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From: man...@netcom.com (Tom Mandel)
Subject: ACLU challenges Rusty and Edie's Bust
Message-ID: <1993Feb20.174723.11032@netcom.com>
Keywords: BBS as "newspaper," civil vs. criminal law
Organization: Netcom - Online Communication Services (408 241-9760 guest)
Date: Sat, 20 Feb 1993 17:47:23 GMT
Lines: 25
According to a story in Compuserve's On Line Today news forum
this morning, the ACLU has announced that it is challenging
the recent FBI bust of Rusty and Edie's BBS.
The FBI recently busted the BBS, one of the largest in the
United States, confiscating its hardware and customer records
because of allegations that the BBS was a source of illegally
distributed copyrighted software.
The ACLU said that it questioned the use of criminal law
in a copyright infringement case, noting that civil law
was normally used in such areas.
The ACLU challenge is most interesting because it characterizes
the BBS as a kind of electronic newspaper for its 14,000
customers. So the challenge may be important in defining
the legal status of BBS's and similar computer media.
--
Tom Mandel man...@netcom.com man...@qm.sri.com
[1] Opinions are mine, not my employer's, except when we agree.
[2] Having a WELL account should not be construed as a permanent disability.
[3] Email to the above; flames to alt.fan.amy-fisher.
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From: na...@netcom.com (John Nagle)
Subject: Re: ACLU challenges Rusty and Edie's Bust
Message-ID: <1993Feb21.184918.17668@netcom.com>
Keywords: BBS as "newspaper," civil vs. criminal law
Organization: Netcom - Online Communication Services (408 241-9760 guest)
References: <1993Feb20.174723.11032@netcom.com> <C2t0uo.44M@demon.co.uk>
Date: Sun, 21 Feb 1993 18:49:18 GMT
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In article <1993Feb20.1...@netcom.com> man...@netcom.com (Tom Mandel) writes:
>According to a story in Compuserve's On Line Today news forum
>this morning, the ACLU has announced that it is challenging
>the recent FBI bust of Rusty and Edie's BBS.
Excellent. I'm glad to see the ACLU involved.
John Nagle
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From: bha...@teal.csn.org (Bruce Hayden)
Subject: Re: ACLU challenges Rusty and Edie's Bust
Message-ID: <bhayden.730374028@teal>
Keywords: BBS as "newspaper," civil vs. criminal law
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Finally, the ACLU is doing something about civil liberties,
and not spending their time knee-jerk supporting liberal causes
with little, if any, civil liberty relevance.
Bruce E. Hayden
(303) 758-8400
bha...@csn.org
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From: hol...@access.digex.com (Brian Holland)
Newsgroups: comp.org.eff.talk
Subject: Re: ACLU challenges Rusty and Edie's Bust
Date: 23 Feb 1993 18:46:32 -0500
Organization: Express Access Online Communications, Greenbelt, Maryland USA
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Bruce Hayden (bha...@teal.csn.org) wrote:
: Finally, the ACLU is doing something about civil liberties,
: and not spending their time knee-jerk supporting liberal causes
: with little, if any, civil liberty relevance.
Let me see. R&E is accused of taking commercial products and
distributing them to members of the public. Sounds pretty
liberal to me. In fact, damn close to communism. What? They
charged their subscribers a fee? Whoops. Sounds more like the
epitome of entrepenurial capitalism. I guess civil liberties
can be trampled without regard to which side of the political fence
you stand on.
BTW: How much civil liberties value does this case really have?
If there was prima facie evidence that R&E was distributing
commercial software in violation of criminal and civil statutes,
I don't see any constitutional implications. The last time I checked,
the Constitution permitted reasonable searches and seizures.
Brian
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From: A. Charles Gross <a...@eff.org>
Subject: Re: ACLU challenges Rusty and Edie's Bust
Message-ID: <1993Feb24.183920.4097@eff.org>
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X-Xxdate: Wed, 24 Feb 93 18:41:15 GMT
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Date: Wed, 24 Feb 1993 18:39:20 GMT
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In article <1med0o...@access.digex.com> Brian Holland,
hol...@access.digex.com writes:
>BTW: How much civil liberties value does this case really have?
>If there was prima facie evidence that R&E was distributing
>commercial software in violation of criminal and civil statutes,
>I don't see any constitutional implications. The last time I checked,
>the Constitution permitted reasonable searches and seizures.
I think you are missing the point. The ACLU is not trying to protect
software pirates, it is taking objection to the fact that federal law
enforcement agents were used on what is primarily a civil, not criminal,
case. Rarely (if ever) does the federal government use its agents in
persuing a copyright infringment case. I think the ACLU's point is that
this is an issue between Mircosoft, SPA, Lotus, whomever and R&E's, not
the US and R&E's..
Adam
I speak for myself, and the cast of 90210, not eff.
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From: man...@netcom.com (Tom Mandel)
Newsgroups: comp.org.eff.talk
Subject: Re: ACLU challenges Rusty and Edie's Bust
Message-ID: <1993Feb24.211548.12413@netcom.com>
Date: 24 Feb 93 21:15:48 GMT
Article-I.D.: netcom.1993Feb24.211548.12413
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Organization: Netcom Online Communications Services (408-241-9760 login: guest)
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In article <1993Feb24....@eff.org> A. Charles Gross <a...@eff.org> writes:
>
>I think you are missing the point. The ACLU is not trying to protect
>software pirates, it is taking objection to the fact that federal law
>enforcement agents were used on what is primarily a civil, not criminal,
>case. Rarely (if ever) does the federal government use its agents in
>persuing a copyright infringment case. I think the ACLU's point is that
>this is an issue between Mircosoft, SPA, Lotus, whomever and R&E's, not
>the US and R&E's..
>
Correct me if I'm wrong, but didn't Federal law just change in this regard?
That is, despite objections from some people, certain kinds of copyright
infringement are now felonies, i.e., covered under criminal law. In
that context, action by the FBI is appropriate.
--
Tom Mandel man...@netcom.com man...@unix.sri.com
[1] Opinions are mine, not my employer's, except when we agree.
[2] Cyperpathologic personality disorder is not yet a job disability.
[3] Email to the above; flames to alt.fan.amy-fisher.
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From: bbs-aphelps@jwt.UUCP (Austin Phelps)
Subject: Re: ACLU challenges Rusty and Edie's Bust
Reply-To: bbs-aphelps@jwt.UUCP
Organization: The Matrix
Date: Fri, 26 Feb 1993 05:08:39 GMT
Message-ID: <55BkZB1w164w@jwt.UUCP>
References: <1993Feb24.211548.12413@netcom.com>
Sender: bbs@jwt.UUCP
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man...@netcom.com (Tom Mandel) writes:
> Correct me if I'm wrong, but didn't Federal law just change in this regard?
> That is, despite objections from some people, certain kinds of copyright
> infringement are now felonies, i.e., covered under criminal law. In
> that context, action by the FBI is appropriate.
It my understanding that you can only be charged with a crime with the
law that was in effect at the time of the crime? How can Feds prove that
the crime (piracy) took place after the new law?
Sound like SPA and FBI are bending the law into there favor.
_/_ Austin C. Phelps - Alliance C373 - AAWO 3303 bbs-aphelps@jwt
/ \ Let history never forget the name Enterprise! aphelps@vicstoy
( ][ ( Apple ][ Forever - PROUD owner of IIe & IIc t...@delphi.com
\___/ Ask me about my QWK mailer Fidonet 1:363/18 aphelps@pro-carolina
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not-for-mail
From: cactus.org!wixer!pro-smof.cts.com!echrist@wixer.UUCP (Therel Moore)
Newsgroups: comp.org.eff.talk
Subject: Re: ACLU challenges Rusty and Edie's Bust
Date: 28 Feb 1993 16:33:36 -0600
Organization: The SMOF-BBS: Science Fiction Online Since 1985 [512-467-7317]
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But R&E continues and is back online using borrowed equip.
As of 2/27 R&E came back online (ableit limited nodes and disks)
to the public BBS arena. Russ has added a statement at login
to ask for feedback if known copryrighted material is seen on the BBS
and is also asking for new subscribers and outright donations to put
the BBS back to its former raid status.
So we conclude no cease and desist order was issued and no charges
filed as of 2/28/93. The FBI sole purpose in seizing the equipment SEEMS
to be that of a harassment nature since a backup copy or even on-line
preusal (and subsequent DL'ing the questionable file) would be sufficient
to show the presense of "copyrighted material" that was available for
"Pirating".
Therel Moore
mo...@fs.com
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From: mnem...@eff.org (Mike Godwin)
Subject: Re: ACLU challenges Rusty and Edie's Bust
Message-ID: <1993Mar1.142626.25462@eff.org>
Originator: mnem...@eff.org
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Date: Mon, 1 Mar 1993 14:26:26 GMT
Lines: 29
In article <1993Feb28....@pro-smof.cts.com> cactus.org!wixer!
pro-smof.cts.com!echrist@wixer.UUCP (Therel Moore) writes:
> So we conclude no cease and desist order was issued and no charges
>filed as of 2/28/93. The FBI sole purpose in seizing the equipment SEEMS
>to be that of a harassment nature since a backup copy or even on-line
>preusal (and subsequent DL'ing the questionable file) would be sufficient
>to show the presense of "copyrighted material" that was available for
>"Pirating".
Therel, I don't think you can draw these conclusions from the facts you
have. At this point, I have no reason to believe the FBI was attempting
to harass anyone--I think they really were trying to investigate an
alleged crime. I have other criticisms of the FBI's procedure in this
case, but bad motive is not one of them.
As a practical matter, indictments sometimes don't come down from the
grand jury until months (or, occasionally, even years) after a search.
--Mike
--
Mike Godwin, |"I'm waiting for the one-man revolution
mnem...@eff.org| The only one that's coming."
(617) 576-4510 |
EFF, Cambridge | --Robert Frost
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From: w...@anchor.ho.att.com (Bill Stewart +1-908-949-0705)
Newsgroups: comp.org.eff.talk
Subject: Re: ACLU challenges Rusty and Edie's Bust
Message-ID: <WCS.93Mar1004233@rainier.ATT.COM>
Date: 1 Mar 93 05:42:33 GMT
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<1993Feb27.233249.2641@netcom.com>
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In-Reply-To: mandel@netcom.com's message of Sat, 27 Feb 1993 23:32:49 GMT
Nntp-Posting-Host: rainier.ho.att.com
>man...@netcom.com (Tom Mandel) writes:
>It my understanding that you can only be charged with a crime with the
>law that was in effect at the time of the crime? How can Feds prove that
>the crime (piracy) took place after the new law?
If there are more than N pirated copies on the system, it may not matter
*when* they were actually copied - isn't possession the crime here?
In article <1993Feb27....@netcom.com> man...@netcom.com (Tom Mandel) writes:
>Sound like SPA and FBI are bending the law into their favor.
I don't think so. The allegations are, as I understand it, that
the piracy is ongoing. But that will be for the grand jury and
court to decide.
Aren't they supposed to go through the nicety of a grand jury *before*
confiscating property and accusing someone of a crime? Due process and all?
Or is there a Computer Exception to the 4th and 6th Amendments like the
Drug Exception to the 4th Amendment?
--
# Pray for peace; Bill
# Bill Stewart 1-908-949-0705 w...@anchor.att.com AT&T Bell Labs 4M312 Holmdel NJ
# ... counting stars by candlelight
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Path: sparky!uunet!microsoft!hexnut!leecr
From: le...@microsoft.com (Lee Crocker)
Subject: Re: ACLU challenges Rusty and Edie's Bust
Message-ID: <1993Mar02.101455.28685@microsoft.com>
Date: 02 Mar 93 10:14:55 GMT
Organization: Microsoft Corporation
References: <1993Feb28.140021.4687@pro-smof.cts.com>
<1993Mar1.142626.25462@eff.org>
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mnem...@eff.org (Mike Godwin) writes:
>
>...I have other criticisms of the FBI's procedure in this
>case, but bad motive is not one of them.
Knowingly siezing by force a family's means of making a living _before_
any charges are filed and without even the most perfunctory effort to use
other means to get the information they wanted is not "bad motive"?
Remind me never to vote for you, or let you serve on a jury where I'm
the defendant. The FBI's actions in this case go far beyond "harassment";
they are armed robbery, plain and simple. I only regret that unlike
a few more courageous defenders of liberty in recent months, Rusty & Edie
didn't shoot back.
--
Lee Daniel Crocker /(o\ Free minds; free bodies; free trade.
le...@microsoft.com \o)/ Libertarian Party 1-800-682-1776
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From: mnem...@eff.org (Mike Godwin)
Subject: Re: ACLU challenges Rusty and Edie's Bust
Message-ID: <1993Mar2.214457.3838@eff.org>
Originator: mnem...@eff.org
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References: <1993Feb28.140021.4687@pro-smof.cts.com>
<1993Mar1.142626.25462@eff.org> <1993Mar02.101455.28685@microsoft.com>
Date: Tue, 2 Mar 1993 21:44:57 GMT
Lines: 46
In article <1993Mar02.1...@microsoft.com>
le...@microsoft.com (Lee Crocker) writes:
>mnem...@eff.org (Mike Godwin) writes:
>>
>>...I have other criticisms of the FBI's procedure in this
>>case, but bad motive is not one of them.
>
>Knowingly siezing by force a family's means of making a living _before_
>any charges are filed and without even the most perfunctory effort to use
>other means to get the information they wanted is not "bad motive"?
Correct.
To be more specific:
With regard to the seizing of the family's means of making a living
before charges are filed, you are mistaken to suppose that this
implies or entails a bad motive on the part of the FBI. Most evidentiary
searches occur prior to indictment--indeed, the indictment normally
follows the evidence-gathering, not the other way around.
With regard to whether the FBI proceeded "without even the most
perfunctory effort to use other means to get the information they
wanted," I don't see how you can say this. The FBI apparently gathered
lots of evidence for a long time prior to the seizure.
This doesn't mean the FBI acted correctly in performing the seizure. But
it's probably a mistake to assume, as you do, that they were acting in bad
faith.
>Remind me never to vote for you, or let you serve on a jury where I'm
>the defendant.
Any defendant in a computer-crime or computer-related criminal case who
did not want me on his jury would be insane.
--Mike
--
Mike Godwin, |"I'm waiting for the one-man revolution
mnem...@eff.org| The only one that's coming."
(617) 576-4510 |
EFF, Cambridge | --Robert Frost
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From: jo...@iastate.edu (John Hascall)
Subject: Re: ACLU challenges Rusty and Edie's Bust
Message-ID: <C3AGz3.78n@news.iastate.edu>
Sender: ne...@news.iastate.edu (USENET News System)
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References: <1993Feb27.233249.2641@netcom.com>
<WCS.93Mar1004233@rainier.ATT.COM> <1993Mar1.143249.25813@eff.org>
Date: Wed, 3 Mar 1993 01:18:34 GMT
Lines: 18
mnem...@eff.org (Mike Godwin) writes:
}w...@anchor.ho.att.com (Bill Stewart +1-908-949-0705) writes:
}>Aren't they supposed to go through the nicety of a grand jury *before*
}>confiscating property and accusing someone of a crime? Due process and all?
^^^^^^^^^^^^
}Due process does not require that a grand jury approve a search.
^^^^^^
I think this is the second time I've seen you apparently equate
"seizure" and "search" -- could you explain?
John
--
John Hascall ``An ill-chosen word is the fool's messenger.''
Systems Software Engineer
Project Vincent
Iowa State University Computation Center + Ames, IA 50011 + 515/294-9551
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From: mnem...@eff.org (Mike Godwin)
Subject: Re: ACLU challenges Rusty and Edie's Bust
Message-ID: <1993Mar3.055925.11746@eff.org>
Originator: mnem...@eff.org
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<1993Mar1.143249.25813@eff.org> <C3AGz3.78n@news.iastate.edu>
Date: Wed, 3 Mar 1993 05:59:25 GMT
Lines: 19
In article <C3AGz...@news.iastate.edu> jo...@iastate.edu (John Hascall) writes:
>I think this is the second time I've seen you apparently equate
>"seizure" and "search" -- could you explain?
When one is talking about evidentiary search-and-seizure, it's common
to abbreviate the hyphenated term as "search."
--Mike
--
Mike Godwin, |"I'm waiting for the one-man revolution
mnem...@eff.org| The only one that's coming."
(617) 576-4510 |
EFF, Cambridge | --Robert Frost
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wupost!csus.edu!netcom.com!nagle
From: na...@netcom.com (John Nagle)
Subject: Re: ACLU challenges Rusty and Edie's Bust
Message-ID: <1993Mar3.075033.16658@netcom.com>
Organization: Netcom - Online Communication Services (408 241-9760 guest)
References: <WCS.93Mar1004233@rainier.ATT.COM>
<1993Mar1.143249.25813@eff.org> <C3AGz3.78n@news.iastate.edu>
<1993Mar3.055925.11746@eff.org>
Date: Wed, 3 Mar 1993 07:50:33 GMT
Lines: 89
mnem...@eff.org (Mike Godwin) writes:
>In article <C3AGz...@news.iastate.edu> jo...@iastate.edu (John Hascall) writes:
>>I think this is the second time I've seen you apparently equate
>>"seizure" and "search" -- could you explain?
>When one is talking about evidentiary search-and-seizure, it's common
>to abbreviate the hyphenated term as "search."
Search and seizure law in the US used to revolve around
the exclusionary rule; the big issue was whether improperly
acquired evidence could be used in a criminal case. So legal
concerns centered on the "search" issue. That's less of an issue today,
both because the exclusionary rule has been weakened considerably
(this was a hot button for the radical right, and the Justice Department
under Meese fought hard to narrow it) and because seizure as an end in
itself has become a major industry in the last decade.
This whole seizure mania is quite recent in US legal history.
Justice Stevens, in a recent decision, (US vs A PARCEL OF LAND,
no. 91-781) summarized the law. Here's his version, which indicates
how far things have gone downhill in the last fifteen years.
"Laws providing for the official seizure and forfeiture of
tangible property used in criminal activity have played an
important role in the history of our country. Colonial
courts regularly exercised jurisdiction to enforce English
and local statutes authorizing the seizure of ships and
goods used in violation of customs and revenue laws.
Indeed, the misuse of the hated general warrant is often
cited as an important cause of the American Revolu-
tion.
The First Congress enacted legislation authorizing the
seizure and forfeiture of ships and cargos involved in
customs offenses. Other statutes authorized the seizure
of ships engaged in piracy. When a ship was engaged
in acts of -piratical aggression,- it was subject to confisca-
tion notwithstanding the innocence of the owner of the
vessel. Later statutes involved the seizure and forfeit-
ure of distilleries and other property used to defraud the
United States of tax revenues from the sale of alcoholic
beverages. See, e.g., United States v. Stowell, 133 U. S.
1, 11-12 (1890). In these cases, as in the piracy cases,
the innocence of the owner of premises leased to a distill-
er would not defeat a decree of condemnation based on
the fraudulent conduct of the lessee.
In all of these early cases the Government's right to
take possession of property stemmed from the misuse of
the property itself. Indeed, until our decision in Warden
v. Hayden, 387 U. S. 294 (1967), the Government had
power to seize only property that -`the private citizen was
not permitted to possess.'- The holding in that case
that the Fourth Amendment did not prohibit the seizure
of -mere evidence- marked an important expansion of
governmental power. See Zurcher v. Stanford Daily, 436
U. S. 547, 577-580 (1978) (Stevens, J., dissenting).
The decision by Congress in 1978 to amend the Compre-
hensive Drug Abuse Prevention and Control Act of 1970,
84 Stat. 1236, to authorize the seizure and forfeiture of
proceeds of illegal drug transactions, see 92 Stat. 3777,
also marked an important expansion of governmental
power. Before that amendment, the statute had autho-
rized forfeiture of only the illegal substances themselves
and the instruments by which they were manufactured
and distributed. The original forfeiture provisions of
the 1970 statute had closely paralleled the early statutes
used to enforce the customs laws, the piracy laws, and the
revenue laws: They generally authorized the forfeiture of
property used in the commission of criminal activity, and
they contained no innocent owner defense. They applied
to stolen goods, but they did not apply to proceeds from
the sale of stolen goods. Because the statute, after its
1978 amendment, does authorize the forfeiture of such
proceeds and also contains an express and novel protection
for innocent owners, we approach the task of construing
it with caution."
Note the comment on Zurcher. "J. Stevens, dissenting",
Justice Stevens writes. This time, though, he's writing for
the majority, in a case where the Supreme Court has narrowed (slightly)
the forfeiture power of the Government. There's a hint here that
the Court may be realizing that forfeiture is getting out of hand,
and that cases which further narrowed its scope might be viewed
favorably by the Court.
So bringing a suitable case forward at this time might be
worth the trouble and expense for an organization like the ACLU.
John Nagle
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From: mnem...@eff.org (Mike Godwin)
Subject: Re: ACLU challenges Rusty and Edie's Bust
Message-ID: <1993Mar3.203250.24852@eff.org>
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References: <C3AGz3.78n@news.iastate.edu> <1993Mar3.055925.11746@eff.org>
<1993Mar3.075033.16658@netcom.com>
Date: Wed, 3 Mar 1993 20:32:50 GMT
Lines: 47
In article <1993Mar3.0...@netcom.com> na...@netcom.com (John Nagle) writes:
> Search and seizure law in the US used to revolve around
>the exclusionary rule; the big issue was whether improperly
>acquired evidence could be used in a criminal case.
It still does, John. Read the law summaries.
> So legal
>concerns centered on the "search" issue. That's less of an issue today,
>both because the exclusionary rule has been weakened considerably
>(this was a hot button for the radical right, and the Justice Department
>under Meese fought hard to narrow it) and because seizure as an end in
>itself has become a major industry in the last decade.
It's still an issue today--it's just an issue that defendants, especially
in federal court, find very hard to win.
But in this paragraph you elide the distinction between evidentiary
seizures and forfeiture seizures. *Evidentiary* seizures, which is
the relevant type of seizure in the Rusty & Edie's case, are not
"a major industry" at all.
> Note the comment on Zurcher. "J. Stevens, dissenting",
>Justice Stevens writes. This time, though, he's writing for
>the majority, in a case where the Supreme Court has narrowed (slightly)
>the forfeiture power of the Government. There's a hint here that
>the Court may be realizing that forfeiture is getting out of hand,
>and that cases which further narrowed its scope might be viewed
>favorably by the Court.
> So bringing a suitable case forward at this time might be
>worth the trouble and expense for an organization like the ACLU.
Perhaps, but it won't be the Rusty & Edie's BBS case. That case does
not involve forfeiture law in the slightest. Take it from someone
who read the warrant.
--Mike
--
Mike Godwin, |"I'm waiting for the one-man revolution
mnem...@eff.org| The only one that's coming."
(617) 576-4510 |
EFF, Cambridge | --Robert Frost