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FOR IMMEDIATE RELEASE

Contact: Cathy Cook (415) 759-5578

NEW FOUNDATION ESTABLISHED TO ENCOURAGE COMPUTER-BASED COMMUNICATIONS POLICIES

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) will support and engage in public education on current and future developments in computer-based and telecommunications media. In addition, it will support litigation in the public interest to preserve, protect and extend First Amendment rights within the realm of computing and telecommunications technology.

Initial funding for the Foundation comes from private contributions by Kapor and Steve Wozniak, co-founder of Apple Computer, Inc. The Foundation expects to actively raise contributions from a wide constituency.

As an initial step to foster public education on these issues, the Foundation today awarded a grant to the Palo Alto, California-based public advocacy group Computer Professionals for Social Responsibility (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 has recently intervened on behalf of two legal cases.

The first case concerns Steve Jackson, an Austin-based game manufacturer who was the target of the Secret Service's Operation Sun Devil. The EFF has pressed for a full disclosure by the government regarding the seizure of his company's computer equipment. In the second action, the Foundation intends to seek amicus curiae (friend of the court) status in the government's case against Craig Neidorf, a 20-year-old University of Missouri student who is the editor of the electronic newsletter Phrack World News (see attached).

"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 issues 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 interactive 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 social structures.

The question of how electronic communications should be accorded the same political freedoms as newspapers, books, journals and other modes of discourse is currently the subject of discussion among this country's lawmakers and members of the computer industry. The EFF will 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 public and policy-makers see and understand the opportunities as well as the challenges posed by developments in computing and telecommunications. Also, the EFF will encourage and support the development of new software to enable non-technical users to more easily use their computers to access the growing number of digital communications services available.

The Foundation is located in Cambridge, Mass. Requests for information should be sent to Electronic Frontier Foundation, One Cambridge Center, 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.

ELECTRONIC FRONTIER FOUNDATION

MISSION STATEMENT

A new world is arising in the vast web of digital, electronic media which connect us. Computer-based communication media like electronic 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 structure and coherence to uses of conventional media like newspapers, books, and telephones, the new digital media do not so easily fit into existing frameworks. Conflicts come about as the law struggles to define its application in a context where fundamental notions of speech, property, and place take profoundly new forms. People sense both the promise and the threat inherent in new computer and communications technologies, even as they struggle to master or simply cope with them in 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 in 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:

1. Engage in and support educational activities which increase popular understanding of the opportunities and challenges posed by developments in computing and telecommunications.

2. 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.

3. 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.

4. Encourage and support the development of new tools which will endow non-technical users with full and easy access to computer-based telecommunications.

The Electronic Frontier Foundation One Cambridge Center Cambridge, MA 02142 (617) 577-1385

eff@well.sf.ca.us

FOR IMMEDIATE RELEASE

Contact: Marc Rotenberg (202) 775-1588

CPSR TO UNDERTAKE EXPANDED CIVIL LIBERTIES PROGRAM

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 work, "CPSR plays an important role in the computer community. For the last several years, it has sought to extend civil liberties protections to new information technologies. Now we want to help CPSR expand that work."

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 work that needs to be done to ensure that our civil liberties protections are not lost amidst policy confusion about the use of new 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 purpose of the meetings will be to "begin a dialogue about the new uses 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 investigations, 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 President Reagan attempted to restrict access to government computer systems through the creation of new classification authority. In 1988, CPSR prepared a report on the proposed expansion of the FBI's computer system, the National Crime Information Center. The report found serious threats to privacy and civil liberties. Shortly after the report was issued, 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 scientist at Digital Equipment Corporation in Palo Alto, California. "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 public policy, praised the new initiative. She said, "It's clear that there is an information gap that needs to be filled. This is an important 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 international 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 415/322-3778

LEGAL OVERVIEW

THE ELECTRONIC FRONTIER AND THE BILL OF RIGHTS

Advances in computer technology have brought us to a new frontier in communications, where the law is largely unsettled and woefully inadequate 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 devised day in and day out by millions of citizens on both a large and small scale from coast to coast. Reasonable balances have to be struck among:

% 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 interference.

Striking these balances properly will not be easy, but if they are struck too far in one direction or the other, important social and legal values surely will be sacrificed.

Helping to see to it that this important and difficult task is done properly is a major goal of the Electronic Frontier Foundation. It is critical to assure that these lines are drawn in accordance with the fundamental constitutional rights that have protected individuals from government excesses since our nation was founded -- freedom of speech, press, and association, the right to privacy and protection 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 government from "abridging the freedom of speech, or of the press," and guarantees freedom of association as well. It is widely considered to 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 important technological development. It has enjoyed only a mixed record of success. Traditional forms of speech -- the print media and public speaking -- have enjoyed a long and rich history of freedom from governmental interference. The United States Supreme Court has not afforded the same degree of freedom to electronic broadcasting, however.

Radio and television communications, for example, have been subjected to regulation and censorship by the Federal Communications Commission (FCC), and by the Congress. The Supreme Court initially justified regulation of the broadcast media on technological grounds -- since there were assumed to be a finite number of radio and television frequencies, the Court believed that regulation was necessary to prevent interference among frequencies and to make sure that scarce resources were allocated fairly. The multiplicity of cable TV networks has demonstrated the falsity of this "scarce resource" rationale, but the Court has expressed a reluctance to abandon its outmoded approach without some signal from Congress or the FCC.

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 important 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 print and electronic media and to extend First Amendment protections to 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 ready availability of virtually unlimited computer communication 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 history of regulation of radio and television, rather than the history 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 important 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, agaihe warrant demonstrates the existen Oath or affirmation, and particularly describing the place to be searched, and zed." In short, the scope of the search has to be as narrow as possible, and there has to be good reason to believe that the search will turn up evidence of illegal activity.

The meaning of the Fourth Amendment's guarantee has evolved over time in response to changing technologies. For example, while the Fourth 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 individual's words without ever treading onto that person's private property. To put the matter more concretely, while the drafters of the 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 governmental violation of an individual's reasonable expectation of privacy, a concept that transcended the narrow definition of one's private physical space. It is now well established that an individual has a reasonable expectation of privacy, not only in his or her home 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 reasonable, and thus have helped limit the scope of Fourth Amendment protections. Thus, while one might once have reasonably expected privacy in a fenced-in field, the Supreme Court has recently told us 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 government intrusion into these private areas should be allowed, ought to be debated openly, fully, and intelligently, as the Congress seeks to legislate in the area, as courts decide cases, and as administrative, regulatory, and prosecutorial agencies seek to establish their turf.

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 protections do not serve to deter private citizens from doing what the government is prohibited from doing. In short, while the Fourth Amendment limits the government's ability to invade and spy upon private databanks, it does not protect against similar invasions by private parties. Protection of citizens from the depredations of other citizens requires the passage of privacy legislation.

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 property shall not "be taken for public use without just compensation." 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 intelligence 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", would obviously not pass constitutional muster under the Fifth 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 placement on an electronic bulletin board of arguably propriety computer 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 wiretapping and electronic eavesdropping clearly have to be updated to take into account electronic bulletin board technology, lest those who utilize such means of communication should be assured of reasonable privacy from unwanted government surveillance.

Summary

The problem of melding old but still valid concepts of constitutional rights, with new and rapidly evolving technologies, is perhaps best summed up by the following observation. Twenty-five years ago there was 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 government would not have been allowed to search through, and seize, 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 protects liberty as well as private property, is a major challenge we face. How well we allow this marvelous invention to continue to be developed by creative minds, while we seek to prohibit or discourage truly abusive practices, will depend upon the degree of wisdom that guides our courts, our legislatures, and governmental agencies entrusted with authority in this area of our national life.

For further information regarding The Bill of Rights please contact:

Harvey Silverglate Silverglate & Good 89 Broad Street, 14th Floor Boston, MA 02110 617/542-6663

ELECTRONIC FRONTIER FOUNDATION

LEGAL CASE SUMMARY July 10, 1990

The Electronic Frontier Foundation is currently providing litigation support in two cases in which it perceived there to be substantial civil 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. In addition, like many other manufacturers, the company operates an electronic bulletin board to advertise and to obtain feedback on its product ideas and lines.

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 rules of the game are set out in a game book. Playing of the game is not performed on computers and does not make use of computers in any way. This game was to be the company's most important first quarter release, the keystone of its line.

On March 1, 1990, just weeks before GURPS CYBERPUNK was due to be released, agents of the United States Secret Service raided the premises of Steve Jackson Games. The Secret Service:

% seized three of the company's computers which were used in the drafting and designing of GURPS CYBERPUNK, including the computer used to run the electronic bulletin board,

% took all of the company software in the neighborhood of the computers taken,

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

% destructively ransacked the company's warehouse, leaving many items in disarray.

In addition, all working drafts of the soon-to-be-published GURPS 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 was a, "handbook for computer crime."

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 insofar as the Foundation's inquiries have been able to determine, tried in vain for over three months to find out why its property had been seized, why the property was being retained by the Secret Service long after it should have become apparent to the agents that GURPS CYBERPUNK and everything else in the company's repertoire were entirely lawful and innocuous, 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 returned most of the property, but retained a number of documents, including the seized drafts of GURPS CYBERPUNKS.

The Foundation is presently seeking to find out the basis for the search warrant that led to the raid on Steve Jackson Games. Unfortunately, the 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 what it was that the Secret Service told a judicial officer that prompted that officer to issue the search warrant.

Under the Fourth Amendment to the United States Constitution, a search warrant may be lawfully issued only if the information presented to the court by the government agents demonstrates "probable cause" to believe that evidence of criminal conduct would be found on the premises to be searched. Unsealing the search warrant application should enable the 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 have been unreasonably broad. The wholesale seizure of computer software, and subsequent rummaging through its contents, is precisely the sort of general search that the Fourth Amendment was designed to prohibit.

If it is unlawful for government agents to indiscriminately seize all of the hard-copy filing cabinets on a business premises -- which it surely is -- 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 speech, or of the press". The government's apparent attempt to prevent 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 single most serious type, since the government, by seizing the very 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 sought instead to prevent publication in the first place. (This is not to say, of course, that anything published by Steve Jackson Games could successfully have been punished. Indeed, the opposite appears to be the 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.

Indeed, in its 200-year history, the Supreme Court has never upheld a prior restraint on the publication of material protected by the First Amendment, warning that such efforts to restrain publication are presumptively unconstitutional. For example, the Department of Justice was unsuccessful in 1971 in obtaining the permission of the Supreme Court to enjoin The New York Times, The Washington Post, and The Boston Globe from publishing the so-called Pentagon Papers, which the government strenuously argued should be enjoined because of a perceived threat to national security. (In 1979, however, the government sought to prevent The Progressive magazine from publishing an article purporting to instruct the reader as to how to manufacture an atomic bomb. A lower federal court actually imposed an order for a temporary prior restraint that lasted six months. The Supreme Court never had an opportunity to issue a full ruling on the constitutionality of that restraint, however, because the case was mooted when another newspaper published the article.)

Governmental efforts to restrain publication thus have been met by vigorous opposition in the courts. A major problem posed by the government's resort to the expedient of obtaining a search warrant, therefore, is that it allows the government to effectively prevent or delay publication without giving the citizen a ready opportunity to oppose that effort in court.

The Secret Service managed to delay, and almost to prevent, the publication of an innocuous game book by a legitimate company -- not by 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 it 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 Pentagon Papers. Had the government sought a court order closing down the electronic bulletin board, such an order effecting a prior restraint almost certainly would have been refused. Yet by obtaining the search warrant, the government effected the same result.

This is a stark example of how electronic media suffer under a less stringent standard of constitutional protection than applies to the print media -- for no apparent reason, it would appear, other than the 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 steps, if necessary, to determine the factual basis for the search. 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 intrusion upon and interference with protected property and speech rights.

United States v. Craig Neidorf

Craig Neidorf is a 20-year-old student at the University of Missouri who has been indicted by the United States on several counts of interstate wire fraud and interstate transportation of stolen property in 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 information 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 security in some computer systems.

The information obtained without authorization is a file relating to the provision of 911 emergency telephone services that was allegedly removed from the BellSouth computer system without authorization. It is important 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 significant impact on the uses of new computer communications technologies. The prosecution of an editor or publisher, under generalized statutes like wire fraud and interstate transportation of stolen property, for the publication of information received lawfully, which later turns out to be have been "stolen," presents an unprecedented threat to the freedom of the press. The person who should be prosecuted is the thief, and not a publisher who subsequently receives and publishes information of public interest. To draw an analogy to the print media, this would be the equivalent of prosecuting The New York Times and The Washington Post for publishing the Pentagon Papers when those papers were dropped off at the doorsteps of those newspapers.

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 prosecution, except where such advocacy is directed at producing imminent 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 immediate action. Criminal prosecutions such as this pose an extreme hazard for First Amendment rights in all media of communication, as it has a chilling effect on writers and publishers who wish to discuss the ramifications of illegal activity, such as information describing illegal activity or describing how a crime might be committed.

In addition, since the statutes under which Neidorf is charged clearly do not envision computer communications, applying them to situations such as that found in the Neidorf case raises fundamental questions of fair notice -- that is to say, the publisher or computer user has no way of knowing that his actions may in fact be a violation of criminal 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 requirements of the Due Process Clause also minimizes the risk of selective or arbitrary enforcement, where prosecutors decide what conduct they do not like and then seek some statute that can be stretched by some theory to cover that conduct.

Government seizure and liability of bulletin board systems

During the recent government crackdown on computer crime, the government has on many occasions seized the computers which operate bulletin board systems ("BBSs"), even though the operator of the bulletin board is not suspected of any complicity in any alleged criminal activity. The government seizures go far beyond a "prior restraint" on the publication 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 simply restrain the publication of the "offending" document, but it seizes the means of production of the First Amendment activity so that 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 with First Amendment protected speech, it can only do so by the least restrictive means. Clearly, the wholesale seizure and retention of a publication's means of production, i.e., its computer system, is not the 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 promptly return the computer system to the operator.

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 government, in seeking warrants for the seizures, has not forthrightly informed the court that private mail of third parties is on the computers, and has also read some of this private mail after the systems have been seized.

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 illegal. This uncertainty as to the law has already caused a decrease in the free flow of information, as some BBS operators have removed information 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, however, is to ensure that, as the legal framework is established to protect the security of these computer systems, the unfettered 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 information. The Foundation fears not only that protected speech will be curtailed, but also that the citizen's reasonable expectation in the privacy and sanctity of electronic communications systems will be thwarted, and people will be hesitant to communicate via these networks. Such a lack of confidence in electronic communication modes will substantially set back the kind of experimentation by and communication 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 protecting the free flow of information over bulletin board systems and other computer technologies.

For further information regarding Steve Jackson Games please contact:

Harvey Silverglate or Sharon Beckman Silverglate & Good 89 Broad Street, 14th Floor Boston, MA 02110 617/542-6663

For further information regarding Craig Neidorf please contact:

Terry Gross or Eric Lieberman Rabinowitz, Boudin, Standard, Krinsky and Lieberman 740 Broadway, 5th Floor New York, NY 10003 212/254-1111