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EFFector Online Volume 08 No. 18 Nov. 6, 1995 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
IN THIS ISSUE:
ALERT: Net Censorship: Christian Coalition Tops Even Exon
The Latest News
What You Can Do Now
The letter & suggested legislation from Ed Meese and the Christian Right
Chronology of the CDA
For More Information
List Of Participating Organizations
ALERT: Digital Telephony Action - Nov. 15 Deadline!
Background: FBI Draft Capacity Requirements
What You Can Do Now
Congress May Just Not Buy It
House Rejects First DT/CALEA Funding Attempt
Sen. Leahy Definitely Not Buying It
Canadian Law Enforcement Taking the FBI Hint
The Text of the FBI's Federal Register Notice
Newsbytes
EFF Relocation Complete
EFF Rated in Top 5% of the Net by Point Survey
Commerce Dept. IPWG Report on Online Intellectual Property Meets Resistance
IPWG Report's Suggested Legislation: Passed and Pending (+ Canada Tie-In)
Upcoming Articles
Upcoming Events
Quote of the Day
What YOU Can Do
Administrivia
* 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: Net Censorship, and Christian Coalition v. Human Rights Watch
-----------------------------------------------------------------------------
CAMPAIGN TO STOP THE EXON/COATS COMMUNICATIONS DECENCY ACT
(SEE THE LIST OF CAMPAIGN COALITION MEMBERS AT THE END)
Update: -Latest News:
The Christian Coalition is pushing Congress to censor
the net more heavily than even Sen. J.J. Exon ever imagined.
There is the very real possibility that they may succeed.
You should be very worried. We are.
-What You Can Do Now:
Follow the directions below and call House Speaker
Gingrich and Senate Leader Dole. Implore them
to allow parents to make choices for their children,
instead of government censors.
Volunteer to join the fight by helping organize in your
home town.
CAMPAIGN TO STOP THE UNCONSTITUTIONAL COMMUNICATIONS DECENCY ACT
Nov 2, 1995
PLEASE WIDELY REDISTRIBUTE THIS DOCUMENT WITH THIS BANNER INTACT
REDISTRIBUTE ONLY UNTIL December 1, 1995
REPRODUCE THIS ALERT ONLY IN RELEVANT FORUMS
________________________________________________________________________
CONTENTS
The Latest News
What You Can Do Now
The letter & suggested legislation from Ed Meese and the Christian Right
Chronology of the CDA
For More Information
List Of Participating Organizations
________________________________________________________________________
THE LATEST NEWS
Since the very first day that Senator J.J. Exon (D-NE) proposed censorship
legislation for the Internet, the Christian Right has pushed for the most
restrictive regulations they could think of.
The Religious Right (which does not necessarily speak for all religious
people concerned with this issue) recently tipped their hand in a letter
to Sen. Larry Pressler (R-SD) and Rep. Thomas Bliley (R-VA) requesting
a new and more restrictive net censorship proposal.
There are essentially three new dangerous elements of their campaign
to shut down cyberspace:
INTERNET PROVIDERS, ONLINE SERVICES, AND LIBRARIES CRIMINALLY LIABLE FOR
EXPRESSION ONLINE
The Religious Right has proposed to hold anyone who provides access to the
Internet or other interactive media, including online services providers,
ISP's, BBS's, Libraries, and Schools, criminally liable for all speech
carried on the network.
In order to avoid liability under this provision, service providers would be
forced to monitor user's electronic communications to be assured that
no "indecent" material is transmitted across their networks.
This proposal is MORE RESTRICTIVE than the Exon Communications Decency Act,
or any other net censorship legislation currently in Congress.
In their letter to Congress, the Religious Right says:
[Providers] would simply be required to avoid KNOWING violations of
the law. [emphasis added]
However, the "knowing" standard is vague enough that the mere knowledge
that such material exists could be sufficient to trigger criminal liability.
A single complaint or even a news report could force a service provider to
take down a web page, remove posts to chat rooms or other discussion
forums, or shut down listservs in order to avoid going to jail and facing
huge fines.
A STANDARD FOR INDECENCY
The proposals pushed by the Christian Coalition relies on the
unconstitutional "indecency standard". Like the Exon Communications
Decency Act, the Christian Coalition seeks to regulate all indecent
speech online.
Indecency is a broad category that includes everything from George Carlin's
"seven dirty words" to such classic novels and "The Catcher in the Rye" and
"Lady Chatterly's Lover".
The Supreme Court has ruled that restrictions on indecent speech are
Constitutional only if they rely on the "least restrictive means". Broad
indecency restrictions on interactive media do not satisfy the "least
restrictive means" test, because interactive media allows users and
parents tremendous control over the information they receive.
Any legislation which attempts to apply an indecency restriction to the
Internet is unconstitutional on its face.
The Christian Coalition's proposal that relies on an indecency
restriction contemplates dumbing down every conversation, web page,
newsgroup, and mailing list on the Internet to the level of what is
not offensive to children.
What kind of discussions between adults are possible in an arena
where everything has been reduced to the level of the Lion King?
UNPRECEDENTED CONTROL OVER ONLINE SPEECH FOR THE FCC
The Christian Coalition would give the FCC broad jurisdiction over
cyberspace. It would allow the FCC jurisdiction over your online
speech, and over the design Internet software, such as web browsers and
filtering programs that parents can use to control their children's
access to the Internet.
The Internet has developed from a government project to a market-driven
economic boom for thousands of businesses. Giving the FCC authority over
this medium would significantly hinder the growth of this new industry.
________________________________________________________________________
WHAT YOU CAN DO NOW
1. The proposals from the Religious Right will literally destroy online
speech as we know it. The odds of stopping this are not certain.
There is a very real chance that this legislation will pass, and
we will experience a period of uncertainty and chilling of speech
while an appropriate test case attempts to reach the Supreme Court
(should it even get there!)
The Religious Right has a strong grass-roots network. We need to
counter their energy and ensure cyberspace is not lost due to them.
IMMEDIATELY CALL House Speaker Gingrich (R-GA) and Senate Leader
Dole (R-KS) and urge them to oppose the Christian Coalition's
proposal.
Name, Address, and Party Phone Fax
======================== ============== ==============
R GA Gingrich, Newt 1-202-225-4501 1-202-225-4656
R KS Dole, Robert 1-202-224-6521 1-202-224-8952
If you're at a loss for words, try one of the following:
Please oppose the recent proposal from the Religious Right to
censor the Internet. The only effective way to address children's
access to the Internet is through parental control tools outlined
by the Cox/White/Wyden approach.
or
As a religious person and a parent, I oppose the Religious Right's
attempts to censor the Internet. I am the best person to monitor
my child's access to the Internet using parental control tools
as outlined in the Cox/White/Wyden approach.
2. Join the online fight by becoming a volunteer for your district!
Check to see if your legislator is in the list below. If they are
not, consult the free ZIPPER service that matches Zip Codes to
Congressional districts with about 85% accuracy at:
URL:http://www.stardot.com/~lukeseem/zip.html
The conference committee legislators are:
House: Barr (R-GA), Barton (R-TX), Berman (R-CA), Bliley (R-VA),
Boucher (D-VA), Brown (D-OH), Bryant (D-TX), Buyer (R-IN),
Conyers (D-MI), Dingell (D-MI), Eshoo (D-CA), Fields (R-TX),
Flanagan (R-IL), Frisa (R-NY), Gallegly (R-CA), Goodlatte (R-VA),
Gordon (D-TN), Hastert (R-IL), Hoke (R-OH), Hyde (R-IL),
Jackson-Lee (D-TX), Klug (R-WI), Lincoln (D-AR), Markey (D-MA),
Moorhead (R-CA), Oxley (R-OH), Paxon (R-NY), Rush (D-IL),
Schaefer (R-CO), Schroeder (D-CO), Scott (D-VA), Stearns (R-FL),
White (R-WA)
Senate: Burns (R-MT), Exon (D-NE), Ford (D-KY), Gorton (R-WA),
Hollings (D-SC), Inouye (D-HI), Lott (R-MS), McCain (R-AZ),
Pressler (R-SD), Rockefeller (D-WV), Stevens (R-AK)
If your legislator is on the conference committee, you have a chance
to influence their vote on this issue with your power as a constituent.
Volunteer to help educate your legislator by sending mail to
volunteer@vtw.org. A coalition volunteer will be in touch with you.
You can starting working to help spread the word in your district by
sending this letter to five friends. Ask them to call Dole and Gingrich
as well.
3. The People for the American Way (PFAW) and the American Civil Liberties
Union are organizing a letter from ORGANIZATIONS to the Conference
Committee to oppose the censorship provisions.
If you are a representative of an organization that would like to
signon to this letter, you should contact jlesser@pfaw.org IMMEDIATELY.
4. We can't suggest relaxing at this point. The stakes are too high, and
the risk is too great. Everything now hangs in the balance.
________________________________________________________________________
THE LETTER & SUGGESTED LEGISLATION FROM ED MEESE AND THE CHRISTIAN RIGHT
October 16, 1995
The Honorable Thomas J. Bliley, Jr. Chairman
Committee on Commerce
United States House of Representatives
Washington, DC 20515
The Honorable Larry Pressler, Chairman
Committee on Commerce, Science, and Transportation
United States Senate
Washington, DC 20510
Re: Computer Pornography Provisions in Telecommunications Bill
Dear Mr. Chairmen:
We are writing to urge the conference committee seeking to reconcile the
telecommunications bills passed by the House and Senate include in the
final bill the strongest possible criminal law provisions to address the
growing and immediate problem of computer pornography without any
exemptions, defenses, or political favors of any kind accorded to those
who knowingly participate in the distribution of obscenity to anyone or
indecency to children. While there is no perfect solution to the problem
of computer pornography, Congress could not hope to solve this problem by
holding liable only some who are responsible for the problem.
The recent Justice Department prosecution project targeting those who
violated federal child pornography law using America On-Line is
instructive in this regard. More than ninety individuals were targeted for
prosecution although many others, perhaps as many as 3,000 according to
one press report, were originally targeted by the Department of Justice as
potential violators of child pornography laws. Apparently due to a
shortage of investigative and prosecutorial resources, the project was
limited. Since there are insufficient resources to investigate and
prosecute but a fraction of those that are trafficking in child
pornography by computer, then there will likely be even fewer resources
available to investigate and prosecute those involved in obscenity and
indecency.
Thousands of individuals both in this country and abroad are regularly
placing obscenity and indecency on the Internet. It is not possible to
make anything more than a dent in the serious problem of computer
pornography if Congress is willing to hold liable only those who place
such material on the Internet while at the same time giving legal
exemptions or defenses to service or access providers who profit from and
are instrumental to the distribution of such material. The Justice
Department normally targest the major offenders of laws. In obscenity
cases prosecuted to date, it has targeted large companies which have been
responsible for the nationwide distribution of obscenity and who have made
large profits by violating federal laws. Prosecution of such companies has
made a substantial impact in curbing the distribution of obscenity, with
many such offenders going out of business altogether. So too will
prosecution of access providers which _knowingly_ traffic in obscenity
have a substantial impact, a far greater impact than just the prosecution
of a person who places one or a few prohibited images on the Internet.
Such a person could not traffic in pornography without the aid or
facilitation of the service or access providers. Indeed, if Congress
includes provisions protecting access or service providers in whatever
bill is finally passed, it is likely that most in this country who are
trafficking in indecency to children or obscenity would continue to do so
since the threat of prosecution would be minuscule, given the numbers of
those currently involved in this activity. It is also likely that those
outside our country who are engaged in these activities would continue to
do so since it would be nearly impossible to extradite them to the United
States for prosecution. Thus, unless all who knowingly participate in such
matters are subject to the law, the Internet will remain the same and
Congress will have failed in its responsibilities to the children and
families of America.
Federal law has traditionally assigned equal liability both for those who
commit a crime and those who aid and abet a crime. See Title 18 U.S.C.
Code Section 2: "(a) whoever [sic] commits an offense against the United
States or aids, abets, councils [sic], commands, induces, or procures its
commission, is punishable as a principle [sic]." Service or access
providers who knowingly participate in the distribution of indecency to
children or in obscenity to anyone are aiders and abettors in the
commission of those crimes and thus should have liability under any law
Congress passes. Current federal law on child pornography provides no no
exemption or defense for access providers. Thus, the child pornography law
provides a strong deterrent against trafficking in child pornography for
those who would otherwise knowingly participate in its distribution by
computer whether pedophile or access provider.
The changes in law which we support would not hold an access provider
criminally liable for all illegal pornography on the Internet which their
services may be used to obtain. Nor would it require that access providers
check all communications to ensure that no violations of the law are
occurring. They would simply be required to avoid knowing violations of
the law. This is an obligation imposed on all citizens. Technology exists
today for access providers, through a simple process, to target or flag
and remove files containing objectionable material.
We support the House-passed language insofar as it addresses obscenity by
amendment Title 18, Sections 1462, 1465, and 1467 of the United States
Code. The provision restricting transmission of indecency in the House-passed
bill, an amendment to Section 1465, is inadequate, and we urge that it be
substantially revised.
Attached is the specific language we support which includes the House
passed language on obscenity and includes revisions on both the House
passed language on indecency, which would amend Title 18 and the
Senate-passed language on indecency, which would amend Title 47. The
combination of these provisions, we believe, would provide effective laws
to curb obscenity and indecency on the Internet by establishing that all
who knowingly participate in the distribution or facilitation of obscenity
to anyone or indecency to children would be subject to the law.
Thank you for your concern and attention to this matter.
[signed]
Edwin Meese III
Ralph Reed
Christian Coalition
Donald E. Wildmon
American Family Association
Alan Sears, Former Executive Director
Atty General's Commission on Pornography
Phyllis Shafly
Eagle Forum
Beverly LaHaye
Concerned Women for America
Reverend Louis P. Sheldon
Traditional Values Coalition
Jay Sekulow
American Center for Law and Justice
Paul Weyrich
Free Congress Foundation
Paul McGeady
Morality in Media
Len Munsil
National Family Legal Foundation
Robert Peters
Morality in Media
Kenneth Sukhia
Former United States Attorney, N.D., FL
Former Chairman, Atty General's Advisory Committee
Subcommittee on Child Exploitation and Obscenity
__________________________
Section 1465 of Title 18, United States Code, is amended to punish
distribution by computer of indecent material to minors by adding at the
end the following:
Whoever knowingly communicates, transmits, or makes available for
communication or transmission, in or effecting interstate or foreign
commerce an indecent communication by computer to any person the
communicator or transmitter believes has not attained the age of 18 years
of age, knowing that such communication will be obtained by a person
believed to be under 18 years of age, shall be fined under this title or
imprisoned not more than five years, or both.
TITLE IV -- OBSCENE, HARASSING, AND WRONGFUL UTILIZATION OF
TELECOMMUNICATIONS FACILITY
SEC. 401. SHORT TITLE
This title may be cited as the "Communications Decency Act of
1995".
Sec. 402. OBSCENE OR HARASSING USE OF TELECOMMUNICATIONS FACILITIES UNDER
THE COMMUNICATIONS ACT OF 1934
Section 223 (47 U.S.C. 223) is amended --
(1) by striking subsection (a) and inserting in lieu of [sic]:
``(a) Whoever--
``(1) in the District of Columbia or in interstate or foreign
communications --
``(A) by means of telecommunications device knowingly--
``(i) makes, creates, or solicits, and
``(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image, or other
communication which is obscene, lewd, lascivious, filthy, or
indecent, with intent to annoy, abuse, threaten, or harass
another person;
``(B) makes a telephone call or utilizes a
telecommunications device, whether or not conversation or
communication ensues, without disclosing his identity and
with intent to annoy, abuse, threaten, or harass any person
at the called number or who receives the communication;
``(C) makes or causes the telephone of another repeatedly
or continuously to ring, with intent to harass any person at
the called number; or
``(D) makes repeated telephone calls or repeatedly
initiates communication with a telecommunications device,
during which conversation or communication ensues, solely to
harass any person at the called number or who receives the
communication;
``(2) knowingly permits any telecommunications facility
under his control to be used for any activity prohibited by
paragraph (1) with the intent that it be used for
such activity,
shall be fined not more than $100,000 or imprisoned not more
than two years, or both.''; and
(2) by adding at the end the following new subsections:
``(d) Whoever--
``(1) knowingly within the United States or in foreign
communications with the United States by means of
telecommunications device makes or makes available any
indecent communication in any form including any comment,
request, suggestion, proposal, or image, to any person under
18 years of age regardless of whether the
maker of such communication placed the call or initiated the
communication; or
``(2) knowingly permits any telecommunications facility
under such person's control to be used for an activity
prohibited by paragraph (1) with the intent that it be
used for such activity,
shall be fined not more than $100,000 or imprisoned not more
than two years or both.
``(e) Defenses to subsections (a) and (d), restrictions on
access, judicial remedies respecting restrictions for
persons providing information services and
access to information services--
"(1) It is a defense to prosecution that a person has complied
with regulations designed to restrict access to indecent
communications to those 18 years old or older as enacted by the
Federal Communications Commission which shall prepare final
regulations within 120 days of the passage of this bill. Until
such regulations become effective, it is a defense to
prosecution that the person has blocked or restricted access
to indecent communications to any person under 18 years
of age through the use of verified credit card, adult access
code, or adult personal identification number (PIN).
Nothing in this subsection shall be construed to treat
enhanced information services as common carriage."
"(2) No cause of action may be brought in any
court or any administrative agency against any person on account
of any activity which is not in violation of any law punishable
by criminal or civil penalty, which activity the person has taken in
good faith to implement a defense authorized under this section or
otherwise to restrict or prevent the transmission of, or access to,
a communication specified in this section.
(f) Nothing in this subsection shall preclude any State or
local government from enacting and enforcing laws and regulations
which do not result in the imposition of inconsistent obligations on
the provision of interstate services. Nothing in this subsection
shall preclude any State or local government from governing conduct
not covered by subsection (d)(2)."
(g) Nothing in subsection (a), (d), or (e) or in the
defenses to prosecution under (e) shall be construed
to affect or limit the application or enforcement of any other
Federal law.
(h) The use of the term 'telecommunications device' in this
section shall not impose new obligations on (one-way) broadcast
radio or (one-way) broadcast television operators licensed by the
Commission or (one-way) cable services registered with the
Federal Communications Commission and covered by obscenity and
indecency provisions elsewhere in this Act.
Sec. 403. OBSCENE PROGRAMMING ON CABLE TELEVISION.
Section 639 (47 U.S.C. 559) is amended by striking "10,000" and
inserting "$100,000"
Sec. 404. BROADCASTING OBSCENE LANGUAGE ON THE RADIO.
Section 1466 of Title 18, United States Code, is amended by
striking out "$10,000" and inserting "$100,000".
Sec. 405 SEPARABILITY
"(a) If any provision of this Title, including amendments to this
Title of [sic] the application thereof to any person or circumstance is
held invalid, the remainder of this Title and the application of such
provision to other persons or circumstances shall not be affected
thereby."
________________________________________________________________________
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
Deregulation bill
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
Web Sites
URL:http://www.vtw.org/exon/
URL:http://epic.org/
URL:http://www.eff.org/pub/Alerts/
URL:http://www.cdt.org/cda.html
URL:http://outpost.callnet.com/outpost.html
FTP Archives
URL:ftp://ftp.cdt.org/pub/cdt/policy/freespeech/00-INDEX.FREESPEECH
URL:ftp://ftp.eff.org/pub/Alerts/
Gopher Archives:
URL:gopher://gopher.panix.com/11/vtw/exon
URL:gopher://gopher.eff.org/11/Alerts
Email:
vtw@vtw.org (put "send alert" in the subject line for the latest
alert, or "send cdafaq" for the CDA FAQ)
cda-info@cdt.org (General CDA information)
cda-stat@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 Civil Liberties Union * 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 * 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 Watch
(Note: All 'Electronic Frontier' organizations are independent entities,
not EFF chapters or divisions.)
________________________________________________________________________
End Alert
------------------------------
Subject: ALERT: Digital Telephony Action - Nov. 15 Deadline!
------------------------------------------------------------
In Oct. 16's Federal Register, the FBI published a request for public
comments *due November 15 1995* and a request for surveillance capacity.
This is the first major step, since passage of the Digital Telephony
legislation in 1994, in setting up the FBI's dream and our nightmare:
forced compliance with law enforcement and intellegence demands to make
all communications networks wiretappable.
* Background: FBI Draft Capacity Requirements
The 1994 "Digital Telephony and Privacy Improvement Act" (DT), passed as the
more honestly-titled "Communications Assistance to Law Enforcement Act"
(CALEA), did add significant statutory privacy protections and public
oversight provisions for surveillance actions, but in essence requires
telecommunications carriers including "plain old telephone service"
companies and related telphonic services, to make their networks
wiretap-friendly. There are several steps to implementation:
1) Approval of capability requirements (can the network be tapped?)
2) Approval of capacity requirements (how many wiretaps can be done?)
3) Approval of funding to pay for this mess
The subject of the FBI's request, reproduced below, is capacity. The
capacity request specifies the number of simultaneous wiretaps (by which
term we simplify a bit: it includes actual communications intercepts, pen
register (dialed number) information captures, and trap-and-trace actions)
the government estimates that it will need to conduct authorized
surveillance. Telecom companies will have 6 months to respond to this
final notice published after the public comment period, and outline what
part of their systems are not wiretap-friendly, at which point the
government may opt to pay for a system to be "upgraded" or decide to let
it slide.
The demanded capacities range from .05% of "engineered capacity" (which
according to the FBI initially means the maximum number of subscribers to a
particular service or facility) to a full 1% of engineered capacity. In a
worst-case scenario this could mean that 1 person on every residential
city block could be wiretapped at all times - or, enough to wiretap 20,000
people at the same time in New York City alone - one of the cities
targetted for the higher capacity. According to industry executives,
there have never been more than 7 simultaneous wiretaps conducted from a
single US telco location. Current wiretapping activity is roughly one
tap per 170,000 phone lines. Isn't increasing wiretapping capacity more
than a thousand times over a just a wee bit excessive? Clark Matthews,
writing for _The_Spotlight_ estimates that under the current proposal, as
many as 500,000 to 1,500,000 simultaneous wiretaps could be conducted
nation-wide, given sufficient law enforcement resources. Compare this to
the average of less than 1000 court-authorized wiretaps annually (though
up to 1730 in 1994), less than half of them done for federal law enforcement.
Recent reports indicate that there may have been an error in someone's
figures somewhere (perhaps even in the Fed. Register notice, which pretty
clearly states "1%"), and that the real number is 1 out of 1000 *lines*,
but 1 out of 100 phone *calls*. Even if this is true, that's a
staggering increase in wiretapping capacity.
Considerably after-the-fact, the FBI revised its statements of what
"engineered capacity" means, saying it means "total number of
simultaneous phone calls" rather than subscriber lines. This appears to
be a smokescreen, and is irrelevant anyway: the capacity to tap 1% of all
ongoing phone calls is still frighteningly Big-Brotherish. And EPIC claims
that the FBI's estimate of how many calls correspond to how many lines may
be at least 100% less than the real figures.
Even using the lowest of the percentages, .05% in rural areas until 1998
(five times that, later), the Bureau wants the capacity to conduct
surveillance on 1 out of every 20000 lines, and one out of every 2000
calls. Again, the current ratio is 1 to 170,000 or thereabouts. Even in
the deepest woods of Maine or the deserts of Nevada, the FBI wants to
tap more than 8 times as many people as it currently can spy on -
40 times as many in 1999.
FBI director Louis Freeh continues to deny, deny, deny, saying "We have not
and are not asking for the ability to monitor 1 out of every 100
telephone numbers or any other ridiculous number like that. To obtain
that many court orders and conduct that extent of wiretapping would be
nearly impossible." His denials, however, simply don't match the Fed.
Register notice, and furthermore ignore the fact that warrants only need
be sought when the evidence to be gained from the surveillance is to be
used in court (to quote from the statute itself: wiretaps conducted
"pursuant to a court order *or other legal authorization*", emphasis
added.) Not to mention that this legislation isn't for this year,
it's for the future. Who knows what will be possible under a bloated FBI
budget in future years?
An AP article quotes Deputy Attorney General Jamie Gorelick as saying,
"There is no intention to expand the number of wiretaps or the extent of
wiretapping ... . I don't think the American people should be worried
about that."
Well, please forgive us if we "worry". The capability to tap one out of
every 100 or 1000 phone lines simultaneously, even in "high crime areas", is
truly wretched excess, even presuming that wiretaps are a good idea in
the first place. As Brock Meeks reported ("Riding a Straw Horse",
_Cyberwire_Dispatch_, Sept. 13 1994), "In 1991, the latest year figures
are available, most Americans, across all age groups, disapproved when
asked the question: 'Everything considered, would you say that you
approve or disapprove of wiretapping?' Some 67% of all 18-20 year olds
gave the thumbs down, as did 68% of the Gen[eration]-X crowd...Boomers
disapproved of wiretapping almost 3-to-1 while 67% of those 50 and over
disapproved."
The _New_York_Times_ reports that the FBI refuses to elaborate on its
internally perceived need to increase wiretapping capacity to this
extent, saying only that "The full implementation is absolutely essential
for law enforcement and public safety. We are in ongoing discussions with
the communications industry. Therefore it would be inappropriate to
comment further at this point." Apparently the FBI considers their
discussions more imporant than your rights. And those discussions may
even be on the subject of negotiating, outside of public review, for even
*more* wiretapping capacity that the Bureau has already asked for in the
Federal Register. Enough is enough.
DT/CALEA's *capability* requirements are still under development. In short,
the FBI will state what it wants, and the industry must try to comply with
this, within certain limits, including the right of members of the public
to challenge the requirments before the FCC.
The funding issue: Congress authorized but did not appropriate US$500million
to implement CALEA in 1994. The Justice dept. has proposed that a 30%-40%
extra fine ("surcharge") be attached to all civil and criminal penalties
and fines to pay for this, and has attached this proposal to both the
stalled and in many cases unconsitutional anti-terrorism legislation,
and a pending appropriations bill.
EFF is committed to opposing any such funding efforts for the wiretap
bill's provisions.
* What You Can Do Now
See the FBI Federal Register notice below. It includes instructions on
how to submit comments. Remember, these comments are part of the public
record. The FBI cannot hide them, and they *do* matter. THE DEADLINE IS
NOV. 15! Act now, or perhaps forever hold thy peace!
Remember that FBI director Louis Freeh himself states:
"There is no intention to expand the number of wiretaps or the
extent of wiretapping. Those who use the public comment notice
to argue the contrary are wrong."
If your comments focus on a the (nonetheless quite reasonable)
proposition that the FBI intends to wiretap an order of magnitude more
people that they do now, your comments may end up being disregarded.
Instead, criticize the ridiculous draft requirement for this much wiretap
capacity in the first place if the FBI doesn't intend to use it.
Remember, you have them, either way. The current proposal is simply
senseless.
Next steps: Contact your legislators, and keep an eye on the progress of
bills that the FBI has attached DT/CALEA funding language to - sending
letters to the members of committess examining such legislation is important.
In your letter to your own Senators and Representatives, please stress
that
* the FBI has not shown that it effectively uses wiretapping to
prevent domestic terrorism, despite its claims and despite this being
the prime reason the FBI has expressed for this legislation;
* the FBI has not provided the public or Congress any of the information
that it claims supports its outrageous requests for wiretapping capacity,
orders of magnitude greater than present-day capacity in some areas;
* the FBI may be, counter to the specifications of CALEA, entering into
negotiations with telecom industry leaders that are hidden from the public;
* the FBI has shown no evidence to back up its claims that digital
telephone technology is actually thwarting effective law enforcement;
* FOIA-obtained documents from the FBI itself indicate that the
above-mentioned Bureau claim is a complete fabrication anyway;
* Citizen privacy is not to be stripped for the convenience of law
enforcement.
Congress contact information is available at:
ftp.eff.org, /pub/Activism/Congress_contact/
gopher.eff.org, 1/Activism/Congress_contact
http://www.eff.org/pub/Activism/Congress_contact/
A list of Congress-member email addresses is available at:
gopher://una.hh.lib.umich.edu:70/00/socsci/poliscilaw/uslegi/conemail
* Congress May Just Not Buy It
The FBI did not once seek a warrant for a wiretap in cases involving
"weapons, arson, or explosives" since the 1980s. Yet they claim that one
of the main motivations for CALEA is to combat domestic terrorism. Where
were they when the Oklahoma City federal building was blown up?
Investigations are also underway into the decidely poor law
enforcement handling of several cases, such as the Waco incident and the
Randy Weaver seige.
In the wake of CIA honcho Aldrich Ames's rooting-out as a traitor, the
same _NYT_ issue that covered the FBI Fed. Register notice also reveals
that the CIA and other intelligence agencies - the same national security
interests behind DT and crypto key "escrow" - have lied consistently to
the President and Congress, and have been riddled with Soviet and other
double agents for decades. The article suggests that the CIA is a
"laughingstock" in Washington right now.
The new Congress may at times be only too willing to censor, but we can
hope they won't fall for this surveillance rigamarole.
* House Rejects First DT/CALEA Funding Attempt
On Oct. 25, the House of Representatives voted to *not* include the FBI's
CALEA funding language in the Omnibus Budget Bill (which is expected to
be vetoed anyway). This version of the measure called for a 40%
"surcharge" to be added to all criminal fines, to raise US$500mil. to pay
for implementation of the "upgrades" to telephonic equipment that the FBI
hopes to require. Other versions of the FBI legislation are, however,
still appended to various appropriations and terrorism bills - the Bureau
can be said to be hedging its bets.
The Electronic Privacy Information Center reported this event as a
victory, though others have suggested that the reason the measure was
rejected was not because of privacy concerns, but rather because some
arch-conservatives consider the suggested funding measure to be a form of
tax increase. The anti-tax conservatives may have been "thrown a bone"
on a bill expected to die anyway, so they'll have already played their
cards when the issue comes up in other bills.
Whatever's really going on in Congressional minds, (and a _New_York_Times_
article tends to, believe it or not, support *both* viewpoints), the FBI's
loss here certainly remains cause for very guarded celebration. But the
issue *will* be back.
* Sen. Leahy Definitely Not Buying It
Nov. 3, Senator Patrick Leahy (D-VT) sent a public letter to FBI Director
Louis Freeh. It stated in part:
The Federal Bureau of
Investigation recently published in the Federal Register a proposed notice
of law enforcement's capacity demands predicated upon an historical
baseline of electronic surveillance activity and an analysis of that
activity. The Federal Register notice did not include publication of those
two documents.
Please provide me with copies of those two documents, which I also urge you
to release to the public and publish in the Federal Register to ensure the
fullest dissemination of the information.
I appreciate your prompt attention to this matter.
EFF joins CDT in commending Sen. Leahy for his no-nonsense approach, and
for his consideration of the public interest in making this request.
EFF, EPIC, or any other organization could obtain this information via
Freedom of Information Act lawsuits, but that could take years, and it'd
be much better if the FBI released the information voluntarily.
The full text of Sen. Leahy's letter is available at:
ftp.eff.org, /pub/Privacy/Digital_Telephony_FBI/leahy_freeh_110395.letter
gopher.eff.org, 1/Privacy/Digital_Telephony_FBI, leahy_freeh_110395.letter
http://www.eff.org/pub/Privacy/Digital_Telephony_FBI/leahy_freeh_110395.letter
* Canadian Law Enforcement Taking the FBI Hint
Electronic Frontier Canada reports that Canadian police chiefs are
clamoring for some kind of "back door" into citizen communications, right
on the heels of many other governments put under pressure by the US
Administration to support its privacy-invasive policies.
Canadian law enforcement may be shying away from Clipper-like crypto key
"escrow" (possibly because they realize what a ridiculous idea it is?),
but are already considering a ban on cellular phones that prevent
eavesdropping.
The 90th Annual Conference of the Canadian Association of Chiefs of Police
(Regina, Saskatchewan, August 24, 1995) produced numerous policy
recommendations and resolutions, including an unsupported decision that
"violent" media programming has "no" value at all and should be banned
(including an explict recommendation that online material that "exploits
violence" be attacked); that "the Internet System [sic] is devoid of any
standards and controls necessary to regulate the nature of information being
disseminated worldwide", that anonymity should be banned, and that the
Canadian government should "enact legislation that will effectively
control and regulate the Internet System" [sic]; that roadway video
surveillance be instituted; that crime *suspect* be subject to "DNA
warrants" and have their genetic information added to a federal database;
and (surprised?) that "new communications technology is threatening the
ability of...police agencies to conduct court-approved electronic
surveillance". This is the same, unsubstantiated, claim being made by the
US Federal Bureau of Investigation.
The Canadian proposal continues: "the telecommunications systems and
networks are often used to further serious criminal activities, including
drug trafficking, terrorism, organized crime, extortion, corruption,
and money laundering" [not unlike cars, fingers, shoes, etc. And they
forgot that favorite buzzphrase: "child molestation and pornography".]
The rest of the recommendations regarding police surveillance and modern
communications is all but plagiarized from the FBI's statements and
legislation, and concludes, "the Canadian Association of Chiefs of Police
urges the Government of Canada to enact the appropriate legislation
requiring that all present and new telecommunications technologies
contain capabilities that will provide law enforcement agencies with the
technical assistance necessary to accomplish court-authorized
interceptions pursuant to the applicable sections of the Criminal Code of
Canada (s.184.2, 184.3, 186, 188, 487.01, 492.1, 492.2)."
To our northern neighbors: Be afaid.
The full text of the CACP recommendations can be found at:
http://insight.mcmaster.ca/org/efc/pages/law/doc/cacp.24aug95.html
* The Text of the FBI's Federal Register Notice
[Federal Register: October 16, 1995 (Volume 60, Number 199)]
[Notices]
[Page 53643-53646]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF JUSTICE
Federal Bureau of Investigation
Implementation of the Communications Assistance for Law
Enforcement Act
AGENCY: Federal Bureau of Investigation (FBI).
ACTION: Initial notice and requests for comments.
_________________________________________________________
SUMMARY: The FBI is providing initial notification of law enforcement
capacity requirements as mandated in section 104 of the Communications
Assistance for Law Enforcement Act. Comments regarding this initial
notice will be considered in the development of the final capacity
notice.
DATES: Written comments must be received on or before November 15,
1995.
ADDRESSES: Comments should be submitted in triplicate to the
Telecommunications Industry Liaison Unit (TILU), Federal Bureau of
Investigation, P.O. Box 220450, Chantilly, VA 22022-0450.
FOR FURTHER INFORMATION CONTACT:
Contact TILU at (800) 551-0336. Please refer to your question as a
capacity notice question.
I. Background
On October 25, 1994, the President signed into law the Communications
Assistance for Law Enforcement Act (CALEA) (Public Law 103-414; 47 U.S.C.
1001-1010). This law presents law enforcement's requirements for the
surveillance of wire or electronic communications. The primary purpose of
the CALEA is to clarify a telecommunications carrier's duty to assist law
enforcement agencies with the lawful interception of communications and
the acquisition of call-identifying information in an ever-changing
telecommunications environment. To ensure that law enforcement agencies can
continue to conduct authorized surveillance of wire or electronic
communications, the CALEA states that telecommunications carriers must meet
the assistance capability requirements set forth in section 103 of the
Act (and restated in Appendix A of this notice).
Section 104 of the CALEA mandates that the Attorney General of the
United States provide notice of estimates for the actual and maximum
number of pen register, trap and trace, and communication intercepts
that law enforcement agencies may conduct and use simultaneously.
The definitions for ``actual capacity'' and ``maximum capacity''
are included below:
Actual Capacity--``notice of the actual number of communication
interceptions. pen registers, and trap and trace devices, representing
a portion of the maximum capacity that the Attorney General estimates
that government agencies authorized to conduct electronic surveillance
may conduct and use simultaneously by the date that is 4 years after
the date of enactment of the CALEA'' (CALEA, section 104(a)(1)(A)).
Maximum Capacity--``notice of the maximum capacity required to
accommodate all of the communication interceptions, pen registers, and
trap and trace devices that the Attorney General estimates that
government agencies authorized to conduct electronic surveillance may
conduct and use simultaneously after the date that is 4 years after of
enactment of the CALEA'' (CALEA, section 104(a)(1)(B)).
This Federal Register announcement serves as the initial notice of
the government's actual and maximum capacity requirements. These
requirements will aid telecommunications carriers in developing and
deploying solutions to meet the assistance capability requirements set
forth in section 103 of the CALEA. A final notice will be issued in
accordance with the CALEA requirements after considering comments to
this initial notice.
The actual and maximum capacity requirements were developed by the
FBI in coordination with law enforcement. By order of the Attorney
General of the United States, as codified in 28 CFR 0.85 (o),
government implementation responsibilities under the CALEA were
delegated to the FBI. The FBI, in turn, is establishing TILU to carry
out the government's implementation responsibilities, including the
publication of capacity notices.
For the purposes of this document, the terms defined in section
2510 of title 18, United States Code, and section 102 of the CALEA
(section 1001 of title 47, United States Code) have, respectively, the
meanings stated in those sections. Additional clarification of terms is
provided in Appendix B of this notice.
II. Introduction
The capacity figures in this notice reflect the combined number of
simultaneous pen register, trap and trace, and communication
interceptions that law enforcement may conduct by October 25, 1998. All
telecommunications carriers must, within 3 years after the publication
of the final notice of capacity requirements or within 4 years after
the date of enactment of the CALEA, whichever is longer, ensure that
their systems are capable of accommodating simultaneously the number of
pen register, trap and trace, and communication interceptions
identified in the actual capacity requirements. Furthermore, all
telecommunications carriers shall ensure capabilities exist to
expeditiously accommodate any increase in the actual number of pen
register, trap and trace, and communication interceptions that
authorized agencies may seek to conduct and use, up to the maximum
capacity requirement. Some carriers may not need to make modifications
to their equipment, facilities, and services in response to this notice
because they currently meet all law enforcement capacity and capability
requirements for electronic surveillance.
The capacity requirements are not intended to specify, required or
prohibit adoption of any particular system design or configuration by a
telecommunications carrier, equipment manufacturer, or support services
provider. These entities must develop an appropriate solution to comply
with the capacity requirements set forth in this notice and with the
assistance capability requirements found in section 103 of the CALEA.
In developing solutions, carriers should consider the effect that
particular services and features may have on capacity requirements. For
example, the required number of ports, lines, or other network
resources may vary depending upon the use of particular services and
features by an intercept subject. The FBI, along with other law
enforcement agencies, will be available, through the consultative
process, to discuss these engineering issues.
In accordance with the intent of the CALEA, carriers must ensure
that their equipment, facilities, or services that provide a customer
or subscriber with the ability to originate, terminate, or direct
communications are capable of meeting the capability and capacity
requirements mandated by the CALEA. These requirements apply to
existing and future telecommunications carriers.
III. Capacity Requirements Derivation
The capacity figures that are presented in this initial notice were
derived as a result of a thorough analysis of electronic surveillance
needs. Information regarding electronic surveillance activities for a
specific time period was obtained from telecommunications carriers, law
enforcement, U.S. District Courts, State Courts, State Attorneys
General, and State District Attorneys to establish a historical
baseline of activity.
The historical baseline of electronic surveillance activity was
determined after examination of both the location and occurrence of
each electronic surveillance reported. The historical baseline was then
analyzed to derive the total and simultaneous electronic surveillance
activity by switch and within specific geographic areas. Future
capacity needs were then determined after consideration of the impact
of demographics, market trends, and other factors on the historical
baseline.
The analysis indicates that electronic surveillance activity varies
by geographic area. Therefore, the capacity requirements will vary by
geographic area. The capacity requirements are reported by category,
with each geographic area being assigned to one of three distinct
categories. The use of categories enables capacity requirements to be
stated in a manner that reasonably represents law enforcement
electronic surveillance needs in all geographic areas, yet does not
overburden the telecommunications industry by holding all carriers to
the same level of capacity.
Category I (the highest category) and Category II (the intermediate
category) represent those geographic areas where the majority of
electronic surveillance activity occurs. Only a few of the most densely
populated areas, which have historically been areas of high electronic
surveillance activity, are grouped into Category I. Other densely
populated areas and some suburban areas, with moderate electronic
surveillance activity, are grouped into Category II. The numbers for
these categories were derived based on the analysis described above.
Category I and Category II apply to approximately 25 percent of the
equipment, facilities, and services covered by the survey over the time
period.
Category III (the lowest category) represents law enforcement's
minimum acceptable capacity requirements for electronic surveillance
activity. This category covers all other geographic areas. The numbers
for Category III were derived by analyzing areas of historically low
electronic surveillance activity and projecting future needs in order
to establish a requirement for a minimum level of capacity for
electronic surveillance.
All telecommunications carriers are expected to meet the minimum
capacity requirements of Category III. Carriers will be individually
notified of those specific geographic areas within the areas they serve
that exceed Category III and warrant a Category I or Category II
capacity requirement. The individual carrier notifications will occur
contemporaneously with the publication of the final notice. It is
anticipated that the majority of the area served by a carrier will fall
into Category III; however, if Category I and Category II capacity
requirements are necessary, they are likely to affect only a small
portion of their area served.
This initial capacity notice includes the actual and maximum
capacity requirements for Categories I, II, and III. After considering
comments to this initial notice, a final notice will be published.
Future changes to the maximum capacity requirements issued in the final
notice will be published in the Federal Register, as necessary, in
accordance with section 104(c).
IV. Initial Statement of Actual and Maximum Capacity
The actual and maximum capacity requirements are presented as a
percentage of the engineered capacity of the equipment, facilities, and
services that provide a customer or subscriber with the ability to
originate, terminate, or direct communications. Engineered capacity
refers to the maximum number of subscribers that can be served by that
equipment, facility, or service. Frequently, the percentage is applied
to the engineered subscriber capacity of a switch, however, the
percentage can also apply to nonswitch equipment (i.e., network
peripherals) involved in the origination, termination, or direction of
communications. Percentages are being used rather than fixed numbers
due to the dynamics and diversity of the telecommunications industry.
The use of percentages allows telecommunications carriers the
flexibility to adjust to changes in marketplace conditions or changes
in the number of subscribers, access lines, equipment, facilities,
etc., and still know the required level of capacity.
As a result of extensive consultation with federal, State, and
local law enforcement agencies, telecommunications carriers, providers
of telecommunications support services, and manufacturers of
telecommunications equipment, the FBI proposes the following capacity
requirements for Categories I, II, and III:
Category I
Actual Capacity
Each telecommunications carrier must provide the ability to meet
the capability assistance requirements defined in section 103 of the
CALEA for a number of simultaneous pen register, trap and trace, and
communication interceptions equal to 0.5% of the engineered capacity of
the equipment, facilities, or services that provide a customer or
subscriber with the ability to originate, terminate, or direct
communications.
Maximum Capacity
Each telecommunications carrier must ensure that it can
expeditiously increase its capacity to meet the assistance capability
requirements defined in section 103 of the CALEA for a number of
simultaneous pen register, trap and trace, and communication
interceptions equal to 1% of the engineered capacity of the equipment,
facilities, or services that provide a customer or subscriber with the
ability to originate, terminate, or direct communications.
Category II
Actual Capacity
Each telecommunications carrier must provide the ability to meet
the capability assistance requirements defined in section 103 of the
CALEA for a number of simultaneous pen register, trap and trace, and
communication interceptions equal to 0.25% of the engineered capacity
of the equipment, facilities, or services that provide a customer or
subscriber with the ability to originate, terminate, or direct
communications.
Maximum Capacity
Each telecommunications carrier must ensure that it can
expeditiously increase its capacity to meet the assistance capacity
requirements defined in section 103 of the CALEA for a number of
simultaneous pen register, trap and trace, and communication
interceptions equal to 0.5% of the engineered capacity of the
equipment, facilities, or services that provide a customer or
subscriber with the ability to originate, terminate, or direct
communications.
Category III
Actual Capacity
Each telecommunications carrier must provide the ability to meet
the capability assistance requirements defined in section 103 of the
CALEA for a number of simultaneous pen register, trap and trace, and
communication interceptions equal to 0.05% of the engineered capacity
of the equipment, facilities, or services that provide a customer or
subscriber with the ability to originate, terminate, or direct
communications.
Maximum Capacity
Each telecommunications carrier must ensure that it can
expeditiously increase its capacity to meet the assistance capability
requirements defined in section 103 of the CALEA for a number of
simultaneous pen register, trap and trace, and communication
interceptions equal to 0.25% of the engineered capacity of the
equipment, facilities, or services that provide a customer or
subscriber with the ability to originate, terminate, or direct
communications.
When translated from percentages to numbers, capacity requirements
should be rounded up to the nearest whole number.
V. Carrier Statements and Consultation
As set forth in section 104(d) of the CALEA, each telecommunications
carrier is required to provide within 180 days after publication of the
final capacity notice a statement identifying any of its systems or
services that do not have the capacity to meet the assistance capability
requirements stated in section 103 of the CALEA. These carrier statements
will be used in conjunction with law enforcement priorities and other
factors to determine the specific equipment, facilities, and services that
require immediate modification and that may be eligible for cost
reimbursement. The FBI will consult with telecommunications carriers to
establish a template for responding to the capability and capacity
requirements.
Dated: October 10, 1995.
Louis J. Freeh,
Director.
[FR Doc. 95-25562 Filed 10-13-95; 8:45 am]
BILLING CODE 4410-02-M
[editor's note -- Appendicies have been deleted to save space. The entire
text of this document can be found at EFF's and CDT's Digital Telephony Web
Pages. See "For More Information", below.]
* For More Information
See the following Internet sites:
ftp.eff.org, /pub/EFF/Privacy/Digital_Telephony_FBI/
gopher.eff.org, 1/EFF/Privacy/Digital_Telephony_FBI
http://www.eff.org/pub/EFF/Privacy/Digital_Telephony_FBI/
http://www.epic.org/privacy/wiretap/
http://www.cdt.org/digtel.html
[Portions of this alert based on material from CDT, EPIC and VTW, various
articles, and several independent reports.]
------------------------------
Subject: Newsbytes
------------------
* EFF Relocation Complete
Our new, permanent contact info is:
The Electronic Frontier Foundation
1550 Bryant St., Suite 725
San Francisco CA 94103 USA
+1 415 436 9333 (voice) <-- That's 436 9EFF
+1 415 436 9993 (fax)
ask@eff.org (or, for "canned" general info, info@eff.org).
Bernstein- or Scientology-case queries should go to EFF Staff Counsel
Shari Steele (ssteele@eff.org), +1 301 375 8856.
Other Press and legal queries should go to EFF Staff Counsel Mike Godwin
(mnemonic@eff.org), +1 510 548 3290.
* EFF Rated in Top 5% of the Net by Point Survey
Point Survey, one of the most comprehensive WWW site review
services on the net, http://www.pointcom.com, rated EFFWeb as one of the
top 5% net sites. Their review calls us a "great resource for those who
want to protect cyberspace." The full review is available at:
http://www.pointcom.com/gifs/reviews/10_29038.htm
* Commerce Dept. IPWG Report on Online Intellectual Property Meets Resistance
The Information Infrastructure Task Force (IITF) of the National
Telecommunications and Information Administration (NTIA) was created by the
executive branch of the U.S. government to recommend policy and
legislation on the "Information Superhighway". In the wake of the
LaMacchia case, The IITF set up a working group to make recommendations
on copyright law and intellectual property. The "White Paper" is the
report of this working group. The legislation recommended in the White
Paper was sent to Congress on Thursday, September 28, 1995. The White
Paper is based on a 1994 draft, the "Green Paper", both strongly
influenced by the Intellectual Property Rights Working Group chair,
Patent & Trademark Office Commissioner Bruce Lehman.
The recent White Paper version is available at:
ftp.eff.org, /pub/Intellectual_property/ipwg_nii_ip_lehman.report
gopher.eff.org, 1/Intellectual_property, ipwg_nii_ip_lehman.report
http://www.eff.org/pub/Intellectual_property/ipwg_nii_ip_lehman.report
The Green Paper version was the subject of strong criticism from many sides,
including Prof. Pamela Samuelson, who opposed the attempt to pass off
sweeping recommended changes as "minor". Samuelson, in her critique,
states that the Green Paper's recommendations "would abolish longstanding
rights that the public has enjoyed to make use of copyrighted works,
rights that have been consistently upheld in courts and in the copyright
statute."
The draft (Green Paper) version, and Prof. Samuelson's critique are
available at (respectively):
ftp.eff.org, /pub/Intellectual_property/ipwg_nii_ip_lehman_report.draft
gopher.eff.org, 1/Intellectual_property, ipwg_nii_ip_lehman_report.draft
http://www.eff.org/pub/Intellectual_property/ipwg_nii_ip_lehman_report.draft
and
ftp.eff.org, /pub/Intellectual_property/ipwg_nii_ip_report_samuelson.comments
gopher.eff.org, 1/Intellectual_property, ipwg_nii_ip_report_samuelson.comments
http://www.eff.org/pub/Intellectual_property/
ipwg_nii_ip_report_samuelson.comments
EFF Board of Directors Chair Esther Dyson and Vice-Chair John Perry Barlow
have written forward-looking pieces on online "i-p", both pointing in
directions strongly at odds with IITF's vision of intellectual property's
future. These articles can be found at (respectively):
ftp.eff.org, /pub/Publications/Esther_Dyson/ip_on_the_net.article
gopher.eff.org, 1/Publications/Esther_Dyson, ip_on_the_net.article
http://www.eff.org/pub/Publications/Esther_Dyson/HTML/ip_on_the_net.html
and
ftp.eff.org, /pub/Publications/John_Perry_Barlow/idea_economy.article
gopher.eff.org, 1/Publications/John_Perry_Barlow, idea_economy.article
http://www.eff.org/pub/Publications/John_Perry_Barlow/HTML/
idea_economy_article.html
The new "White Paper" version of the IITF report doesn't seem to have
fixed anything. Most criticisms that applied to the Green Paper draft
hold for the final version. The National Writers Union says of the
report, "We are struck by the remote character of the report in that it
misses the daily realities of the individual writer, artist or other
creator...we must voice concerns that favor the rights of information
users at the same time that we seek fair compensation for our work."
NWU suggests that the report points fingers at individuals and libraries
for copyright infringement, when the real culprits are media conglomerates,
and calls the working group's bias against the public interest and toward
media centralization "a disconnection from reality", and a failure to
uphold the public's fair use rights. NWU closes by saying, "Legislation
and regulatory action on intellectual property and the National Information
Infrastructure must do a more complete job than has been done by this
report to include the concerns of the creators of intellectual property
and of the general public."
The full NWU comments can be found at:
ftp.eff.org, /pub/Intellectual_property/nwu_ipwg_paper.comments
gopher.eff.org, 1/Intellectual_property, nwu_ipwg_paper.comments
http://www.eff.org/pub/Intellectual_property/nwu_ipwg_paper.comments
The Commercial Internet eXchange (CIX) has criticised the white paper as
well, in a draft position statement, pointing out that IPWG would criminalize
all service providers for the illegal actions of their users.
CIX's response paper states in part, "CIX members transmit nearly half a
billion messages each day, and cannot realistically be expected to
monitor the content of those transmissions. Moreover, the instantaneous
nature of digital communications precludes access providers from viewing,
judging, monitoring or editing the content of most messages posted or
accessed by their subscribers. Finally, [Internet Access Providers] are
similar to common carriers in that they have no control over which
members of the public use their facilities or the content members of the
public choose to transmit. For these reasons, access providers should not
be treated as a publisher [sic] for copyright purposes. Unfortunately,
that is precisely what the Working Group has proposed by including in its
suggested revisions to the Copyright Act the undefined word 'transmit' as
part of the definition of 'publish.'"
The full CIX comments can be found at:
ftp.eff.org, /pub/Intellectual_property/cix_ipwg_paper.comments
gopher.eff.org, 1/Intellectual_property, cix_ipwg_paper.comments
http://www.eff.org/pub/Intellectual_property/cix_ipwg_paper.comments
The IITF report recommended that the Copyright Act "be amended to
expressly recognize that copies or phonorecords of works can be
distributed to the public by transmission, and that such transmissions
fall within the exclusive distribution right of the copyright owner."
This portion of the suggested legislation has already been passed by both
houses of Congress.
Whether other aspects will find their way into law remains to be seen.
They probably will, though. Criticism of the White Paper is common and
solid, but this does not seem to be dissuading legislators from taking
the Report's conclusions and recommendations at face value and running
with them.
* IPWG Report's Suggested Legislation: Passed and Pending (+ Canada Tie-In)
Samuelson, CIX, Barlow, NWU, Dyson, Jessica Littman, and numerous others
have pointed out, in articles and at conferences, an almost uncountable
number of flaws in the IITF NII intellectual property report. Some have
labelled it "a wolf in sheep's clothing", which systematically ignores
cases which don't support its extreme positions in order to make its
radical proposals look more reasonable. At this early stage, the White
Paper's endorsement of criminalizing traditionally protected behaviors
such as private, non-commercial copying is not well understood. Nor is
it well understood how biased a document it is, or how it supposes a
view of the world in which every information transaction can be subject
to a private tax with the threat of criminal sanction behind it.
Critics of the report suggest that its drafting process is heavily
dominated by special interests to such an extent that a fair outcome is
unlikely - the lobbyists (and former lobbyists like PTO Commissioner
Lehman), may be motivated by fear that digitalization will mark the end
of the economic hegemony of certain media interests, who seek to bend the
law to their exclusive advantage with no regard for the tranditional
balance in intellectual property law between i-p rights holders and the
public.
Then again, others, such as the Software Publisher Association complain
loudly of lost profits in the billions due to online copyright violation,
and even the NWU supports major changes to current intellectual property law.
Few seem to doubt that current law is quite right for the state of modern
communications. The disagreement seems largely about what changes must
be made, and perhaps more to the point - whether now is a good time to
change them or on the other hand whether anyone proposing immediate changes
has any idea what they are doing.
Senators Orrin Hatch and Pat Leahy think they do, and introduced S. 1284,
the "Information Infrastructure Copyright Act of 1995" in September.
the IICA is based heavily on the IITF White Paper, and comprises sections.
The first, the "NII Copyright Protection Act of 1995", explicitly covers
digital transmission of copyrighted works, as one might expect. It also
makes it a crime to alter or provide false "copyright management
information" on someone else's intellectual property, or to
circumvent copy protection schemes or provide software or hardware to do
so ("copyright management information" being author and copyright holder
name and contact info, terms & conditions of use),
Not particularly disturbing? Until you consider that reverse-analysis of
software, including copy protection, is useful and legitimate, as are
utilities to update one's own information stored by the copy protection
features in software. Or until you consider that many copy protection
schemes are poorly designed, and essentially require one to break the
copy protection to make backups or to install a new copy of the software
from backup disks. Or until you get to the section that lays the
burden of proving innocence on the accused. Or until you realize that
the only way to enforce these provisions would be for system operators
(and libraries and other services) to act as "net cops" and spy on
users continuously and in great detail. Fines are up to half a million
dollars and/or 5 years in prison.
The bill panders to large-scale copyright holders, and fails to balance
their rights with those of authors & creators, not to mention the public's
right of fair use. A coalition of organizations, individuals and a
companies, the Digital Future Coalition, further criticizes the bill as
hindrance to the development of tele-education and general market innovation.
EFF is considering joining DFC and endorsing their upcoming letter to the
sponsors of this bill.
Ironically, it was Sen. Leahy who said (referring to the Digital
Telephony bill) in April 1994, "The part that frightens the hell out of
me is the goverment deciding where technology goes."
Should this legislation pass, it is likely that the actual authors and
creators (as opposed to corporate copyright holders) will make less money
than ever from their works, and that information vendors (and access
providers - unless and until we have a common-carrier-like liability
protection for them) will have to make redoubled efforts to check the
copyright and royalty/licensing situation of any information their
services provide. This could be the next step on one of two paths:
increasing "net.cop" behavior on the part of access providers, or
increased civil disobedience of unenforceable laws that are almost
physically impossible to abide by for system operators.
Senator Leahy, this time with Sen. Feingold, is interested in even more
changes to intellectual property law. They introduced S.1122,
the "Criminal Copyright Improvement Act of 1995" in August, making it an
offense to assist others in the reproduction or distribution of an
infringed work, and allowing prosecutors to go after bulletin board
operators and other service providers when the end-user cannot be
tracked down. Leahy's bill, the inspiration for which appears to be
highly questionable statistics from software manufacturers' trade
associations, poses fairly clear threats to all system operators that do
not track users and get a variety of verified personal information from
all customers. In a speech at a conference, Leahy tied S.1122 into his
and Sen. Orrin Hatch's new bill to combat the counterfeiting of goods,
S.1136, proposing fines up to US$1,000,000. S.1122 has language related
to faked goods, including software, as well. It may be that the two
bills are intended to be merged.
S. 1122 is intended to snare system operators whose systems are used for
software piracy by customers. One section states"
SEC. 2. CRIMINAL INFRINGEMENT OF COPYRIGHTS.
(a) DEFINITION OF FINANCIAL GAIN- Section 101 of title 17, United
States Code, is amended by inserting after the undesignated
paragraph relating to the term `display', the following new
paragraph:
`The term `financial gain' includes receipt of anything of
value, including the receipt of other copyrighted works.'.
(b) CRIMINAL OFFENSES- Section 506(a) of title 17, United States
Code, is amended to read as follows:
`(a) CRIMINAL INFRINGEMENT- Any person who infringes a copyright
willfully either--
`(1) for purposes of commercial advantage or private
financial gain; or
`(2) by the reproduction or distribution, including by
transmission, or assisting others in such reproduction or
distribution, of 1 or more copies, of 1 or more copyrighted
works, which have a total retail value of $5,000 or more,
shall be punished as provided under section 2319 of title 18.'.
EFF currently has no position on this legislation, but may take one. The
Center for Democracy and Technology will support the bill, provided it is
modified (See CDT Policy Post for more info.)
On the one hand, few doubt that allowing a system to be used as a sort of
"pirated software clearinghouse" should be illegal even if the sysop does
not profit from this activity (Cf. the LaMacchia case). However, this
bill would appear to be insufficiently narrow, and may hold criminally
liable system operators whose users exchange software, audio files or
other material copyrighted by others, even without the permission or
knowledge of the system operator. EFF remains committed to establishing
a form of common-carrier-like liability protection for online service
operators so that sysadmins and BBS sysops are not fined or imprisoned
for crimes committed by users. The bill also does not appear to
adequately take into account the people's rights of fair use.
At a conference, Borland Sr. VP Robert Kohn and author of a
treatise on online music licensing, pointed out for the audience Internet
sites devoted to recording artists such as Frank Sinatra, and noting that
they probably were not licensed to have the copies of song lyrics they
offered from their sites. As if mirroring Kohn's sentiments, SOCAN,
roughly the Canadian equivalent of US music intellectual property
clearinghouses BMI and ASCAP, have filed a proposed tariff which will
allow licensing of music transmitted over the Internet or BBSs, so that
SOCAN can collect royalities for online uses of sound clips or lyric
texts. The Society of Composers, Authors and Music Publishers of
Canada's Tariff 22 is entitled "Transmission of Musical Subscribers [sic]
via a Telecommunications Service not Licensed Under Tariff 16 or 17". The
proposed Tariff provides a licence fee of $0.25 for every subscriber on
a service that does not earn advertising revenue. For services that do
earn revenue from advertising, the licence is based on 3.2% of gross
revenues, with a minimum fee of $0.25 per subscriber. A correspondent,
John Lax, contacted SOCAN for more details, and found that SOCAN plans
that anyone wanting to make online use of songs controlled by SOCAN would
have to be licensed by the organization, and be subject to audits and
inspection by SOCAN.
While some note that sites like IUMA, providing online but copyrighted music
information such as song lyrics, should have to pay royalties, the
administrator of one such site says that the artists involved are, in at
least some cases, not at all pleased by moves like SOCAN's, and will end up
paying any SOCAN fees *themselves* because the Internet music sites
provide free advertising for them, resulting in far more income from new
sales than incoming lost from uncollected penny-ante royalities for
online lyric reading or soundclip downloads. This is fairly interesting
in light of NWU's criticism of the Lehman paper, that the report
reflects not the interests of creators at all, but rather the interests
of media mega-corporations who thrive on royalty percentages.
While there's no direct tie-in between SOCAN's proposed tarrif and the
IETF i-p report, there's an indirect one, in the form of a bill which
recently passed both the US Senate and, unanimously, the House of
Representatives. H.R.1506, the Digital Performance Right in Sound
Recordings Act of 1995", gives copyright holders the authority to collect
royalties each time a sound recording is transmitted in digital form.
Measures that were suggested independently by both SOCAN and IITF are
about to be the law of the land in the US, despite the fact that little
debate on this matter has occurred, and some content producers think this
will cost, not save, them money.
The bills referred to above are available at:
ftp.eff.org, /pub/Legislation/Bills_by_number/
gopher.eff.org, 1/Legislation/Bills_by_number
http://www.eff.org/pub/Legislation/Bills_by_number/
NOTE: IITF is not to be confused with IETF, the Internet Engineering Task
Force, which is a non-governmental volunteer standards body.
[Some text in the above two articles borrowed from CIX, SOCAN, and NWU
statements; Computer Law Report #11 was also used as source material, as
were several action alerts and posts by participants on EFF and EFC
mailing lists.]
* Upcoming Articles
Bernstein Case - Update
Public Govt. Info Online - Update
Scientology v. Critics - Update
A Look at Internet Domain Name Fees and Alternatives to InterNIC
EFC Opposes Bell Canada Trademark on "The Net"
Arthur Halavais Censored from Internet by Judge
Minnesota v. the Whole Wide World
PROFS Case - Update
Tony Davis Case - Update
Lorne Shantz Case - Update
Some of these were expected this issue, but have been put off due to the
size of the artices in the current issue.
------------------------------
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:
ftp: ftp.eff.org, /pub/EFF/calendar.eff
gopher: gopher.eff.org, 1/EFF, calendar.eff
http://www.eff.org/pub/EFF/calendar.eff
Nov. 7 * European Summit on the Information Superhighway; Amsterdam,
Netherlands. Speakers include EFF co-founder John Perry Barlow.
Nov. 9 * Doors of Perception Conference; Amsterdam, Netherlands. Speakers
include EFF co-founder John Perry Barlow.
Nov. 23-
25 * HyperMedia Conference; Oita Japan. Speakers include
EFF boardmember David Farber.
Nov. 27 * Internet Society Japan Conference; Kobe Japan. Speakers include
EFF boardmember David Farber.
Nov. 29 * Japan Ministry of Posts and Telecom. Annual Conference on
Advances in Communications; Tokyo Japan. Foreign Keynote speech
by EFF boardmember, David Farber.
Jan. 17-
18 * Innovation Now; Oregon Convention Center, Portland Oregon.
Sponsored by American Electronics Association's Oregon Council,
et al. Speakers include EFF chair of the board Esther Dyson.
URL: http://www.innovationnow.org/
------------------------------
Subject: Quote of the Day
-------------------------
"You are all optimizing against the imaginable, not the probable. And the
imaginable, especially the imaginable evil, has no inertia at all. There
is no limit to what it might do and therefore, there is no limit to what one
must do to prevent it...If we are to design all of our policies around the
worst thing that could possibly happen, if we are trying to achieve a
world of such absolute safety that no one in power can ever be blamed for
a human-caused catastrophe, we will have to endow law enforcement with
powers of surveillance which will make a police state not just imaginable
but probable."
- EFF co-founder John Perry Barlow, in a letter to Administration staffers
regarding the Clipper and Digital Telephony surveillance scheme, on
which the Administration refused to back down, citing fear of terrorists
using untappable communications to plan a nuclear bombing of the
World Trade Center, and the reaction the voting public would have
toward the Adminstration in the event of such terrorism.
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
the playground?
Join EFF!
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
protections.
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 write to the conference committee members to support
the reasonable approaches of Leahy, Klink, Cox and Wyden, and to oppose
the unconstitutional proposals of Exon, Gorton and others. See the first
article in this newsletter for more detailed info.
For more information on what you can do to help stop this and other
dangerous legislation, see:
ftp.eff.org, /pub/Alerts/
gopher.eff.org, 1/Alerts
http://www.eff.org/pub/Alerts/
If you do not have full internet access, send your request
for information to ask@eff.org.
* Digital Telephony/Comms. Assistance to Law Enforcement Act
The FBI is now seeking both funding for the DT/CALEA wiretapping provisions,
and preparing to require that staggering numbers of citizens be
simultaneously wiretappable.
To oppose the funding, write to your own Senators and Representatives
urging them to vote against any appropriations for wiretapping.
To oppose the FBI's wiretapping capacity demands, see the FBI Federal
Register notice at the end of the second article in this newsletter, which
contains instructions on how to submit formal comments on the ludicrous
and dangerous proposal.
* Anti-Terrorism Bills
Numerous bills threatening your privacy and free speech have been introduced
this year. None of them are close to passage at this very moment, but
this status may change. Urge your Congresspersons to oppose these
unconstitutional and Big-Brotherish bills.
* 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:
ftp.eff.org, /pub/Activism/Congress_cmtes/
gopher.eff.org, 1/EFF/Issues/Activism/Congress_cmtes
http://www.eff.org/pub/Activism/Congress_cmtes/
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
information provided.
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
EFF today!
For EFF membership info, send queries to membership@eff.org, or send any
message to info@eff.org for basic EFF info, and a membership form.
------------------------------
Administrivia
=============
EFFector Online is published by:
The Electronic Frontier Foundation
1550 Bryant St., Suite 725
San Francisco CA 94103 USA
+1 415 436 9333 (voice)
+1 415 436 9993 (fax)
Membership & donations: membership@eff.org
Legal services: ssteele@eff.org
General EFF, legal, policy or online resources queries: ask@eff.org
Editor:
Stanton McCandlish, Online Services Mgr./Activist/Archivist (mech@eff.org)
This newsletter is printed on 100% recycled electrons.
Reproduction of this publication in electronic media is encouraged. Signed
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------------------------------
End of EFFector Online v08 #18 Digest
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