Subject: EFFector Online 08.16 * CDA Alert - Bernstein Action - Euro Privacy
summary: 1) ALERT: Net censorship bills back on the fast track; 2) EFF/Bernstein
crypto suit against NSA & Dept. of State goes to trial soon; 3) Eur. Council
attacks privacy 4) Case updates, Clipper & FOIA, Farber award
organization: Electronic Frontier Foundation
keywords: EFF,EFFector,activism,activist,Electronic Frontier Foundation,
Grassley bill,S.892,S 892,S892,Grassley,Cox/Wyden,Cox-Wyden,Cox,Wyden,Exon,Leahy,
Klink,Coates,HR1555,H.R. 1555,HR 1555,H.R.1555,S.652,S652,S 652 S. 652,H.R. 1004,
H.R.1004,HR 1004 HR1004,S.314,S 314, S314,H.R. 1978,HR 1978,H.R.1978,HR1978,
surveillance,search,seizure,CoS,Church of Scientology,David Farber,FOIA,
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EFFector Online Volume 08 No. 16 Oct. 7, 1995 edit...@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
IN THIS ISSUE:
ALERT: Congress Action Resumes on Internet Censorship Legislation
The Latest News
What You Can Do Now
Letter from Senator Russ Feingold (D-WI) to Committee
Chronology of the CDA
For More Information
List Of Participating Organizations
Crypto Export Controls on Trial - Come on Down!
EFF's Farber Wins ACM SIGCOMM Award for Lifelong Contribution to Networking
Clinton Administration Lied About Clipper Being Voluntary - Proof!
Hints of "OzClipper"? Australian Atty. General's Dept. Wants Key Escrow
Church of Scientology Cases - Update
ALERT: SEC EDGAR Database Endangered by Lobbyists
Coming Next Issue...
Quote of the Day
What YOU Can Do
* See http://www.eff.org/Alerts/ or ftp.eff.org, /pub/Alerts/ for more
information on current EFF activities and online activism alerts! *
Subject: ALERT: Congress Action Resumes on Internet Censorship Legislation
CAMPAIGN TO STOP THE EXON/COATS COMMUNICATIONS DECENCY ACT
(SEE THE LIST OF CAMPAIGN COALITION MEMBERS AT THE END)
Update: -Latest News:
Feingold releases letter to Committee members
identifying First Amendment issues with CDA
-What You Can Do Now:
Send a letter to Feingold congratulating him
for speaking up for free speech.
Put your business or bulletin board on record
as supporting free speech and opposing censorship
CAMPAIGN TO STOP THE UNCONSTITUTIONAL COMMUNICATIONS DECENCY ACT
Oct 1, 1995
PLEASE WIDELY REDISTRIBUTE THIS DOCUMENT WITH THIS BANNER INTACT
REDISTRIBUTE ONLY UNTIL November 25, 1995
REPRODUCE THIS ALERT ONLY IN RELEVANT FORUMS
Distributed by the Voters Telecommunications Watch (v...@vtw.org)
The Latest News
What You Can Do Now
Letter from Senator Russ Feingold (D-WI) to Committee
Chronology of the CDA
For More Information
List Of Participating Organizations
THE LATEST NEWS
Many people who have been following the attempts to censor the Internet
may have seen the Senate floor debate. If you did, you were treated to
the sight of Senators Leahy (D-VT) and Feingold (D-WI) passionately
attempting to explain to 84 members of the Senate exactly just what the
Internet was, and why passing laws against indecency are inappropriate
in this medium.
Both Senators spoke passionately, and for those that understand this
technology, something clicked. The 16 members that voted against the
censorship legislation will be rewarded by reminders to their voters
about their rational, non-hysterical, positions on free speech at the
end of the year.
In the meantime, we believe that you should congratulate Senators
Feingold on his stand for free speech, and for sticking up for the
net. Quite often Senator Leahy gets most of the credit for this
position. Let's be honest, he deserves it because of his long standing
rational approach to our issues. However it's a big tent, and free
speech can always use another defender. (Directions for contacting
Feingold's office below)
Last week Senator Feingold sent a letter to several committee members
outlining the First Amendment problems with the measures passed by the
Senate (the Communications Decency Act) and the House (the Manager's
Amendment) and asked that these be deleted. A copy of that letter is
enclosed below, and we thank Senator Feingold's office for making
available an electronic copy (so we didn't have to type it in!).
Remember, send Senator Feingold a thank you. He's earned it.
[What comes below is unchanged from the last alert]
The House and Senate have passed a total of four different pieces of
legislation aimed at dealing with children's access to information on
Each of the four was profiled in BillWatch #13 which you can retrieve
from URL:http://www.vtw.org/billwatch/issue.13.html. Here are the four
pieces of legislation and a short summary of each of them.
HR1978: "Internet Freedom and Family Empowerment Act" (Cox/Wyden) This
bill takes the approach of encouraging industry to provide parents with
tools to restrict their childrens' access to the net. It contains no
new criminal provisions. This approach was affirmed by the House
421-4 on August 4, 1995. (Yes, that's a landslide)
S314: "The Communications Decency Act" (Exon/Coats) This bill makes
many types of constitutionally-protected speech (including lewd,
lascivious, and indecent speech) criminal when used through a
telecommunications device. This provision was affirmed by the Senate
84-16 on June 14, 1995.
House amendment to HR1555: "Child Protection, User Empowerment, and
Free Expression in Interactive Media Study Act" (Klink/Leahy) This bill
directs the Department of Justice to study and see if there are places
in current law where existing obscenity laws are unenforcible on computer
networks. This approach was affirmed by a committee voice vote.
House amendment to HR1555: <unnamed> This amendment was submitted at
the last minute through the Manager's Mark, a collection of several
amendments to HR1555 that were voted on as a block. This amendment
takes constitutionally-protected speech and criminalizes it when it is
expressed online. Most legislators had no idea that they voted on this
last amendment; the summary of the Manager's Mark did not mention
these new criminal provisions. There was no applicable House vote on
*just this* provision.
The House-Senate conference committee now has the task of deciding
which of these are allowed into the final Telecommunications Deregulation
bill for the last floor vote.
WHAT YOU CAN DO NOW
1. Send Senator Feingold a letter telling him you appreciate him standing
up for free speech in cyberspace. Be polite and check your spelling.
Most importantly, READ HIS LETTER FIRST before you send mail. He
took the time to write it, shouldn't you take the time to read it?
Email or paper mail are recommended, since they will have the least
impact on the staff. Telephone calls are less desirable, but
certainly appropriate if that is the only way that is convenient
The Senator can be reached at:
P ST Name and Address Phone Fax
= == ======================== ============== ==============
D WI Feingold, Russell 1-202-224-5323 na
502 HSOB russell_feing...@feingold.senate.gov
Washington, D.C. 20510
[This is from the last alert. We are still collecting signons to the
letter though, and we don't have nearly enough Internet Service Providers.
2. It's crucial that we tell Congress how their decision in the conference
committee will affect businesses and bulletin boards in cyberspace.
We're coordinating a letter from Internet businesses and bulletin
boards to explain to Congress just what these poorly-drafted regulations
will mean to them.
Read the electronic business and bulletin board letter below. You
can also find it at:
Gopher: gopher -p1/vtw/exon gopher.panix.com
WWW URL: http://www.vtw.org/cdaletter/
Email : Send mail to fi...@vtw.org with "send cdaletter" in the
3. If you work for a business that uses bulletin boards or public networks,
convince the owners to sign onto the letter. Companies that should sign
this include Internet service providers, Web designers (big and small),
Internet consultants and trainers, Internet restaurants and bars,
software companies that develop Internet-related software, companies
that advertise or publish through the Internet or bulletin boards, writers
who publish through the Internet, and many others!
If you belong to a bulletin board, ask the sysop if he or she will sign
onto the letter.
4. Ask the BBS sysop or the business owner to mail in the following
information to v...@vtw.org:
Owner or officer name
Description of business and anything else relevant
Here's an example:
$ Mail v...@vtw.org
My business would like to signon to the business and bbs letter.
Ed's Xcellent Online Node (EXON)
J.J. Exon, Owner
2323 Decency Road, Nebraska 10000-0000
Ed's Xcellent Online Node is based in Nebraska and provides Internet
service to many thoughtful and free-speech loving Nebraskans.
We provide Internet access to over 1,500 residents and 400
businesses. We employ 35 full time employees.
5. If you don't subscribe to a BBS or have an affiliation with a business
that uses public networks, but belong to a professional organization
or an advocacy group, consider sending Congress the ACLU letter included
below with your local group's name on it. Simply replace the material
in parentheses with your own information.
6. Relax! You just did a lot of good with only email as a tool. Isn't
LETTER FROM SENATOR RUSS FEINGOLD (D-WI)
[NOTE: This letter was sent to:
Sen. Larry Pressler
Sen. Fritz Hollings
Rep. Thomas Bliley
Rep. John Dingell
House Committee on Commerce
Senate Committee on Commerce, Science, & Technology
All of these individuals have a hand in the shaping of the conference
committee process that will define the outcome of the Telecommunications
Deregulation bill, and therefore, the Internet censorship legislation.
Each letter was identical, so we have only included one here.
Tuesday September 26, 1995
The Honorable Thomas Bliley
Chairman, Committee on Commerce
U.S. House of Representatives
Washington, D.C. 20515
Dear Chairman Bliley,
Soon your Committee will begin Conference deliberations on H.R. 1555
and S.652, telecommunications reform legislation, with members of the
Senate Committee on Commerce, Science and Transportation. During those
deliberations, I urge you to strike the potentially unconstitutional
provisions regarding on-line indecency contained in both the Senate and
House versions of this legislation.
The Exon-Coats amendment, added to S. 652 on the Senate floor, included
provisions which I believe would violate the First Amendment rights of
Internet users and have a chilling effect on further economic and
technological development of this exciting new form of
telecommunications. Specifically I have objected to the indecency
provisions of S. 652 for the following reasons:
1) Indecent speech, unlike obscenity, is protected under the First
Amendment to the U.S. Constitution;
2) An outright ban on indecent speech on computer networks is not the
"least restrictive means" of protecting children from exposure to
such speech on the Internet. There are a number of existing tools
available today to allow parents to protect their children from
materials which they find inappropriate;
3) A ban on indecent speech to minors on the Internet will unnecessarily
require adults to self censor their communications on the Internet;
4) Since "indecency" will be defined by community standards, protected
speech by adults will be diminished to what might be considered decent
in the most conservative community in the United States and to what
might be appropriate for very young children;
5) The "on-line indecency" provisions will establish different standards
for the same material that appears in print and on the computer screen.
Works that are completely legal in the bookstore or on the library shelf
would be criminal if transmitted over computer networks;
6) The Supreme Court has ruled that the degree to which content can be
regulated depends on the characteristics of the media. The unique
nature of interactive media must be considered when determining how
best to protect children. S. 652 ignores the degree to which users
have control over the materials to which they are exposed as well as
the decentralized nature of interactive technology which liken it more
to print media than broadcast media.
Section 403 of H.R. 1555, known as the Hyde amendment, raises equally
serious concerns with respect to the First Amendment and appears
antithetical to other provisions contained in the House Bill. The
prohibitions against on-line indecency contained in the Hyde language
will have a similar chilling effect on the on-line communications of
adults. The Hyde amendment is also inconsistent with the more
market-oriented and less intrusive provisions of Sec. 104 of H.R. 1555,
the On-Line Family Empowerment Act introduced by Congressmen Cox and
Wyden, as adopted by the House. Section 104 recognizes that First
Amendment protections must apply to on-line communications by
prohibiting FCC content regulation of the Internet. The Cox/Wyden
provisions also promote the use of existing technology to empower
parents to protect their children from objectionable materials on the
Internet, and encourages on-line service providers to self-police
offensive communications over their private services.
In addition, the Hyde amendment is incompatible with Section 110 of
H.R. 1555, which demands a report by the Department of Justice (DOJ) on
existing criminal obscenity and child pornography statutes and their
applicability to cyber-crime. Sec. 110 also requires an evaluation of
the technical means available to enable parents to exercise control
over the information that their children receive on the Internet.
Perhaps most significantly, Sec. 110 embraces the application of First
Amendment speech protections to interactive media. H.R. 1555, while
embracing the principles of restraint with respect to new criminal
sanctions on protected speech and the promotion of a free-market
parental empowerment approach, simultaneously ignores both of those
axioms with the Hyde provision. By imposing new criminal sanctions on
indecent speech and amending existing criminal statutes, the Hyde
amendment rushes to judgement before the DOJ study has even begun.
Recently, the Senate Judiciary Committee held the first-ever
Congressional hearing on the issue of cyberporn. Based on the
testimony of the witnesses, which included parents as well as victims
of cyberporn, it became clear that the objectionable communications on
the Internet are already covered by existing criminal statutes. The
concerns raised at the hearing centered upon trafficking of child
pornography, the proliferation of obscenity, and the solicitation and
victimization of minors via the Internet. However, those offenses are
already violations of criminal law. Indeed, recent press accounts
indicate that law enforcement officers are already aggressively
prosecuting on-line users for violations of criminal law relating to
obscenity and child pornography.
It is critical that we use law enforcement resources to prosecute
criminal activity conducted via the Internet and not be distracted by
the issue of indecency which has not been identified as a serious
concern by users or parents. It was clear, during our recent Senate
Hearing, that the witnesses' concerns about the Internet did not relate
to indecent speech or the so-called "seven dirty words". It is
incumbent upon Congress to wait for the results of the study required
by H.R. 1555 before embracing overly restrictive, potentially
unnecessary and possibly unconstitutional prohibitions on indecent
speech contained in both versions of telecommunications reform
I urge the Conference Committee to reject the Exon/Coats and Hyde
provisions during your deliberations and to maintain the Cox/Wyden
amendment adopted overwhelmingly by the House of Representatives. If
the United States is to ever fully realize the benefits of interactive
telecommunications technology, we cannot allow the heavy hand of
Congress to unduly interfere with communications on this medium.
Thank you for your consideration of this very important matter.
Russell D. Feingold
United States Senator
cc: Members, Committee on Commerce
CHRONOLOGY OF THE COMMUNICATIONS DECENCY ACT
Sep 26, '95 Sen. Russ Feingold urges committee members to drop
Managers Amendment and the CDA from the Telecommunications
Aug 4, '95 House passes HR1555 which goes into conference with S652.
Aug 4, '95 House votes to attach Managers Amendment (which contains
new criminal penalties for speech online) to
Telecommunications Reform bill (HR1555).
Aug 4, '95 House votes 421-4 to attach HR1978 to Telecommunications
Reform bill (HR1555).
Jun 30, '95 Cox and Wyden introduce the "Internet Freedom and Family
Empowerment Act" (HR 1978) as an alternative to the CDA.
Jun 21, '95 Several prominent House members publicly announce their
opposition to the CDA, including Rep. Newt Gingrich (R-GA),
Rep. Chris Cox (R-CA), and Rep. Ron Wyden (D-OR).
Jun 14, '95 The Senate passes the CDA as attached to the Telecomm
reform bill (S 652) by a vote of 84-16. The Leahy bill
(S 714) is not passed.
May 24, '95 The House Telecomm Reform bill (HR 1555) leaves committee
in the House with the Leahy alternative attached to it,
thanks to Rep. Ron Klink of (D-PA). The Communications
Decency Act is not attached to it.
Apr 7, '95 Sen. Leahy (D-VT) introduces S.714, an alternative to
the Exon/Gorton bill, which commissions the Dept. of
Justice to study the problem to see if additional legislation
(such as the CDA) is necessary.
Mar 23, '95 S314 amended and attached to the telecommunications reform
bill by Sen. Gorton (R-WA). Language provides some provider
protection, but continues to infringe upon email privacy
and free speech.
Feb 21, '95 HR1004 referred to the House Commerce and Judiciary committees
Feb 21, '95 HR1004 introduced by Rep. Johnson (D-SD)
Feb 1, '95 S314 referred to the Senate Commerce committee
Feb 1, '95 S314 introduced by Sen. Exon (D-NE) and Gorton (R-WA).
FOR MORE INFORMATION
v...@vtw.org (put "send alert" in the subject line for the latest
alert, or "send cdafaq" for the CDA FAQ)
cda-i...@cdt.org (General CDA information)
cda-s...@cdt.org (Current status of the CDA)
LIST OF PARTICIPATING ORGANIZATIONS
In order to use the net more effectively, several organizations have
joined forces on a single Congressional net campaign to stop the
Communications Decency Act.
American Communication Association * American Council for the Arts *
Arts & Technology Society * Association of Alternative Newsweeklies *
biancaTroll productions * Boston Coalition for Freedom of Expression *
Californians Against Censorship Together * Center For Democracy And
Technology * Centre for Democratic Communications * Center for Public
Representation * Citizen's Voice - New Zealand * Cloud 9 Internet
*Computer Communicators Association * Computel Network Services *
Computer Professionals for Social Responsibility * Cross Connection *
Cyber-Rights Campaign * CyberQueer Lounge * Dutch Digital Citizens'
Movement * ECHO Communications Group, Inc. * Electronic Frontier Canada
* Electronic Frontier Foundation * Electronic Frontier Foundation -
Austin * Electronic Frontiers Australia * Electronic Frontiers Houston
* Electronic Frontiers New Hampshire * Electronic Privacy Information
Center * Feminists For Free Expression * First Amendment Teach-In *
Florida Coalition Against Censorship * FranceCom, Inc. Web Advertising
Services * Friendly Anti-Censorship Taskforce for Students * Hands
Off! The Net * Human Rights Watch * Inland Book Company * Inner Circle
Technologies, Inc. * Inst. for Global Communications * Internet
On-Ramp, Inc. * Internet Users Consortium * Joint Artists' and Music
Promotions Political Action Committee * The Libertarian Party *
Marijuana Policy Project * Metropolitan Data Networks Ltd. * MindVox *
MN Grassroots Party * National Bicycle Greenway * National Campaign for
Freedom of Expression * National Coalition Against Censorship *
National Gay and Lesbian Task Force * National Public Telecomputing
Network * National Writers Union * Oregon Coast RISC * Panix Public
Access Internet * People for the American Way * Republican Liberty
Caucus * Rock Out Censorship * Society for Electronic Access * The
Thing International BBS Network * The WELL * Voters Telecommunications
(Note: All 'Electronic Frontier' organizations are independent entities,
not EFF chapters or divisions.)
Subject: Crypto Export Controls on Trial - Come on Down!
On October 20th in San Francisco, we'll have the first public hearing
in the EFF/Bernstein lawsuit, which seeks to have the export laws on
cryptography declared unconstitutional. You are invited!
Meet at the Federal Building in San Francisco, 450 Golden Gate Avenue.
The first "oral arguments" in the Bernstein crypto export case will
happen there, starting at 10:30am PST, in Judge Marilyn Hall Patel's
courtroom, upstairs. We've been FedExing legalese back and forth for
months; now we get to explain the case in person. You can meet our
intrepid lawyers, who are slaving away without pay, _in_durance_vile_,
to protect our rights! Shake hands with an NSA lawyer specially flown
in for the occasion! Meet some local journalists! And watch the
wheels of justice grind as the judge first explores our case.
In this case, Dan Bernstein, ex-grad-student from UC Berkeley, is
suing the State Department, NSA, and other agencies, with help from
EFF. Our main argument is that the export controls on crypto software
are a "prior restraint on publication" which is unconstitutional under
the First Amendment unless handled very delicately by a court (not just
by an agency acting on its own). These agencies restrained Dan's ability
to publish a paper, as well as source code, for the crypto algorithm that
he invented. There are additional arguments along the lines that the
State Department and NSA take a lot more liberties during the export
process than their own regulations and laws really permit.
Like Phil Karn's case, this lawsuit really has the potential to outlaw
the whole NSA crypto export scam. We could make your right to publish
and export crypto software as well-protected by the courts as your
right to publish and export books. Of course, the government would
appeal any such decision, and it will take years and probably an
eventual Supreme Court decision to make it stick. But you can be
there at the very beginning.
Please make a positive impression on the judge. Show her -- by
showing up -- that this case matters to more people than just the
plaintiff and defendant. That how it gets decided will make a
difference to society. That the public and the press are watching,
and really do care that it gets handled well. We'll have to be quiet
and orderly while we're in the courthouse. There will be no questions
from the audience (that's us), but the session will be tape-recorded,
and you can take notes if you like. Banners and inflamatory t-shirts are
probably not a good idea. Consider this a dress-up day.
The particular issue in front of Judge Patel on the 20th is whether the
case should be thrown out. The government is arguing that it should.
It's a mess of legal details about whether the Judicial Branch has the
right to decide questions like this, and over whether we have really
properly claimed a Constitutional rights violation. It will teach
most observers something about how the courts work, and how the NSA and
State Dept use bureaucratic tricks to avoid facing the real issues.
We have managed to drag in some of these issues, like whether there is
sufficient "expression" in software that the First Amendment should
protect publishers of software. It's possible, but unlikely, that the
judge will decide then-and-there. We will get some clues to how
she is leaning, based on her questions and comments. Her written
decision will come out some days or weeks later.
Don't bring any interesting devices unless you're willing to check
them with the lobby guards for the duration. They seem to want to
hold onto guns, "munitions", and even small pocketknives, before
they'll let you go upstairs to the courtrooms.
Full background and details on the case are in the EFF archives at:
Sept. 11, 1995, the Committee of Ministers to Member States of the
Council of Europe, a European Union advisory body, issued "Recommendation
No. R (95) 13: Concerning Problems of Criminal Procedure Law Connected
with Information Technology".
The recommendation states in part:
The Committee of Ministers, under the terms of Article 15.b of the
Statute of the Council of Europe.
Concerned at the risk that electronic information systems and
electronic information may also be used for committing criminal offenses;
Considering that evidence of criminal offenses may be stored and
transferred by these systems;
Noting that criminal procedure laws of members states often do not
yet provide for appropriate powers to search and collect evidence in these
systems in the course of criminal investigations;
Recalling Recommendation No. R (81) 20 of the Committee of
Ministers on the harmonisation of laws relating to the requirement of
written proof and to the admissibility of reproductions of documents and
recordings on computers, Recommendation No. R. (85) 10 on letters rogatory
for the interception of telecommunications, Recommendations No. R (87) 15
[sic] regulating the use of personal data in the police state and
Recommendations No. R (89) 9 on computer-relating crime,
Recommends the governments of member states:
i. when reviewing their internal legislation and practice, to be
guided by the principles appended to this recommendation
The appended principles contain, in part, the following:
3. During execution of a search, investigating authorities should have the
power, subject to appropriate safeguards, to extend the search of other
computer systems within their jurisdiction which are connected by means of
a network and seize the data therein, provided immediate action is
5. in view of the convergence of information technology and
telecommunications, law pertaining to technical surveillance for the
purpose of criminal investigations, such as interception of
telecommunications, should be reviewed and amended, where necessary, to
ensure their applicability.
6. The law should permit investigating authorities to avail themselves of
all necessary technical measures that enable the collection of traffic
data in the investigation of crimes.
8. Criminal procedure laws should be reviewed with a view to making
possible the interception of telecommunications and the collection of
traffic data in the investigation of serious offenses against the
confidentiality, integrity and availability of telecommunications or
9. Subject to legal privileges or protection, most legal systems permit
investigating authorities to order persons to hand over objects under
their control that are required to serve as evidence. In a parallel
fashion, provisions should be made for the power to order persons to
submit any specified data under their control in a computer system in the
form required by the investigating authority.
10. Subject to legal privileges or protection, investigating authorities
should have the power to order persons who have data in a computer system
under their control to provide all necessary information to enable access
to a computer system and the data theirin. Criminal procedure law should
ensure that a similar order can be given to other persons who have
knowledge about the functioning of the computer system or measures applied
to secure the data therein.
11. Specific obligations should be imposed on operators of public and
private networks that offer telecommunications services to the public to
avail themselves of all necessary technical measures that enable the
interception of telecommunications by the investigating authorities.
12. Specific obligations should be imposed on service providers who offer
telecommunications services to the public, either through public or
private networks, to provide information to identify the user, when so
ordered by the compentant investigating authority.
14. Measures should be considered to minimise the negative effects of the
use of cryptography on the investigation of criminal offenses, without
affecting its legitimate use more than is strictly necessary.
17. The power to extend a search to other computer systems should also be
applicable when the system is located in a foreign jurisdiction, provided
that immediate action is required. In order to avoid possible violations
of state sovereignity or international law, an unambigious legal basis for
such extended search and seizure should be established. Therefore, there
is an urgent need for negotiating international agreements as to how, when
and to what extent such search and seizure should be permitted.
18. Expedited and adequate procedures as well as a system of liason should
be available according to which the investigating authorities may request
the foreign authorities to promptly collect evidence. For that purpose
the requested authorities should be authorized to search a computer system
and seize data with a view to its subsequent transfer. The requested
authorities should also be authorized to provide trafficking data rtelated
to a specific telecommunication, intercept a specific telecommunication or
identify its source. For that purpose, the existing mutual legal
assistance instruments need to be supplemented.
The document does also include a few less ominous points, such as:
2. Criminal procedure laws should permit investigating authorities to
search computer systems and seize data under similar conditions as under
traditional powers of search and seizure. The person in charge of the
system should be informed that the system has been searched and of the
kind of data that has been siezed. The legal remedies that are provided
for in general against search and seizure should be equally applicable in
case of search in computer systems and in case of seizure of data therein.
But, in general, the document appears almost as if written to be a police
and intelligence agency wishlist, assaulting encryption and several other
aspects of privacy. The proposal amounts to a call for a pan-European
"Digital Telephony"-style surveillance network, where no system is
secure, where no parties are unidentified, and in which all participant
actions are logged and trackable, with all system operators required to
yield such information to authorities, even foreign police or
How did this happen? Unconfirmed reports indicate that many
representatives on this advisory body, such as the Finnish assistant
director of Criminal Police (a rather Freudian title...), support
"extremely broad powers for the police" according to one commentator, and
shouted down more moderate members of the panel, such as the Norwegian
representative, while representing their personal pro-police-state views
as typical of their entire government - even though the matter is
currently, and has been for two years, under debate in the Finnish
government, for example, and is hardly a settled policy issue.
An EFF boardmember was told by a White House official that the Clinton
Administration is leaning heavily on foreign governments, especially
those in Europe, to implement restictions on strong encryption and to
push for key "escrow". This is not really news - other Executive Branch
statements have said as much in the past, but it is clear that the demise of
Clipper as a workable system has done little to slow down the Administrations
ardent desire to wiretap the world. It seems likely that the European
recommendations may be due in part to this pressure.
It is not presently clear how much, if any, real weight with European
policy makers the Committee of Ministers' recommendations will have.
The Council of Europe has not legislative power, either in members'
individual nations, or at the European Union level, unlike European
Commission. However, Peter Csonka, the chairman of the committee that
drafted the document (and an administrative officer at the Council's
division of crime problems) says, "it is rare for countries to reject
Council of Europe recommendations", according to an article in
_Communications_Week_International_. The article also suggests that the
Council recommendations were intended to roughly coincide with a
Commission proposal for a pan-European encryption standard. We currently
do not have any information on any such standard proposal, and the _CWI_
article had several errors in it, so this is to be taken with a grain of
salt. Contrary to the _CWI_ report, the Council recommendations do not
call directly for a crypto ban, or key "escrow", only for weak encryption
and some kind of law enforcement access to keys (and only if you
interpret it that way.)
The _CWI_ article, for whatever it might be worth, also reports that
opposition to this measure was expressed by Mike Strezbek, VP
responsible for European telecomms at JP Morgan, who said that his
organization "will challenge any attempt to limit the power of our
network encryption technologies very strongly". It also noted that
"Czonka said that the Council had given consideration to business
interests but had tries to strike a balance between privacy and
justice. However, "it remains possible that cryptography is available
to the public which cannot be deciphered. This might lead to the
conclusion to put restrictions on the possession, distribution, or use of
cryptography." The source document of these statements is not current
know to us.
A correspondent, Ross Anderson, warns that apparently another
international organization, the OECD, has called a conference of its
members in December to devise a strategy on encryption.
It's clear that many pieces are missing from this picture. Any info our
readers might have that can shed some light on the dark spots will be
appreciated. What news we do have is fairly disturbing and certainly
cause for concern.
You can examine the full text of the recommendations at:
* EFF Update
We apologize for any delays that new members experience in having their
memberships processed. We'll be catching up on the backlog shortly!
We've also made a shorter and more convenient membership form (available
at http://www.eff.org/pub/EFF/join.eff). Other membership changes
include expansion of the sysop membership category to include others who
want to do EFF membership recruiting, and expansion of the student
membership category to also include those with low incomes. Sysop/recruiter
members may renew at sysop/recruiter rates for the time being, regardless
of whether they can show that they've fulfilled the recruiting requirement.
We did not have a workable system in place to keep track of sysop member
recruitment, so until we do, we'll just take your word for it.
We furthermore apologize for an error in one of our site indexes. As a
visitor noted, we had improperly identified "militia" and "terrorist" in a
file description. This has been fixed. EFF has no position on militia
issues (other than attempts to broaden censorship and surveillance on the
pretext of alleged links between militias and terrorism. For more
information on such moves by legislators and agencies, keep an eye on
http://www.eff.org/pub/Censorship/Terrorism_militias.) As noted in the
index file, materials on both topics are housed in the same directory
since the tactics and rhetoric of regulators pushing for censorship using
"terrorism" on the one hand, or "militias" on the other is remarkably
* EFF's Farber Wins ACM SIGCOMM Award for Lifelong Contribution to Networking
Professor David Farber is the winner of this year's ACM SIGCOMM
(Special Interest Group in Data Communications) award for lifelong
contribution to data networking. He was presented this award during the
ACM SIGCOMM 1995 conference to held Aug 28 to Sep 1 1995. David J. Farber
has been a Professor in the Computer and Information Science Department
at the University of Pennsylvania since 1987. He received his B.S. in
Electrical Engineering and an M.S in Mathematics from the Stevens Institute
of Technology in 1956 and 1962 respectively. He is a member of the American
Association for the Advancement of Science (AAAS); Association for Computing
Machinery (ACM) and the Institute of Electrical and Electronics Engineers
(IEEE). He is also on the Board of Directors of the Electronic Frontier
Prof. Farber is a co-founder of the CSNET national research network.
He worked in the early 1970's on ring networks and in the early
80's proposed MEMNET, one of the first distributed shared memory networks.
He is one of the Principal Investigators on the AURORA gigabit testbed.
Prof. Farber's current research interests are in high speed communication
networks, distributed computing, operating systems, distributed
collaboration, and microprocessor architecture.
* Clinton Administration Lied About Clipper Being Voluntary - Proof!
Newly-released government documents show that key federal agencies
concluded more than two years ago that the "Clipper Chip" encryption
initiative will only succeed if alternative security techniques are
outlawed. The Electronic Privacy Information Center (EPIC) obtained the
documents from the Federal Bureau of Investigation under the Freedom of
Information Act. EPIC, a non-profit research group, received hundreds of
pages of material from FBI files concerning Clipper and cryptography.
The conclusions contained in the documents appear to conflict
with frequent Administration claims that use of Clipper technology
will remain "voluntary." Critics of the government's initiative,
including EPIC and EFF, have long maintained that the Clipper "key-escrow
encryption" technique would only serve its stated purpose if made
mandatory. According to the FBI documents, that view is shared by
the Bureau, the National Security Agency (NSA) and the Department
of Justice (DOJ) as a whole.
In a "briefing document" titled "Encryption: The Threat,
Applications and Potential Solutions," and sent to the National
Security Council in February 1993, the FBI, NSA and DOJ concluded
Technical solutions, such as they are, will only work if
they are incorporated into *all* encryption products.
To ensure that this occurs, legislation mandating the
use of Government-approved encryption products or
adherence to Government encryption criteria is required.
Likewise, an undated FBI report titled "Impact of Emerging
Telecommunications Technologies on Law Enforcement" observes that
"[a]lthough the export of encryption products by the United States
is controlled, domestic use is not regulated." The report
concludes that "a national policy embodied in legislation is
needed." Such a policy, according to the FBI, must ensure "real-
time decryption by law enforcement" and "prohibit cryptography
that cannot meet the Government standard."
The FBI conclusions stand in stark contrast to public assurances that the
government does not intend to prohibit the use of non-escrowed encryption.
EPIC has recently also filed a brief in support of CPSR's FOIA lawsuit
against NSA, seeking allegedly improperly classified NSA documents on
Clipper. EFF boardmember John Gilmore and his attorney, Lee Tien have also
filed related FOIA requests and lawsuits against NSA and other agencies.
[Largely excerpted with minor edits from EPIC press releases.]
The full version of the EPIC statements & Brief, and documents from the
CPSR and Gilmore/Tien cases, are available at:
For more information, see also:
* Hints of "OzClipper"? Australian Atty. General's Dept. Wants Key Escrow
An attendee, Ross Anderson, of the Queensland U. of Tech. Cryptography
Policy and Algorithms Conference in July of this year, reports that Steve
Orlowski, Assistant Director, Australian attorney general's department,
quotes Orlowski as saying, "the needs of the majority of users of the
infrastructure for privacy and smaller financial transactions can be met
by lower level encryption which could withstand a normal but not
sophisticated attack against it. Law enforcement agencies could develop
the capability to mount such sophisticated attacks. Criminals who
purchased the higher level encryption products would immediately attract
attention to themselves." Orlowski also indicated that the Attorney
General's office would be intersted in serving as the central federal
decryption agency, that banks and other entities using strong encryption
should have their crypto keys "escrowed", and that the OECD countries
will hold a meeting later this year on cryptography policy. Orlowski,
however, curiously noted that encryption has yet to become any kind of
problem for law enforcement and that police actually, and effectively, use
transactional records and other "traffic analysis" information to nab the
bad guys. Anderson also reports that he learned at the conference that
the intelligence agencies of several nations have already held a
classified crypto-policy meeting in Germany in March, and have agreed to
press their governments for laws requiring key escrow and banning strong
* Church of Scientology Cases - Update
CoS organizations Religious Technology Center and Bridge Publications
continue to pursue legal sanctions against critics, who claim they are
posting CoS documents in a fair-use manner. Early this year, RTC and
Bridge filed suit against Dennis Erlich, a former Scientology minister,
his BBS operator, Tom Klemesrud, and Klemesrud's ISP, Netcom, and convinced
a judge to issue a temporary restraining order (TRO) and writ of seizure
that allowed CoS to raid the Erlich's home and confiscate what it said were
infringing materials and their method of dissemination (Erlich's computer
equipment). Later, after instigating a raid on a Finnish anonymous
remailer and sending a series of almost identical legal threats to
critics posting CoS documents, which the church claims both copyright
and trade secret protection for, Bridge and RTC filed similar suits against
anti-cult group FACTNet and two of its directors in Colorado, while Bridge
separately filed a similar suit against another FACTNet director, Arnie
Lerma, on the East Coast, naming the Washington Post and two Post
employees as co-defendants. Using the original writ of seizure against
Erlich as evidence of the "emergency" nature of their request, CoS convinced
both of the other judges to issue similar search-and-seize orders.
The FACTNet and Post defendants are all charged with copyright and trade
secret violation, just like the Erlich and the other California
defendant, but in the more recent cases, the documents in question came from
*publicly-accessible court records* from a previous case (CoS Int'l. v.
Fishman & Geertz).
Aug. 30, Judge Brinkema, presiding over the Virginia case, appeared
wrathful at the church's misuse of the writ of seizure, deciding
plaintiffs had "unclean hands" in a "dirty search" according to an
unofficial transcript (we hope to provide the official court documents
shortly). Brinkema rescinded the writ and temporary restraining order
against the defendants, and was particularly concerned about the First
Amendment implications of the actions against the Washington Post.
The judge explicitly permitted fair use by defendants of the documents at
issue, and expressed skepticism that CoS would win the larger case itself
on the merits of either copyright or trade secret claims. Brinkema also
ordered the return of all seized materials.
Sept. 12, Judge Kane, presiding over the Colorado case, vacated the writ
a judge under him had issued, and he too ruled that until the case begins in
earnest, defendants may use the documents within fair use guidelines.
Kane found it highly unlikely that CoS would succeed on the merits of
its case, and found that the trade secret arguments were particularly weak.
Kane reinforced this decision with an order issue 3 days later, after CoS
had appealed to a Supreme Court Justice (appeal denied). CoS failed to
return all of the seized materials, citing First Amendment religious freedom,
but Kane has appointed defense's computer expert witness, at plaintiffs'
expense, to examine the materials and provide for return off all seized
items, minus the documents at issue in the case, which are to be held in
the custody of the court rather than plaintiffs' attorneys.
Sept. 22, Judge Whyte finally issued his own ruling in the California
case against Erlich, Netcom and Klemesrud. He too vacated the writ of
seizure and TRO against the defendants, and did something very uncommon:
he questioned the constitutionality of his own orders! Nevertheless,
alone of the three judges, Whyte appears to believe that CoS will succeed
in its suit on the merits of their copyright argument, though remains
skeptical about the merits of the trade secret claim. Whyte was also
critical of the internet itself, stating: "The court is troubled by the
notion that any Internet user, including those using "anonymous
remailers" to protect their identity, can destroy valuable intellectual
property rights by posting them over the Internet, especially given the
fact that there is little opportunity to screen postings before they are
made...The anonymous (or judgment proof) defendant can permanently
destroy valuable trade secrets, leaving no one to hold liable for the
misappropriations...Computer files can be easily uploaded and copied from
one location to another and are easy to transport, conceal or delete.
The ability of users to post large amounts of protected works nearly
instantaneously over the Internet makes it a rather dangerous haven for
But this isn't all that's been happening. CoS-unfriendly posts to the
Usenet newsgroup alt.religion.scientology (and many other newsgroups
including comp.org.eff.talk) are being cancelled frequently by an
anonymous person or persons, dubbed the "CancelPoodle". Some critics allege
that CoS itself is doing this. One a.r.s. participant who received a
legal threat from CoS lawyers also alleges that CoS private investigator
Gene Ingram, wanted in at least one state on felony charges, attempted to
frame him for "terrorist acts". Others report dissimilar but equally
Worse yet, the raid have not only not stopped, but spread back across the
Atlantic. Dutch Internet access provider XS4All was raided after the same
documents central to the FACTnet and Washington Post cases were posted to
an XS4All user's WWW pages. CoS had demanded the removal of the material,
and XS4All complied, but somehow they were able to convince the
Netherlands authorities to permit search and seizure of XS4All's
computers anyway. Dutch journalist Karin Spaink suggests in a recent
article that the real reason for the raid "probably was that a former
XS4ALL-based remailer had been used to post anonymously in a.r.s."
Dutch Internetters appear to be almost uniformly outraged at the CoS
seizure action, and copies of the documents that sparked the raid, the
"Fishman Declaration", which contains copies of "secret" CoS religious
works, have spread like wildfire among Dutch WWW pages and other sites
around the world, from China to Australia. This protest action has even
been joined by noted European author Marcel Moring, Dutch Member of
Parliament Oussama Cherribi, and a national television network, among at
least 70 other sites in Holland. Oussama compared the situation to the
Salman Rushdie affair, and a newpaper reported that he "will not remove
the documents from his homepage until a Dutch court rules that he has
to." Another Parliament Member has sent queries to the Dutch Justice
Dept. asking if they are aware of the events, and whether Justice agrees
that system operators need extra legal protection, and will work to
"remedy the currently unclear legal position of Internet providers".
CoS continues to mail legal threats to the Dutch users and their service
providers, to date without much apparent effect. For every "Fishman"
site that goes down, several more pop up.
For more information on these increasinly convoluted cases and events, see:
* ALERT: SEC EDGAR Database Endangered by Lobbyists
September 28, the Securities and Exchange Commission (SEC) began
providing Internet access to the EDGAR database, at http://www.sec.gov/
- the datbase was oringially administered by the Internet Multicasting
Service, but SEC has finally agreed to make it's own records avialable to
Early in August, Internet Multicasting Service (IMS) announced that it
was ending its NSF-funded free dissemination of EDGAR filings from its
town.hall.org site on October 1, 1995. On July 27, 1995 a bill was
introduced in the House of Representatives to privatize the EDGAR
system. On Aug. 14th, the SEC held a meeting on the future of EDGAR,
and there was a great deal of support for the free NYU/IMS EDGAR
dissemination project. To their credit, SEC announced that it would
find a way to continue a free Internet dissemination program for the
EDGAR data, and did just that, establishing the www.sec.gov system.
Lobbyists for the Information Industry Association (IIA) have actively
opposed this project and are working actively to have it killed. If you
have opinions on the issue, it is crucial that you make your views known
by writing to Chairman Levitt of the SEC in care of:
EDGAR on the Internet began two years ago as a trial project with New York
University and the non-profit Internet Multicasting Service. Over 3 million
documents were distributed and the current rate of access is over 17,000
documents per day. The Internet database makes key financial information
available to people who did not have it before: students, public interest
groups, senior citizen investment clubs, and many others.
Lobbyists contend that free access to simple keyword searches and unprocessed
bulk databases threatens the retail information industry. Those
concerned about public access to governement information believe that the
opposite is true: free access to raw data expands the market of potential
users. Evidence of this is that Moody's, RR Donnelley, and Disclosure all
signed contracts offering to help the Internet Multicasting Service,
provide the EDGAR material. There is still a crucial role for the
information industries. They provide value added in the form of real-
time access, extensive historical databases, consulting, re-formatted
documents, and extracts of key portions of documents. However, putting
raw data on the Internet 24 hours after publication is *not* value added
and the companies that will thrive in the information age do not view
this as a threat.
This issue is a key test of the Republican "Contract With America". The
Paperwork Reduction Act, which took effect on October 1, was a key part
of the "Contract" and stated that government data should not be made
available at inflated prices to a few special interests. The SEC EDGAR
project carries out the provisions of that law that state that data
*must* be available through a "diversity of public and private sources"
and the public must get access to key government databases in a "timely
and equitable manner." The EDGAR database is not a product to be
auctioned off to the highest bidder: it is fuel for the information economy.
The non-profit public interest group Taxpayer Assets Project (TAP) calls
EDGAR "the world's most important and valuable database of financial
If you feel strongly for or against this project, you should let your
views be known now.
[Largely excerpted, with minor edits, from a Internet Multicasting Service
action alert by Carl Malamud, and a TAP update.]
* Coming Next Issue...
Cincinnati BBSers Fight Back
Stratton Oakmont & Porush v. Prodigy - Update
International Online Child-Porn "Ring" Target of "Operation Starburst"
Canadian Prosecutions for Textual & Faked "Child Pornography"
Canadian Exon-alike on the Way?
Commerce Dept. IPWG Report on Online Intellectual Property Meets Resistance
Canada & Holland Ratchet-up Privacy
pgp.net - New World-Wide PGP Keyservice
Swiss Data Protection Commish Warns About Lack of Security
Bulgarian TV Censorship
and more of course.
Subject: Upcoming events
This schedule lists events that are directly EFF-related. A much more
detailed calendar of events likely to be of interest to our members and
supporters is maintained at:
gopher.eff.org, 1/EFF, calendar.eff
11 * US NII Advisory Council meeting; Pittsburgh, Penn. Open to the
public; members of this civilian council include EFF board members
Esther Dyson and David Johnson.
Contact: +1 212 482 1835 (voice)
Oct. 13 * Seminar on Forecasting the Technological Future in
Information Systems; Annenberg School of Communication Public
Policy Center, U. of Pennsylvania. Speakers include EFF
co-founder Mitch Kapor.
Contact: +1 215 898 7041 (voice; ask for Oscar Gandy)
Oct. 19 * Library Fair 95: Information Access at the Smithsonian Institution
Libraries; Smithsonian Ripley Center, Washington DC. Speakers
include Shari Steele (EFF Staff Counsel)
4 * Innovation and the Information Environment Conf.; U. of Oregon
School of Law, Eugene, Or. Speakers include Shari Steele (EFF
Subject: Quote of the Day
"Technical solutions, such as they are, will only work if they are
incorporated into *all* encryption products. To ensure that this occurs,
legislation mandating the use of Government-approved encryption products or
adherence to Government encryption criteria is required."
- FBI, NSA and Justice Department secret briefing document to the
National Security Council, Feb. 1993, "Encryption: The Threat,
Applications and Potential Solutions", obtained by Freedom of
Information Act lawsuit by EPIC.
Find yourself wondering if your privacy and freedom of speech are safe
when bills to censor the Internet are swimming about in a sea of of
surveillance legislation and anti-terrorism hysteria? Worried that in
the rush to make us secure from ourselves that our government
representatives may deprive us of our essential civil liberties?
Concerned that legislative efforts nominally to "protect children" will
actually censor all communications down to only content suitable for
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, asking them to oppose Internet censorship
legislation, and everyone should write to the conference committee
to support the reasonable approaches of Leahy, Klink, Cox and Wyden, and
to oppose the unconstitutional proposals of Exon, Gorton and others.
For more information on what you can do to help stop this and other
dangerous legislation, see:
If you do not have full internet access, send your request
for information to a...@eff.org.
* The Anti-Electronic Racketeering Act
This bill is unlikely to pass in any form, being very poorly drafted, and
without much support. However, the CDA is just as bad and passed with
flying colors [the jolly roger?] in the Senate. 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
idea. If you only have time to do limited activism, please concentrate
on the CDA instead. That legislation is far more imminent that the AERA.
* Find Out Who Your Congresspersons Are
Writing letters to, faxing, and phoning your representatives in Congress
is 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
issue 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
If you are having difficulty determining who your Representatives are,
try contacting your local League of Women Voters, who maintain a great
deal of legislative information.
* Join EFF!
You *know* privacy, freedom of speech and ability to make your voice heard
in 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
protect your online rights is to be fully informed and to make your
opinions heard. EFF members are informed and are making a difference. Join
For EFF membership info, send queries to members...@eff.org, or send any
message to i...@eff.org for basic EFF info, and a membership form.
EFFector Online is published by:
The Electronic Frontier Foundation
P.O. Box 170190
San Francisco CA 94117 USA
+1 415 668 7171 (voice)
+1 415 668 7007 (fax)
Membership & donations: members...@eff.org
Legal services: sste...@eff.org
Hardcopy publications: p...@eff.org
General EFF, legal, policy or online resources queries: a...@eff.org
Stanton McCandlish, Online Services Mgr./Activist/Archivist (m...@eff.org)
This newsletter 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
signed articles individually, please contact the authors for their express
permission. Press releases and EFF announcements may be reproduced individ-
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To subscribe to EFFector via email, send message body of "subscribe
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Back issues are available at:
To get the latest issue, send any message to effector-reflec...@eff.org (or
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longer to prepare.
End of EFFector Online v08 #16 Digest
<A HREF="http://www.eff.org/~mech/"> Stanton McCandlish
</A><HR><A HREF="mailto:m...@eff.org"> m...@eff.org
</A><P><A HREF="http://www.eff.org/"> Electronic Frontier Foundation
</A><P><A HREF="http://www.eff.org/A/"> Online Activist </A>