tenney@well.sf.ca.us (Glenn S. Tenney) (09/26/90)
Electronic conferencing seems better at generating discord than consensus. We like to pick out the bits of comments that we disagree with and blaze away at them, while ignoring the bits we agree with. Thus even groups of people who are in essential agreement, find themselves immersed in terrible frabbles in next to no time. So rather than respond directly to the current debate over the goals of the EFF, I'd like to simply state what I would like to see it accomplish. If these remarks prove completely redundant, then I will be well satisfied. Let me start with my own background. For the last dozen years or so I've been involved in the operation of M-Net, a public access conferencing system in Ann Arbor, Michigan. It's a Unix/PicoSpan system vaguely similar to the Well, founded by Mike Myers, currently owned by Dave Parks. We've always been somewhat rabid over the idea of maintaining an "open system". Five of our fifteen dial-ins may be used free of charge with no time limits. There is no verification of new accounts. We don't even require users to identify themselves with real names. New users can make themselves new accounts almost instantly. Paying users get more dial-ins, more disk space, and USENET access, which most users consider relatively minor frills. This approach has its advantages, mainly in attracting the widest possible range of users, and its disadvantages, mainly in keeping the system constantly at the brink of bankruptcy. But the really interesting side of this kind of openness is that it leaves the administrators essentially powerless. We can throw users off the system, but there is nothing at all to prevent them from coming right back in. We can't even identify many of our users. So we try to maintain order by a precarious combination of empty posturing and resigned tolerance. Since nearly all our users are decent folks, this works well enough most of the time. But the liability angle is much tougher. To what extent is the owner and the staff responsible for things posted on the system by users? We consulted a few years back with a specialist in computer law, and the basic, bottom line answer we got is that nobody really knows for sure. You can make all sorts of analogies (a newspaper? a phone system? a kiosk?) which lead to different conclusions, but none have really been tried in court. So currently M-Net operates with the knowledge that any night some anonymous user could call in, post the secret plans to the B-2 Bomber, and come morning we'd all be in deep trouble. Probably. This kind of worry does not encourage many people to run large open systems. The uncertainty about what our responsibilities are is clearly going to get resolved to some extent in the next few years. The problem is, the way things are going, it looks like the result is going to be that running a system like M-Net will impossible because of the liability exposure involved. Though I suppose USENET is relatively safe, since there is no easily identifiable owner to sue. All rights must have limits. There are clearly some bounds to what can be permitted to members of even the freest society. Those limits are defined through contention between those who want to be protected, and those who want to be unbound. The amount of openness that survives in the electronic domain is going to depend on how effectively the citizens of that domain defend their right to have rights. I would hope that the EFF can provide a focus for those who would like to establish the privileges we now enjoy in the absence of law as lasting rights. This is similar to what the ACLU has been doing. When we see the government do something dubious, we challenge them in court. Its worth noting that we don't always have to be right. Personally I have my doubts about the Phrack case. But it *must* be brought to court, just like the ACLU's (somewhat) silly cases about nativity scenes outside city hall. The idea is to establish the bounds of liberty, and to establish them far enough from our daily activities so that the legality of those activities will be unquestionable. If you can get people to argue over whether there should be nativity scenes in front of City Hall, then nobody is going to question whether Jews and Muslims should be allowed in City Hall. If you can start people arguing over whether Phrack can deliberately publish stolen information, then maybe nobody will sue me if B-2 bomber plans get placed on my system without my knowledge. So while it's all very well for us to debate here what our rights and responsibilities should be on the electronic frontier, it is somewhat beside the point. These issues won't be decided here. They'll be decided in the courts. The proven strategy to protect our interests requires the EFF to take a somewhat extreme position, and to energetically prosecute any case that has any merits at all. We won't win them all, but that's not the point. The EFF should certainly take cases where the "hackers" are clearly in the right. They are good for publicity and fund-raising purposes. But it is the more ambiguous cases that will have lasting impact. Those are the ones that are most important to pursue. I know EFF's mission statement emphasizes goals relating to raising public awareness and expanding access to the electronic environment. These are undeniably important goals, but I'm not sure they are compatible with the kind of legal advocacy I've been talking about. If you take controversial cases, then you become a controversial organization, which is a problem if your mission is public relations. I wish the EFF success in pursuing both goals at once, but it is probably clear which mission I consider more important. Jan Wolter, Texas A&M, wolter@cs.tamu.edu