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*** EFF News #1.01 (January 7, 1991) ***
*** The Electronic Frontier Foundation, Inc. ***
*** SPECIAL EDITION: AMICUS BRIEF IN LEN ROSE CASE ***
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Editors: Mitch Kapor (mkapor@eff.org)
Mike Godwin (mnemonic@eff.org)
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*** EFF News #1.01: AMICUS BRIEF IN ROSE CASE ***
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ELECTRONIC FRONTIER FOUNDATION SEEKS AMICUS STATUS IN LEN ROSE CASE
The Electronic Frontier Foundation has been tracking closely the
cases in which Len Rose, a Baltimore Unix consultant, has been
charged with crimes relating to the transmission of Unix software.
The EFF believes that the federal prosecution pending against Rose
n Baltimore and scheduled to go to trial at the end of this month
electronic communications. Accordingly, EFF has filed a motion seeking
*amicus curiae* ("friend of the court") stauts to be heard on the
mportant Constitutional and statutory issues raised by the
case.
EFF has simultaneously filed a memorandum of law in support of
Len Rose's motion to dismiss the portion of the indictment charging
United States Code, Section 1030(a)(6). EFF believes that this
category of "information through which a computer may be accessed
and in violation of the First Amendment guarantees of freedom of
unauthorized computer intrusion, but believes that this statute
and chilling discussions about computer technology.
An additional purpose of the brief is to introduce the trial court
to the world of electronic communication and to make the court aware
of the exciting possibilities it holds for speech and association.
To that end, the brief cites to the Well (attaching its conference
list as an addendum) and to EFF Co-founder John Perry Barlow's
concept of the "virtual town meeting," published by the WHOLE EARTH
REVIEW.
The texts of the amicus motion, the amicus brief, and the
attachment follow.
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
___________________________________
)
UNITED STATES OF AMERICA )
)
v. ) Criminal Case No. JSM-90-0202
)
)
LEONARD ROSE )
)
___________________________________)
MOTION OF ELECTRONIC FRONTIER FOUNDATION
FOR LEAVE TO FILE MEMORANDUM OF LAW AMICUS CURIAE
The Electronic Frontier Foundation, through its undersigned
counsel, respectfully moves this Court for leave to appear as
amicus curiae in the above-captioned case for the limited purpose
of filing the attached memorandum of law in support of the
charging him with violations of the Computer Fraud and Abuse Act of
This case, which is being watched nationwide, presents a
constitutional question of first impression involving the CFAA that
communications technologies. For the reasons set forth below, EFF
believes that the enclosed memorandum of law contains relevant
authority and arguments that are not likely to be raised by the
1. The Electronic Frontier Foundation is a nonprofit
organization established in 1990 to promote the public interest in
the development of computer-based communication technology.
2. The founders and directors of Electronic Frontier Foundation
nclude Mitchell Kapor and Steven Wozniak, two of our nation's
leading experts in the area of computer technology. Mr. Kapor
founded the Lotus Development Corporation and designed and
one of the co-founders of Apple Computer, Incorporated. These
ndividuals have comprehensive knowledge of the developing
computer-based technologies and the promises and threats they
3. The Foundation's goals, as set forth in its mission
Engage in and support educational activities which increase
popular understanding of the opportunities and challenges
posed by developments in computing and telecommunications.
Develop among policy-makers a better understanding of 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.
Raise public awareness about civil liberties issues arising
from 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.
Encourage and support the development of new tools which will
endow non-technical users with full and easy access to
computer-based telecommunication.
4. While the Foundation regards unauthorized entry into
computer systems as wrong and deserving of punishment, it also
believes that legitimate law enforcement goals must be served by
means that do not violate the rights and interest of the users of
electronic technology and that do not chill use and development of
this technology.
5. This case presents a question of first impression that falls
Frontier Foundation -- whether the CFAA, which makes it a crime to
communicate "information through which a computer may be accessed
n violation of the First and Fifth Amendments. The Court's ruling
on this issue could have important implications for speech and
ultimately, for the use and development of these technologies.
Accordingly, the Electronic Frontier Foundation respectfully
and to file the attached memorandum of law on this important
constitutional issue.
DATED: January 7, 1991
Respectfully submitted,
THE ELECTRONIC FRONTIER FOUNDATION
by its Attorneys,
______________________________
Harvey A. Silverglate
Sharon L. Beckman
Silverglate & Good
89 Broad St., 14th Floor
Boston, Massachusetts 02110
(617) 542-6663
Michael Godwin, Staff Attorney
Electronic Frontier Foundation
155 Second Street
Cambridge, Massachusetts 02141
(617) 864-0665
--
FOR THE DISTRICT OF MARYLAND
______________________________
)
UNITED STATES OF AMERICA )
)
v. ) Crim. Case No. JSM-90-0202
)
LEONARD ROSE )
_______________________________)
MEMORANDUM OF LAW AMICUS CURIAE OF THE
ELECTRONIC FRONTIER FOUNDATION
COUNTS I AND II OF THE INDICTMENT
This is a case of first impression involving the Computer Fraud and
Abuse Act of 1986 (CFAA), 18 U.S.C. 1030(a)(6), which makes it a crime
to disseminate certain "information" relating to computers and
computer security.*1* Amicus curiae The Electronic Frontier
Foundation*2* submits this memorandum of law in support of the
charging him with violating section 1030(a)(6) on the ground that the
law issubstantially overbroad and vague, in violation of the First and
Fifth Amendments to the United States Constitution.
Advances in computer technology have enabled new methods of
communication, including computer conferencing systems (often
and the First Amendment, 39 Fed. Comm. L. J. 217 (1988).*3* These
media, still in their embryonic stages of development, offer great
they are inexpensive, easily accessible, and permit instantaneous
communication and association without regard to geographic
boundaries. As Professor Tribe has observed, computers are fast
becoming the printing presses of the future: "As computer terminals
become ubiquitous and electronic publishing expands, the once
obvious boundaries between newspapers and television, telephones
and printing pressed, become blurred." L. Tribe, American
Constitutional Law 1009 (1988). EFF founder Mitchell Kapor has
of association:
as places to live are being abandoned by all who can afford to leave. In
the global suburbs in which more and more of us live, one's horizon is
limited to the immediate family. Even close neighbors are often
anonymous.
opportunities for the formation of virtual communities--voluntary
but throug a common interest. Computer and telecommunications
community, but only if we make it so.
. Kapor, Why Defend Hackers?, 1 EFF News (December 10, 1990).*4*
See I. de Sola Pool, Technologies of Freedom (1983); L. Becker, Jr., The
Liability of Computer Bulletin Board Operators for Defamation Posted
by Others, 22 Conn. L. Rev. 203 (1989) ("Many computers owners find
these boards anew and exciting medium of communication."); Note,
An Electronic Soapbox, 39 Fed. Comm. L.J. at 218P223.
The possibilities for communication and association through
electronic conferencing are limited only by the inclinations and
maginations of systems operators and users. While computer
technology is one popular topic for discussion on bulletin board
literary, artistic, social and political issues. Id. at 222. See, e.g.,
Attachment A (a print out of the list of conferences available on the
Whole Earth `Lectronic Link, popularly known as the WELL, a BBS
operated out of Sausalito, California). The analogies used to describe
electronic conferencing systems -- ranging from a public bulletin
board*5* to a virtual town meeting*6* -- indicate the richness of these
fora for communication and association.
Increasing reliance by individuals, businesses and government on
computer technology has also given rise to other interests, including
new permutations of privacy andproperty interests, in electronically
concern of government; but in creating new prohibitions and
not, sweep so broadly as to prohibit the dissemination of information
The law is now struggling to catch up with changes in computer-
based technology. Unless lawyers and judges appreciate the promises
of computer-based technology for speech and association, and unless
they afford electronic communications the full protections of the First
Amendment, the resulting law will stifle these developing
communications media. Tribe has described the problem and its
consequences this way:
The rate of technological change has outstripped the ability of the law,
lurching from one precedent to another, to address new realities.
Novel communications are pressed into service while still in their
nfancy, and the legal system's initial encounters with these newborns
the new technology in that early, clumsy form, which then becomes
their image of its nature, possibilities, and use. This perception is an
ncubus on later understanding.'"
L. Tribe, American Constitutional Law 1007 (1988) (quoting I. de Sola
The Supreme Court has made clear that the Constitution is flexible
enough to protect interests created by new technologies unimaginable
to the framers. We have seen this evolution, for example in response
to developments in wiretap technology, which enabled the
Recognizing that constitutional doctrine must evolve with interests
created by new technology, the Supreme Court abandoned its trespass-
based analysis and ruled that the Fourth Amendment protects not only
U.S. 347 (1967).
There is no question that speech and association accommodated by
computer-based technologies are protected by the First Amendment.
The question before this Court is whether, in its early attempts to
broadly, chilling the freedom of speech and association that the
Constitution guarantees.
ARGUMENT
SECTION 1030(a)(6) OF THE COMPUTER FRAUD AND ABUSE ACT
IS UNCONSTITUTIONALLY OVERBROAD AND VAGUE
IN VIOLATION OF THE FIRST AMENDMENT GUARANTEES
OF FREEDOM OF SPEECH AND OF THE PRESS AND OF
ASSOCIATION.
A statute is unconstitutionally overbroad on its face if it "does not
aim specifically at evils within the allowable area of [government]
control, but ... sweeps within its ambit other activities that constitute an
exercise" of protected expressive or associational rights. Thornhill v.
Alabama, 310 U.S. 88, 97 (1940) (holding statute prohibiting picketing
facially invalid because it banned even peaceful picketingprotected by
the First Amendment).*7* Section 1030(a)(6) suffers from this fatal
flaw because, on its face, it appears to prohibit the possession or
communication of constitutionally protected speech and writing
concerning computer systems or computer security.
Section 1030(a)(6) prohibits trafficking "in any password or similar
nformation through which a computer may be accessed without
authorization." The word "password" is not defined in the statute, but
the legislative history suggests that Congress intended it to be
nterpreted so as to include a password or its functional equivalent--a
code or command that functions like the combination to a safe:
The Committee also wishes to make clear that "password", as used in
this subsection, does not mean only a single word that enables one to
access a computer. The Committee recognizes that a "password" may
actually be comprised of a set of instructions or directions for gaining
access to a computer and intends that the word "password" be
construed broadly enough to encompass both single words and longer
more detailed explanations on how to access others' computers.
S. Rep. No. 432, 99th Cong., 2d Sess. 13 (1986).*8*
The Senate Report also indicates that the word password was intended
to reach "conduct associated with `pirate bulletin boards.'" Id. The
The most problematic statutory phrase is the one under which the
"information through which a computer may be accessed without
authorization."*9* This phrase is not defined in the statute, and if it is
construed to prohibit the communication of information other than
"passwords" or "detailed explanations on how to access others'
computers,"*10* its scope would be impossible to ascertain.
On its face, then, section 1030(a)(6) could be used to prohibit the
communication of a broad category of information relating to
computers or even the mere possession of such information by one
on computer security if the speech or article contained "information"
that another person could use to access a computer without
authorization. The statute could be read to prohibit computer
test computer security, since such knowledge could be used to facilitate
access to a computer system without authorization. The statute is even
n the article came from publicly available sources.
The claim that section 1030(a)(6) could be used to prosecute a
ndictment charging the editor/publisher of an electronic newsletter
accessed without authorization," in violation of section 1030(a)(6).
Although the government eventuallydropped the section 1030(a)(6)
charges,*11* the prosecution has had a substantial chilling effect on
Neidorf, who is no longer publishing his newsletter.
The statute is also overbroad in that it appears to sweep within its
boards, Congress may not have been aware of the richness, depth, and
variety of discussions its language would prohibit. The Senate Report
associated with `pirate bulletin boards,' where passwords are displayed
that permit unauthorized access to others' computers." Senate Report
at 13. Yet the statutory language sweeps much more broadly,
other "information" that could theoretically be used by another to
access a computer without authorization. This is not surprising, for
"pirate bulletin boards," there is no indication in the history that
Congress was made aware of the sophisticated and constitutionally
on bulletin board systems across the country on a daily basis.
Section 1030(a)(6) violates the First Amendment because it prohibits
constitutionally protected communications about computers and
computer security because of their communicative impact. The
computer security are constitutionally protected, unless they fall within
the narrow subset of communications amounting to "advocacy ...
to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444
(1967). Outside this narrowly defined category of unprotected speech,
Congress may not pass a law prohibiting the dissemination of
nformation about computers or computer security unless the
and ... narrowly drawn to achieve that end." See Widmar v. Vincent,
"compelling," it is apparent that the broad prohibition of the
communication of "information through which a computer may be
accessed without authorization" is not "narrowly drawn" to achieve
that end.
The potential unconstitutional applications of this statute to
legitimate reach. As the Riggs case demonstrates, this is plainly not a
Broadrick v. Oklahoma, 413 U.S. at 616 (where conduct and not merely
The overbreadth of this statute cannot be cured through case-by-
case adjudication. Given the broad definition of "password" suggested
by the legislative history of the CFAA, it impossible to imagine what
additional "information" sharing Congress could constitutionally
-- prohibiting dissemination of "information that could be used to
access a computer without authorization," has no constitutionally
legitimate core. See Houston v. Hill, 107 S. Ct. 2502 (1987) (invalidating
ordinance forbidding the interruption of an onPduty police officer
because there was no definable core of constitutionally unprotected
expression to which it could be limited).
Moreover, judicial efforts to narrow the scope of this language
through case-by-case adjudication could not eliminate its direct and
concerning computer technology. Application of the overbreadth
cause others not before the court to refrain from constitutionally
"[p]recision of regulation must be the touchstone in an area so closely
touching our most precious freedoms," N.A.A.C.P. v. Button, 371 U.S.
n the area of free expression.... Because First Amendment Freedoms
need breathing space to survive, government may regulate in the area
only with narrow specificity." Id. at 432P433 .... When one must guess
U.S. 513 .... For "[t]he threat of sanctions may deter ... almost as potently
as the actual application of sanctions. N.A.A.C.P. v. Button, supra....
The danger of that chilling effect upon the exercise of vital First
Amendment rights must be guarded against by sensitive tools which
clearly inform [individuals] what is being proscribed."
Keyishian v. Board of Regents, 385 U.S. 607, 603P604 (1967).
This statute hangs over citizens "like a sword of Damocles,"
threatening them with prosecution for any speech or writing relating
to computer security. That a court may ultimately vindicate such
citizens "is of little consequence--for the value of a sword of Damocles
s that it hangs--not that it falls." Arnett v. Kennedy, 416 U.S. 230, 232
(1974)(Marshall, J., dissenting). For every speaker or writer who risks
criminal prosecution "by testing the limits of the statute, many more
For the reasons given above, the Electronic Frontier Foundation
urges this Court to invalidate section 1030(a)(6) on the ground that it is
unconstitutionally vague and overbroad.
DATED: January 7, 1991.
Respectfully submitted,
THE ELECTRONIC FRONTIER FOUNDATION,
Amicus Curiae,
by its Attorneys,
____________________________
Harvey A. Silverglate
Sharon L. Beckman
Silverglate & Good
89 Broad St., 14th Floor
Boston, Massachusetts 02110
(617) 542-6663
Michael Godwin, Staff Attorney
Electronic Frontier Foundation
155 Second Street
Cambridge, Massachusetts 02141
(617) 864-0665
FOOTNOTES:
*1* 18 U.S.C. (a)(6)(b) makes it a criminal offense to knowingly and
accessed without authorization, if .. such trafficking affects interstate or
foreign commerce.
*2* The Electronic Frontier Foundation is a nonprofit organization
established to promote the public interest in the development of
computer-based communications technology. See Motion of Electronic
Frontier Foundation for Leave to File Memorandum of Law Amicus
Curiae (setting forth the Foundation's goals).
*3* An electronic bulletin board system (BBS) is a conferencing
Anyone with a computer, a modem, and a telephone line has the
necessary tools to access a BBS. A BBS is accessed the same way one
accesses a database like WESTLAW or LEXIS. Unlike these databases,
nformation. See Note, An Electronic Soapbox, 39 Fed. Comm. L.J. at
A BBS is facilitated and maintained by a "systems operator,"
BBS. A BBS, and the conferences within it, can be designed to be
(permitting access to all callers). BBSs range in size from systems
accommodating only a few users to large commercial enterprises
*4* EFF News is an electronic publication containing "news,
nformation, and discussion about the world of computer-based
communications media." 1 EFF News (December 19, 1990). It covers
ssues such as "freedom of speech in digital media, privacy rights,
censorship, standards of responsibility for users and operators of
computer systems, policy issues such as the development of national
nformation infrastructure, and intellectual property." Id.
*5* One writer has argued that a electronic conferencing system "can
be thought of as the electronic analogy to a public, ordinary bulletin
board -- a kind of computerized Democracy Wall -- on which users
can post whatever information they desire, and from which users can
Rev. at 204. See also Note, An Electronic Soapbox, 39 Fed. Comm. L.J.
at 217 (analogizing to a grocery store message board).
*6* J. Barlow, Crime and Puzzlement, 68 Whole Earth Review 44, 45
(1990).
*7* Recognizing that an overbroad criminal statute has a chilling
effect on constitutionally protected speech and association well beyond
the prosecutions in which it is employed, the Supreme Court has ruled
that an overbreadth challenge may be raised even by one whose own
conduct does not fall within the protected category. Broadrick v.
Oklahoma, 413 U.S. 615, 612P613 (1973) (citing Dombrowski v. Pfister,
litigants whose conduct fell squarely within the "hard core" of the
*8* The version of section 1030(a)(6) considered by the Senate (S.
enacted into law. Compare 18 U.S.C. 1030(a)(6), with Hearing on S.
(1986) (full text of S. 2281).
*9* See Counts I and II of the indictment against Leonard Rose.
*10* See Sutherland Statutory Construction 46.06 ("A statute should
be construed so that effect is given to all its provisions, so that no part
*11* Compare United States v. Riggs, 739 F. Supp at 416 n.1, with
United States v. Riggs, 743 F. Supp. 556, 558-559 (N.D. Ill. 1990)
(discussing remaining non-CFAA charges). The Government entered
nto a Pretrial Diversion Agreement with Craig Neidorf with respect to
the remaining charges after trial testimony established that the
nformation Neidorf had published in his newsletter was publicly
available. "U.S. Drops Computer Case Against Student," New York
Times p. 7 col.3 (July 28, 1990); "`Hacking' Crackdown is Dealt a Setback
n Trial in Chicago," Wall St. Journal p. B3 (July 30, 1990).
ATTACHMENT A
CONFERENCES ON THE WELL
Best of the WELL - vintage material - (g best)
Business - Education
----------------------
Apple Library Users Group(g alug) Agriculture (g agri)
Brainstorming (g brain) Classifieds (g cla)
Consultants (g consult) Consumers (g cons)
Design (g design) Desktop Publishing(g desk)
Disability (g disability) Education (g ed)
Entrepreneurs (g entre) Homeowners (g home)
One Person Business (g one) Periodical/newsletter(g per)
Telecomm Law (g tcl) The Future (g fut)
Translators (g trans) Travel (g tra)
Work (g work)
Social - Political - Humanities
---------------------------------
Aging (g gray) AIDS (g aids)
Amnesty International (g amnesty) Archives (g arc)
Berkeley (g berk) Buddhist (g wonderland)
East Coast (g east) Emotional Health****(g private)
Environment (g env) Christian (g cross)
Couples (g couples) Current Events (g curr)
Dreams (g dream) Drugs (g dru)
Firearms (g firearms) First Amendment (g first)
Fringes of Reason (g fringes) Gay (g gay)
Gay (Private)# (g gaypriv) Geography (g geo)
German (g german) Hawaii (g aloha)
Health (g heal) Histor (g hist)
Jewish (g jew) Liberty (g liberty)
Mind (g mind) Miscellaneous (g unclear)
Men on the WELL** (g mow) Nonprofits (g non)
North Bay (g north) Northwest (g nw)
Scam (g scam) Sexuality (g sex)
Singles (g singles) Southern (g south)
Spirituality (g spirit) Transportation (g transport)
True Confessions (g tru) WELL Writer's Workshop***(g www)
Whole Earth (g we) Women on the WELL*(g wow)
Words (g words) Writers (g wri)
**** Private Conference - mail wooly for entry
***Private conference - mail sonia for entry
** Private conference - mail flash for entry
* Private conference - mail carolg for entry
# Private Conference - mail hudu for entry
Arts - Recreation - Entertainment
-----------------------------------
ArtCom Electronic Net (g acen) Audio-Videophilia (g aud)
Boating (g wet) Books (g books)
CD's (g cd) Comics (g comics)
Cooking (g cook) Flying (g flying)
Fun (g fun) Games (g games)
Gardening (g gard) Nightowls* (g owl)
Jokes (g jokes) MIDI (g midi)
Movies (g movies) Motorcycling (g ride)
Music (g mus) On Stage (g onstage)
Restaurant (g rest) Science Fiction (g sf)
Sports (g spo) Star Trek (g trek)
Television (g tv) Theater (g theater)
Weird (g weird) Zines/Factsheet Five (g f5)
* Open from midnight to 6am
Grateful Dead
-------------
Grateful Dead (g gd) Deadplan* (g dp)
Deadlit (g deadlit) Feedback (g feedback)
GD Hour (g gdh) Tapes (g tapes)
Tickets (g tix) Tours (g tours)
* Private conference - mail tnf or marye for entry
Computers
-----------
AI/Forth (g ai) Amiga (g amiga)
Apple (g app) Atari (g ata)
Computer Books (g cbook) Art & Graphics (g gra)
Hacking (g hack) HyperCard (g hype)
Laptop (g lap) Macintosh (g mac)
Mactech (g mactech) Microtimes (g microx)
OS/2 (g os2) Printers (g print)
Software/Programming (software) Unix (g unix)
Word Processing (g word)
* Private Conference - Send email to tao for entry.
Technical - Communications
----------------------------
Bioinfo (g bioinfo) Info (g boing)
Media (g media) Netweaver (g netweaver)
Radio (g rad) Science (g science)
Technical Writers (g tec) Telecommunications(g tele)
Usenet (g usenet) Video (g vid)
Virtual Reality (g vr)
The WELL Itself
---------------
Deeper (g deeper) Entry (g ent)
General (g gentech) Help (g help)
Hosts (g hosts) Policy (g policy)
System News (g news) Test (g test)
