to my system 
   and a frequent user of the bulletin board, from logging under
   an assume name, from changing the assumed name every three 
   weeks, etc.  Not only is it physically impossible for me to 
   do it, the technology simply does not permit it...
   The daily data throughput in and out of the BBS is rather 
   staggering...I would have to read 2,926 pages of material 
   [every day] just from my Fidonet feed alone, to check for 
   any L. Ron Hubbard copyrighted material   assuming that
   I knew how to spot what is copyrighted by L. Ron Hubbard.
   [Counting Internet and Usenet messages -] Total printed 
   pages of text in a 20 hour period: 36,138 Printed pages...
   I do not and for physical and technical reasons cannot 
   monitor message traffic on the BBS for content....
   Helena Kobrin, one of the attorney's for the plaintiffs...
   [said] she would not and could not provide me proof of 
   copyright infringement, and demanded that I censor Rev. 
   Erlich by cutting off his ability to access my BBS and
   post text messages there, and through my BBS, to the 
   Internet community...This I refuse to do.

   ...I welcome the comments of Scientologists and non-
   Scientologists, and have and will continue to take every 
   step humanly possible to protect the access of all citizens
   interested in this topic to my bulletin board and the 
   opinions expressed there...

   In my opinion the "Information Superhighway" cannot be 
   built without the active participation of small BBS's
   ...[through which] the Internet can flourish as a tool of 
   low or no cost citizen participation in democracy, 
   education and information gathering. Requiring me to censor
   all the traffic that crosses my wires, and the wires of other
   small BBS operators, is a physically impossible task, and 
   results in the shutting off of the BBS as a net access tool. 
   Sysops like me will be simply unable to put in the non-
   remunerative hours, nor will they have either the insurance, 
   or the deep pockets, to stand up to libel, copyright 
   infringement or trade secret litigation as to which they 
   bear no real blame or fault except for the fact that the 
   offending message crossed the BBS wires in a nanosecond of 
   time on the message's travel through cyberspace.

   ...In my opinion a real time monitoring requirement will 
   kill every small BBS in the world...Then you'd have 
   censorship - nothing more than a bunch of editors selecting 
   suitable "letters to the editor" with no freedom for everyone 
   to express themselves. This would be perfect for the Scient-
   ologists, as it would permit them to continue what often 
   appears to me to be a mis-information campaign, designed to 
   disguise from the public the true character of Scientology 
   while allowing them to threaten to sue...if the editors did 
   not see things their way.  The result would be the 
   elimination, or at least the chilling, of criticism of the 
   Scientology, or any other group.

   ...If I am ordered to prevent Dennis Erlich from posting 
   messages on my BBS, or if I am forced to monitor his or any
   other persons text messages or files for content, I will be 
   forced to turn the power off the system, denying service to 
   all 4,000 users, and suspend service to all 911 news groups, 
   in order to honor the injunction.  I cannot monitor the text 
   of 15,000 to 30,000 messages, or the myriad of files, that 
   come across the 12 lines of my system each day on a real time 

Netcom expressed similar sentiments, saying that cutting off the Usenet 
feed to Klemesrud to prevent Erlich's postings would censor all of 
Klemesrud's BBS users.  Netcom counsel Michael Sullivan told CoS that 
Netcom should not be held liable "to investigate each allegation of 
infringement by each subscriber to each of the bulletin boards that 
subscribe to its Internet access service," and indicated it would be 
willing to defend itself in court if necessary.

Erlich has noted that the raid on his home was not conducted with a US 
marshal present, as is the usual procedure, and challenges the legality 
of the seizure on several grounds, including possibly authorized 
alterations in pen to the writ of seizure. Erlich's declaration to Judge 
Whyte stated:

   At 7:30, on the morning of February 13, 1995...[e]scorted by 
   the Glendale Police Officer Steve Eggett..., six unidentified 
   individuals entered my home and told me that I would have to 
   cooperate with a search and seizure directed by your honor. 
   They presented me with a stack of legal documents about six 
   inches thick to prove their right to do so.  I protested the
   legality of the raid, and was told in no uncertain terms, that
   if I resist, force would be used against me.  I was not 
   permitted to have an attorney present before they proceeded...

   None of the remaining people would show me identification, 
   despite my asking repeatedly.

   I was left for the rest of the six hour search and seizure, 
   with an in-house attorney for the scientology cult (Small), 
   a private investigator working for the cult (Robert Shovlin), 
   2 armed, off-duty officers working for the scientology 
   lawyer (Off. Mark Fronterotta and Sgt. Ed Eccles) and another
   dozen or so scientologists ransacking my property, including 
   the plaintiff, Warren McShane.  The scientologists went through
   my computer, all my papers, every closet, every drawer.  They 
   busted open a door to my garage and, I assume, searched my car.
   They also photographed every nook and cranny of my house.

   I believe that they deliberately mislead you in obtaining 
   the writ. They then misused your authority by executing it 
   in such a way as to invade every bit of my privacy they had 
   not previously stolen from me.

   During the search, the files on my hard drive were deleted 
   and the entirety of the data on my disk was copied onto two 
   250 mb Colorado back-up tapes the scientologists brought with 
   them into my house.  Also, after their raid, I was missing a 
   key to my house, my current bank statement and a tape with 
   several of my copyrighted songs recorded on it...

   After several hours the press arrived and began recording 
   the scene. At first the scientology agents said that the 
   press was not allowed in.  I invited them in anyway and the 
   scientologists fell back and seemed to try to finish up and 
   get out of my house more quickly. When they were ready to 
   depart, neither they (the scientologists), nor the other 
   Glendale Policeman, Sgt. MiKillop, whom I had summoned at 
   the end of the raid to protect my rights, would permit
   me to inventory or even look at the hundreds of disks and 
   files they had copied and were removing from my possession.  
   I begged the officer not to allow the material and files 
   to be taken without my examining the poorly inventoried items.

   After they had departed, two of my computers would no longer 
   boot properly.  They had left me with no current back-up of 
   the material they illegally deleted.  I no longer have the 
   material to use in my own defense, or to restore my disk to 
   full operation.

   In the course of carrying out your Writ of Seizure, the 
   plaintiff and their paid agents deleted and copied from my 
   computers the evidence I need to adequately defend myself 
   against the barratrous assault on my freedom of speech and 
   religion which they themselves have launched.

   I am somehow sure that this is not what you had intended.

   ...Because of the obvious bad faith displayed by the 
   plaintiff in both the manner in which the order was obtained 
   and how it was carried out, I request that your honor lift the 
   temporary restraining order against me, order the forfeiture 
   of the bond and dismiss this case immediately.

CoS's press release following the hearings stated:

   A federal judge in San Jose confirmed and extended a 
   temporary restraining order on Glendale, California resident 
   Dennis Erlich, prohibiting him from illegal posting of 
   copyrighted and trade secret religious materials to the 
   Internet computer system.


   The Church is seeking a preliminary injunction against
   Erlich which forbids him from making further unlawful
   postings of religious materials onto the Internet until
   the time of trial, violations of which will place him in 
   contempt of court.

Of course, it has yet to be determined at all that Erlich has made any
"unlawful postings" whatsoever.  The press release made many other
questionable statements and attacks on Erlich's character, while avoiding
any substantive issues, other than making statements like the following
by Helena Kobrin, CoS attorney:

   A means of control should exist whereby access operators 
   and their organizations are held responsible for what is 
   posted on the Internet.

The press release also exhorts:

   The laws of the land apply to those who use the Internet.
   This valuable resource should be used for free discussion and 
   information exchange, and not to violate the rights of others
   ...The Internet is too valuable a resource for us to allow 
   criminality to flourish on it.  Individuals like Erlich cannot
   be allowed to violate the law and threaten the freedom of all
   lawful net users.

This is particularly ironic in light of the fact that Klemesrud and 
others maintain that Scientologists not only forged cancellations for 
several Usenet messages in alt.religion.scientology - an action that may 
be a violation of federal laws against interference with computer data in 
storage - but may have also been the party responsible for an abortive 
attempt to completely remove the alt.religion.scientology newsgroup from 


Subject: Jefferson Ascendant: Information Technology & Decentralization

David G. Post
Policy Fellow, Electronic Frontier Foundation
Visiting Associate Professor of Law, Georgetown University Law Center

When Newt Gingrich's House of Representatives recently set up its first 
outpost on the Internet, it chose to name it "Thomas" in honor of Mr. 
Jefferson -- a small but telling symbol of the ascendancy of the 
"Jeffersonian vision" not only in the realm of politics, but in the realm 
of high technology as well.

Jefferson and Hamilton remain the two great pole stars in American 
politics, their feud surely the longest-running in American political 
history.   The two men staked out opposing positions and battled over 
most of the great issues on which the fate of the infant Republic was 
seen to depend -- states' rights versus a strong national authority, 
agriculture versus manufacturing, legislative power versus executive 
power, free trade versus mercantilism, yeomanry versus the elite.  Their
intellectual descendants continue to do battle to this day.

To be sure, theirs was a debate about means, not ends: both men were 
deeply committed to the republican ideal, to the legitimacy of only those 
governments grounded upon the consent of the governed, and to the primacy 
of individual liberty in the constellation of natural rights.  But they 
held fundamentally different views about the nature and the proper 
exercise of governmental power and the manner in which governmental power
could best be brought to bear so as to secure that liberty.

For Jefferson, power was always a corrupting force, and concentrations of 
power were always to be avoided lest the Republic founder:

          "What has destroyed liberty and the
          rights of man in every government
          which has ever existed under the
          sun?  The generalizing and
          concentrating all cares and powers
          into one body, no matter whether of
          the autocrats of Russia or France, or
          of the aristocrats of a Venetian

Diffusion and decentralization of power were the touchstones of the 
Jeffersonian philosophy.  Jefferson was, in his own words, "not a friend 
to a very energetic government," finding it "always oppressive" in that 
it "places the governors indeed more at their ease, at the expense of the 
people."  The government he sought, as he declared in his First Inaugural 
Address, was one "which shall restrain men from injuring one another 
[but] which shall leave them otherwise free to regulate their own pursuits 
of industry and improvement, and shall not take from the mouth of labor 
the bread it has earned."  Because "men are disposed to live honestly,
if the means of doing so are open to them," they required little 
direction from central authority to manage their affairs:  "Were we 
directed from Washington when to sow, and when to reap, we should soon 
want bread," he observed, later adding, in a letter to his friend Gideon 
Granger, that "when all government, domestic and foreign, in little as in 
great things, shall be drawn to Washington as the center of all power, it 
will render powerless the checks provided of one government on another, and
we will become as venal and oppressive as the government from which we 
To Hamilton, this was all anarchy and riot, a "dance to the tune of 
liberty without law," put forth by "never to be satiated lovers of 
innovation and change."  Power tends to corrupt, to be sure; but "the 
possibility of abuse is no argument against the thing," and "too little 
power is as dangerous as too much."

          "History is full of examples, where
          in contests for liberty, a jealousy of
          power has either defeated the
          attempts to recover or preserve it in
          the first instance, or has afterwards
          subverted it by clogging government
          with too great precautions for its
          felicity, or by leaving too wide a
          door for sedition and popular
          licentiousness.  In a government
          framed for durable liberty, not less
          regard must be paid to giving the
          magistrate a proper degree of
          authority, to make and execute the
          laws with rigor, than to guarding
          against encroachments upon the
          rights of the community.  As too
          much power leads to despotism, too
          little leads to anarchy, and both
          eventually to the ruin of the people.
          . . . "

Against the Jeffersonian position that the best government was the least 
government, Hamilton counterpoised a strong central government controlled 
by an executive officer commanding broad powers, an efficient government 
which "through the medium of stable laws, shelters and protects, the 
life, the reputation, the prosperity, the civil and religious rights of 
every member of the community."
It is hardly surprising that Jefferson has been adopted as the patron 
saint of the new Republican congressional majority, which invokes his 
spirit at every turn, but it might come as something of a shock to 
Jefferson himself, the great defender of the agrarian way of life, that 
his vision has taken root in the new technological wonderland of 

The decentralizing effect of information technology is one of the truly 
startling developments of the late 20th century.  As Peter Huber observes 
in his book "Orwell's Revenge," Orwell got all the details right in 1984 
but erred with the fundamental premise: that technology would inevitably 
concentrate power in the hands of the few and lead to an expansion of 
mechanisms of centralized, totalitarian control.  Circumstances 
surrounding the downfall of the Soviet Union alerted us all to the 
alternative possibility that the widespread availability of everything 
from telephones, fax machines, and CNN broadcasts might make it
more, not less, difficult for the State to maintain its control
over information and the levers of centralized control.
And the emergence of the global Internet further illustrates, and will 
accelerate, this trend.  On the Internet there is no centralized control 
of any kind, no governing authority that can impose its own vision of the 
good on the colonists of the new territory.  Information roams freely, 
literally at the speed of light; because no one owns or operates this 
network, which anyone with a computer and access to a telephone line can 
hook into, no one has the power to set uniform rules of conduct.
Washington is only now discovering just how difficult imposition of its 
rules on a decentralized network can be.  The federal government's 
ill-fated "Clipper Chip" initiative is symptomatic.  Concerned about the 
possibility that powerful encryption software would fall into the hands 
of terrorists or other malfeasants, allowing them to shield their 
communication from governmental eavesdroppers, the federal government 
proposed a requirement that all encryption software had to use a 
government-approved algorithm that would allow back-door law-enforcement
entry.  They were persuaded to withdraw the proposal by the outcry from 
the Internet community itself, and from businesses hoping to serve a 
growing international market, and, finally, by a recognition of the 
futility of trying to legislate in the usual heavy-handed fashion when 
thousands, and possibly hundreds of thousands, of copies of the offending 
programs have been distributed (and continue to be available) over the 

And if, as many have suggested, cyberspace metaphorically resembles the 
Wild West -- a place where the inhabitants set (and enforce) their own 
rules in the face of an inefficacious central government -- well, we have 
a good idea how the Jeffersonians and Hamiltonians among us are likely to 
react, inasmuch as their two forebears already squared off on the 
question of settlement of the non-metaphorical Wild West, i.e. on 
expansion into the "Western" territories (of Kentucky, Ohio, etc.).  
For his part, Hamilton despaired of the central government's ability to 
maintain control over settlements in the western territories:

          "The western region [is] not valuable
          to the United States for settlement. .
          . . Should our own citizens, more
          enterprising than wise [!], become
          desirous of settling this country, and
          emigrate thither, it must not only be
          attended with all the injuries of a too
          widely dispersed population, but by
          adding to the great weight of the
          western part of our territory, must
          hasten the dismemberment of a large
          portion of our country, or a
          dissolution of the Government."

Hamilton spoke from bitter personal experience; one of the great crises 
faced during his tenure as Secretary of the Treasury was the Whisky 
Rebellion, the refusal of settlers in the "western region" to pay the 
newly-imposed federal levy on distilled spirits, and Hamilton himself was 
forced to lead the militia into battle to ensure efficient projection of 
federal power as the westward expansion proceeded. 

Jefferson, on the other hand, foresaw a flourishing "empire of liberty" 
on the western frontier, a place where the "utmost diffusion of power" 
could take root and where "new sources of renovation" would serve as a 
safety valve against the despotic tendencies of the national government, 
renewing the spirit of liberty "should its principles, at any time, 
degenerate in those portions of our country which gave them birth."
Surely, were Hamilton to log on today, he would indeed find the anarchy 
and "public licentiousness" he railed so frequently against -- a 
cacophonous international debate with a million voices on everything from 
copyright policy to scientology to the best ways to play Doom II, an 
unregulated and largely unregulatable collection of everything from the 
Federalist Papers to video clips of people having sex with animals.  But 
the millions who continue to flock there are finding something that looks 
more like a place where Jefferson's fundamental democratic value -- "free
communication among the people, which has ever been justly deemed the 
only effectual guardian of every other right" -- reigns without 
interference.  The sage of Monticello, one suspects, is smiling broadly. 


Subject: Newsbytes

* EFF, CTD, VTW and other orgs. to oppose Exon bill

Sen. Exon's "Communications Decency Act", which threatens to criminal
a staggering number of online service users and operators, will be
opposed by a coalition of civil liberties organizations, including 
EFF.  More details in next issue.  See the "What YOU Can Do" section
of this newsletter for info on how to show your opposition to this
censorship bill today.

* Icelandic Freedom of Expression Threatened

The new coalition Icelandic Center for Human Rights is combatting a move 
by Iceland's Parliament to amend the island nation's constitution in a 
way that will severely limit freedom of speech.  Detractors say this plan 
directly violates the Icelandic government's obligations under the World 
Conference on Human Rights agreements.

The bill would "restrict freedom of expression in order to protect the 
health and decency of the population, whatever that may mean," says activist
and journalist Sigmundur Halldorsson, who also notes that the bill is 
being proposed during a time of Parliamentary elections, and threatens to 
slip through unnoticed among the many other issues on the table and in 
the media.

See the "What YOU Can Do" section of this newsletter for more details on 
this action alert.


Subject: Calendar of Events

This schedule lists imminent EFF events, and those we feel might be of 
interest to our members.  EFF events (those sponsored by us or featuring 
an EFF speaker) are marked with a "*" instead of a "-" after the date.  
Simlarly, government events, such as deadlines for comments on reports or 
testimony submission, are marked with "!" in place of the "-" after the date.

If you know of an event of some sort that should be listed here, please
send info about it to Stanton McCandlish 

The latest full version of this calendar, which includes material for 
later in the year as well as the next couple of months, is avialable from:

ftp:, /pub/EFF/calendar.eff
gopher:, 1/EFF, calendar.eff

Feb. 20-
Mar. 16 - Online Seminar Series: the Law of Electronic Commerce; conducted
          on CompuServe by the Nat'l. Computer Security Assoc. Host:
          Benjamin Wright esq. (Note: most sessions are geared toward
          management, finance and commercial transactions).
          Contact: 1 800 488 4595 (voice, US-only), +1 717 258 1816 (voice)

Feb. 23-
     25 - The Alliance for Public Technology Annual Conference:
          Technologies of Freedom. Washington, DC
          Contact: +1 202 408 1403 (voice/TTY), +1 202 408 1134 (fax)
          Email: Ruth Holder 

Feb. 24 - New Mexico Regional Technology Business Summit, Sweeny Conv. Ctr.,
          Santa Fe, NM. Sponsored by the New Mexico Technology Consortium,
          "this day-long event is geared toward those in both large and
          small companies active in high-tech industries."
          Contact: +1 505 983 6767

Feb. 27-
Mar. 2  - ATM Year Three: The Definitive Conference on the Technology,
          Applications and Business Issues of Asynchronous Transfer Mode
          (ATM); San Jose, Calif.
          Contact: 1 800 200 4884 (voice, US-only)

Feb. 28-
Mar. 2  - NEPCON'95, "the trade show for anyone involved in electronics
          packaging, testing, assembly, design, and CAD/CAM...pick from
          over 114 seminars".  Anaheim, Calif.

Mar. 1  - Proposal deadline for Virtual Futures '95 (see May 26 below).

Mar. 2-
     5  - National STS Meeting & Technological Literacy Conf., Arlington,
          Contact: +1 814 865 3044 (voice), +1 814 865 3047 (fax)

Mar. 3-
     4  - Midwest Conference on Technology, Employment and Community,
          sponsored by the UIC Center for Urban Economic Development
          Deadline for proposals: Jan. 8, 1995
          Contact: +1 312 996 5463
          Conf. mailing list for discussion: listserv@uic, message body:
                "SUBSCRIBE JOB-TECH  " (w/o "quotes")

Mar. 5-
     8  - '95 PC Forum (incl. Local-Global Creative Tension conf.), Phoenix
          Contact: +1 212 924 8800 (voice), +1 212 924 0240 (fax)

Mar. 13-
     15 - Microcomputers in Education Conference. Arizona State University;
          Tempe, Arizona. "An opportunity to explore recent advances and hear
          about emerging technology in the educational arena."
          Contact: Pat Southwick, A.S.U., Box 870908, Tempe AZ USA 85287-0908

Mar. 14 - "Towards an Electronic Patient Record" conference, Orlando, 
          Sponsored by the Medical Records Inst.
          Contact: +1 617 964 3926 (fax only)

Mar. 15 - Deadline for proposals, ICI'95 (see Sep. 21 for conf. details.)
          Contact: +1 800 301 MIND (voice, US-only), +1 202 962 9494 (voice)
                   +1 800 304 MIND (fax, US-only), +1 202 962 9495 (fax)
          Email: Dr. Dorothy Denning 

Mar. 17 - Access, Privacy, and Commercialism: When States Gather Personal
          Information; College of Wm. & Mary, Williamsburg VA.
          Contact: Trotter Hardy, +1 804 221 3826

Mar. 27 * John Perry Barlow (EFF co-founder) seminar on "Cyberspace: the New
          Frontier",  4pm local time, NCB Auditorium, 71 Science Park Dr.,
          Singapore 0512
          Contact: Marvin Tay Eng Sin 

Mar. 27-
     30 - Geographic Information Systems '95, Vancouver, BC, Canada.
          Contact: +1 604 688 0188 (voice), +1 604 688 1573 (fax)

Mar. 28-
     31 * 5th Conference on Computers, Freedom & Privacy (CFP95), Burlingame
          /Palo Alto, Calif.  Sponsored by the Assoc. of Computing Machinery
          Featured speakers include EFF's Esther Dyson & Mike Godwin, plus
          Roger Wilkins of George Mason U., John Morgridge of Cisco Sytems,
          Margaret Jane Radin of Stanford, Willis Ware of of NAE, IEEE &
          AAAS, Phil Agre of UCSD, Stuart Baker ex- of NSA, David Banisar
          of EPIC, Chris Casey of Sen. Kennedy's office, Michael Froomkin
          of U. Miami, Phil Karn of Qualcomm, Jamie Love of TAP, Brock
          Meeks of _Inter@ctive_Week_ and _Cyberwire_Dispatch_, Lance Rose
          author of _SysLaw_, Dick Sclove of Loka Inst., Brad Templeton of
          ClariNet, Ross Stapleton-Gray of TeleDiplomacy, Glenn Tenney of
          Fantasia Systems, Kim Taylor-Thompson of Stanford U., Alan Westin
          of Columbia U., Mitch Ratcliffe of _Digital_Media_, Matt Blaze
          of AT&T Bell Labs, Kent Walker Asst. US Atty. of the Dept. of
          Justice, David Smith of EFF-Austin, Christine Harbs of Privacy
          Rights Clearinghouse, Peter Harter of NPTN, Barbara Simons of the
          US ACM, Roger Clark of Australian Nat'l. U., and many others.
          Contact: Carey Heckman, +1 415 725 7788, fax: +1 415 725 1861,
          Gopher:, "CFP95" menu item
          FTP:, /CFP95

Mar. 29-
     30 - ETHICOMP95 - Int'l. Conf. on the Ethical Issues of Using 
          Information Technology; DeMontfort U., Leicester UK.
          Contact: Simon Rogerson, +44 533 577475, +44 533 541891 (fax)

Apr. 5-
     7  - National Net '95 (Net'95), Loews L'Enfant Plaza Hotel, Washington
          DC; sponsored by Educom, ALA, ARL, CAUSE, CNI, CSN, CRA, CREN,
          FARNET, ISoc, NASULGC.  Featured speakers: Ron Brown (US Sec'y.
          of Commerce), Richard McCormick (US West), Molly Broad (CSU),
          Larry Irving (NTIA), Andrew Blau (Benton Found.), Steve Cisler
          (Apple), Marty Tennebaum (EIT/CommerceNet), Peter Lyman, Marc
          Rotenberg (EPIC/PI), + others incl. "public interest
          representatives". Sessions on the underprivileged & the NII,
          net surveillance, network challenges for business, int. property.
          Contact: Elizabeth Bernhart, +1 202 872 4200 (voice),
                   +1 202 872 4318 (fax)

Apr. 10-
     14   3rd Int'l. WWW Conference: Technology, Tools & Applications;
          Darmstadt, Germany.  Organized by Fraunhofer Inst. for Computer
          Graphics.  Feb. 15 submission deadline (for posters & demos as
          well as papers.
          Email: (?),

Apr. 26-
     29 - USAIN: Cultivating New Ground in Electronic Information Use of the
          Information Highway to Support Agriculture; Lexington, Kentucky.
          Proposals due by 12/31/94.

Apr. 27-
     29 - CCUMC (Consortium of College and University Media Centers). Utah
          State U., Logan, Utah
          Contact: +1 515 294 1811 (voice)


Subject: What YOU Can Do

* Icelandic censorship threat: Activists in Iceland are seeking 
international online community response in opposition to the threat to 
gut the intellectual freedoms guaranteed in the Icelandic constitution.

Please help to revoke the dangerous sections by showing that the 
electronic community cares about the freedom of expression in what ever 
form it may take.

Show your feelings by sending a message where you politely state that the
second half of section 73 of the amended Icelandic constitution should be 
removed in order to promote the free and unrestricted flow of ideas vital 
to any democratic society.

E-Mail to: (the chairman of the Parliamentary Committee on Foreign
Affairs, and supporter of change), and to (the Office of 
Parliament.  Please Put: ATTN: Geir H. Haarde, the Chairman of the 
Constitutional Reform Committee before your message).

Please act now as the new constitution will be voted on before the end of
February!  There has still not been set a date for debate, but it will be 

For more information, contact:
Sigmundur Halldorsson           Radio Journalist         Icelandic Broadcasting Service - Channel 2
Tel:Int+354-5693040             Efstaleiti 1
Fax:Int+354-5693678             Reykjavik, Iceland

* S314: This bill could pass in a matter of WEEKS, or be added to any 
legislation pending on the Senate floor.  Business/industry persons
concerned should alert their corporate govt. affairs office and/or
legal counsel.  Everyone should write to their own Senators and ask them 
to oppose this bill.  Explain, quickly and clearly, why this bill is
dangerous, and urge efforts to stop this legislation or revise it to fix 
its numerous problems.  S314 is Sen. Exon's "Communications Decency Act".

* HR830: This bill would horribly cripple the Freedom of Information Act,
one of the most important laws protecting citizen access to government 
information.  Again, alert your business contacts, and write, phone, and 
fax your Representatives asking them to remove the West Publishing 
special interest language in this bill.

* HOW TO FIND YOUR CONGRESSFOLKS: EFF has lists of the Senate and House with
contact information, as well as lists of Congressional committees.
These lists are available at:, /pub/EFF/Issues/Activism/Congress_cmtes/, 1/EFF/Issues/Activism/Congress_cmtes
The full Senate and House lists are senate.list and hr.list, respectively.

"If five years from now we [the FBI] solve the access problem, but
what we're hearing is all encrypted, I'll probably, if I'm still here, be
talking about that in a very different way: the objective is the same.
The objective is for us to get those conversations whether they're by an
alligator clip or ones and zeros.  Whoever they are, whatever they are, I
need them."
  - FBI Director Louis Freeh, clarifying statements that the FBI may seek
    legislation to ban strong encryption, in an Oct. 1994 interview with
    Steven Levy.

Ensuring the democratic potential of the technologies of computer-mediated
communication requires active participation in the political processes that
shape our destinies.  Government agencies, legislatures and heads of state
are accustomed to making decisions about the future of technology, media,
education, and public access to information, with far-reaching and
long-lasting effects on citizens and their lives, but are accustomed to
doing so with little input or opposition from anyone but the largest of
corporations, and other government representatives.

Now, more than ever, EFF is working to make sure that you can play an
active role in making these choices. Our members are making themselves heard
on the whole range of issues. EFF collected over 5000 letters of support
for Rep. Maria Cantwell's bill to liberalize restrictions on cryptography. 
We also gathered over 1400 letters supporting Sen. Leahy's open hearings on
the proposed Clipper encryption scheme, which were held in May 1994.  And
EFF collected over 90% of the public comments that were submitted to NIST
regarding whether or not Clipper should be made a federal standard. 
Additionally, EFF has worked for the passage of legislation that would
ensure open access to the information infrastructure of today and tomorrow,
and continues to provide some of the best online resources on privacy,
intellectual freedom, the legalities of networking, and public access to
government representatives and information.

You *know* privacy, freedom of speech and ability to make your voice heard
in government are important. You have probably participated in our online
campaigns and forums.  Have you become a member of EFF yet?  The best way to
protect your online rights is to be fully informed and to make your
opinions heard.  EFF members are informed and are making a difference.  Join
EFF today!

For EFF membership info, send queries to, or send any
message to for basic EFF info, and a membership form.



EFFector Online is published by:

The Electronic Frontier Foundation
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Editor: Stanton McCandlish, Online Services Mgr. 

Reproduction of this publication in electronic media is encouraged.  Signed
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Back issues are available at:, /pub/EFF/Newsletters/EFFector/, 1/EFF/Newsletters/EFFector

To get the latest issue, send any message to (or, and it will be mailed to you automagically.  You can also get
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