Found at: 0x1bi.net:70/textfiles/file?law/eff.law

One Cambridge Center, Suite 300
Cambridge, MA       02142

Saturday, July 21, 1990

Good people,

Greetings.  Some of you who read Crime and Puzzlement when it first went
clear that we are operating on political rather than electronic time.  And
s hardly swift.  The Net may be instantaneous, but people are as slow as

Nevertheless, much has happened since early June.  Crime and Puzzlement
all over Cyberspace and has, by now, generated almost 300 unsolicited offers
around 50.  (The voice of Peter Lorre is heard in the background, repeating,
"Toktor, ve haf created a *monster*.")     

Well, we have at least created an organization.  Lotus founder Mitch Kapor and
mentioned in Crime and Puzzlement, the EFF has received initial (and extremely

As you will see in the accompanying press release, we formally announced the
EFF at a press conference in Washington on July 10.  The press attention was
lavish but predictable...KAPOR TO AID COMPUTER CRIMINALS.  Actually, our
mission is nothing less than the civilization of Cyberspace.

We mean to achieve this through a variety of undertakings, ranging from
mmediate legal action to patient, long-lasting efforts aimed at forming, in
the public consciousness, useful metaphors for life in the Datasphere.  There
s much to do.  Here is an abbreviated description of what we are already

*       We have engaged the law firms of Rabinowitz, Boudin, Standard, Krinsky &
Lieberman and Silverglate & Good to intervene on behalf of Craig Neidorf (the
ssues, please see the message following this one.)  We became involved in
these particular cases because of their general relevance and we remain alert
to developments in a number of other related cases. 

Despite what you may have read, we are not involved in these legal matters as
"cracker's defense fund," but rather to ensure that the  Constitution will
continue to apply to digital media.  Free expression must be preserved long
after the last printing press is gathering museum dust.  And we intend an
unequivocal legal demonstration that speech is speech whether it finds form in
nk or in ascii.

*       We have funded a significant two-year project on computing and civil
liberties to be managed by the Computer Professionals for Social
Responsibility.  With it, we aim to acquaint policy makers and law enforcement
officials of the civil liberties issues which may lie hidden in the brambles
telecommunications policy.  (A full description of this project follows.)

*       During the days before and after the press conference, Mitch and I met
officials from the White House and Library of Congress.  Thus we began
enforcement training and techniques, and telecommunications law,
nfrastructure, and regulation.

Much of this promises to be boring as dirt, but we believe that it is
to "re-package" the central issues in more digestible, even entertaining,
f the general public is to become involved in the policies which will
fundamentally determine the future of American liberty.

*       Recognizing that Cyberspace will be only as civilized as its
nhabitants, we are working with a software developer to create an
front end" for UNIX mail systems.  This will, we hope, make Net access so easy
that your mother will be able cruise around the digital domain (if you can
figure out a way to make her want to).  As many of you are keenly aware, the
best way, perhaps the only way, to understand the issues involved in digital
telecommunications is to experience them first hand.  

These are audacious goals.  However, the enthusiasm already shown the
Foundation indicates that they may not be unrealistic ones.  The EFF could be
like a seed crystal dropped into a super-saturated solution.  (Or perhaps more
appropriately, "the hundredth monkey.")  Our organization has been so far
extremely self-generative as people find in it an expression for concerns
they had felt but had not articulated.  

You, the recipients of this first e-mailing are the pioneers in this effort.
By coming forward and offering your support, both financial and personal, you
are doing much to define the eventual structure and flavor of the Electronic
Frontier Foundation.

And much remains to be defined.  We are applying for 501(c)3 status, which
means that your contributions to the Foundation will be tax deductible at the
time this status is granted.  However, tax-exempt status also places
mission.  Like many activist organizations, we may find it necessary to
maintain two organizations, one for lobbying and the other for education.

We are in the process of setting up both a BBS in Cambridge and a Net
newsgroups.  None of this is as straightforward as we would have it be.  We

What can you do?  Well, for starters, you can spread the word about EFF as
especially to those who may be interested but who may not have Net access.

You can turn some of the immense processing horsepower of your distributed
to the task of finding useful new metaphors for community, expression,

And you can try to communicate to technically unsophisticated friends the
extent to which their future freedoms and well-being may depend on
understanding the broad forms of digital communication, if not necessarily the
technical details. 

Finally, you can keep in touch with us at any of the above addresses.  Please
mportantly, news of relevant events.  And we will return the favor.


for The Electronic Frontier Foundation

our announcement in Washington last week.  Please distribute them as you see

that you simply buy the August issue of Whole Earth Review, in which it will

Finally, we also have available an excellent paper on hackers by Dorothy
Denning, a widely respected computer security expert with DEC.



Contact: Cathy Cook (415) 759-5578
Washington, D.C., July 10, 1990 -- Mitchell D. Kapor, founder of Lotus
Development Corporation and ON Technology, today announced that he,
along with colleague John Perry Barlow, has established a foundation to
address social and legal issues arising from the impact on society of
the increasingly pervasive use of computers as a means of communication
and information distribution.  The Electronic Frontier Foundation (EFF)
addition, it will support litigation in the public interest to preserve,
and telecommunications technology.

Kapor and Steve Wozniak, co-founder of Apple Computer, Inc.  The
Foundation expects to actively raise contributions from a wide

As an initial step to foster public education on these issues, the
Foundation today awarded a grant to the Palo Alto, California-based
(CPSR).  The grant will be used by CPSR to expand the scope of its
on-going Computing and Civil Liberties Project (see attached).

Because its mission is to not only increase public awareness about civil
liberties issues arising in the area of computer-based communications,
but also to support litigation in the public interest, the  Foundation
 The first case concerns Steve Jackson, an Austin-based game manufacturer
Foundation intends to seek amicus curiae  (friend of the court) status
n the government's case against Craig Neidorf, a 20-year-old University
of Missouri student who is the editor of the electronic newsletter

"It is becoming increasingly obvious that the rate of technology
advancement in communications is far outpacing the establishment of
appropriate cultural, legal and political frameworks to handle the
ssues that are arising," said Kapor. "And the Steve Jackson and Neidorf
cases dramatically point to the timeliness of the Foundation's mission.
We intend to be instrumental in helping shape a new framework that
embraces these powerful new technologies for the public good."

The use of new digital media -- in the form of on-line information and
nteractive conferencing services, computer networks and electronic
bulletin boards -- is becoming widespread in businesses and homes.
However, the electronic society created by these new forms of digital
communications does not fit neatly into existing, conventional legal and

The question of how electronic communications should be accorded the
of discourse is curren+Չсź"͍ͥ
Zl take an
active role in these discussions through its continued funding of
various educational projects and forums.

An important facet of the Foundation's mission is to help both the
the challenges posed by developments in computing and
telecommunications.  Also, the EFF will encourage and support the
use their computers to access the growing number of digital
communications services available.

The Foundation is located in Cambridge, Mass.  Requests for information
Suite 300, Cambridge, MA 02142, 617/577-1385, fax 617/225-2347; or it
can be reached at the Internet mail address eff@well.sf.ca.us. 



 A new world is arising in the vast web of digital, electronic media
mail and computer conferencing are becoming the basis of new forms of
community.  These communities without a single, fixed geographical
location comprise the first settlements on an electronic frontier.

While well-established legal principles and cultural norms give
books, and telephones, the new digital media do not so easily fit into
existing frameworks.  Conflicts come about as the law struggles to
technologies, even as they struggle to master or simply cope with them
n the workplace and the home.

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

To that end, the Electronic Frontier Foundation will:

underlying free and open telecommunications, and support the creation of
legal and structural approaches which will ease the assimilation of
these new technologies by society.

the rapid advancement in the area of new computer-based communications
media.  Support litigation in the public interest to preserve, protect,
and extend First Amendment rights within the realm of computing and
telecommunications technology.

endow non-technical users with full and easy access to computer-based



John Perry Barlow and Mitchell Kapor
Electronic Frontier Foundation
Washington, DC
July 10,1990

Over the last 50 years, the people of the developed world have begun to 
cross into a landscape unlike any which humanity has experienced before.  It
a region without physical shape or form. It exists, like a standing wave, in
the vast web of our electronic communication systems. It consists of electron

conversation takes place. But it is also the repository for all digital or
electronically transferred information, and, as such, it is the venue for most
of what is now commerce, industry, and broad-scale human interaction. William
Gibson called this Platonic realm "Cyberspace," a name which has some currency
among its present inhabitants. 

Whatever it is eventually called, it is the homeland of the Information Age,
the place where the future is destined to dwell. 

nterfaces, incompatible communications protocols, proprietary barricades,
cultural and legal ambiguities, and general lack of useful maps or metaphors. 

Certainly, the old concepts of property, expression, identity, movement, and
context, based as they are on physical manifestion, do not apply succinctly in
a world where there can be none. 

Sovereignty over this new world is also not well defined. Large institutions
already lay claim to large fiefdoms, but most of the actual natives are
therefore, a perfect breeding ground for both outlaws and vigilantes. 

Most of society has chosen to ignore the existence of this arising domain.
Every day millions of people use ATM's and credit cards, place telephone
make travel reservations, and access information of limitless variety...all

Our financial, legal, and even physical lives are increasingly dependent on
functions of modern existence to institutions we cannot name, using tools
never heard of and could not operate if we had. 

As communications and data technology continues to change and develop at a
many times that of society, the inevitable conflicts have begun to occur on
border between Cyberspace and the physical world. 

These are taking a wide variety of forms, including (but hardly limited to)

What is free speech and what is merely data? What is a free press without
and ink? What is a "place" in a world without tangible dimensions?  How does
one protect property which has no physical form and can be infinitely and
easily reproduced? Can the history of one's personal business affairs properly
belong to someone else? Can anyone morally  claim to own knowledge itself? 

These are just a few of the questions for which neither law nor custom can
Secret Service and FBI, acting at the disposal of large information
corporations, are seeking to create legal precedents which would radically
limit Constitutional application to digital media. 

The excesses of Operation Sun Devil are only the beginning of what threatens
become a long, difficult, and philosophically obscure struggle between
nstitutional control and individual liberty.

 II.    Future Shock 

a lesser extent, the same applies to ordinary citizens who correctly feel a
lack of control over their own lives and identities. 

One result of this is a neo-Luddite resentment of digital technology from
little good can come. Another is a decrease in worker productivity ironically
coupled to tools designed to enhance it. Finally, there is a spreading sense
alienation, dislocation, and helplessness in the general presence of which no

 III.   The "Knows" and the "Know-Nots" 

Modern economies are increasingly divided between those who are comfortable
t. In essence, this development disenfranchises the latter group, denying
any possibility of citizenship in Cyberspace and, thus, participation in the

Furthermore, as policy-makers and elected officials remain relatively ignorant
of computers and their uses, they unknowingly abdicate most of their authority
to corporate technocrats whose jobs do not include general social

We are founding the Electronic Frontier Foundation to deal with these and
they deserve. We were forced to ask, "If not us, then whom?" 

Operation Sun Devil and other official adventures into the digital realm, we
thought that remedy could be derived by simply unleashing a few highly
competent Constitutional lawyers upon the Government. In essence, we were

However, examination of the issues surrounding these government actions
collision between Society and Cyberspace. 

We have concluded that a cure can lie only in bringing civilization to
Cyberspace. Unless a successful effort is made to render that harsh and
mysterious terrain suitable for ordinary inhabits, friction between the two
legitimacy of representative government itself, might gradually disappear. 

We could not allow this to happen unchallenged, and so arises the Electronic
Frontier Foundation. In addition to our legal interventions on behalf of those

* Engage in and support efforts to educate both the general public and policy-
makers about the opportunities and challenges posed by developments in
computing and telecommunications. 

* Encourage communication between the developers of technology, government and
corporate officials, and the general public in which we might define the
appropriate metaphors and legal concepts for life in Cyberspace. 

* And, finally, foster the development of new tools which will endow non-
technical users with full and easy access to computer-based

One of us, Mitch Kapor, had already been a vocal advocate of more accessible
now intend to meet. 

The other, John Perry Barlow, is a relative newcomer to the world of 
(though not to the world of politics) and is therefore well- equipped to act
an emissary between the magicians of technology and the wary populace who must
ncorporate this magic into their daily lives.

While we expect the Electronic Frontier Foundation to be a creation of some
longevity, we hope to avoid the sclerosis which organizations usually develop
n their efforts to exist over time. For this reason we will endeavor to
light and flexible, marshalling intellectual and financial resources to meet
appropriate, we will communicate between ourselves and with our constituents
largely over the electronic Net, trusting self- distribution and
traditional organization. 

We readily admit that we have our work cut out for us. However, we are 
encouraged by the overwhelming and positive response which we  have received
far. We hope the Electronic Frontier Foundation can  function as a focal point
for the many people of good will who wish to settle in a future as abundant
free as the present. 


 Contact: Marc Rotenberg (202) 775-1588    
 Washington, D.C., July 10, 1990 -- Computer Professionals for Social
Responsibility (CPSR), a national computing organization, announced
today that it would receive a two-year grant in the amount of $275,000
for its Computing and Civil Liberties Project.  The Electronic Frontier
Foundation (EFF),founded by Mitchell Kapor,  made the grant to expand
ongoing CPSR work on civil liberties protections for computer users. 
 At a press conference in Washington today, Mr. Kapor praised CPSR's
last several years, it has sought to extend civil liberties protections
to new information technologies.  Now we want to help CPSR expand that
 Marc Rotenberg, director of the CPSR Washington Office said, "We are
obviously very happy about the grant from the EFF.  There is a lot of
computer technologies." 
 CPSR said that it will host a series of policy round tables in
Washington, DC, during the next two years with lawmakers, computer
users, including (hackers), the FBI, industry representatives, and
members of the computer security community.  Mr. Rotenberg said that the
of electronic media and the protection of the public interest." 
 CPSR also plans to develop policy papers on computers and civil
liberties, to oversee the Government's handling of computer crime
nvestigations, and to act as an information resource for organizations
and individuals interested in civil liberties issues. 
 The CPSR Computing and Civil Liberties project began in 1985 after
CPSR prepared a report on the proposed expansion of the FBI's computer
threats to privacy and civil liberties.  Shortly after the report was
ssued, the FBI announced that it would drop a proposed computer feature
to track the movements of people across the country who had not been
charged with any crime. 
 "We need to build bridges between the technical community and the policy
community," said Dr. Eric Roberts, CPSR president and a research
"There is simply too much misinformation about how computer networks
operate.  This could produce terribly misguided public policy." 
 CPSR representatives have testified several times before Congressional
committees on matters involving civil liberties and computer policy.
Last year CPSR urged a House Committee to avoid poorly conceived
computer activity.  "In the rush to criminalize the malicious acts of
the few we may discourage the beneficial acts of the many,"  warned
CPSR.  A House subcommittee recently followed CPSR's recommendations
on computer crime amendments. 
 Dr. Ronni Rosenberg, an expert on the role of computer scientists and
there is an information gap that needs to be filled.  This is an
mportant opportunity for computer scientists to help fill the gap."
 CPSR is a national membership organization of computer professionals,
based in Palo Alto, California.  CPSR has over 20,000  members and 21
chapters across the country. In addition to the civil liberties project,
CPSR conducts research, advises policy makers and educates the public
about computers in the workplace, computer risk and reliability, and
nternational security.
 For more information contact:                 
 Marc Rotenberg 
 CPSR Washington Office 
 1025 Connecticut Avenue, NW 
 Suite 1015 
 Washington, DC 20036 202/775-1588 
 Gary Chapman 
 CPSR National Office 
 P.O. Box 717 
 Palo Alto, CA 94302 



July 10, 1990

The Electronic Frontier Foundation is currently providing litigation
liberties  concerns which are likely to prove important in the overall
legal scheme by  which electronic communications will, now and in the
future, be governed,  regulated, encouraged, and protected. 

Steve Jackson Games 

Steve Jackson Games is a small, privately owned adventure game
manufacturer located in Austin, Texas.  Like most businesses today,
Steve Jackson Games uses computers for word processing and bookkeeping.
electronic bulletin board to advertise and to obtain feedback on its

One of the company's most recent products is GURPS CYBERPUNK, a science
fiction role-playing game set in a high-tech futuristic world.  The
not performed on computers and does not make use of computers in any

On March 1, 1990, just weeks before GURPS CYBERPUNK was due to be
of Steve Jackson Games.  The Secret Service: 

*  seized three of the company's computers which were used in the
to run the electronic bulletin board, 

*  took all of the company software in the neighborhood of the computers

*  took with them company business records which were  located on the
computers seized, and 

*  destructively ransacked the company's warehouse, leaving many items
n disarray.

CYBERPUNK game book -- on disk and in hard-copy manuscript form -- were
confiscated by the authorities.  One of the Secret Service agents told
Steve Jackson that the GURPS CYBERPUNK science fiction fantasy game book

Steve Jackson Games was temporarily shut down.  The company was forced
to lay-off half of its employees and, ever since the raid, has operated
on  relatively precarious ground. 

Steve Jackson Games, which has not been involved in any illegal activity
nsofar as the Foundation's inquiries have been able to determine, tried
n  vain for over three months to find out why its property had been
after it should have  become apparent to the agents that GURPS CYBERPUNK
and everything else in the company's repertoire were entirely lawful and
nnocuous, and when the company's vital materials would be returned.  In
late June of this year, after attorneys for the Electronic Frontier
Foundation became involved in the case, the Secret Service finally
ncluding the seized drafts of GURPS CYBERPUNKS.

The Foundation is presently seeking to find out the basis for the search
application for that warrant remains sealed by order of the court.  The
Foundation is making efforts to unseal those papers in order to find out

Under the Fourth Amendment to the United States Constitution, a search
court by the government agents demonstrates "probable cause" to believe
that evidence of criminal conduct would be found on the premises to be
Foundation's lawyers, representing Steve Jackson Games, to determine the
theory by which Secret Service Agents concluded or hypothesized that
either the GURPS CYBERPUNK game or any of the company's computerized
business records constituted criminal activity or contained evidence of
criminal activity. 

Whatever the professed basis of the search, its scope clearly seems to
the sort of general  search that the Fourth Amendment was designed to

the  hard-copy filing cabinets on a business premises -- which it surely
s -- that  the same degree of protection should apply to businesses
that store information electronically. 

The Steve Jackson Games situation appears to involve First Amendment
violations as well.  The First Amendment to the United States
Constitution prohibits the government from "abridging the freedom of
the publication of the GURPS CYBERPUNK game book by seizing all copies
of all drafts in all media prior to publication, violated the First
Amendment.  The particular type of First Amendment violation here is the
material sought to be published, effectuated what is known in the law as
a "prior restraint" on speech.  This means that rather than allow the
material to be published and then seek to punish it, the government
to say, of course, that anything published by Steve Jackson Games could
case, since SJG's business seems to be entirely lawful.)  In any effort
to restrain publication, the government bears an extremely heavy burden
of proof before a court is permitted to authorize a prior restraint. 

Amendment,  warning that such efforts to restrain publication are
Court to enjoin The New York Times, The Washington Post, and The Boston
Globe from publishing the so-called Pentagon Papers, which the
threat to national security.  (In 1979, however, the government sought
to prevent The Progressive magazine from publishing an article
bomb.  A lower federal court actually imposed an order for a temporary
opportunity to issue a full ruling on the constitutionality of that

Governmental efforts to restrain publication thus have been met by
vigorous  opposition in the courts.  A major problem posed by the
therefore, is that it allows the government to effectively prevent or
oppose that effort in court.  

The Secret Service managed to delay,  and almost to prevent, the
asking a court for a prior restraint order that it surely could not have
obtained, but by asking  instead for a search warrant, which it obtained
all too readily. 

The seizure of the company's computer hardware is also problematic, for
t  prevented the company not only from publishing GURPS CYBERPUNK, but
also from operating its electronic bulletin board.  The government's
action in shutting down such an electronic bulletin board is the
functional equivalent of shutting down printing presses of The New York
Times or The Washington Post  in order to prevent publication of The
the electronic bulletin board, such an order effecting a prior restraint
almost certainly would have been refused.  Yet by obtaining the search

This is a stark example of how electronic media suffer under a less
fact that government agents  and courts do not seem to readily equate
computers with printing presses and  typewriters.  It is difficult to
understand a difference between these media  that should matter for
constitutional protection purposes.  This is one of the  challenges
facing the Electronic Frontier Foundation. 

The Electronic Frontier Foundation will continue to press for return of
the  remaining property of Steve Jackson Games and will take formal
The purpose of these  efforts is to establish law applying the First and
Fourth Amendments to  electronic media, so as to protect in the future
Steve Jackson Games as well as  other individuals and businesses from
the devastating effects of unlawful and  unconstitutional government
ntrusion upon and interference  with protected property and speech

United States v. Craig Neidorf 

Craig Neidorf is a 20-year-old student at the University of Missouri who
connection with his  activities as editor and publisher of the
electronic magazine, Phrack. 

The indictment charges Neidorf with:  (1) wire fraud and interstate
transportation of stolen property for the republication in Phrack of
nformation which was allegedly illegally obtained through the accessing
of a  computer system without authorization, though it was obtained not
by Neidorf but by a third party; and (2) wire fraud for the publication
of an   announcement of a computer conference and for the publication of
articles which allegedly provide some suggestions on how to bypass

The information obtained without authorization is a file relating to the
from the BellSouth computer system without authorization.  It is
mportant to note that neither the indictment, nor any briefs filed in
this case by the  government, contain any factual allegation or
contention that Neidorf was  involved in or participated in the removal
of the 911 file. 

These indictments raise substantial constitutional issues which have
technologies.  The prosecution of an editor or publisher, under
unprecedented threat to the freedom of the press.  The person who should
be prosecuted is the thief, and not a publisher who subsequently
analogy to the print media, this would be the equivalent of prosecuting
The New York Times and The Washington Post for publishing the Pentagon

Similarly, the prosecution of a publisher for wire fraud arising out of
the  publication of articles that allegedly suggested methods of
unlawful activity  is also unprecedented.  Even assuming that the
articles here did advocate  unlawful activity, advocacy of unlawful
activity cannot constitutionally be the basis for a criminal
mminent lawless action, and is likely to incite such action.  The
articles here simply do not fit within this limited category.  The
Supreme  Court has often reiterated that in order for advocacy to be
criminalized, the  speech must be such that the words trigger an
mmediate action.  Criminal  prosecutions such as this pose an extreme
llegal activity or describing how a crime might be  committed.

fair notice -- that  is to say, the publisher or computer user has no
law.  The judge in the case has  already conceded that "no court has
ever held that the electronic transfer of  confidential, proprietary
business information from one computer to another  across state lines
constitutes a violation of [the wire fraud statute]."  The  Due Process
Clause prohibits the criminal prosecution of one who has not had fair
notice of the illegality of his action.  Strict adherence to the
conduct they do not like and then seek some statute that can be

Government seizure and liability of bulletin board systems 

During the recent government crackdown on computer crime, the government
of any specific article, as  the seizure of the computer equipment of a
BBS prevents the BBS from publishing at all on any subject.  This akin
to seizing the word processing and  computerized typesetting equipment
of The New York Times for publishing the Pentagon Papers, simply because
the government contends that there may be information relating to the
commission of a crime on the system.  Thus, the government does not
no more stories of any type can be published. 

The government is allowed to seize "instrumentalities of crime," and a
bulletin board and its associated computer system could arguably be
called an  instrumentality of crime if individuals used its private
e-mail system to send  messages in furtherance of criminal activity.
However, even if the government has a compelling interest in interfering
least restrictive alternative.  The government  obviously could seize
the equipment long enough to make a copy of the  information stored on
the hard disk and to copy any other disks and documents, and then

Another unconstitutional aspect of the government seizures of the
computers of bulletin board systems is the government infringement on
the privacy of the electronic mail in the systems.  It appears that the
nformed the court that private mail of third parties is on the
computers, and has also read some of this private mail after the systems

The Neidorf case also raises issues of great significance to bulletin
board  systems.  As Neidorf was a publisher of information he received,
BBSs could be considered publishers of information that its users post
on the boards.  BBS  operators have a great deal of concern as to the
liability they might face for  the dissemination of information on their
boards which may turn out to have been obtained originally without
authorization, or which discuss activity which may be considered
llegal.  This uncertainty as to the law has already caused a decrease
n the free flow of information, as some BBS operators have removed
nformation solely because of the fear of liability.

The Electronic Frontier Foundation stands firmly against the
unauthorized  access of computer systems, computer trespass and computer
theft, and strongly supports the security and sanctity of private
computer systems and networks. One of the goals of the Foundation,
communication and exchange of ideas is not hindered.  The Foundation is
concerned that the Government has cast its net too broadly, ensnaring
the innocent and chilling or indeed supressing the free flow of
nformation.  The Foundation fears not only that protected speech will
be curtailed, but also that the citizen's reasonable expectation in the
thwarted, and people will be hesitant to communicate via these networks.
Such a lack of confidence in electronic communication modes will
among fertile minds that are essential to our nation's development.  The
Foundation has therefore applied for amicus curiae  (friend of the
court) status in the Neidorf case and has filed legal briefs in support
of the First Amendment issues there, and is prepared to assist in
other computer technologies. 

For further information regarding Steve Jackson Games please contact: 

Harvey Silverglate or Sharon Beckman
Silverglate & Good
Boston, MA  02110

For further information regarding Craig Neidorf please contact:

Terry Gross or Eric Lieberman
Rabinowitz, Boudin, Standard, Krinsky and Lieberman
New York, NY 10003




Advances in computer technology have brought us to a new frontier in
communications, where the law is largely unsettled and woefully
nadequate to deal with the problems and challenges posed by electronic
technology.  How the law develops in this area will have a direct impact
on the electronic communications experiments and innovations being

*       traditional civil liberties         
*       protection of intellectual property         
*       freedom to experiment and innovate                
*       protection of the security and integrity of computer
        systems from improper governmental and private

Striking these balances properly will not be easy, but if they are
values surely will be sacrificed.

Helping to see to it that this important and difficult task is done
critical to assure that these lines are drawn in accordance with the
fundamental constitutional rights that have protected individuals from
unwarranted governmental intrusion, as well as the right to procedural
fairness and due process of law.

The First Amendment

The First Amendment to the United States Constitution prohibits the
be the single most important of the guarantees contained in the Bill of
Rights, since free speech and association are fundamental in securing
all other rights.

The First Amendment throughout history has been challenged by every
mportant technological development.  It has enjoyed only a mixed record
of success.  Traditional forms of speech -- the  print media and public
afforded the same degree of freedom to electronic broadcasting,

Radio and television communications, for example, have been subjected to
(FCC), and by the Congress.  The Supreme Court initially justified
there were assumed to be a finite number of radio and television
frequencies, the Court believed that regulation was necessary to prevent
nterference among frequencies and to make sure that scarce resources
Court has expressed a reluctance to abandon its outmoded approach

Congress has not seemed overly eager to relinquish even
counterproductive control over the airwaves.  Witness, for example,
legislation and rule-making in recent years that have kept even
mportant literature, such as the poetry of Allen Ginsberg, from being
broadcast on radio because of language deemed "offensive" to regulators.
Diversity and experimentation have been sorely hampered by these rules.

The development of computer technology provides the perfect opportunity
for lawmakers and courts to abandon much of the distinction between the
all communications regardless of the medium.  Just as the multiplicity
of cable lines has rendered obsolete the argument that television has to
be regulated because of a scarcity of airwave frequencies, so has the
modalities made obsolete a similar argument for harsh controls in this
area.  With the computer taking over the role previously played by the
typewriter and the printing press, it would be a constitutional disaster
of major proportions if the treatment of computers were to follow the
of freedom of the press.

To the extent that regulation is seen as necessary and proper, it should
foster the goal of allowing maximum freedom, innovation and
experimentation in an atmosphere where no one's efforts are sabotaged by
either government or private parties.  Regulation should be limited by
the adage that quite aptly describes the line that separates reasonable
from unreasonable regulation in the First Amendment area:  "Your liberty
ends at the tip of my nose."

As usual, the law lags well behind the development of technology.  It is
mportant to educate  lawmakers and judges about new technologies, lest
fear and ignorance of the new and unfamiliar, create barriers to free
communication, expression, experimentation, innovation, and other such
values that help keep a nation both free and vigorous.

The Fourth Amendment

The Fourth Amendment guarantees "the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
affirmation, and particularly describing the place to be searched, and
the persons or things to be seized." In short, the scope of the search
believe that the search will turn up evidence of illegal activity.

The meaning of the Fourth Amendment's guarantee has evolved over time in
Amendment was first applied to prevent the government from trespassing
onto private property and seizing tangible objects, the physical
trespass rationale was made obsolete by the development of electronic
eavesdropping devices which permitted the government to "seize" an
ndividual's words without ever treading onto that person's private
First Amendment surely knew nothing about electronic databases, surely
they would have considered one's database to be as sacrosanct as, for
example, the contents of one's private desk or filing cabinet.

The Supreme Court responded decades ago to these types of technological
challenges by interpreting the Fourth Amendment more broadly to prevent
and business, but also in private  communications.  Thus, for example:

*  Government wiretapping and electronic eavesdropping are   now limited
by state and federal statutes enacted to  effectuate and even to expand
upon Fourth Amendment protections.

*  More recently, the Fourth Amendment has been used, albeit with
limited success, to protect individuals from undergoing   certain random
mandatory drug testing imposed by  governmental authorities.

Advancements in technology have also worked in the opposite direction,
to diminish expectations of privacy that society once considered
that such an expectation is not reasonable in an age of surveillance
facilitated by airplanes and zoom lenses.

Applicability of Fourth Amendment to computer media

Just as the Fourth Amendment has evolved in response to changing
technologies, so it must now be interpreted to protect the reasonable
expectation of privacy of computer users in, for example, their
electronic mail or electronically stored secrets.  The extent to which
to be debated openly, fully, and intelligently, as the Congress seeks to
legislate in the area, as courts decide cases, and as administrative,

One point that must be made, but which is commonly misunderstood, is
that the Bill of Rights seeks to protect citizens from privacy invasions
committed by the government, but, with very few narrow exceptions, these
Amendment limits the government's ability to invade and spy upon private

The Fifth Amendment

The Fifth Amendment assures citizens that they will not "be deprived of
life, liberty, or property, without due process of law" and that private
This Amendment thus protects both the sanctity of private property and
the right of citizens to be proceeded against by fair means before they
may be punished for alleged infractions of the law.

One aspect of due process of law is that citizens not be prosecuted for
alleged violations of laws that are so vague that persons of reasonable
ntelligence cannot be expected to assume that some prosecutor will
charge that his or her conduct is criminal.  A hypothetical law, for
example, that makes it a crime to do "that which should not be done",
Amendment.  Yet the application of some existing laws to new situations
that arise in the electronic age is only slightly less problematic than
the hypothetical, and the Electronic Frontier Foundation plans to
monitor the process by which old laws are modified, and new laws are
crafted, to meet modern situations.  

One area in which old laws and new technologies have already clashed and
are bound to continue to clash, is the application of federal criminal
laws against the interstate transportation of stolen property.  The
files, and the "re-publication" of such material by those with access to
the bulletin board, might well expose the sponsor of the bulletin board
as well as all participants to federal felony charges, if the U.S.
Department of Justice can convince the courts to give these federal laws
a broad enough reading.  Similarly, federal laws protecting against
take into account electronic bulletin board technology, lest those who
utilize such means of communication should be assured of reasonable


The problem of melding old but still valid concepts of constitutional
not much question but that the First Amendment prohibited the government
from seizing a newspaper's printing press, or a writer's typewriter, in
order to prevent the publication of protected speech.  Similarly, the
one's private papers stored in a filing cabinet, without first
convincing a judge that probable cause existed to believe that evidence
of crime would be found.

Today, a single computer is in reality a printing press, typewriter, and
filing cabinet (and more) all wrapped up in one.  How the use and output
of this device is treated in a nation governed by a Constitution that
face.  How well we allow this marvelous invention to continue to be
truly abusive practices, will depend upon the degree of wisdom that

For further information regarding The Bill of Rights please contact:

Harvey Silverglate
Silverglate & Good
Boston, MA  02110 

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Subject: EFF mailing #3: About the Electronic Frontier Foundation
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[Our story so far:  If you're getting this message, you either asked to
be added to the EFF mailing list, or asked for general information about
the EFF.  We have sent out two mailings before this one; if you missed
them and want copies, send a request to eff-news-request@well.sf.ca.us.
We now have two Usenet newsgroups set up, in the "inet" distribution.
The moderated newsgroup, comp.org.eff.news, will carry everything we send
to this mailing list, plus other things of interest.  If your site gets
the newsgroup and you want to read this stuff there instead of through
the mailing list, send a request to eff-news-request@well.sf.ca.us and

About the EFF
General Information
Revised August 1990

The EFF (formally the Electronic Frontier Foundation, Inc.) has
been established to help civilize the electronic frontier; to make
t truly useful and beneficial not just to a technical elite, but
to everyone; and to do this in a way which is in keeping with our
and communication.

The EFF now has legal status as a corporation in the state of
Massachusetts.  We are in the process of applying to the IRS for

Mission of the EFF

ncrease popular understanding of the opportunities and challenges

the issues underlying free and open telecommunications, and support
the creation of legal and structural approaches which will ease
the assimilation of these new technologies by society.

arising from the rapid advancement in the area of new computer-based
communications media and, where necessary, support litigation in
the public interest to preserve, protect, and extend First Amendment

computer-based telecommunications.

Current EFF Activities

>  We are helping educate policy makers and the general public.

To this end we have funded a significant two-year project on
computing and civil liberties to be managed by the Computer
ssues which may lie hidden in the brambles of telecommunications

Members of the EFF are speaking at computer and government conferences
and meetings throughout the country to raise awareness about the
mportant civil liberties issues.

We are in the process of forming alliances with other other public
nterest organizations concerned with the development of a digital
national information infrastructure.

The EFF is in the early stages of software design and development
of programs for personal computers which provide simplified and
enhanced access to network services such as mail and netnews.

Because our resources are already fully committed to these projects,

>  We are helping defend the innocent.

We gave substantial legal support in the criminal defense of Craig
Neidorf, the publisher of Phrack, an on-line magazine devoted to
telecommunications, computer security and hacking. Neidorf was
ndicted on felony charges of wire fraud and interstate transportation
of stolen property for the electronic publication of a document
from a Bell South computer.  The government contended that the
nformation is of public significance, is illegal.  The EFF submitted
two friend of the court briefs arguing that the publication of the
the information in the disputed document.  This information was
critical in discrediting the government's expert witness.  The
t became aware that its case was untenable.

EFF attorneys are also representing Steve Jackson Games in its
efforts to secure the complete return and restoration of all computer
equipment seized in the Secret Service raid on its offices and to
understand what might have been the legal basis for the raid.

We are not involved in these legal matters as a "cracker's defense
fund," despite press reports you may have read, but rather to ensure
that the Constitution will continue to apply to digital media.  We
ntend to demonstrate legally that speech is speech whether it
finds form in ink or in ASCII.

What can you do?

For starters, you can spread the word about EFF as widely as

You can turn some of the immense processing horsepower of your
community, expression, property, privacy and other realities of
the physical world which seem up for grabs in these less tangible

And you can try to communicate to technically unsophisticated
friends the extent to which their future freedoms and well-being
may depend on understanding the broad forms of digital communication,
f not necessarily the technical details.

Finally, you can keep in touch with us at any of the addresses
listed below.  Please pass on your thoughts, concerns, insights,
contacts, suggestions, and news. And we will return the favor.

Staying in Touch 

Send requests to be added to or dropped from the EFF mailing list
or other general correspondence to eff-request@well.sf.ca.us.  We

newsgroups in the INET distribution called comp.org.eff.news  and
comp.org.eff.talk.  The former is a moderated newsgroup of
announcements, responses to announcements, and selected discussion

Everything that goes out over the EFF mailing list will also be
need to subscribe to the mailing list.

the EFF.  To submit a posting, you may send mail to eff@well.sf.ca.us.

There is an active EFF conference on the Well, as well as many
other related conferences of interest to EFF supporters.  As of
August 1990, access to the Well is $8/month plus $3/hour.  Outside
the S.F. Bay area, telecom access for $5/hr. is available through
CPN.  Register online at (415) 332-6106.

A document library containing all of the EFF news releases, John
Barlow's "Crime and Puzzlement" and others is available on the
Well.  We are working toward providing FTP availability into the
Mass.  Details will be forthcoming.

Our Address:

The Electronic Frontier Foundation, Inc.
One Cambridge Center, Suite 300
Cambridge, MA 02142

(617) 577-1385
(617) 225-2347 (fax)

After August 25, 1990:

The Electronic Frontier Foundation, Inc.
Cambridge, MA 02142  

We will distribute the new telephone number once we have it.

Mitchell Kapor (mkapor@well.sf.ca.us)
John Perry Barlow (barlow@well.sf.ca.us)

to "comp-org-eff-news@well.sf.ca.us".


$ Power to the people.

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