EFFector Online 2.03 - Janury 7, 1992 - The Americ
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########## ########## ########## | AMERICA ONLINE FLAP|
########## ########## ########## | A sensible position|
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######## ######## ######## | COMPUSERVE|
######## ######## ######## | A sensible decision|
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########## #### #### | SUN MICROSYSTEMS GRANT TO EFF|
########## #### #### | A new and improved eff.org in 1992|
THE EFF PIONEER AWARDS: CALL FOR NOMINATIONS |
EFFector Online January 7, 1992 Volume 2, Number 3|
In this issue:
THE AMERICA ONLINE FLAP
SUN MICROSYSTEMS MAKES MAJOR EQUIPMENT GRANT TO EFF
THE COMPUSERVE CASE
THE EFF AND FREE ENTERPRISE
EFF at SCAT
THE FIRST ANNUAL PIONEER AWARDS:CALL FOR NOMINATIONS
THE AMERICA ONLINE FLAP
Three weeks ago, Roger Dietz of Fremont, California, revealed to the
media that he had received GIF files of sex acts via email to his
account on America Online. The files apparently featured people who
Dietz, an adult, had been posing as a gay 13-year-old boy in the public
chat rooms of America Online for some time. His announcement that what
appeared to be "kiddie porn" was sent to him caused a number of news
organizations such as CNN, local and national newspapers, and Newsweek
to follow up on the story.
As many participants of the nets know, the "discovery" that computer
networks contain and transmit adult material via email, and sometimes as
files accessible to members of the network or BBS is something that
recurs with some regularity on both the public and commercial systems.
When it does, it poses severe problems for the managers of those networks.
Although explicit sexual material has been part of the American scene
for many years, the fact that it can be transmitted through computer
networks is news to many people. When the material is reported to
involve underage people, most people feel uneasy, mystified, and angry.
Since the technology and legal nature of email is not well understood by
the majority of citizens, many people wonder why the management of
computer networks cannot actively police their systems to odious or
potentially illegal material. Faced with this problem, Steve Case,
President of America Online, said to Newsweek's John Schwartz: "People
ask, 'How can you permit this? It's the same question that could be
asked of the postmaster general."
Going into more detail online, Case posted the following message to all
members of America Online:
Message to AO members from Steve Case:
RESTATEMENT OF OUR POLICY
I'd like to remind all of you that we have established rules regarding
the use of this service, which we call "Terms of Service." These rules
are posted in the online customer support area. Our goal is to foster
the development of an "electronic community" that honors the principles
of freedom of expression, while also recognizing that some community
standards are needed for the service to grow.
Recently two troubling problems have come to our attention. The first
is a report that some members are using the service to commit illegal
activities. A member has forwarded to us copies of messages he received
which contained graphic files that may constitute child pornography.
Because a member chose to forward these files to us, we were able to
intervene and we are working with the authorities to pursue the matter.
We obviously were unaware of this act until the files were forwarded to
us, as our policy is that all private communications -- including
e-mail, instant messages, and private chat rooms -- are strictly
private, and we do not, will not, and legally cannot monitor any private
communications. But if we are alerted to a potential offense and we are
sent evidence, as we were in this particular case, we will vigorously
pursue the matter.
This first problem dealt with the illegal use of private communications.
The second deals with the abuse by a handful of members of the public
communications features. Recently, there has been an increase in online
behavior that we -- and we think most members -- find to be offensive.
This has included the use of vulgar language in public areas (chat rooms
and/or message boards), the creation of inappropriate screen names
and/or room names, and the sending of unsolicited, harassing Instant
Messages to some members.
Our desire is to trust the judgment of our members, and to err on the
side of free expression. We don't want to aggressively police public
areas to make sure everyone is abiding by the Terms of Service.
However, we aren't going to let this type of unwanted behavior by a few
ruin the service for us all. Let this serve as a warning to those few
people who are creating the problem: shape up or ship out.
Steve Case, President
America Online, Inc.
(reposted by permission of America Online)
Reviving A Computer After A Fire
If a computer's plastic casing has not been deformed by the heat, which
begins to happen at 250 degrees F, then the computer will work.
--Dean Sheridan, electronics technician and deaf actor,
SUN MICROSYSTEMS MAKES MAJOR EQUIPMENT GRANT TO EFF
We are pleased to announce that Sun Microsystems has awarded The
Electronic Frontier Foundation a substantial equipment grant for 1992.
This grant will enable us to go forward with a number of technical
upgrades and other projects we have been putting off for some time due
to the limitations on our equipment.
For many months, the trusty Sun 4/110 (eff.org) which handles almost all
our Internet traffic (including the EFF's anonymous ftp archives, the
mailing lists we host, our USENET feed, and our WAIS server) has been
pushed to its limits. In order to upgrade our systems and provide
better service to the net and our members, we began last summer to
pursue a grant from Sun Microsystems that would allow us to modify and
upgrade our system.
The major feature of the grant is a new SPARCStation 2, as well as an
upgrade to a SPARCStation 2 from our current 4/110. With two machines,
each more powerful than our current system, we will be able to provide
more and faster ftp, WAIS, and mailing list service without making the
system unusable for "normal work".
In addition, we have been granted a SPARCStation IPX (to be used for
software development), two SPARCStation ELCs, which will be used for
administrator workstations (allowing us to run window systems, long
compiles, and the like without bogging everything down), and a large
amount of additional disk space (much of which will go to ftp archives,
additional WAIS databases, and the like).
We are making the final arrangements now, and hope to have the new
machines phased in over the course of February. (People who have been
using 184.108.40.206 or 'eff.org' for ftp or WAIS please note that that
address *will change*. Use ftp.eff.org or wais.eff.org, respectively,
instead, as those will always point to the right machine for the job.)
The Electronic Frontier Foundation would like to extend its heartfelt
thanks to all the people at Sun Microsystems for this strong vote of
confidence in our mission and our work.
Brenner's Rule of Pausing Programmers
If an expert pauses while testing a new program, that's where the
beginner will fail. -- Norman Brenner, Fleetwood, New York **
THE COMPUSERVE CASE:
A STEP FORWARD IN FIRST AMENDMENT PROTECTION FOR ONLINE SERVICES.
By Mike Godwin (email@example.com)
By now you may have heard about the summary-judgment decision in Cubby,
Inc. v. CompuServe, a libel case. What you may not know is why the
decision is such an important one. By holding that CompuServe should not
be liable for defamation posted by a third-party user, the court in this
case correctly analyzed the First Amendment needs of most online
services. And because it's the first decision to deal directly with
these issues, this case may turn out to be a model for future decisions
in other courts.
The full name of the case, which was decided in the Southern District of
New York, is Cubby Inc. v. CompuServe. Basically, CompuServe contracted
with a third party for that user to conduct a special-interest forum on
CompuServe. The plaintiff claimed that defamatory material about its
business was posted a user in that forum, and sued both the forum host
and CompuServe. CompuServe moved for, and received, summary judgment in
Judge Leisure held in his opinion that CompuServe is less like a
publisher than like a bookstore owner or book distributor. First
Amendment law allows publishers to be liable for defamation, but not
bookstore owners, because holding the latter liable would create a
burden on bookstore owners to review every book they carry for
defamatory material. This burden would "chill" the distribution of
books (not to mention causing some people to get out of the bookstore
business) and thus would come into serious conflict with the First
So, although we often talk about BBSs as having the rights of publishers
and publications, this case hits on an important distinction. How are
publishers different from bookstore owners? Because we expect a
publisher (or its agents) to review everything prior to publication. But
we *don't* expect bookstore owners to review everything prior to sale.
Similarly, in the CompuServe case, as in any case involving an online
service in which users freely post messages for the public (this
excludes Prodigy), we wouldn't expect the online-communications service
provider to read everything posted *before* allowing it to appear.
It is worth noting that the Supreme Court case on which Judge Leisure
relies is Smith v. California--an obscenity case, not a defamation case.
Smith is the Supreme Court case in which the notion first appears that
it is generally unconstitutional to hold bookstore owners liable for
content. So, if Smith v. California applies in a online-service or BBS
defamation case, it certainly ought to apply in an obscenity case as well.
Thus, Cubby, Inc. v. CompuServe sheds light not only on defamation law
as applied in this new medium but on obscenity law as well. This
decision should do much to clarify to concerned sysops what their
obligations and liabilities are under the law.
Highlights of the CompuServe decision (selected by Danny Weitzner):
"CompuServe's CIS [CS Information Service] product is in essence an
electronic, for-profit library that carries a vast number of
publications and collects usage and membership fees from its subscribers
in return for access to the publications. CompuServe and companies like
it are at the forefront of the information industry revolution. High
technology has markedly increased the speed with which information is
gathered and processed; it is now possible for an individual with a
personal computer, modem, and telephone line to have instantaneous
access to thousands of news publications from across the United States
and around the world. While CompuServe may decline to carry a given
publication altogether, in reality, once it does decide to carry a given
publication, it will have little or no editorial control over that
publication's contents. This is especially so when CompuServe carries
the publication as part of a forum that is managed by a company
unrelated to CompuServe. "... CompuServe has no more editorial control
over ... [the publication in question] ... than does a public library,
book store, or newsstand, and it would be no more feasible for
CompuServe to examine every publication it carries for potentially
defamatory statements than it would for any other distributor to do so."
"...Given the relevant First Amendment considerations, the appropriate
standard of liability to be applied to CompuServe is whether it knew or
had reason to know of the allegedly defamatory Rumorville statements."
Cubby, Inc. v. CompuServe, Inc. (90 Civ. 6571, SDNY)
Writing A Computer Program
No good computer program can be written by more than ten people; the
best programs are written by one or two people. -- Phil A. Schrodt,
Associate Professor, Northwestern University, Evanston, Illinois **
THE EFF AND FREE ENTERPRISE
by Mitchell Kapor
[Over the past few weeks, there has been a thread in our Internet
discussion group, comp.org.eff.talk, about the EFF's position regarding
free enterprise and the future of the National Public Network. As can
often happen in this volatile medium, there was some confusion over
where the organization stands on this issue. To clarify this, EFF
President, Mitchell Kapor, wrote the following response to the group.]
I post this to clear up confusion about EFF positions which may have
been created by posters imputing positions to the EFF.
The EFF does not believe the U.S. government should own or control a
national public network. We do not believe that the Internet or NREN
should be extended by government fiat into everyone's home.
In the context of the Internet, we would like to see a transition as
speedy as possible to private ownership, management, and control of
network facilities which serve or could serve competitive markets. If
university access to networks is to be subsidized, it should be on the
basis of direct grants to institutions which are to be used for the
purchase of network services.
What keeps the Internet glued together today is access to common network
facilities provided through NSF-subsidized or free connections to a
backbone network owned and controlled by a single private entity, ANS.
The NSF recently announced that in 1993 it would begin a transition to a
regime in which there would be multiple backbone awardees. This will
bring affairs one step closer to a truly open regime. It should be
pointed out that the NSF and other agencies are interested in
stimulating the development of networking regimes (such as gigabit
networks) which are at the leading edge of technology, hence
pre-competitive state. This provides one principled rationale for
With respect to the public switched telephone network, over the next
decade,or as soon as technology permits, we should move away from
government mandated local exchange monopolies and toward competitive
provision of local telephone service. After a period of time, if there
is real competition,and we avoid the dangers of explosive decompression
>from sudden removal of all government controls, it should be possible
At the same time, development of the market for content-based
information services could be spurred long before that with the
deployment of a ubiquitous, affordable platform based on ISDN. We see no
purpose in delaying this for either local loop competition or the
development of a universal, national broadband network, both of which
are far off (and both of which we support). To do so will likely require
government action, through some combination of legislation and FCC and
state regulation. It was in this narrow context and no broader one that
we originally advocated the appropriateness of regulation to achieve
The Professional Tools Rule
Engineers and computer programmers need equipment equal to one year's
earnings to work at top speed. Anything less slows them down.
-- William Blake, engineering manager, New Haven, Connecticut**
EFF at SCAT:
Speaking to the Special Computer Attack Team
by Mike Godwin
[One of the jobs of the Electronic Frontier Foundation is to build
bridges between different communities with an interest in computer-based
communications. One of the most important communities is law
enforcement. In December, Mike Godwin, staff counsel for EFF,spoke to a
meeting of the Special Computer Attack Team (SCAT). This is his report.]
The Special Computer Attack Team is a joint federal-state organization
whose mission is to share information and resources in handling computer
crime in that region. I met with them at their invitation in Indianapolis.
I spoke for over two and a half hours, and we touched on most of the
civil-liberties issues with which EFF is concerned.
I told SCAT that perhaps the main things they'd heard about EFF is that
it was a hacker defense fund and is suing some government agents and
prosecutors. I explained that we *aren't* a "hacker defense fund," and
stressed that being alert to the issues I would raise in my presentation
is a way of minimizing the risk of a lawsuit in their cases.
We discussed the issues raised by seizing equipment. "You can't seize
equipment under a search warrant that you don't have probable cause to
believe is evidence of a crime," I said.
They responded by talking about forfeiture laws.
"Can you seize forfeitable stuff that's not evidence under an
*evidentiary* search warrant?" I asked them.
They admitted that this was improper procedure.
I went on to explain that the reason this improper procedure is almost
never questioned is that, when law-enforcement agents engage in this
kind of improper, overbroad search, the cost of litigation to recover
invariably exceeds the cost of the equipment. At present the major
remedy for overbroad searches is the Exclusionary Rule--the Supreme
Court-imposed rule that says that improperly seized evidence can't be
used in court.
But the problem is that the Exclusionary Rule is *no remedy at all* in
cases in which the government seized items that were *not* evidence. If
you are a defendant your lawyer won't expend time and effort to seek
suppression of the "evidence" of the illegally seized laser printer if
the printer is not in fact incriminatory.
These considerations left me with making what were essentially *moral*
arguments that law enforcement should limit its seizures since from a
legal standpoint, they have few risks. "Everyone in this room has sworn
to uphold the law," I said. "Upholding the law means not seizing as
'evidence' equipment and other items that you don't have probable cause
to believe *is* evidence."
We also talked about searches of third-party non-targets.(Steve Jackson
Games is a case in point about what can go wrong in a search of a third
party). I said, "Imagine how it feels when, although you would have
gladly cooperated with an investigation if asked, the police come and
seize your BBS and shut it down." Even if they weren't worried about
about legal action, I argued, they should worry about public faith in
law enforcement when they run roughshod over law-abiding citizens.
In addition, I pointed out that duplicate computer files are admissible
as evidence under federal law, and using duplicate files is a way of
making searches less intrusive. But it was clear from the discussion
that ensued that most of the people at this meeting hated not seizing
the equipment. They admitted that they found it "convenient" to take
computers away to examine at leisure. When I became a bit angry about
"convenience" trumping the right to a reasonable, particular search, one
of the attendees "explained" that by "convenient" he meant "necessary in
Finally, I told the SCAT members that the law shouldn't treat a
third-party sysop differently than it treats IBM; if a subpoena is good
enough to get computer records from IBM, it's also appropriate for a
third-party sysop of a hobbyist BBS. They seemed to accept this.
Overall, I came away from the Indianapolis presentation with two
feelings. First, I was certain that we had made a good impression on
them, that they'd found the presentation thought-provoking and
informative, that we may had won some of them over on some issues.
Second, I was depressed because I realized how few legal remedies there
are for the victims of overbroad computer seizures, be they suspects or
third parties. We have a long way to go here, complicated by the fact
that most seizure and forfeiture decisions in recent years have been
built on drug cases. I can only hope that as computer-based
communication becomes more and more part of mainstream American life,
policy makers will realize the need for new remedies and protections.
Dealing with A Computer
When dealing with a computer, a good rule to remember is to treat it as
you would a small, retarded (but very obedient) child. -- Bob Horton,
consultant and writer, St. Petersburg, Flordia **
THE ELECTRONIC FRONTIER FOUNDATION'S FIRST ANNUAL PIONEER AWARDS
CALL FOR NOMINATIONS
(Attention: Please feel free to repost to all systems worldwide.)
In every field of human endeavor,there are those dedicated to expanding
knowledge,freedom,efficiency and utility. Along the electronic frontier,
this is especially true. To recognize this,the Electronic Frontier
Foundation has established the Pioneer Awards. The first annual Pioneer
Awards will be given at the Second Annual Computers, Freedom, and
Privacy Conference in Washington, D.C. in March of 1992.
All valid nominations will be reviewed by a panel of outside judges
chosen for their knowledge of computer-based communications and the
technical, legal, and social issues involved in networking.
There are no specific categories for the Pioneer Awards, but the following
1) The nominees must have made a substantial contribution to the
health, growth, accessibility, or freedom of computer-based
2) The contribution may be technical, social, economic or cultural.
3) Nominations may be of individuals, systems, or organizations in
the private or public sectors.
4) Nominations are open to all, and you may nominate more than one
recipient. You may nominate yourself or your organization.
5) All nominations, to be valid, must contain your reasons, however
brief, on why you are nominating the individual or organization,
along with a means of contacting the nominee, and your own contact
number. No anonymous nominations will be allowed.
6) Every person or organization, with the single exception of EFF
staff members, are eligible for Pioneer Awards.
You may nominate as many as you wish, but please use one form per
nomination. You may return the forms to us via email to
You may mail them to us at:
Pioneer Awards, EFF,
155 Second Street
Cambridge MA 02141.
You may FAX them to us at:
+1 617 864 0866
Just tell us the name of the nominee, the phone number or email address
at which the nominee can be reached, and, most important, why you feel
the nominee deserves the award. You can attach supporting
documentation. Please include your own name, address, and phone number.
We're looking for the Pioneers of the Electronic Frontier that have made
and are making a difference. Thanks for helping us find them,
The Electronic Frontier Foundation
-------EFF Pioneer Awards Nomination Form------
Please return to the Electronic Frontier Foundation via email to:
or via surface mail to EFF 155 Second Street, Cambridge, MA 02141 USA;
or via FAX to +1 617 864 0866
Contact number or email address: ________________________________________
Reason for nomination:___________________________________________________
Your name and contact number:____________________________________________
Extra documentation attached: _______
-------EFF Pioneer Awards Nomination Form------
Designing a Computer System
Making a design change when a computer system is nearly complete will
cost about ten times as much as making the change before the work has
started. -- Clifton Royston, programmer/analyst, Nukualofa, Tonga**
MEMBERSHIP IN THE ELECTRONIC FRONTIER FOUNDATION
In order to continue the work already begun and to expand our efforts
and activities into other realms of the electronic frontier, we need the
financial support of individuals and organizations.
If you support our goals and our work, you can show that support by
becoming a member now. Members receive our quarterly newsletter,
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believe that support should be freely given, you can receive these
things even if you do not elect to become a member.
Your membership/donation is fully tax deductible.
Our memberships are $20.00 per year for students, $40.00 per year for
regular members. You may, of course, donate more if you wish.
any circumstances, sell any part of its membership list. We will, from
time to time, share this list with other non-profit organizations whose
work we determine to be in line with our goals. But with us, member
privacy is the default. This means that you must actively grant us
permission to share your name with other groups. If you do not grant
explicit permission, we assume that you do not wish your membership
disclosed to any group for any reason.
---------------- EFF@eff.org MEMBERSHIP FORM ---------------
Mail to: The Electronic Frontier Foundation, Inc.
155 Second St. #23
Cambridge, MA 02141
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This allows any organization to
become a member of EFF. It allows
such an organization, if it wishes
to designate up to five individuals
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Expiration date: ____________
I hereby grant permission to the EFF to share my name with
other non-profit groups from time to time as it deems
appropriate [ ].
When writing a software program, your chances of making a mistake double
with each telephone interruption. --R.L. Liming, Indianapolis, Indiana**
** These "rules of thumb" are from NEVER TRUST A CALM DOG and other
Rules of Thumb by Tom Parker (Harper/Collins, 1990). Reprinted by
permission of the author.
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