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EFFector Online Volume 09 No. 04 Apr. 17, 1996 email@example.com
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
EFF Opposes Ridiculous and Anti-Net Trademark Bill in Georgia
CDA Case Updates: Net 1, Government 0
Quote of the Day
What YOU Can Do
* See http://www.eff.org/Alerts/ or ftp.eff.org, /pub/Alerts/ for more
nformation on current EFF activities and online activism alerts! *
Subject: Privacy & Free Speech Victory in Early Phase of Bernstein Case
FEDERAL COURT DENIES GOVERNMENT'S MOTION TO DISMISS BERNSTEIN CASE,
ACKNOWLEDGES SOURCE CODE AS SPEECH
April 17, 1996 Shari Steele, Staff Counsel
Lori Fena, Executive Director
Denying the government's motion for dismissal in mathematician Daniel
Bernstein's suit against the State Department, Judge Marilyn Hall Patel
n the Northern District of California ruled Monday that source code in
Bernstein's cryptographic algorithm, "Snuffle," is speech that is
* LANDMARK RULING
This is the first time a U.S. court has ruled that source code is speech
under First Amendment analysis. Previously, courts have held that
The decision states in part:
"This court can find no meaningful difference between computer language,
particularly high-level languages as defined above, and German or
French....Like music and mathematical equations, computer language is
just that, language, and it communicates information either to a computer
or to those who can read it....Thus, even if Snuffle source code, which
is easily compiled into object code for the computer to read and easily
used for encryption, is essentially functional, that does not remove it
from the realm of speech....For the purposes of First Amendment analysis,
this court finds that source code is speech."
The full text of the decision can be found at
n GIF image format (ASCII text will be made available as soon as possible,
Judge Patel's acknowledgment that source code enjoys Constitutional
export of cryptography. The decision holds importance to the future of
Amendment protection to electronic communication.
Because of its far-reaching implications, the Bernstein case is being
ndustry, the export and cryptography communities and First Amendment
* CASE WILL PROCEED
The decision allows Bernstein to continue with his lawsuit that the
on speech and that the ITAR is overbroad and vague.
EFF is very pleased with Judge Patel's ruling and believes that it bodes
The court drew an important distinction between the Bernstein case and
other cases involving export controls on cryptography. The government has
cited several cases involving the Export Administration Act as reasons
the Constitutional questions being raised by Bernstein differ
Judge Patel also ruled that Bernstein could bring his case even though
the Arms Export Control Act specifically precludes judicial review,
because what Bernstein is asking the court to review (i.e., the
constitutionality of the statute and its regulations) was not what had
been precluded (i.e., the government's determination in a particular
nstance whether or not something was exportable). "With respect to
constitutional questions, the judicial branch not only possesses the
final interpreter of them."
* CASE BACKGROUND
As part of her decision, Judge Patel determined that only the source code
the paper and the code back in 1993 by filing separate commodity
the government sent Bernstein a letter saying that the paper could be
the issue of the paper now appeared to be moot, she commented, "It is
licensing for nearly two years, and was only reclassified after plaintiff
nitiated this action."
* THE ELECTRONIC FRONTIER FOUNDATION
EFF, a non-profit civil liberties organization working in the public
nterest to protect privacy, free expression, and access to online
EFF helped to find Bernstein pro bono legal counsel, is a member of the
Bernstein legal team, and organized amicus briefs from members of the
academic community and computer industry to support this case.
Subject: EFF Opposes Ridiculous and Anti-Net Trademark Bill in Georgia
[Note: That's the US state of Georgia, not the Republic of Georgia.]
Many state and local governments have passed legislation that appears to be
unconstitutional restraints on speech sent over the Internet. One state
that recently passed a Bad Law is Georgia. Georgia House Bill 1620
currently sits on the governor's desk awaiting his signature. EFF weighed
n and voiced our concerns about this legislation, asking the governor to
veto the bill.
Among the problems with this legislation is that it would make
t a crime to use someone else's trademark in user IDs, domain names, and
other online contexts - regardless of the fact that in most cases the
trademarks in question would not even apply. It would also
criminalize the use of pseudonyms, and furthermore make it illegal to
link from your homepage to another site without permission under many
The constitutionality of the law, as well as its wisdom, is highly
questionable, as is the compatibility of it with existing intellectual
trademark a term or name in a particular field a monopoly on online use
of that term or name, in *all* fields, despite that fact that any number
of non-competing companies can have nearly identical trademarks in
completely different areas of commerce.)
mover-'n'-shaker behind this issue - the bill (HB1630) was authored by Rep.
Don Parsons, who happens to be a BellSouth employee. BellSouth has filed
alleged trademark violation (BellSouth's tradmark is "The Real Yellow
Very similar legislation has existed in draft form in California for
EFF Staff Counsel Shari Steele sent the following letter to Georgia Governor
Zell Miller, explaining the problems with the new act and encouraging a veto.
Electronic Frontier Foundaton
1550 Bryant Street, Suite 725
San Francisco, CA 94103
(415) 668-7171; (415) 668-7007 (fax)
Internet e-mail: firstname.lastname@example.org
Governor Zell Miller
Atlanta, GA 30334
April 16, 1996
Via Facsimile: (404)656-5948
Dear Governor Miller,
Frontier Foundation (EFF) to ask that you veto Georgia House Bill 1630,
Computer or telephone network; transmitting misleading data. EFF was
founded in July of 1990 to work on protecting the free speech and privacy
nvolved in numerous battles against laws and actions that restrict the
free speech rights of users of electronic bulletin board systems (BBSs)
and the Internet. I fear that the Georgia legislature has just passed a
bill which, if signed into law, will significantly hamper the
unconstitutional restraint on the free speech rights of the citizens of
Georgia, the United States, and the global Internet.
To help you understand the ramifications of this legislation, I'd like to
take a minute to explain some basic things about electronic communications.
First, individuals are not identified online by their "real world"
names. Instead, they are identified by electronic mail addresses, which are
composed of a "user ID" and the "location" of the individual's network
access provider. Sometimes an individual gets to choose his or her own
e-mail user-ID. But sometimes a random user ID is assigned to the
ndividual by the service provider. For example, the online service
Even where an individual gets to select his or her own user ID, it is rare
that a person identifies him or herself by full name. In fact, many
a personal interest. For example, I know a person whose user ID is
calliope. I know another whose user ID is mnemonic, named for the
character "Johnny Mnemonic" in the science fiction novel of the same
name by William Gibson. I know yet another whose user ID is elvis.
Even my user ID, which is ssteele, does not clearly distinguish me
from others with the last name of Steele and the first initial "S."
This brings us to the first problem with the current bill. The language of
the bill makes it illegal for a sender of a message to "falsely
dentify" him or herself. All of the user IDs I've mentioned
are false identifications, similar to the "handles" people use on citizen's
band radios. It is and has always been legal for people to use any name
they choose as long as it isn't for a fraudulent purpose. I can be
Samuel Clemens to one set of people and Mark Twain to another set and
nobody is harmed. Or Andrew Hamilton and Publius. Or email@example.com and
Shari Steele. While it is true that some people may be harmed when
others intentionally create confusion, by sending a message designed to
look like it came from an identifiable other person, the bill
criminalizes a vast array of everyday conduct in its attempt to reach this
to commit fraud or to fraudulently use the likeness of another that can
be enforced where harm has occurred. Georgia House Bill 1630 makes
criminals of the vast majority of us who communicate online.
Next, the Internet is comprised of thousands of computers connected to one
another. The World Wide Web is a graphical area of the Internet that
allows users to move seamlessly from site to site by simply clicking on
a mouse button. This is often referred to as "surfing the net" and is a
basic quality to the World Wide Web. For example, I could get to Wired
magazine's web site by clicking on a button at the Electronic Frontier
Foundation's web site. I then would be seamlessly transported to
Wired's site. Wired magazine loves this arrangement, because
the more people they get visiting their web site, the more successful
the site is.
Which brings us to the second problem with the current bill. The language
of the bill would make it illegal to create a button on our web site
or authorization" from Wired magazine. Of course Wired magazine would
visits. In fact, the more sites that "link" to Wired's site, the better
t is for Wired. It's like making it illegal to take a copy of a
newspaper that is labeled "free" on the top without first obtaining
friend's phone number in the phone book and put it into a neighborhood
Furthermore, because of its vague language, it appears that the bill would
make it a crime even to mention Wired magazine in writing an electronic
aired. It would be senseless to have the right to criticize a story
from the New York Times without being able to mention that the story was
effort contemplated in the bill of contacting the company and asking its
Finally, the entire purpose of the bill seems to be to protect intellectual
legislature has created a poorly crafted, unconstitutional law to protect
criminals out of all users of the Internet.
legislation. The Electronic Frontier Foundation urges you to veto H.B.
questions or concerns about the legalities surrounding electronic
communications as you consider your actions regarding this bill. My
telephone number is (301)375-8856. And you can reach me via Internet
e-mail at firstname.lastname@example.org.
Thank you for your consideration.
Electronic Frontier Foundation
cc: Ms. Mary Beth Westmoreland, Georgia Department of Law,
fax: (404) 651-6459
Mr. Michael Bowers, Attorney General, fax: (404) 657-8733
Subject: CDA Case Updates: Net 1, Government 0
The first stage of the CDA trial in Philadelphia is over, with the
Justice Department's demonstration of how and where to find "cyberporn"
early on to rely on the Rimm/CMU "study" of online pornography. The
court has showed quite a bit of skepticism regarding the government's
claims, and a lot of interest in the First Amendment issues at stake.
Many participants in the trial have issued updates on the blow-by-blow
court action, and we have been collecting it at
Closing arguments in the case are set for May 10.
Subject: Upcoming Events
This schedule lists events that are directly EFF-related, or sure to be
of interest to our members. A much more detailed calendar of events
likely to be of interest to all netizens is maintained at:
ftp: ftp.eff.org, /pub/EFF/calendar.eff
Apr. 18 - HotWired Electronic Frontiers Forum; online event, 7pm PST
"speak"ers will include Ed Cavazos on the topic of Cyberlaw
Users can participate via either WWW or telnet.
Telnet: chat.wired.com 2428.
19 - Conference on Technological Assaults on Privacy; Rochester
Institute of Technology, Rochester, New York.
Deadline for submitting papers: Feb. 1
Contact: +1 716 475 6643 (voice), +! 716 375 7120 (fax)
Apr. 21 - ACLU forum on "Cyber Liberties," Phoenix, AZ
Contact: Bob Hirschfeld
Voice: +1 602 265 4692
Fax: +1 602 0259
25 + Electronic Democracy, sponsored by Riley Information Services;
Apr. 25 - HotWired Electronic Frontiers Forum; online event, 7pm PST
"speak"ers will include Ann Beeson of the ACLU. Users can
participate via either WWW (http://www.hotwired.com/club/) or
Apr. 29 ! Net-savvy U.S. Rep. Robert Goodlatte, and Sens. Conrad Burns
and Larry Pressler will speak at "Information Security and the 20th
Anniversary of Public Key Cryptography," sponsored by the
Churchill Club; Marriott Hotel, Burlingame, CA.
Contact: +1 408 371 4460
Fax: +1 408 371 4180
May 4 - ACLU forum on Censorship and the Internet User; Souls Unitarian
Church, 4500 Warwick, Kansas City, MO; featuring Laura Murphy,
Executive Director of ACLU's national office in Washington, D.C.
Contact: +1 816 756 3113
May 3 + Symposium: "The Law of Information Superhighways and
Multimedia," sponsored by the Eurpoean Lawyers Union, Monaco.
8 - IEEE/IACR Security & Privacy Symposium; Oakland, Calif.
Deadline for submissions: Nov. 6, 1995.
Contact: +1 503 725 5842 (voice), +1 503 725 3211 (fax)
FTP: ftp.cs.pdx.edu, /pub/SP96/
May 9 - HotWired Electronic Frontiers Forum; online event, 7pm PST
"speak"ers will include Jerod Pore of Scamizdat. Users can
participate via either WWW (http://www.hotwired.com/club/) or
11 + Visions of Privacy for the 21st Century: A Search for Solutions;
Victoria, BC, Canada.
May 10 - Workshop on Medical Records Privacy, sponsored by the Consumer
Project on Technology, Washington, D.C.
Contact: Manon Ress, +1 202 387 8030
May 16 - HotWired Electronic Frontiers Forum; online event, 7pm PST
"speak"ers will include Sameer Parekh of Community Connection.
Users can participate via either WWW (http://www.hotwired.com/club/)
or telnet (chat.wired.com2428).
21 ! Internet Privacy and Security Workshop, sponsored by the
Privacy and Security Working Group of he Federal Networking Council
and the Research Program on Communications Policy Center for
Technology, Policy, and Industrial Development at Massachusetts
Institute of Technology; Haystack Observatory, Boston, MA.
Deadline for abstracts: April 14.
Contact: Internet Security and Privacy Workshop c/o Joseph
Reagle, Research Program on Communications Policy, MIT, One
Amherst St. (E40-218), Cambridge, MA 02139
Voice: +1 617 253 4138
Fax: +1 617 253 7326
May 23 - HotWired Electronic Frontiers Forum; online event, 7pm PST
"speak"ers will include Gary Chapman.
Users can participate via either WWW (http://www.hotwired.com/club/)
or telnet (chat.wired.com2428).
31 - Harvard Conference on the Internet and Society, Harvard
University, Cambridge, MA.
Contact: +1 617 432 1NET
Subject: Quote of the Day
"It shouldn't be too much of a surprise that the Internet has evolved
nto a force strong enough to reflect the greatest hopes and fears of
those who use it. After all, it was designed to withstand nuclear war,
not just the puny huffs and puffs of politicians and religious fanatics."
- Denise Caruso (digital commerce columnist, _New_York_Times_, EFF
Find yourself wondering if your privacy and freedom of speech are safe
the rush to make us secure from ourselves that our government
Concerned that legislative efforts nominally to "protect children" will
actually censor all communications down to only content suitable for
the playground? Alarmed by commercial and religious organizations abusing
the judicial and legislative processes to stifle satire, dissent and
Even if you don't live in the U.S., the anti-Internet hysteria will soon
be visiting a legislative body near you. If it hasn't already.
Subject: What YOU Can Do
* The Communications Decency Act & Other Censorship Legislation
The Communications Decency Act and similar legislation pose serious
threats to freedom of expression online, and to the livelihoods of system
operators. The legislation also undermines several crucial privacy
Business/industry persons concerned should alert their corporate govt.
affairs office and/or legal counsel. Everyone should write to their own
Representatives and Senators, letting them know that such abuses of
your free speech rights will be voted against by you in the next elections.
Join in the Blue Ribbon Campaign - see http://www.eff.org/blueribbon.html
Support the EFF Cyberspace Legal Defense Fund:
For more information on what you can do to help stop this and other
for information to email@example.com.
* New Crypto-Privacy Legislation
Urge your Senators and Representatives to call for hearings! Not much
else needs to be done on this right this moment, but expect this issue to
expected NEXT WEEK.
Keep an eye on http://www.eff.org/pub/Activism/index.html#crypto
* Digital Telephony/Comms. Assistance to Law Enforcement Act
The FBI is now seeking both funding for the DT/CALEA wiretapping provisions,
and preparing to require that staggering numbers of citizens be
To oppose the funding, write to your own Senators and Representatives
urging them to vote against any appropriations for wiretapping.
We are aware of no major action on this threat at present, but keep your
eyes peeled. It will be back.
* Anti-Terrorism Bills
Several bills threatening your privacy and free speech have been introduced
this status may change. Urge your Congresspersons to oppose these
unconstitutional and Big-Brotherish bills, which threaten freedom of
association, free press, free speech, and privacy. One such bill passed
last week, stripped of most of the more onerous provisions. Keep it up.
Write to your legislators: No secret trials and deportations, no
expansion of wiretapping scope or authority, no national or "smart-card"
For more information on some of this legislation, see
* The Anti-Electronic Racketeering Act
This bill is unlikely to pass in any form, being very poorly drafted, and
flying colors [the jolly roger?] in Congress. It's better to be safe
than sorry. If you have a few moments to spare, writing to, faxing, or
calling your Congresspersons to urge opposition to this bill is a good
* Medical Privacy Legislation
Several bills relating to medical privacy issues are floating in Congress
enhance the medical privacy of citizens.
More information on this legislation will be available at
t appear there faster. :)
* Find Out Who Your Congresspersons Are
Writing letters to, faxing, and phoning your representatives in Congress
s one very important strategy of activism, and an essential way of
making sure YOUR voice is heard on vital issues.
EFF has lists of the Senate and House with contact information, as well
as lists of Congressional committees. (A House list is included in this
ssue of EFFector). These lists are available at:
The full Senate and House lists are senate.list and hr.list, respectively.
Those not in the U.S. should seek out similar information about their
own legislative bodies. EFF will be happy to archive any such
try contacting your local League of Women Voters, who maintain a great
that matches Zip Codes to Congressional districts with about 85%
Computer Currents Interactive has provided Congress contact info, sorted
by who voted for and against the Communcations Decency Act:
* Join EFF!
You *know* privacy, freedom of speech and ability to make your voice heard
n government are important. You have probably participated in our online
campaigns and forums. Have you become a member of EFF yet? The best way to
opinions heard. EFF members are informed and are making a difference. Join
For EFF membership info, send queries to firstname.lastname@example.org, or send any
message to email@example.com for basic EFF info, and a membership form.
EFFector Online is published by:
The Electronic Frontier Foundation
San Francisco CA 94103 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
Membership & donations: firstname.lastname@example.org
Legal services: email@example.com
General EFF, legal, policy or online resources queries: firstname.lastname@example.org
Editor: Stanton McCandlish, Online Activist, Webmaster (email@example.com)
Assoc. Editors: Ryan Thornburg, Communications Intern (firstname.lastname@example.org)
Dennis Derryberry, Administrative Asst. (email@example.com)
This newsletter is printed on 100% recycled electrons.
Reproduction of this publication in electronic media is encouraged. Signed
articles do not necessarily represent the views of EFF. To reproduce
ually at will.
To subscribe to EFFector via email, send message body of "subscribe
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you to a subscription list for EFFector.
Back issues are available at:
To get the latest issue, send any message to email@example.com (or
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the file "current" from the EFFector directory at the above sites at any
time for a copy of the current issue. HTML editions available at:
at EFFweb. HTML editions of the current issue sometimes take a day or
longer to prepare after issue of the ASCII text version.
End of EFFector Online v09 #04 Digest