Computer underground Digest Sun Nov 12, 1995 Volume 7 : Issue 89
ISSN 1004-042X
Editors: Jim Thomas and Gordon Meyer (TK0JUT2@MVS.CSO.NIU.EDU
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Field Agent Extraordinaire: David Smith
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #7.89 (Sun, Nov 12, 1995)
FIle 1--Religious Right Threatens to Shut Down Net: Call NOW
FIle 2--VTW BillWatch #23: Digital Telephony overview
FIle 3--FW: RE: letter to Congress
FIle 4--Cu Digest Header Info (unchanged since 5 Nov, 1995)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
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Date: Mon, 6 Nov 1995 13:43:13 -0500
From: ACLUNATL@AOL.COM
Subject: FIle 1--Religious Right Threatens to Shut Down Net: Call NOW
Here are the advocacy instructions for individuals opposed to the Federal
Online Indecency Legislation that we promised last week.
========================================================================
CAMPAIGN TO STOP THE EXON/COATS COMMUNICATIONS DECENCY ACT
(SEE THE LIST OF CAMPAIGN COALITION MEMBERS AT THE END)
Update: -Latest News:
The Christian Coalition is pushing Congress to censor
the net more heavily than even Sen. J.J. Exon ever imagined.
There is the very real possibility that they may succeed.
You should be very worried. We are.
-What You Can Do Now:
Follow the directions below and call House Speaker
Gingrich and Senate Leader Dole. Implore them
to allow parents to make choices for their children, instead
of government censors.
Volunteer to join the fight by helping organize in your
home town.
CAMPAIGN TO STOP THE UNCONSTITUTIONAL COMMUNICATIONS DECENCY ACT
Nov 2, 1995
PLEASE WIDELY REDISTRIBUTE THIS DOCUMENT WITH THIS BANNER INTACT
REDISTRIBUTE ONLY UNTIL December 1, 1995
REPRODUCE THIS ALERT ONLY IN RELEVANT FORUMS
________________________________________________________________________
CONTENTS
The Latest News
What You Can Do Now
The letter from Ed Meese and the Christian Right
Chronology of the CDA
For More Information
List Of Participating Organizations
________________________________________________________________________
THE LATEST NEWS
Since the very first day that Senator J.J. Exon (D-NE) proposed censorship
legislation for the Internet, the Christian Right has pushed for the most
restrictive regulations they could think of.
The Religious Right (which does not necessarily speak for all religious
people concerned with this issue) recently tipped their hand in a letter
to Sen. Larry Pressler (R-SD) and Rep. Thomas Bliley (R-VA) requesting
a new and more restrictive net censorship proposal.
There are essentially three new dangerous elements of their campaign
to shut down cyberspace:
INTERNET PROVIDERS, ONLINE SERVICES, AND LIBRARIES CRIMINALLY LIABLE FOR
EXPRESSION ONLINE
The Religious Right has proposed to hold anyone who provides access to the
Internet or other interactive media, including online services providers,
ISP's, BBS's, Libraries, and Schools, criminally liable for all speech
carried on the network.
In order to avoid liability under this provision, service providers would be
forced to monitor user's electronic communications to be assured that
no "indecent" material is transmitted across their networks.
This proposal is MORE RESTRICTIVE than the Exon Communications Decency Act,
or any other net censorship legislation currently in Congress.
In their letter to Congress, the Religious Right says:
[Providers] would simply be required to avoid KNOWING violations of
the law. [emphasis added]
However, the "knowing" standard is vague enough that the mere knowledge
that such material exists could be sufficient to trigger criminal liability.
A single complaint or even a news report could force a service provider to
take down a web page, remove posts to chat rooms or other discussion
forums, or shut down listservs in order to avoid going to jail and facing
huge fines.
A STANDARD FOR INDECENCY
The proposals pushed by the Christian Coalition relies on the
unconstitutional "indecency standard". Like the Exon Communications
Decency Act, the Christian Coalition seeks to regulate all indecent
speech online.
Indecency is a broad category that includes everything from George Carlin's
"seven dirty words" to such classic novels and "The Catcher in the Rye" and
"Lady Chatterly's Lover".
The Supreme Court has ruled that restrictions on indecent speech are
Constitutional only if they rely on the "least restrictive means". Broad
indecency restrictions on interactive media do not satisfy the "least
restrictive means" test, because interactive media allows users and
parents tremendous control over the information they receive.
Any legislation which attempts to apply an indecency restriction to the
Internet is unconstitutional on its face.
The Christian Coalition's proposal that relies on an indecency
restriction contemplates dumbing down every conversation, web page,
newsgroup, and mailing list on the Internet to the level of what is
not offensive to children.
What kind of discussions between adults are possible in an arena
where everything has been reduced to the level of the Lion King?
UNPRECEDENTED CONTROL OVER ONLINE SPEECH FOR THE FCC
The Christian Coalition would give the FCC broad jurisdiction over
cyberspace. It would allow the FCC jurisdiction over your online
speech, and over the design Internet software, such as web browsers and
filtering programs that parents can use to control their children's
access to the Internet.
The Internet has developed from a government project to a market-driven
economic boom for thousands of businesses. Giving the FCC authority over
this medium would significantly hinder the growth of this new industry.
________________________________________________________________________
WHAT YOU CAN DO NOW
1. The proposals from the Religious Right will literally destroy online
speech as we know it. The odds of stopping this are not certain.
There is a very real chance that this legislation will pass, and
we will experience a period of uncertainty and chilling of speech
while an appropriate test case attempts to reach the Supreme Court
(should it even get there!)
The Religious Right has a strong grass-roots network. We need to
counter their energy and ensure cyberspace is not lost due to them.
IMMEDIATELY CALL House Speaker Gingrich (R-GA) and Senate Leader
Dole (R-KS) and urge them to oppose the Christian Coalition's
proposal.
Name, Address, and Party Phone Fax
======================== ============== ==============
R GA Gingrich, Newt 1-202-225-4501 1-202-225-4656
R KS Dole, Robert 1-202-224-6521 1-202-224-8952
If you're at a loss for words, try one of the following:
Please oppose the recent proposal from the Religious Right to
censor the Internet. The only effective way to address children's
access to the Internet is through parental control tools outlined
by the Cox/White/Wyden approach.
or
As a religious person and a parent, I oppose the Religious Right's
attempts to censor the Internet. I am the best person to monitor
my child's access to the Internet using parental control tools
as outlined in the Cox/White/Wyden approach.
2. Join the online fight by becoming a volunteer for your district!
Check to see if you're legislator is in the list below. If they are
not, consult the free ZIPPER service that matches Zip Codes to
Congressional districts with about 85% accuracy at:
URL:http://www.stardot.com/~lukeseem/zip.html
The conference committee legislators are:
House: Barr (R-GA), Barton (R-TX), Berman (R-CA), Bliley (R-VA),
Boucher (D-VA), Brown (D-OH), Bryant (D-TX), Buyer (R-IN),
Conyers (D-MI), Dingell (D-MI), Eshoo (D-CA), Fields (R-TX),
Flanagan (R-IL), Frisa (R-NY), Gallegly (R-CA), Goodlatte (R-VA),
Gordon (D-TN), Hastert (R-IL), Hoke (R-OH), Hyde (R-IL),
Jackson-Lee (D-TX), Klug (R-WI), Lincoln (D-AR), Markey (D-MA),
Moorhead (R-CA), Oxley (R-OH), Paxon (R-NY), Rush (D-IL),
Schaefer (R-CO), Schroeder (D-CO), Scott (D-VA), Stearns (R-FL),
White (R-WA)
Senate: Burns (R-MT), Exon (D-NE), Ford (D-KY), Gorton (R-WA),
Hollings (D-SC), Inouye (D-HI), Lott (R-MS), McCain (R-AZ),
Pressler (R-SD), Rockefeller (D-WV), Stevens (R-AK)
If your legislator is on the conference committee, you have a chance
to influence their vote on this issue with your power as a constituent.
Volunteer to help educate your legislator by sending mail to
volunteer@vtw.org. A coalition volunteer will be in touch with you.
You can starting working to help spread the word in your district by
sending this letter to five friends. Ask them to call Dole and Gingrich
as well.
3. The People for the American Way (PFAW) and the American Civil Liberties
Union are organizing a letter from ORGANIZATIONS to the Conference
Committee to oppose the censorship provisions.
If you are a representative of an organization that would like to
signon to this letter, you should contact jlesser@pfaw.org IMMEDIATELY.
4. We can't suggest relaxing at this point. The stakes are too high, and
the risk is too great. Everything now hangs in the balance.
________________________________________________________________________
THE LETTER FROM ED MEESE AND THE CHRISTIAN RIGHT
October 16, 1995
The Honorable Thomas J. Bliley, Jr. Chairman
Committee on Commerce
United States House of Representatives
Washington, DC 20515
The Honorable Larry Pressler, Chairman
Committee on Commerce, Science, and Transportation
United States Senate
Washington, DC 20510
Re: Computer Pornography Provisions in Telecommunications Bill
Dear Mr. Chairmen:
We are writing to urge the conference committee seeking to reconcile the
telecommunications bills passed by the House and Senate include in the
final bill the strongest possible criminal law provisions to address the
growing and immediate problem of computer pornography without any
exemptions, defenses, or political favors of any kind accorded to those
who knowingly participate in the distribution of obscenity to anyone or
indecency to children. While there is no perfect solution to the problem
of computer pornography, Congress could not hope to solve this problem by
holding liable only some who are responsible for the problem.
The recent Justice Department prosecution project targeting those who
violated federal child pornography law using America On-Line is
instructive in this regard. More than ninety individuals were targeted for
prosecution although many others, perhaps as many as 3,000 according to
one press report, were originally targeted by the Department of Justice as
potential violators of child pornography laws. Apparently due to a
shortage of investigative and prosecutorial resources, the project was
limited. Since there are insufficient resources to investigate and
prosecute but a fraction of those that are trafficking in child
pornography by computer, then there will likely be even fewer resources
available to investigate and prosecute those involved in obscenity and
indecency.
Thousands of individuals both in this country and abroad are regularly
placing obscenity and indecency on the Internet. It is not possible to
make anything more than a dent in the serious problem of computer
pornography if Congress is willing to hold liable only those who place
such material on the Internet while at the same time giving legal
exemptions or defenses to service or access providers who profit from and
are instrumental to the distribution of such material. The Justice
Department normally targest the major offenders of laws. In obscenity
cases prosecuted to date, it has targeted large companies which have been
responsible for the nationwide distribution of obscenity and who have made
large profits by violating federal laws. Prosecution of such companies has
made a substantial impact in curbing the distribution of obscenity, with
many such offenders going out of business altogether. So too will
prosecution of access providers which _knowingly_ traffic in obscenity
have a substantial impact, a far greater impact than just the prosecution
of a person who places one or a few prohibited images on the Internet.
Such a person could not traffic in pornography without the aid or
facilitation of the service or access providers. Indeed, if Congress
includes provisions protecting access or service providers in whatever
bill is finally passed, it is likely that most in this country who are
trafficking in indecency to children or obscenity would continue to do so
since the threat of prosecution would be minuscule, given the numbers of
those currently involved in this activity. It is also likely that those
outside our country who are engaged in these activities would continue to
do so since it would be nearly impossible to extradite them to the United
States for prosecution. Thus, unless all who knowingly participate in such
matters are subject to the law, the Internet will remain the same and
Congress will have failed in its responsibilities to the children and
families of America.
Federal law has traditionally assigned equal liability both for those who
commit a crime and those who aid and abet a crime. See Title 18 U.S.C.
Code Section 2: "(a) whoever [sic] commits an offense against the United
States or aids, abets, councils [sic], commands, induces, or procures its
commission, is punishable as a principle [sic]." Service or access
providers who knowingly participate in the distribution of indecency to
children or in obscenity to anyone are aiders and abettors in the
commission of those crimes and thus should have liability under any law
Congress passes. Current federal law on child pornography provides no no
exemption or defense for access providers. Thus, the child pornography law
provides a strong deterrent against trafficking in child pornography for
those who would otherwise knowingly participate in its distribution by
computer whether pedophile or access provider.
The changes in law which we support would not hold an access provider
criminally liable for all illegal pornography on the Internet which their
services may be used to obtain. Nor would it require that access providers
check all communications to ensure that no violations of the law are
occurring. They would simply be required to avoid knowing violations of
the law. This is an obligation imposed on all citizens. Technology exists
today for access providers, through a simple process, to target or flag
and remove files containing objectionable material.
We support the House-passed language insofar as it addresses obscenity by
amendment Title 18, Sections 1462, 1465, and 1467 of the United States
Code. The provision restricting transmission of indecency in the House-passed
bill, an amendment to Section 1465, is inadequate, and we urge that it be
substantially revised.
Attached is the specific language we support which includes the House
passed language on obscenity and includes revisions on both the House
passed language on indecency, which would amend Title 18 and the
Senate-passed language on indecency, which would amend Title 47. The
combination of these provisions, we believe, would provide effective laws
to curb obscenity and indecency on the Internet by establishing that all
who knowingly participate in the distribution or facilitation of obscenity
to anyone or indecency to children would be subject to the law.
Thank you for your concern and attention to this matter.
[signed]
Edwin Meese III
Ralph Reed
Christian Coalition
Donald E. Wildmon
American Family Association
Alan Sears, Former Executive Director
Atty General's Commission on Pornography
Phyllis Shafly
Eagle Forum
Beverly LaHaye
Concerned Women for America
Reverend Louis P. Sheldon
Traditional Values Coalition
Jay Sekulow
American Center for Law and Justice
Paul Weyrich
Free Congress Foundation
Paul McGeady
Morality in Media
Len Munsil
National Family Legal Foundation
Robert Peters
Morality in Media
Kenneth Sukhia
Former United States Attorney, N.D., FL
Former Chairman, Atty General's Advisory Committee
Subcommittee on Child Exploitation and Obscenity
--------------------------
Section 1465 of Title 18, United States Code, is amended to punish
distribution by computer of indecent material to minors by adding at the
end the following:
Whoever knowingly communicates, transmits, or makes available for
communication or transmission, in or effecting interstate or foreign
commerce an indecent communication by computer to any person the
communicator or transmitter believes has not attained the age of 18 years
of age, knowing that such communication will be obtained by a person
believed to be under 18 years of age, shall be fined under this title or
imprisoned not more than five years, or both.
TITLE IV -- OBSCENE, HARASSING, AND WRONGFUL UTILIZATION OF
TELECOMMUNICATIONS FACILITY
SEC. 401. SHORT TITLE
This title may be cited as the "Communications Decency Act of
1995".
Sec. 402. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER
THE COMMUNICATIONS ACT OF 1934
Section 223 (47 U.S.C. 223) is amended --
(1) by striking subsection (a) and inserting in lieu of [sic]:
``(a) Whoever--
``(1) in the District of Columbia or in interstate or foreign
communications --
``(A) by means of telecommunications device knowingly--
``(i) makes, creates, or solicits, and
``(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other
communication which is obscene, lewd, lascivious, filthy, or
indecent, with intent to annoy, abuse, threaten, or harass
another person;
``(B) makes a telephone call or utilizes a
telecommunications device, whether or not conversation or
communication ensues, without disclosing his identity and
with intent to annoy, abuse, threaten, or harass any person
at the called number or who receives the communication;
``(C) makes or causes the telephone of another repeatedly
or continuously to ring, with intent to harass any person at
the called number; or
``(D) makes repeated telephone calls or repeatedly
initiates communication with a telecommunications device,
during which conversation or communication ensues, solely to
harass any person at the called number or who receives the
communication;
``(2) knowingly permits any telecommunications facility
under his control to be used for any activity prohibited by
paragraph (1) with the intent that it be used for
such activity,
shall be fined not more than $100,000 or imprisoned not more
than two years, or both.''; and
(2) by adding at the end the following new subsections:
``(d) Whoever--
``(1) knowingly within the United States or in foreign
communications with the United States by means of
telecommunications device makes or makes available any
indecent communication in any form including any comment,
request, suggestion, proposal, or image, to any person under
18 years of age regardless of whether the
maker of such communication placed the call or initiated the
communication; or
``(2) knowingly permits any telecommunications facility
under such person's control to be used for an activity
prohibited by paragraph (1) with the intent that it be
used for such activity,
shall be fined not more than $100,000 or imprisoned not more
than two years or both.
``(e) Defenses to subsections (a) and (d), restrictions on
access, judicial remedies respecting restrictions for
persons providing information services and
access to information services--
"(1) It is a defense to prosecution that a person has complied
with regulations designed to restrict access to indecent
communications to those 18 years old or older as enacted by the
Federal Communications Commission which shall prepare final
regulations within 120 days of the passage of this bill. Until
such regulations become effective, it is a defense to
prosecution that the person has blocked or restricted access
to indecent communications to any person under 18 years
of age through the use of verified credit card, adult access
code, or adult personal identification number (PIN).
Nothing in this subsection shall be construed to treat
enhanced information services as common carriage."
"(2) No cause of action may be brought in any
court or any administrative agency against any person on account
of any activity which is not in violation of any law punishable
by criminal or civil penalty, which activity the person has taken in
good faith to implement a defense authorized under this section or
otherwise to restrict or prevent the transmission of, or access to,
a communication specified in this section.
(f) Nothing in this subsection shall preclude any State or
local government from enacting and enforcing laws and regulations
which do not result in the imposition of inconsistent obligations on
the provision of interstate services. Nothing in this subsection
shall preclude any State or local government from governing conduct
not covered by subsection (d)(2)."
(g) Nothing in subsection (a), (d), or (e) or in the
defenses to prosecution under (e) shall be construed
to affect or limit the application or enforcement of any other
Federal law.
(h) The use of the term 'telecommunications device' in this
section shall not impose new obligations on (one-way) broadcast
radio or (one-way) broadcast television operators licensed by the
Commission or (one-way) cable services registered with the
Federal Communications Commission and covered by obscenity and
indecency provisions elsewhere in this Act.
Sec. 403. OBSCENE PROGRAMMING ON CABLE TELEVISION.
Section 639 (47 U.S.C. 559) is amended by striking "10,000" and
inserting "$100,000"
Sec. 404. BROADCASTING OBSCENE LANGUAGE ON THE RADIO.
Section 1466 of Title 18, United States Code, is amended by
striking out "$10,000" and inserting "$100,000".
Sec. 405 SEPARABILITY
"(a) If any provision of this Title, including amendments to this
Title of [sic] the application thereof to any person or circumstance is
held invalid, the remainder of this Title and the application of such
provision to other persons or circumstances shall not be affected
thereby."
________________________________________________________________________
CHRONOLOGY OF THE COMMUNICATIONS DECENCY ACT
Sep 26, '95 Sen. Russ Feingold urges committee members to drop
Managers Amendment and the CDA from the Telecommunications
Deregulation bill
Aug 4, '95 House passes HR1555 which goes into conference with S652.
Aug 4, '95 House votes to attach Managers Amendment (which contains
new criminal penalties for speech online) to
Telecommunications Reform bill (HR1555).
Aug 4, '95 House votes 421-4 to attach HR1978 to Telecommunications
Reform bill (HR1555).
Jun 30, '95 Cox and Wyden introduce the "Internet Freedom and Family
Empowerment Act" (HR 1978) as an alternative to the CDA.
Jun 21, '95 Several prominent House members publicly announce their
opposition to the CDA, including Rep. Newt Gingrich (R-GA),
Rep. Chris Cox (R-CA), and Rep. Ron Wyden (D-OR).
Jun 14, '95 The Senate passes the CDA as attached to the Telecomm
reform bill (S 652) by a vote of 84-16. The Leahy bill
(S 714) is not passed.
May 24, '95 The House Telecomm Reform bill (HR 1555) leaves committee
in the House with the Leahy alternative attached to it,
thanks to Rep. Ron Klink of (D-PA). The Communications
Decency Act is not attached to it.
Apr 7, '95 Sen. Leahy (D-VT) introduces S.714, an alternative to
the Exon/Gorton bill, which commissions the Dept. of
Justice to study the problem to see if additional legislation
(such as the CDA) is necessary.
Mar 23, '95 S314 amended and attached to the telecommunications reform
bill by Sen. Gorton (R-WA). Language provides some provider
protection, but continues to infringe upon email privacy
and free speech.
Feb 21, '95 HR1004 referred to the House Commerce and Judiciary
committees
Feb 21, '95 HR1004 introduced by Rep. Johnson (D-SD)
Feb 1, '95 S314 referred to the Senate Commerce committee
Feb 1, '95 S314 introduced by Sen. Exon (D-NE) and Gorton (R-WA).
________________________________________________________________________
FOR MORE INFORMATION
Web Sites
URL:http://www.vtw.org/exon/
URL:http://epic.org/
URL:http://www.eff.org/pub/Alerts/
URL:http://www.cdt.org/cda.html
URL:http://outpost.callnet.com/outpost.html
FTP Archives
URL:ftp://ftp.cdt.org/pub/cdt/policy/freespeech/00-INDEX.FREESPEECH
URL:ftp://ftp.eff.org/pub/Alerts/
Gopher Archives:
URL:gopher://gopher.panix.com/11/vtw/exon
URL:gopher://gopher.eff.org/11/Alerts
Email:
vtw@vtw.org (put "send alert" in the subject line for the latest
alert, or "send cdafaq" for the CDA FAQ)
cda-info@cdt.org (General CDA information)
cda-stat@cdt.org (Current status of the CDA)
________________________________________________________________________
LIST OF PARTICIPATING ORGANIZATIONS
In order to use the net more effectively, several organizations have
joined forces on a single Congressional net campaign to stop the
Communications Decency Act.
American Civil Liberties Union * American Communication Association *
American Council for the Arts * Arts & Technology Society * Association
of Alternative Newsweeklies * biancaTroll productions * Boston
Coalition for Freedom of Expression * Californians Against Censorship
Together * Center For Democracy And Technology * Centre for Democratic
Communications * Center for Public Representation * Citizen's Voice -
New Zealand * Cloud 9 Internet *Computer Communicators Association *
Computel Network Services * Computer Professionals for Social
Responsibility * Cross Connection * Cyber-Rights Campaign * CyberQueer
Lounge * Dutch Digital Citizens' Movement * ECHO Communications Group,
Inc. * Electronic Frontier Canada * Electronic Frontier Foundation *
Electronic Frontier Foundation - Austin * Electronic Frontiers
Australia * Electronic Frontiers Houston * Electronic Frontiers New
Hampshire * Electronic Privacy Information Center * Feminists For Free
Expression * First Amendment Teach-In * Florida Coalition Against
Censorship * FranceCom, Inc. Web Advertising Services * Friendly
Anti-Censorship Taskforce for Students * Hands Off! The Net * Inland
Book Company * Inner Circle Technologies, Inc. * Inst. for Global
Communications * Internet On-Ramp, Inc. * Internet Users Consortium *
Joint Artists' and Music Promotions Political Action Committee * The
Libertarian Party * Marijuana Policy Project * Metropolitan Data
Networks Ltd. * MindVox * MN Grassroots Party * National Bicycle
Greenway * National Campaign for Freedom of Expression * National
Coalition Against Censorship * National Gay and Lesbian Task Force *
National Public Telecomputing Network * National Writers Union * Oregon
Coast RISC * Panix Public Access Internet * People for the American Way
* Republican Liberty Caucus * Rock Out Censorship * Society for
Electronic Access * The Thing International BBS Network * The WELL *
Voters Telecommunications Watch
(Note: All 'Electronic Frontier' organizations are independent entities,
not EFF chapters or divisions.)
------------------------------
Date: Mon, 06 Nov 1995 23:11:31 -0500
From: shabbir@VTW.ORG(Shabbir J. Safdar, VTW)
Subject: FIle 2--VTW BillWatch #23: Digital Telephony overview
(MODERATORS' NOTE: Another in the insightful commentaries from
Shabbir Safdar of VTW BillWatch. To obtain full issues of
Billwatch, see the URL at the end of this post)).
EXTRACTED FROM:
Issue #23, Date: Sun Nov 5 20:44:08 EST 1995
End VTW BillWatch Issue #23, Date: Sun Nov 5 20:44:08 EST 1995
VTW BillWatch #23
VTW BillWatch: A weekly newsletter tracking US Federal legislation
affecting civil liberties. BillWatch is published at the end of every
week as long as Congress is in session. (Congress is in session)
Do not remove this banner. See distribution instructions at the end.
..................
COMMENTARY ON FBI WIRETAP PROPOSALS
You'd have to be living without television, newspapers, or radio not to have
seen all the flap over the FBI's proposal for wiretap funding. There has
been a tremendous amount of misinformation in the press and on the net, so
we'd like to take this opportunity to put all of this into perspective.
Having opposed this legislative measure last year, we are painfully well-
informed on the nature of the debate.
The wiretapping plan you're seeing debated now is actually the funding
phase of last year's "Digital Telephony" bill, now known as CALEA
(Communications Assistance for Law Enforcement Act) Sponsored by Sen.
Leahy (D-VT) and Rep. Edwards (previously D-CA), the bill was extremely
controversial among civil liberties groups, but received very little
mainstream press, and a moderate amount of debate on the Hill. The FBI
had strongly suggested that advancing changes in technology would make it
impossible for them to carry out court-authorized communications
interceptions.
Although they never produced public proof of a foiled interception, the
general feel in Congress was to grant them the benefit of the doubt and
give them a bill that would accomodate their needs. A bill was written
that would require the telecommunications industry to build in wiretap
functionality into their products, such as telephone switches.
This is where the debate in the civil liberties community began. The
Electronic Frontier Foundation used their connections and their position
to hack up the bill to remove several provisions. The ability for any
detective to issue an administrative subpoena (doesn't require a judge)
to get transactional information such as who you called and for how long
was removed, now requiring the approval of a judge. In addition, any
inclusion of Internet services was removed. This meant that Netscape
would not have to build in special wiretapping code should you fall under
an a court-authorized interception order during an investigation.
In addition, the FBI would now be forced to state publicly its requirements
for wiretapping, and the justifications for the amount of wiretapping
they wanted to do, so they could tell the communications companies what
sorts of capability to build into their products. This probably seemed
like a good compromise for the FBI at the time. They reduce the resistance
to their bill, in exchange for which they had to publish some information
that was probably semi-public anyway.
They're probably kicking themselves now.
The logic at the EFF was that Congress was going to pass such a bill this
year anyway, so wouldn't we rather have one that improved privacy in some
places and limited its scope in others, rather than let them get everything
they want by working with legislators that are not privacy-savvy. Sort of
an "enemy you know is less dangerous than one you don't" argument.
Other groups disagreed. The Electronic Privacy Information Center (EPIC)
and the Voters Telecommunications Watch both led an online campaign to
fight the bill. In the end, the bill was passed without much floor debate
and very little media attention.
One stickler in all of this was the cost. The telecommunications industry
said, rightfully so, that these additional features weren't market-driven
(unless you're a Third World dictator buying telecommunications hardware
to spy on your people) so they were basically being taxed unfairly. The FBI
responded by saying that before any changes would be expected, the Federal
Government would authorize the spending of US$500 million as reimbursement
for their loss.
This funding phase brings us to the present time. On Monday October 16 1995,
the FBI published in the Federal Register it's requirements for
wiretapping capacity. Civil liberties advocates salivated, knowing that
for the first time in history, this backroom process that never saw any
public accountability was going to be scrutinized in the light of day.
Many civil liberties advocates hoped the media would finally report
this as newsworthy, assuming that should the American people hear about
it, they would be appalled.
The media responded in spades, with paranoia about Big Brother and
wiretapping abuses making front page news throughout the country. This
couldn't have come at a worse time for the Administration. Reeling from
the media flap over Waco and Ruby Ridge, law enforcement is not having its
best public relations year. Civil liberties advocates went on the attack,
deconstructing the published wiretap requirements and asking the FBI
exactly what they needed all these wiretaps for.
The root of the issue lies in a subtlety that no one anticipated. Civil
liberties advocates thought the FBI, having previously conducted around 1,000
interceptions per year, would simply publish a number that gave them some
"growing room" given some assumption that crime was generally increasing.
Instead, the FBI published percentages. The report in the Federal Register
said that if a telephone switch can accomodate X number of subscribers,
then the switch must be capable of performing X * Y% of interceptions
SIMULTANEOUSLY, where Y% has a minimum amount of .05%, but can rise as
high as 1% if you live in a geographic area with lots of crime.
Here is where the debate begins, and the misinformation seeps in. When
you look at the number of subscribers, that number may be much different
depending on how you interpret it. Assume that the phone switch that
serves your area has 1,000,000 subscribers on it, and you live in a
high crime area, such as VTW's birthplace, New York City.
The math is simple, 1% of 1,000,000 subscribers is 10,000 simultaneous
wiretaps. Isn't this a little high? Not only have there been only about
1,000 wiretaps authorized in recent years, but they weren't all at once,
and all within the same neighborhood!
To their credit, the FBI says they were misinterpreted. A close look at
the announcement in the Federal Register shows them to be right. However
you should be just as alarmed. The FBI claims that just because a
telephone switch can accomodate 1,000,000 people doesn't mean they can all
pick up the phone and dial a friend at once. If you look closely at the
notice in the Federal Register, it says:
the percentage is applied to the engineered subscriber capacity of
a switch
Presumably, if they had meant total subscribers, they would have said
total subscribers. It would be uncharacteristic of the FBI is ask for
less than what they need. However this doesn't actually make the numbers
so much better than you should be unconcerned. The number is still
appalling higher than anything previously requested, and you should be very
concerned.
Take the phone switch in our previous example. Assume that only half the
subscribers can actually pick up their handsets and make a call
simultaneously. That cuts the actual number of simultaneous required
interceptions to 5,000, and that's just in New York. It's unreasonable for
our government to fund such an activity without the FBI explaining
their reasons for needing this much capacity. Has there been a great leap
in the last few years of crimes for which interceptions are the only
available tool?
The Electronic Privacy Information Center is fond of pointing out that
interceptions in the last few years have been primarily for drugs and
gambling. EPIC asserts that not one wiretap has been authorized in the
investigation of domestic terrorism such as the World Trade Center or
Oklahoma City bombings.
The second misinterpretation of these figures is the common printing of
the fact that the FBI wishes to wiretap every 1 in 400 or 1 in 100 telephones.
We're not really sure how anyone came up with these numbers, as that would
apply to specific geographic areas only, not the country as a whole. To
blanketly print these numbers without actually talking about the area they
apply to is to resort to unnecessary hysteria. The FBI's proposal is
chilling enough that we don't need that much hyperbole to justify public
concern.
Two groups are conducting high profile campaigns on this issue. We
urge you to follow them and stay informed. Here is an alphabetical
list:
The Center for Democracy and Technology (CDT) is a new organization staffed
by many of the people who previously worked on this issue at the EFF. CDT
is attempting to answer such questions as:
* Has the FBI met all the public accountability and oversight criteria
required by the statute?
and
* Does the requested capacity accurately reflect the needs of law
enforcement?
You can monitor their work by checking out their World Wide Web page at
URL:http://www.cdt.org/
The Electronic Privacy Information Center (EPIC) is conducting a campaign
to deny funding for the bill, a continuation of last-year's campaign to
prevent the passage of the bill itself. You can monitor their work by
checking out their World Wide Web page at:
URL:http://www.epic.org/
.............
You can receive BillWatch via email, fax, gopher or WWW:
BillWatch can be found on the World Wide Web at
http://www.vtw.org/billwatch/
BillWatch can be found in Gopherspace at:
gopher -p1/vtw/billwatch/ gopher.panix.com
((BillWatch administrative info snipped by CuD editors for
parsimony--jt))
------------------------------
Date: Tue, 7 Nov 95 23:31:14 PST
From: jblumen@interramp.com
Subject: FIle 3--FW: RE: letter to Congress
Here is a copy of a letter I sent to all the conference committee members
considering the CDA.
Dear : :
I am extremely concerned about the First Amendment implications
of the Communications Decency Act and the similar manager's mark
amendments that were passed by the House.
I am an attorney and software company executive who first
became involved with on-line legal issues in 1984. In 1987, I wrote
Syslaw: The Sysop's Legal Manual, the first book on the law of cyberspace.
With my colleague Mark Mangan, I am writing a book on the regulation of
the Internet which will be published by Henry Holt in February.
I believe the Congress is making a serious error by attempting
to apply indecency law to the Internet. Both versions of the bill are
over-inclusive and would throw out the baby with the bathwater.
The Internet, especially the World Wide Web, is a medium for
serious discussion of a wide variety of social issues including
politics, ethics and law. Like much of the contents of any bookstore,
these publications on the Internet might qualify as "indecent" under
the extremely broad definition in both versions of the bill. Information
resources and critical discussions relating to AIDS, rape, and pornography
are just three examples. Please note that these bills make no exception
for material which has serious political, literary, or scientific value;
ironically, a polemic against pornography, if it describes what it opposes,
is barred by the legislation as completely as an essay on the pleasures of
pornography would be. If you pass this legislation unaltered, thousands of
newsletters, documents, compilations of useful information and even works
of literature will have to be removed from the Internet in order to avoid
any risk of liability for the people who maintain them there.
If you are not personally familiar with the Internet, you may
think of it as the "porn shop" one Senator called it in the June debate
on the CDA. Nothing could be further from the truth. The amount of
pornography on the Internet is miniscule compared to the amount of
serious, intellectual material that would have to be deleted if the
legislation passes. In the 1957 case of Butler v. Michigan, the Supreme
Court admonished the state that it could not legally set the level of
public discourse to include only what is fit for children. That is exactly
what the legislation will do to the Internet.
Both the CDA and the manager's mark amendment are based on
language derived from the laws pertaining to broadcast communications
and telephony. Justice Cardozo said years ago that, in making new laws,
we must proceed by history and analogy. The history of telecommunications
law reveals that the rationale for government involvement in this arena is
the scarcity of broadcast bandwidth and the phone company's historical
status as a common carrier. Neither of these is the appropriate analogy
for the Internet. The Net should be regarded as a constellation of
printing presses and bookstores--computers used to create letters,
essays, and compilations for people to read, and other computers used
to store these works so that people may find and read them. As such,
the Internet should be granted the full range of First Amendment
protection to which print publications are entitled.
Please let me recommend a book that may help you in the
difficult task you have ahead of you. Written in 1983, Ithiel de
Sola Pool's Technologies of Freedom (Harvard University Press)
is a remarkably prescient analysis of the problems and pitfalls
involved in regulating electronic communications. Pool says,
"The onus is on us to determine whether free societies in the
twenty-first century will conduct electronic communications
under the conditions of freedom established for the domain of
print through centuries of struggle, or whether that great
achievement will become lost in a confusion about new technologies."
Please think about the fact that the legislation--either version--
would bar from the Internet any discussion, no matter how intellectual
or serious, not considered fit for television or radio. Now, walk
into your local bookstore and consider what percentage of the books
there would need to be censored before they could appear on the Internet.
In 1643, the English Parliament ordained a system of
licensing printing presses and books and the great poet John
Milton appealed for a return to reason. The order, he said, rather
than suppressing scandalous and seditious literature, would "be primely
to the discouragement of all learning, and the stop of Truth....he
who destroys a good book, kills treason itself, kills the image of God,
as it were, in the eye." Even bad books, he pointed out, serve their
purpose, in that "they to a discreet and judicious reader serve in many
respects to discover, to confute, to forewarn, and to illustrate." And
this, of course, is the classic truth underlying our First Amendment:
the antidote for bad speech is good speech, not censorship. The Congress,
if it passes the indecency legislation before it, places itself on the
wrong side of freedom of speech, just like that Parliament.
I would encourage you to call me if I can answer any questions
or provide further insight. I would particularly welcome the opportunity
to take you and your colleagues on a tour of serious, legitimate
Internet resources that would have to shut down to avoid the brunt
of the legislation.
Sincerely yours,
Jonathan Blumen
jblumen@interramp.com
http://www.spectacle.org
------------------------------
Date: Sun, 5 Nov 1995 22:51:01 CDT
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: FIle 4--Cu Digest Header Info (unchanged since 5 Nov, 1995)
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End of Computer Underground Digest #7.89
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