Computer Security Script and Software Database, EF
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Computer underground Digest Sun Mar 9, 1997 Volume 9 : Issue 17
Editor: Jim Thomas (firstname.lastname@example.org)
News Editor: Gordon Meyer (email@example.com)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Field Agent Extraordinaire: David Smith
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #9.17 (Sun, Mar 9, 1997)
File 1--Computer Security Script and Software Database
File 2--EFF-Online 10.02-Burns introduces new Pro-CODE Crypto Bill
File 3-- Open Internet Policy Principles
File 4--Cu Digest Header Info (unchanged since 13 Dec, 1996)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
Date: Wed, 5 Mar 1997 11:01:26 -0600 (CST)
From: "Scott A. Davis" <firstname.lastname@example.org>
Subject: File 1--Computer Security Script and Software Database
On March 13, 1997, The Banzai Institute will make available a
Computer Security Script and Software Database. Initially, there
will be over 600 scripts and programs available that will allow
system admins to test the weakness of the networks and systems
that they are responsible for. Any and all information provided
in this database is distributed for INFORMATION AND EDUCATIONAL
PURPOSES ONLY. You can sign up now and have your account
activated on the same day the databse opens by visiting our home
www.banzai-institute.org/sdavis for PGP Public Key (ALL SECURE
Date: Thu, 27 Feb 1997 22:22:00 -0800 (PST)
From: Stanton McCandlish <mech@EFF.ORG>
Subject: File 2--EFF-Online 10.02-Burns introduces new Pro-CODE Crypto Bill
EFFector Vol. 10, No. 02 Feb. 27, 1997 email@example.com
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
* See http://www.eff.org/hot.html or ftp.eff.org, /pub/Alerts/ for more
information on current EFF activities and online activism alerts! *
Subject--Pro-CODE Bill Announced Today: Free Crypto From Cold-War Regs
Below is a joint advisory from CDT, EFF and VTW about the re-introduction
of Sen. Conrad Burns's "Pro-CODE" encryption export deregulation bill. EFF
commends Burns and co-sponsors for continuing to raise this issue in
Congress, and for their opposition to the Administration's obsolete (and
Though EFF does not *endorse* this legislation (principally because it
may perpetuate a policy of excluding the public from government
decision-making on encryption policy), we do recognize and laud the
bill as an improvement over the status quo in almost all respects.
Pro-CODE would turn the current export process upside down, permitting
export of most encryption, and requiring reportage of an encryption
program's capabilities only *after* export. The bill also creates no new
or redundant crime categories.
PRO-CODE BILL ANNOUNCED TODAY
BILL WOULD LIBERATE ENCRYPTION FROM ANTIQUATED COLD-WAR REGULATIONS
February 27, 1997
Please widely redistribute this document with this banner
intact until March 15, 1997
From the Center for Democracy and Technology (CDT),
the Electronic Frontier Foundation (EFF), and
the Voters Telecommunication Watch (VTW)
The Latest News
What You Can Do Now
Background On Pro-CODE
What's At Stake
For More Information / Supporting Organizations
THE LATEST NEWS
Today, a bi-partisan group of seventeen United States Senators, led by
Conrad Burns (R-MT) and Patrick Leahy (D-VT), introduced the "Promotion
of Commerce Online in the Digital Era (Pro-CODE) Act", a bill designed
to promote privacy and security on the Internet by relaxing government
controls on encryption technologies.
Encryption technologies are the locks and keys of the Information age
-- enabling individuals and businesses to protect sensitive information
as it is transmitted over the Internet. Pro-CODE aims to enable this by
removing some of the regulations that currently prevent Americans from
using this technology.
A short summary of the bill and background on the encryption policy
debate are attached below, along with information on what you can do to
help ensure that Congress takes action on this important issue.
WHAT YOU CAN DO NOW
1. CALL THE Pro-CODE SPONSORS AND THANK THEM FOR THEIR EFFORTS
Members of Congress tend to hear from their constituents only when
they do something constituents don't like. Today however, several
Senators have taken a stand on an issue of critical importance to
Internet users. It's crucial that we encourage them with phone
calls of support.
If you live in any of the states listed below, please take a moment
to give these Senators a call.
Allard (R-CO) Ashcroft (R-MO) Boxer (D-CA) Brownback (R-KS)
Burns (R-MT) Craig (R-ID) Dominici (R-NM) Dorgan (D-ND)
Faircloth (R-NC) Grahms (R-MN) Hutchison (R-TX) Inhoffe (R-OK)
Kempthorne (R-ID) Leahy (D-VT) Lott (R-MS) Murray (D-WA)
Nickles (R-OK) Thomas (R-WY) Wyden (D-OR)
Please take a moment to give these Senators a call.
You:Senator Mojo's office please!
Sen:Hello, Senator Mojo's office!
SAY I heard that the Senator introduced Pro-CODE to add more privacy
THIS-> the Internet. Please thank the Senator for me and I support
efforts to fix antiquated encryption export laws. I live in <your
Sen: Ok, thanks!<click>
2. ADOPT YOUR LEGISLATOR
If you were one of the thousands of people that have adopted their
legislator at http://www.crypto.com/, you would have received a
personalized letter telling you that your legislator announced his
or her sponsorship of Pro-CODE today.
These personalized letters contain all the phone numbers you need,
and we'll send them to you any time your legislator takes any action
that would have a significant impact on the net.
The Adopt Your Legislator campaign is the most effective method of
mobilizing grass-roots support available today. Since late last
year, VTW and CDT have been building a network of thousands of
Internet users who are active and engaged in the fight for privacy
and security on the Internet.
By focusing our efforts on the constituents of specific legislators
as well as on the net as a whole, we can ensure that members of
Congress know that they have support within their district as well
as throughout the Internet community.
You can adopt your legislator at http://www.crypto.com/adopt/
BACKGROUND ON THE PRO-CODE BILL
The Promotion of Commerce Online in the Digital Era (Pro-CODE) Act is
similar to a bill introduced by Senators Burns (R-MT) and Leahy (D-VT)
last year (then S.1726). Pro-CODE enjoyed broad bi-partisan support in
the Senate and was the subject of 3 hearings, including 2 which were
cybercast live on the Internet.
This year's Pro-CODE bill (no bill number yet available) is designed to
encourage the widespread availability of strong, easy-to-use encryption
technologies to protect privacy and security on the Internet.
Specifically, Pro-CODE would:
1. Encourage the widespread availability of strong privacy and security
products by relaxing export controls on encryption technologies that
are already available on the mass market or in the public domain.
This would include popular programs like Pretty Good Privacy (PGP)
and World Wide Web browsers like those made by Netscape and Microsoft.
Current US encryption policy restricts export of encryption products
with key-lengths of more than 40 bits. A recent study by renowned
cryptographers including Whit Diffie (one of the fathers of modern
cryptography), Matt Blaze, and others concluded that 40 bits is
"woefully inadequate" to protect personal and business communications.
Over the last eighteen months, several examples of the weakness of
40-bit encryption have been demonstrated by college students with
spare personal computers.
2. Prohibit the federal government from imposing mandatory key-escrow or
key-recovery encryption policies on the domestic market and limit the
authority of the Secretary of Commerce to set standards for
3. Require the Secretary of Commerce to allow the unrestricted export of
other encryption technologies if products of similar strength are
generally available outside the United States.
For more information on the Pro-CODE bill, background information on
efforts to pass encryption policy reform legislation last year, and
other materials please visit:
For more information, see the Encryption Policy Resource Page at
WHAT'S AT STAKE
Encryption technologies are the locks and keys of the Information age
-- enabling individuals and businesses to protect sensitive information
as it is transmitted over the Internet. As more and more individuals
and businesses come online, the need for strong, reliable, easy-to-use
encryption technologies has become a critical issue to the health and
viability of the Net.
Current US encryption policy, which limits the strength of encryption
products US companies can sell abroad, also limits the availability of
strong, easy-to-use encryption technologies in the United States. US
hardware and software manufacturers who wish to sell their products on
the global market must either conform to US encryption export limits or
produce two separate versions of the same product, a costly and
The export controls, which the NSA and FBI argue help to keep strong
encryption out of the hands of foreign adversaries, are having the
opposite effect. Strong encryption is available abroad, but because of
the export limits and the confusion created by nearly four years of
debate over US encryption policy, strong, easy-to-use privacy and
security technologies are not widely available off the shelf or "on the
net" here in the US. Because of this policy problem, US companies are
now at a competitive disadvantage in the global marketplace.
All of us care about our national security, and no one wants to make it
any easier for criminals and terrorists to commit criminal acts. But we
must also recognize encryption technologies can also aid law
enforcement and protect national security by limiting the threat of
industrial espionage and foreign spying.
What's at stake in this debate is nothing less than the future of
privacy and the fate of the Internet as a secure and trusted medium for
commerce, education, and political discourse.
FOR MORE INFORMATION / SUPPORTING ORGANIZATIONS
This alert was brought to you by the Center for Democracy and
Technology, the Electronic Frontier Foundation, and the Voters
http://www.cdt.org http://www.eff.org http://www.vtw.org
There are many excellent resources online to get up to speed on the
crypto issue including the following WWW sites:
Please visit them often. Press inquiries should be directed to:
Jonah Seiger of CDT at firstname.lastname@example.org or +1.202.637.9800
Stanton McCandlish of EFF at email@example.com or +1.415.436.9333
Shabbir J. Safdar of VTW at firstname.lastname@example.org or +1.917.978.8430 (beeper).
From--Conrad Burns <Conrad_Burns@burns.senate.gov>
Subject--An Open Letter to the Internet Community from Senator Burns
February 27, 1997
Today I am pleased to announce that I have reintroduced legislation to
reform US encryption policy in a way that recognizes the realities of
the global information infrastructure and the need for strong privacy
and security protections on the Internet. The "Promotion of Commerce
Online in the Digital Era (Pro-CODE) Act" would promote the growth of
electronic commerce, encourage the widespread availability of strong
privacy and security technologies for the Internet, and repeal the
cold war-era regulations limiting the export of encryption
technologies. The bill enjoys widespread support from both my
Republican and Democratic colleagues and was introduced with 20
As a fellow Internet user, I am excited by the vast potential of the
Net to facilitate new forms of commerce and communication. In order
for the Net to reach its potential as a trusted medium for personal
communications and proprietary business transactions however,
Internet users must have access to strong privacy and security
technologies. Yet for years, the federal government has pursued an
encryption policy which has limited the availability of privacy and
security products -- leaving Internet users and businesses out in the
Last year, the Pro-CODE bill (then S. 1726) received broad bipartisan
support in the Senate. Internet users, rallying to the cry of "My
Lock, My Key," expressed their support for the bill in meetings
members of Congress in live interactive chat sessions. Netizens also
participated in the first interactive online Senate hearings and
provided valuable testimony for the Committee on this issue.
Yet almost a year after Congress entered this critical Internet policy
debate, and despite the overwhelming call for encryption policy
reform, the Administration remains committed to an outdated and
unworkable approach to US Encryption policy. In November of 1996, the
Administration announced yet another effort to reform US encryption
policy. The proposal, which would allow the export of strong
encryption programs only if they include government-approved
"key-recovery" mechanisms, has met with uniform criticism from
Internet users, privacy experts, and the computer and communications
Current export controls are serving only to limit the availability of
privacy and security technologies for Internet users inside the US and
disadvantage US industry on the competitive global market, while doing
nothing to keep strong encryption out of the hands of foreign
By relaxing encryption export controls, the Pro-CODE bill will reform
US encryption policy in a way that recognizes the realities of the
information revolution and the competitive global marketplace.
The Internet community has been instrumental in helping to educate my
colleagues in the Congress about the importance of encryption policy
reform. In the coming months I will need your help and support as
this bill makes its way through the legislative process.
As the bill moves forward, I want to invite you to take advantage of
several online resources set up to educate the Congress and the public
about the need for encryption policy reform. You can find out more by
visiting my web page at http://www.senate.gov/~burns/.
Thank you for your support,
United States Senator
Date: Thu, 6 Mar 97 21:58:38 -0800
From: Paul W. Meek, email@example.com
Subject: File 3-- Open Internet Policy Principles
I hope I'm sending this to you correctly, and that you and readers of CU
Digest will find this of interest.
Please let me know if you need any further information.
Paul W. Meek
Parliamentary Human Rights Foundation
Voice: (202) 333-1407
Fax: (202) 333-1275
Open Society Institute - Regional Internet Program
Parliamentary Human Rights Foundation
News Release Contact: H. Juergen Hess, OSI-RIP
Public Relations Director
tel. (212) 887-0602
FOR IMMEDIATE RELEASE fax (212) 974-0367
"Open Internet Policy Principles"
Adopted by Group of International Experts
March 5, 1997 -- New York/Washington, D.C. -- The Open Internet
Principles, a set of recommendations to guide the use of the Internet
and related technologies, were adopted today by a group of
international experts*. These Principles are intended as a framework
for government officials, parliamentarians, and nongovernmental
organizations as they consider the impact of the Internet in their
and other countries. The experts included European and American
parliamentarians, government officials, nongovernmental
and the academic and business communities.
In its Preamble, the Principles state [full text attached]: "The
Internet is an inherently open, decentralized communications
infrastructure which is ideally suited to support the free exchange
ideas, a rich political discourse, and a vibrant economy."
With regard to policymaking and the Internet, the Principles point
that policymaking ought to be undertaken "by policymakers who are
informed about the unique nature of the net and have direct
with its use; and, with substantial input and comment from the user
Other Principles address the following subject matters:
* Access to Infrastructure: "Access to the global Internet and other
interactive communications infrastructures is essential for all
citizens of the world to enable full participation in the global
society and developing digital economy;"
* Freedom of Expression: "There should be no regulation of Internet
content by government;"
* Communications Privacy: "Users of the Internet should have the
to be free of unlawful government interception of or access to
communication and information online;"
* Right of Anonymity: "Users should have the right to communicate
without disclosing their identity;"
* Unfettered Right to Use Encryption: "Users should have the right to
use any form of cryptographic technology they choose to protect the
privacy of their communications;"
* General Legal Framework: "The Internet does not exist in a legal
vacuum. For the most part, existing laws can and should regulate
conduct on the Internet to the same degree as other forms of conduct.
Such laws may differ from country to country, but should conform with
the applicable binding human rights obligations contained in the
Universal Declaration of Human Rights, the International Covenant on
Civil and Political Rights and the European Convention on Human
* Objectionable Content: "To enable Internet users to shield
themselves and their families from objectionable or unwanted content,
priority should be given to 'downstream filtering' by users;"
* Civil and Criminal Law Enforcement: "(...) combating online crime,
while protecting civil liberties, can best be accomplished with
additional resources and training of law enforcement agencies, not by
enactment of new laws;"
* Access to Government Information: "Governments should enable
citizens access to legislative, judicial and executive branch
information through the Internet;"
* Overseas Development Assistance: "Overseas development assistance
programs should strive to promote full access to the Internet;"
* Market Structure: "There should be no a priori limitation to market
entry by Internet service providers (...)."
The Principles are based upon the results of a conference organized
the Parliamentary Human Rights Foundation (PHRF), Parliamentary Human
Rights Foundation/Europe (PHRF/Europe) and the Regional Internet
Program of the Open Society Institute (OSI-RIP) held in Brussels,
Belgium on November 23, 1996. (An Annex with diverging opinions is
attached to the Principles.)
"The Open Internet Policy Principles are the first phase of a larger
project. As a next step, a case study will be undertaken of the
telecommunications framework in Estonia, Latvia, and Lithuania, to
apply the principles developed in Brussels to the particular
circumstances of these emerging democracies," explained Don Bonker,
Chairman and President of the Parliamentary Human Rights Foundation
and a former Member of Congress. Representatives from these nations
participated in the drafting of the Principles and the Brussels
"We hope that the Open Internet Policy Principles will lead to the
development of model legislative and regulatory frameworks with
application," added Maartje van Putten, PHRF/Europe's Chair and
of the European Parliament from the Netherlands.
Jonathan Peizer, Chief Information Officer of the Open Society
Institute clarified why the Baltic countries were chosen: "They are
the most progressive countries with regard to use of the Internet in
Central and Eastern Europe. OSI-RIP has been funding
activities in those nations since 1994. This, however, is our first
major policy initiative for the Internet."
The Parliamentary Human Rights Foundation (PHRF) is a worldwide,
voluntary, non-partisan, not-for-profit organization committed to the
promotion of human rights. PHRF works directly with parliamentarians
to: enhance understanding of the meaning and importance of human
rights; strengthen institutions for the protection of human rights;
improve access to information about human rights conditions; foster
international cooperation in the promotion of human rights; offer
training and technical assistance to human rights advocates,
especially parliamentarians; call attention to human rights abuses
that violate internationally recognized standards; and nurture
constitutional democracy, the rule of law, and other protections of
human rights. PHRF can be found on the World Wide Web at
The Open Society Institute--New York is a private operating and
grantmaking foundation that promotes the development of open
around the world, both by running its own programs and by awarding
grants to others. The Open Society Institute--New York develops and
implements a variety of U.S.-based and international programs in the
areas of educational, social, and legal reform, and encourages public
debate and policy alternatives in complex and often controversial
fields. The Open Society Institute--New York is part of an informal
network of more than 24 autonomous nonprofit foundations and other
organizations created and funded by philanthropist George Soros. The
Open Society Institute can be found on the World Wide Web at
# # #
*Experts included representatives from: European Commission, European
Parliament, Netscape Communications Corp., Oracle Corp., Ministry of
Education and Science (Latvia), Ministry of Transportation and
Communications (Estonia), Ministry of Transportation and
Communications (Latvia), Electronic Frontier Foundation, American
Civil Liberties Union, Voters Telecommunications Watch, Electronic
Privacy Information Center, Computer Professionals for Social
Responsibility, Center for Democracy and Technology, Riga Information
and Technology Institute (Latvia), PT Finland, Baltic Institute of
Finland, University of Leuven (Belgium), University of Groningen
(Netherlands), Villanova School of Law (USA), Ghent University
(Belgium), Levicom Ltd. (Estonia), Xs4all Internet BV (Netherlands),
National Criminal Intelligence Service (Netherlands), Open Society
Institute/Soros foundations network, Parliamentary Human Rights
Foundation, and Parliamentary Human Rights Foundation/Europe.
Brussels, Belgium 23 November 1996
OPEN INTERNET POLICY PRINCIPLES
A broad consensus was reached on the following points:
The Internet is an inherently open, decentralized communications
infrastructure which is ideally suited to support the free exchange of
ideas, a rich political discourse, and a vibrant economy. The
decentralized architecture of the Internet provides an abundance of
communication opportunities, and gives users an unprecedented degree of
control over the information that they receive. As organizations devoted
to basic human rights, the growth of the Internet, and the flourishing of
democratic culture, we believe that the foregoing principles will ensure
that the Internet remains open and continues to support basic democratic
I. Policymaking and the Internet
In recognition of the novel and rapidly changing nature of the Internet,
policymaking ought to be undertaken:
* by policymakers who are well informed about the unique nature of the
Internet and have direct experience with its use; and,
* with substantial input and comment from the Internet user community.
II. Internet Access and Market Structures
A. Access to infrastructure
1) Access to the global Internet and other interactive communications
infrastructures is essential for all citizens of the world to enable full
participation in the global society and developing digital economy.
2) Government and the industry have a shared responsibility in building
Global Information Infrastructure ("GII"), and in ensuring as wide an
access as possible to its services.
3) Competition, open systems and interoperability are the best way to
4) In particular, access to the Internet by schools, libraries and other
institutions should be viewed as a policy goal, subsidized as necessary.
B. Access to Government Information:
1) Governments should enable citizens access to legislative, judicial and
executive branch information through the Internet. Such access should be
backed up by a legal right to public information, without any showing of
need or intended use. Such information should be available in standard
formats to promote broad and effective access.
C. Market structures
1) There should be no a priori limitation to market entry for Internet
service providers (ISPs), and ISPs should not be prevented from using or
establishing their own terrestrial or wireless infrastructure.
2) In particular, licensing should not be used as a method of restricting
3) ISPs and other intermediaries have responsibilities, but those
responsibilities should be enforced other than through licensing
D. Overseas Development Assistance
1) Overseas development assistance programs should strive to promote full
access to the Internet. Such programs should include support for the
development of public policy environments consistent with these Open
Internet Policy Principles, and adequate resources for training and
III. The Rights and Responsibilities of Internet Users
Internet users have rights and responsibilities which should shape the way
the law addresses the Internet.
A. General Legal Framework
1) The Internet does not exist in a legal vacuum. For the most part,
existing laws can and should regulate conduct on the Internet to the same
degree as other forms of conduct. Such laws may differ from country to
country, but should conform with the applicable binding human rights
obligations contained in the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights and the European
Convention on Human Rights.
2) The legality of publishing activity on the Internet should be judged
according to the law in the country in which the publisher originally acts
to publish the material. While this "law of the place of origin" is
consistent with the "Television Without Borders" policy of the European
Commission, strong public policies in places of reception may necessitate
negotiation of an international convention on this choice-of-law question.
B. Objectionable Content
1) To enable users to shield themselves and their families from
objectionable or unwanted content, priority should be given to "downstream
filtering" by users. There should be no government censorship of Internet
2) Filtering should empower users to be responsible for the content they
3) Filtering can promote freedom of choice through a variety of rating
4) Filtering systems should make clear what sites they block (or select)
and what criteria they use to block (or select) sites.
5) Access to multiple 3rd party content labeling systems, as opposed to
government censorship, can support the great diversity of cultural and
moral values of Internet users around the world.
IV. Law, Human Rights and the Internet
Legal regulation of the Internet should implement the foregoing principles
relating to rights and responsibilities of Internet users, while also
recognizing international human rights law and legitimate national law
A. Freedom of Expression
There should be no regulation of Internet content by government. We
understand the fundamental rights of freedom of expression, as embodied in
Art. 19 of the Universal Declaration of Human Rights ("Everybody has the
right ... to seek, receive and impart information and ideas through any
media and regardless of frontiers" ) and in Art. 19(2) of the
Covenant on Civil and Political Rights ("Everyone shall have the right to
freedom of expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form or art or through any
other media of his choice") -- to apply with
full force to Internet communication.
B. Civil and Criminal Law Enforcement
Enforcing existing laws in the international Internet environment raises
specific challenges. In general,combating online crime, while protecting
civil liberties, can best be accomplished with additional resources and
training for law enforcement agencies, not by enactment of new laws.
In carrying out their duties, law enforcement agencies should:
*be fully aware of the unique characteristics of the Internet;
*adhere to internationally recognized principles of human rights;
*have the resources necessary to adopt appropriate technologies; and
*co-ordinate with other law enforcement agencies across international
Law enforcement activity should be guided by the following principles:
1) Law enforcement agents should only conduct investigations or
surveillance in public online fora pursuant to public and officially
approved investigative guidelines, which provide adequate protection for
individual freedom of association and political activity.
2) Governments should not monitor individual Internet users for civil or
criminal investigatory purposes nor collect information on the way they
the Internet, except pursuant to a judicial process that is consistent
internationally recognized principles of privacy.
3) Governmental searches or seizure of electronic communications should
be conducted, except pursuant to legally authorized procedures, that
require that there is sufficient evidence that the user is engaged in
illegal activity to justify the search. Any such search should be
supervised by an appropriate detached and neutral judicial officer.
Any search should be narrow in its scope and effect.
C. Communications Privacy
Users of the Internet should have the right to be free of unlawful
governmental interception of or access to communication and information
online. Protection of this right entails:
1) Right of Anonymity: Users should have the right to communicate without
disclosing their identity. Anonymous communication is critical to assure
basic rights of freedom of association and to protect an open political
process. By the same token, anonymous communication is not traceable by
enforcement. Thus, we recognize that some criminal investigations may be
made more difficult. As the Internet develops, we believe that some
services will develop that support anonymous speech, while others will
require identification. Choice among various levels of identification
should be made by the users involved, not dictated by law.
2) Unfettered Right to Use Encryption: Users should have the right to use
any form of cryptographic technology they choose to protect the privacy of
their communications. Users should not be compelled to guarantee in
law enforcement access to communications through key escrow, key recovery
or other mechanisms.
3) Freedom from Unlawful Access to Information in Storage or Transmission:
No user should be subjected to governmental search or seizure of
communications except pursuant to legally authorized procedures,
by an appropriate detached and neutral judicial officer.
4) Users should have better notice and choice over the use of personal
information by others. User empowerment approaches can also address these
information privacy issues in interactive system environments.
(end of Final Open Internet Policy Principles Document)
Annex to the Final Open Internet Policy Principles Document
When there was a difference of opinion among conference participants as to
a particular Principle, a vote was taken, with the majority view
prevailing. All conference participants agreed that views not prevailing
would be included in an Annex to the Final Document.
There was a majority vote by conference participants in favor of removing
the following draft Principle from the Final Document:
Responsibility for content on the Internet should rest with the author of
the content. It is crucial to identify accurately the chain of
responsibilities. Originators of content should be responsible for the
content they put on the Internet - not access providers, network
storage facilities or other intermediaries. When anonymity makes it
impossible to fix responsibility on the author or originator,
responsibility should rest with the last first identifiable individual or
entity in the chain of distribution, closest to the author or originator,
who had an opportunity to accept or decline anonymous material.
Professor Hank Perritt of Villanova University Law School has provided the
following opinion in support of the draft Principle above that was removed
from the Final Document:
There is a tension between protecting anonymity and protecting
intermediaries from liability. The best rule would be to protect
intermediaries from liability as long as it is possible to identify the
originator or author of a communication. If an intermediary handles
anonymous communications, however, the only choice is to let a victim of a
harmful communication bear the loss or to shift the loss to the
intermediary. As between the innocent victim, who has no choice, and the
intermediary who has a choice whether to accept anonymous communication,
would be preferable to hold the intermediary liable. Accordingly, I would
favor an immunity for intermediaries but only as to non-anonymous messages
or other items of information content.
Two conference participants,Christopher Kuner, Attorney-at-Law, Gleiss &
Partners, Germany (on behalf of Netscape Communications Corporation) and
Professor Hank Perritt of Villanova University Law School, have expressed
reservations about Principle III(A)2 in the Final Document:
Christopher Kuner: Principle III(A)(2) is unclear, legally questionable,
and does not reflect our discussion at the conference. In particular, I
would like to point out the following:
(1) The wording of this principle is unclear; just what is "the country in
which the publisher originally acts to publish the material" when, for
instance, an Internet user transmits material he has authored to a server
in another country, from which it can be accessed over the net?
(2) The principle is inconsistent with the rest of the draft. Under this
language, the conduct of someone sitting at a computer in Iran who
publishes a web page saying "Khomeini was a liar and a crook" should be
judged based on Iranian law, whereas in Article III(A)(1) we talk about
"binding human rights obligations" and in Article IV about "international
human rights law", both of which would likely be violated by the sanctions
which Iranian law would impose on such a person.
(3) Why does it matter whether or not a document concerned with the
Internet is consistent with EU television policy?
(4) The law of most countries and international law provide for the
possibility of law being applied to conduct outside the borders of the
jurisdiction which enacted it when such conduct produces a harmful effect
in the jurisdiction. I may not always agree with this approach, but find
that Article III(A)(2) simply glosses over this principle without
explaining why it should not apply in the case of the Internet.
(5) The choice of law provision embodied in Article III(A)(2) was
in the closing minutes of the conference as an afterthought, and we never
had a chance to discuss it. The subject of choice of law in the Internet
extremely complex, and I object to taking a position on it when we never
had a chance to consider it properly.
Professor Hank Perritt: Choice of law is tricky in Cyberspace.
International law arguably permits both the country of origin (under the
principle of subjective territoriality) and the country of receipt (under
the principle of objective territoriality) to regulate content on the
Internet. There is precedent for both approaches. The "Television Without
Borders" document from the EC adopts the country-of-origin approach,
content legal anywhere if it is legal in the country of origin and
presumably illegal anywhere if it is illegal in the country of origin. The
UN General Assembly resolution on direct broadcast television adopts the
country of receipt approach, making the content legal if it is legal in
country of receipt, and presumably illegal according to the local law of
the place of receipt as well.
Neither of these approaches is perfect. In the long run, it would be
to harmonize content rules, and efforts should begin now to narrow
differences on content regulation, recognizing a general preference in
favor of freedom of expression, as noted in the principles.
(end of Annex to the Final Open Internet Policy Principles Document)
Date: Thu, 15 Dec 1996 22:51:01 CST
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