EFFector       Vol. 15, No. 23       August 3, 2002     ren@eff.org

A Publication of the Electronic Frontier Foundation  ISSN 1062-9424


In the 223rd Issue of EFFector:

* Action Alert: Copyright Holders Want to Hack Your PC!
* Court Grants Access to Net Regulatory Corp Records 
* The Berman P2P Bill: Vigilantism Unbound 
* EFF Releases Comments on the Cyber Security Enhancement Act 
* Administrivia


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**Copyright Holders Want to Hack Your PC!

Electronic Frontier Foundation Action Alert

(Issued: August 2, 2002)

Representative Howard Berman has introduced legislation that would
grant copyright holders near-immunity from the law while attacking a
citizen's computer. The bill protects copyright holders from legal
action stemming from denial-of-service attacks on people whom they
suspect of using material in an unauthorized way on a peer-to-peer
(P2P) network. In a ridiculously vague caveat, Berman's bill
graciously says that the availability of your other files may not be
impaired unless "reasonably necessary."

Exempting a single industry from civil and criminal penalties is
unprecedented. This kind of vigilantism is explicitly prohibited by
law; Rep. Berman wants to make sure that the law doesn't apply to
copyright holders. Don't let him get away with it!

Your voice makes a difference! Tell Congress that this legislation
is ridiculous; here's what you can do:

* Take action by sending a letter to your representatives in
Congress with the EFF Action Center:
	http://action.eff.org

* Join EFF! Your financial support helps us fight legislation
like the Berman bill and defend your other rights on the electronic
frontier.  Become a member by visiting:
	http://www.eff.org/perl/join


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**The Berman P2P Bill: Vigilantism Unbound

On July 25, 2002, Representative Howard Berman (D-Cal.) introduced a
bill in the House of Representatives that would give copyright
owners the right to violate the law in their efforts to stop the
unauthorized circulation of their works on peer-to-peer networks.
EFF opposes the bill as drastically misguided and overbroad.

The EFF agrees with Rep. Berman that, like the rest of us, copyright
owners are entitled, within the bounds of the law, to use
technological self-help measures to protect their assets. No
legislation is necessary for that. What the Berman P2P Bill does is
permit copyright owners to go further and violate the law. This
unprecedented power has never been granted even to law enforcement,
much less to a single industry.

The proposed law amounts to government-sanctioned vigilantism --
copyright owners are given the power to ignore the law in pursuit of
those that they decide are guilty. There is no warrant requirement,
no trial, no prior notice to the targets, no due process, and very
little recourse for innocent bystanders caught in the cross-fire.

While the bill attempts to put some limits on this vigilante right,
the limitations are a poor substitute for the thousands of laws that
it sweeps aside. The Berman P2P Bill is not a sensible solution to
the digital copyright dilemma. If passed, it will result in anarchy
on the Internet and will harm innocent bystanders.

The Bill's Provisions

Rep. Berman claims that his proposal is narrowly tailored and
intended to give copyright owners relief from "anti-hacking" laws as
they try to stop copyright infringement on P2P networks. The actual
language of the proposal tells a different story.

The Berman P2P Bill grants copyright owners and their agents the
right to break any law, state or federal, civil or criminal, in the
course of "disabling, interfering with, blocking, diverting, or
otherwise impairing" the availability of his or her copyrighted
works on a public peer-to-peer (P2P) file trading network. This
power may be used to stop any unauthorized P2P activity, even if the
activity does not violate copyright laws. This unprecedented power
is limited by only 5 conditions:

*the attacker may not "alter, delete, or otherwise impair the
integrity of any computer file or data" on the targeted computer (in
other words, the bill authorizes only "denial of service" (DoS) and
other attacks against the availability of files, rather than attacks
that damage files and data);

*the attacker must not impair the availability of files on a
targeted computer other than the works that the attacker owns,
except as "reasonably necessary";

*the attacker may not cause "economic loss" (but is free to cause
any other kind of loss) to any person other than the targeted file
trader;

*the attacker may not cause "economic loss of more than $50 per
impairment" to the targeted file trader; and

*the attacker must notify the Attorney General seven days before
deploying the "impairment technology" for the first time, but need
not notify a targeted person before launching an attack.

Innocent Bystanders Caught in the Cross-Fire

So long as the copyright owner and its agents stay within these
vague limits, they are completely immune from liability under any
and all laws.

So, for example, if you use a cable modem, you might end up as
collateral damage in the copyright wars. Most cable modem users are
on a shared connection with their neighbors. So if the RIAA launches
a denial of service (DoS) attack on the teenager next door, it may
also impair your access to the Internet. Even the police would be
powerless to stop the RIAA's attack, unless you can show that you
suffered "economic loss" or that the RIAA attack went beyond what
was "reasonably necessary."

ISPs, network administrators, and Internet users generally will also
suffer under the Berman P2P Bill, as the Internet is flooded with an
ever-changing hailstorm of legally encouraged "attacks." The
vigilante right created by this bill would extend to any copyright
owner. Accordingly, every hacker who happened to be an photographer,
musician, software vendor or author would be entitled to deploy his
or her own homebrew "impairment technology" seven days after posting
a note to the Attorney General.

As with most efforts to substitute vigilantism for the rule of law,
this is a recipe for anarchy.

Conclusion

EFF opposes the Berman Bill, and encourages all Internet users to
contact their Representatives and Senators to express their own
opposition to the measure.

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**Court Grants Access to Net Regulatory Corp Records
Director Successful in Challenge to ICANN's Obstruction

Electronic Frontier Foundation Media Release

For Immediate Release: Saturday, August 3, 2002

Los Angeles - Internet Corporation for Assigned Names and Numbers
(ICANN) Director Karl Auerbach recently prevailed in his lawsuit
against ICANN, gaining access to records management had improperly
withheld for more than 18 months. Rejecting ICANN's claim that it
could impose vague and broad restrictions on Auerbach's access,
Judge Dzintra Janavs ordered ICANN to provide the records within a
week.

"I'm pleased that I will finally be able to do what I was elected to
do - to oversee ICANN's activities," said Auerbach, who the
Electronic Frontier Foundation (EFF) represented.

Auerbach began asking for corporate records in November 2000,
shortly after he was voted as the North American Elected Director of
ICANN. After ICANN management delayed for nine months, it granted
Auerbach conditional access to corporate records if he signed a
"policy" -- which the Board of Directors had not ratified -- that
placed his ability to access and copy the records at ICANN's sole
discretion.

"California law is clear that directors must oversee the operations
of a non-profit corporation," explained Auerbach's lead attorney,
James Tyre. "We are pleased the judge recognized that ICANN was
essentially trying to deny Mr. Auerbach his rightful access under
the law."

The court's tentative ruling stated that ICANN's inspection
procedures "unreasonably restrict directors' access to corporate
records and deprive directors of inspection rights afforded them by
law."

"Auerbach's intent to reform ICANN is not a legitimate basis for
limiting his role as director," said EFF Legal Director Cindy Cohn.
"Today's headlines exposing rampant corporate fraud demonstrate the
need for careful oversight by directors."

For this release:
http://www.eff.org/Cases/Auerbach_v_ICANN/20020729_eff_icann_pr.html

For the court's ruling:
http://www.eff.org/Cases/Auerbach_v_ICANN/20020729_superior_court
_ruling .html

Documents related to the Auerbach v. ICANN case:
http://www.eff.org/Cases/Auerbach_v_ICANN/

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**EFF Releases Comments on the Cyber Security Enhancement Act

On July 15, 2002, the House of Representative passed the Cyber
Security Enhancement Act in a vote of 385 to 3. The bill makes
several important changes to current law. For instance, the bill:

* Reduces the amount of privacy in stored communication. CSEA
would allow an ISP to disclose private information to government
agent, not just law enforcement officials, if the ISP has a 'good
faith' belief that the information concerns a serious crime.

* Authorizes life sentences for individuals who knowingly or
recklessly commit a computer crime that results in death. Authorizes
20-year sentences for individuals who knowingly or recklessly commit
a computer crime that results in serious bodily injury.

* Increases penalties for first-time interceptors of cellular
phone traffic to five years in prison and a larger fine. This
eliminates a 'safe harbor' that radio hobbyists had traditionally
enjoyed.


For a detailed analysis of these and other provisions of the CSEA,
please visit:
http://www.eff.org/Privacy/Surveillance/20020802_eff_csea_analysis.
html

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**Administrivia

EFFector is published by:

The Electronic Frontier Foundation 454 Shotwell Street San Francisco
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http://www.eff.org/

Editor: Ren Bucholz, Activist   ren@eff.org

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