Professional Documents
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Free Speech in Cyberspace
Free Speech in Cyberspace
SPACE
The First Amendment and the Computer Hacker
The First Amendment and the Computer Hacker
The First A
mendment and the Computer Hacker
Controversies of 1990
Controversies of 1990
Controversies of 1990
by
by
by
ROBERT R. BERRY
ROBERT R. BERRY
ROBERT R. BERRY
Approved by:
Cathy L. Packer, Advisor
Ruth Walden, Reader
John Semonche, Reader
Table of Contents
CHAPTER ONE:
CHAPTER ONE:
CHAPTER ONE:
New Questions fo
Introduction
Introductio
n
In the spring of 1990, a 20-year-old student at the
University of Missouri in Columbia was prosecuted in a
federal court because of something he published. The
information he published was true, it was of public concern,
and it had come to him through legal channels. Nonetheless,
the government charged that his publication was part of a
conspiracy to commit fraud and that his informationgathering activities and publication amounted to interstate
transportation of stolen property.
Shouldn't the First Amendment have protected Craig
Neidorf from prosecution? Unfortunately, the answer to that
question is unclear because of the technology he used to
deliver his message. Neidorf's publication was electronic.
He created it as text on his computer and distributed it
over a network to other computer users who read it on their
video screens. It went from author to audience without ever
existing in tangible form. And the information whose
publication led to his prosecution -- a document describing
a telephone system -- came to him through the same channels.
For the first time, a federal court confronted this
question: How does the First Amendment apply to computerbased communication?
Medium
Literature Review
iterature Review
Literature Review
(1981).
6
28Id. at 246.
29Id. at 251.
30M.E. Katsh, "The First Amendment and Technological Change:
The New Media Have a Message," 57 Geo. Wash. L. Rev. 1459
(1989).
31Id. at 2.
32Id. at 13.
33Id. at 17.
34Id. at 17.
10
35Id. at 21.
36Id. at 23.
11
12
crime.42 In particular, phreaking, the theft of longdistance telephone service -- usually closely associated
with hacking -- has been a popular subject of discussion.
"While bulletin boards are usually not directly involved in
any of these crimes, they are used to receive and distribute
information by the computer enthusiasts who commit the
illegal acts," writes attorney Eric Jensen, who also
includes distribution of pornography and the formation of
pedophilia rings among the potential abuses of BBSs.43
Jensen similarly asks whether earlier models of media law
can accommodate BBSs. Dividing older media into the
categories of publishers, republishers, and common carriers
-- and choosing republishers as the best analogy to BBSs -Jensen ultimately reaches a conclusion much like Charles',
that sysop liability should be based upon the degree of the
sysop's participation in the illegal actions.44 He cautions
that direct regulation of BBSs, because of their nature,
13
45
Id. at 232-3.
46Id. at 252.
47Id.
48357 U.S. 449 (1958).
49Id.
50E. Di Cato, "Operator Liability Associated With
Maintaining a Computer Bulletin Board," 4 Software L.J.
147 (1990).
51A virus is a computer program that is designed to
replicate itself by attaching itself surreptitiously to
other programs. Viruses may be fairly harmless, perhaps
popping up a mischievous message on the screen, or
destructive -- erasing files from a hard disk or perhaps
scrambling the disk's data irretrievably.
14
15
57Id. at 509-10.
58Id. at 504-5.
59Id. at 513-15.
60Id. at 516.
61Freedman, supra note 7, at 689.
16
62Id. at 735.
63J. Hurwitz, "Teletext and the FCC: Turning the Content
Regulatory Clock Backwards," 64 Boston Univ. L. Rev. 1057
(1984).
64Id. at 1057.
65The Fairness Doctrine, no longer FCC policy, was still
applied to broadcasters when Hurwitz wrote his article.
66Hurwitz, supra note 63, at 1083.
67Id. at 1098.
17
68Id. at 1083-1094.
69R. Hindman, "The Diversity Principle and the MFJ
Information Services Restriction: Applying Time-Worn First
Amendment Assumptions to New Technologies," 38 Catholic
Univ. L. Rev. 471 (1989).
70Id. at 471.
71U.S. v. AT&T, 552 F.Supp. 131 (D.C. Cir. 1982).
72Id. at 494-5.
18
19
20
Objectives
Objectives
Objectives
21
22
First Amendment?
commun
First Amendm
ent?
In order to answer this question, this thesis will first
explore the nature of computer-based communication as it is
used today. After an overview of the technology that makes
3)
threat and what the future may hold for these new media.
Organization
Organization
Organizatio
n
Chapter Two will describe the technological foundation of
today's computer-based communication media in order to
24
Limitations
Limitations
Limitations
25
27
CHAPTER TWO:
CHAPTER TWO:
CHAPTER TWO:
The Net
The Net
The Net
This chapter will explore the nature of today's computer-
The Technology
The Technology
The Tec
hnology1
Several kinds of technological media exist through which
computer-based communication takes place. These can
generally be grouped into three categories: the computer
bulletin board system (BBS), the online information service
and the computer network. There is considerable overlap
between these categories, and within each category there is
much variation in implementation. Nonetheless, meaningful
distinctions can be made between these types of systems and
the way in which they operate.
s (BBSs)
BBS will not even have its own telephone line but will share
the sysop's home or business line (and consequently may be
available only during certain hours).
The idea of a computer system publicly available for
posting messages goes back at least to 1973 when a project
called Community Memory went online in San Francisco. A
project of a group of progressive computer enthusiasts,
Community Memory was a system consisting of a mainframe3
computer connected to a dedicated teletype terminal placed
in a record store (a second terminal was added later). The
system functioned much like the message base of a modern
BBS, allowing anyone who wanted to use it to leave a message
that could be viewed by others.4
The first true BBS appeared in January of 1978 when two
members of a Chicago computer club called CACHE (Chicago
Area Computer Hobbyist Exchange) came up with the idea of
using a computer to help the club members share information
that had previously been posted on a real bulletin board.
The system, called the CACHE Bulletin Board System/Chicago
or CBBS/Chicago, was strictly a message board and ran on
30
31
32
Information Services
15707.
33
35
36
BBS Networks
BBS Network
s
In addition to the nationwide (and worldwide) mainframe
networks, the 1980s also saw the emergence of several
networks connecting small BBS systems to one another. The
oldest and largest is FidoNet, which began as a pair of BBSs
in Baltimore that had the capability of exchanging messages.
As other systems were added, it grew into a nationwide
network.21 Today FidoNet has more than 11,000 nodes.22
A caller to a FidoNet BBS will usually find two different
groups of message areas. One contains the local message
Gateways
Gateways
38
The Culture
The Culture
The Culture
39
in which these media are used today goes far beyond mere
information sharing. Instead, computer networks and the
systems they comprise have become a means of association, a
community not bound by geography. In this virtual
community, people from all over the world meet and associate
with others who share their interests, all without ever
seeing one another.
Naturally, much of the discussion that takes place
through these media is on the subject of computers. But a
surprising amount is nontechnical in nature. On Usenet, for
instance, none of the five most popular newsgroups are
computer-related.29 Instead, Usenet newsgroups provide a
forum for discussing sex, Star Trek, movies, Indian culture,
cooking, politics, law, country music, and any other topic
of enough interest to inspire the creation of a newsgroup.30
A thread on a Usenet newsgroup might begin with an
article like this one from rec.music.country.western:
From: uuwayne@venus.lerc.nasa.gov (Wayne Stopak)
Newsgroups: rec.music.country.western
Subject: Keith Whitley
Date: 7 Nov 1991 12:44 EDT
40
41
Newsgroups: talk.politics.misc
Given the fact that Pat Buchanan and David Duke will
likely run
for president, a columnist recently wrote that for
George Bush to
get elected, he must run to the right of Buchanan and
to the left
of Duke. Sounds like a Bozo sandwich to me. As to the
remarkably
high voter turnout in Louisiana, George Will stated on
This Week
With David Brinkley that the way to increase voter
turnout in the
U.S. is to run a crook against a Nazi.
From: bard@cutter.ssd.loral.com (James Woodyatt)
Newsgroups: talk.politics.misc,alt.censorship
Subject: Re: Censorship of 'Doonesbury'
Date: 19 Nov 91 01:43:37 GMT
In article <1991Nov17.014025.527@desire.wright.edu>,
demon@desire.wright.edu (Enemy of Totalitarianism)
writes:
> Great, if you want to play word games, then we'll
play along:
> Newspapers have every right to censor their
publication.
> Newspapers are exercising their right to censor their
> publication. Newspapers ARE NOT CENRSORING Mr.
Trudeau.
> In the context of the censorship of Mr. Trudeau,
there is no
> censorship. He can continue to spout his views, he
can talk to
> people in the street, pass out leaflets, get
published in
> sympathetic newspapers, but freedom of speech does
not garauntee
> access to any and all printed material. It protects
individuals
> and organizations from being prevented from airing
their
> views in a public forum, which is not happening to
Mr. Trudeau.
> He can not force people to listen to him, or to print
his views.
> Let him start his own newspaper if he wants to repeat
lies.
Oh, if only it were so bloody simple. It's not.
42
The San Jose Metro wanted to print the strips that the
San Jose
Mercury News wouldn't run, so they went to United Press
Syndicate
and told them what they wanted to do. UPS said it was
fine with
them as long as the Merc, which has exclusive rights to
print
Doonesbury in the South Bay Area here, signed a waiver
allowing
the Metro to print the strips that the Merc wouldn't.
The Merc
refused saying that their intention was to prevent the
strip from
being read in the South Bay.
Tell me with a straight face that is not censorship. It
is not
illegal. It can be argued that it is not even immoral
on its face.
But it is certainly censorship.
> But they do not send people around to the sources
saying "don't
> try to publish anywhere else, either". That's why
this form of
> "censorship" is more commonly known as "editing".
The S.J. Mercury News effectively "edited" the strips
out of all the papers in the South Bay area.34
The decentralized and uncontrolled nature of Usenet
permits disagreements between participants to become quite
heated. This is probably exacerbated by the fact that
posters may forget social niceties when communication is not
face to face. A personal attack on another poster is called
a flame, and flaming is one of the hazards of life on the
network.
43
Electronic Magazines
Electronic Magazines
Electronic Magazines
46
47
48
42Id. at 25.
43Id. at 28.
44Phreaker quoted by Meyer, id. at 29.
45Id. at 63.
49
Conclusions
Conclusions
Conclusions
46Id. at 76.
47Lovell v. City of Griffin, 303 U.S. 444, 452 (1938).
48Godwin, supra note 25, at 18.
50
51
CHAPTER THREE:
CHAPTER THREE:
CHAPTER THREE:
Hackerphobia
Hackerphobia
Hackerphobia
these offenses and added two new ones: one for "malicious
damage" involving access to a federal interest computer, and
one proscribing trafficking in stolen passwords.
These laws only incidentally affected free speech by
providing law enforcement agencies with broad new authority
to prosecute computer crime. In order to understand whether
that authority has been abused, it is necessary first to
identify Congress's intentions.
By examining the committee hearings held throughout the
1980s on the subject of computer crime, this chapter will
identify the attitudes and concerns that contributed to
these computer crime laws. It will examine the roles not
only of the legislators themselves, but also of witnesses
from the industry, law enforcement community and hacker
culture.
53
WarGames
WarGames
WarGames
54
5MGM/UA 1983.
6Computer and Communications Security and Privacy:
Hearings Before the Subcommittee on Transportation, Aviation
and Materials of the Committee on Science and Technology,
House of Representatives, 98th Cong., 1st Sess. (1983)
(statement of Stephen Walker, president, Trusted Information
Systems, Inc.)
7See, e.g., McLellan, "The Hacker's Bane," Inc., Dec.
1983, at 55; Heins, "Foiling the Computer Snoops," Forbes,
Nov. 21, 1983, at 58.
55
56
57
14Id. at 13.
15Computer and Communications Security and Privacy:
Report Prepared by the Subcommittee on Transportation,
Aviation and Materials, Transmitted to the Committee on
Science and Technology, House of Representatives, 98th
Cong., 2d Sess. (1984), at 1.
16Id.
17Id.
58
59
racks"
Bureau of Investigation).
60
25Ibid.
26See, e.g., Computer Crime, supra note 18, at 15-17
(statement of Rep. Coughlin) (youths who stole $100,000 in
merchandise by computer and were successfully prosecuted);
at 18-19 (statement of John Keeney, Deputy Assistant
Attorney General, Criminal Division, Department of Justice)
(two "difficult" cases nonetheless prosecuted under existing
law).
27Id. at 25 (statement of William Block, Assistant U.S.
Attorney for the District of Columbia).
61
30Id. at 19.
62
63
64
39Id.
40Id.
41Id. at 77.
65
67
68
69
70
Mistrust of Computers
Mistrust of Computers
Mistrust of Computers
Florida).
71
72
73
Financial Impact
Financial Impact
ancial Impact
Ultimately, the financial impact of computer crime seems
to have been Congress's primary motive for moving ahead with
computer crime legislation. Though the issue of computer
crime was originally brought to its attention by the
spectacular exploits of hackers such as the 414s and David
Lightman in WarGames, it became clear that the largest
threat came not from hackers (whose motives, it seemed, were
rarely avaricious), but from "insiders" -- employees and
others with authorized access who committed fraud by
computer.67 The danger to national security -- the
possibility of a "WarGames scenario" -- turned out to be
very slight, but less-exciting computer crime did exist.
Such crime, according to an American Bar Association survey
Fin
note 15, at 4.
74
76
Summary
Summary
Summary
72Id. at 27-34.
73Id. at 34.
77
78
CHAPTER FOUR:
CHAPTER FOUR:
CHAPTER FOUR:
Operation Sun Devil
federal courts, which for the first time had the opportunity
to rule on the First Amendment questions associated with
computer-based communication.
This chapter will examine the contributions of these
players in the hacker crackdown controversy that exploded
during 1990. After a survey of the events surrounding the
crackdown and the two major cases that emerged from it, this
chapter will identify the positions and agendas of these
players, based upon policy statements, legal documents, news
stories and other material.
Crackdown
Crackdown
Crackdown
80
81
82
83
84
at C13, col.1.
85
20
Memorandum of Law of Amicus Electronic Frontier
Foundation at 2, U.S. v. Riggs, 743 F.Supp. 556 (N.D. Ill.
1990).
21Costikyan, supra note 1, at 23.
22To download is "to transmit data from a central
computer to a remote computer." Freedman, supra note 9, at
232.
23Costikyan, supra note 1. at 2-3.
2418 U.S.C.A. S1343 (1990).
2518 U.S.C.A. S1030 (1990).
2618 U.S.C.A. S2314 (1990). Riggs/Neidorf indictment
reproduced in Computer Underground Digest, Issue 1.00 (Mar.
1990).
86
87
89
90
91
45
Legal Case Summary, supra note 39; Costikyan, supra
note 1, at 24.
46Barlow, supra note 1, at 52.
47Costikyan, supra note 1, at 24.
48Sterling, supra note 36, at 3.
49Costikyan, supra note 1, at 24.
50Legal Case Summary, supra note 39.
51Id.
92
93
94
gion of Doom
96
Exaggerated Fears
xaggerated Fears
Exaggerated Fears
1990).
97
98
99
100
101
102
103
105
106
107
108
109
110
112
Summary
Summary
Summary
116Id. at 1278.
117743 F.Supp. 556, 562.
118Id. (quoting U.S. v. Rowlee, 899 F.2d 1275, 1280 (2d
Cir. 1990)).
119Markoff, supra note 35.
113
114
CHAPTER FIVE:
CHAPTER FIVE:
CHAPTER FIVE:
Conclusions
Conclusions
Conclusions
Congress
Congress
Congress
116
117
Law Enforcement
Law Enforcement
nforcement
The early role of law enforcement agencies was largely to
tell Congress what it wanted to hear: that it would be happy
to have a new weapon to use in the fight against whitecollar crime. But enforcers were chiefly concerned with
financial crimes such as embezzlement and fraud, crimes
committed almost universally by "insiders" rather than
hackers. It is also significant that despite their
willingness to add another statute to their arsenal,
enforcers generally reported universal success in
prosecuting computer crime under existing laws.
Armed with the Counterfeit Access Device and Computer
Fraud and Abuse Act of 1984 and the Computer Fraud and Abuse
Act of 1986, however, law enforcement agencies in the United
States -- particularly the Secret Service -- apparently
interpreted these laws as a mandate to eradicate computer
hackers of every stripe. The sweeping crackdown of
Operation Sun Devil and particularly the cases of Craig
Neidorf and Steve Jackson Games suggest that in their zeal
to root out the Legion of Doom, enforcers may have taken
their authority beyond what Congress intended or the
Constitution should allow.
The actions of law enforcers during the events of 1990
again reveal a basic fear and misunderstanding of computers
and computer hackers. This fear is almost certainly a
result of simple ignorance. Familiarity with computers and
Law E
Foundation
Electronic Frontier
119
120
121
Hackers
Hackers
Hackers
122
The Courts
The Courts
The Courts
123
Recent Developments
Recent Developments
Recent Developments
125
126
127
BIBLIOGRAPHY
BIBLIOGRAPHY
Books
BIBLIOGRAPHY
Books
Books
Magazine Articles
Magazine Articles
Magazine A
rticles
Costikyan, "Closing the Net," Reason, Jan. 1991, at 22.
Kapor, "Civil Liberties in Cyberspace," Scientific American,
Sept. 1991, at 116.
Barlow, "Crime and Puzzlement," Whole Earth Review, Fall
1990, at 45.
Law Re
and Reports
Cases
Cases
Cases
Online Sources
Online Sources
Online Sources
130