[comp.org.eff.talk] Musing on Constitutionality

petrilli@walt.cc.utexas.edu (Chris Petrilli) (08/27/90)

(Excuse me if I ramble, but I must say this...)

	I think we have all missed the true mission of the EFF, which is
quite simple, to protect the Constitution, and nothing less noble, and
nothing pompous.  We have all been spoiled by UseNet and its realatively
free exchange of ideas, but what would you all say if the governement
decided that this was some clandestine project to undermine national
security?  You may scoff, but such a topic has come up, and such actions
were considered several years back (1987 to be exact).

	The Constitution was designed to protect speech that we (the
people, and the government) find "unsuitable."  Speech that no one
dislikes doesn't need protection.  I find it amusing that the SS sees
"electronic publishing" as inferior to conventional paper printing.  If
such things as "Phrack" had been published on paper, and distributed as
such, the SS wouldn't have dared to attack; fear of the reaction of the
"press" (newspapers/television) would have stoped them, even if they
ignored it's unconsitutionality.  

	It is simply the fact that "electronic publishing" such as
Phrack, and even UseNet, never truly exist on paper, that the SS though
they could supress the free flow of information.  I find the very idea
that Prack was considered "dangerous" a misplacement of monies and
effort on the part of the government.  What was to be gained by the
prosecution of Craig?  Make an example of him so that no one would ever
publish an underground journal again?

	I consider myself a hacker (please, think of the original term),
and I do not consider myself a threat to society, nor a "loose axe" that
may at any moment destroy the entire infrastructure that society is
based on.  I am a person deeply entrenched in computers (maybe too
much), and dedicated to showing what computers can do.  I am not some
destructive individual whos entire goal in life is to destroy as much
information as possible... I am not what the government calls a hacker
(I have my own term for those kind of people, but dignity prevents me
from using it).

	I am good friends however with two of the people who's homes were
searched in Operation SunDevil (specifically: The Mentor, and Erik
Bloodaxe are their "pseudonims"), and I for one can testify that they
are far from a threat to society, in-fact, as one stated in
comp.dcom.telecom a while back, "hackers have closed more holes, and
saved more systems that they have ever damaged."  Most hackers leave the
system in better shape than they found it, often times closing security
holes that the system administrator had no knowledge of (obviously).  

	I will say that there are a few "hackers" who are destructive
(and receive
all the press), but there are alot that have ethics and subscribe to the
"hacker ideals," one of which is that information should be free... he
who controls information controls the power is their view, therefor,
no-one should control information, it's too precious a resource to be
hoarded like little kids with their marbles. 

	Well, that's all I have time to type (I pehave vi!), but I think
that the consitutionality is being ignored by Gene Spafford... I don't
care how much you are affraid of them, you can't afford to make
exceptions to rights.
 
+ Chris Petrilli                                    "Opinons represented here
| University of Texas at Austin                      do not necessarily
| INTERNET: petrilli@ccwf.cc.utexas.edu              represent those of a sane
| SNAILMAIL: 429 Brady Lane, Austin, Texas, 78746    person.  Take them as
+ PHONE:     +1 512 327 0986                         simply that."

tek@ms.uky.edu (Thomas E. Kunselman) (08/27/90)

petrilli@walt.cc.utexas.edu (Chris Petrilli) writes:
>	The Constitution was designed to protect speech that we (the
>people, and the government) find "unsuitable."  Speech that no one
>dislikes doesn't need protection.  I find it amusing that the SS sees
>"electronic publishing" as inferior to conventional paper printing.  If
>such things as "Phrack" had been published on paper, and distributed as
>such, the SS wouldn't have dared to attack; fear of the reaction of the
>"press" (newspapers/television) would have stoped them, even if they
>ignored it's unconsitutionality.  

It seems silly to me to base the worth of information on the type of media
that is used for distrubtion.  However, this may not seems silly to people
who have never touched a computer in their life.  At the very least,
owners of computers who make their systems available to the public should not
have to worry about having their systems confiscated if a third party 
decides to use it for illegal activity.  Is the phone company held
responsible if that same communication also uses it's equipment?  Should
your private communications be public to the government just because
they are sent over telephone lines in an encoded format instead of voice,
without a warrant?  Seems to me that settling this in court now will do
a lot more to promote connectivity than having this unresolved with sysops
turning off their modems.  

I wonder what some of the big computer access companies feel about this
sort of thing.  Like Compuserve or Genie.  Do they monitor every users
mail to make sure nothing illegal is being done on their computers?
I think some of the big database companies are required to have software
which tracks information requests and flags certain requests.  To prevent
someone from committing a crime?  

>	I will say that there are a few "hackers" who are destructive
>(and receive
>all the press), but there are alot that have ethics and subscribe to the
>"hacker ideals," one of which is that information should be free... he
>who controls information controls the power is their view, therefor,
>no-one should control information, it's too precious a resource to be
>hoarded like little kids with their marbles. 

I agree with this, but the way our society operates, people are not rewarded
for sharing information, only for hoarding it.  Patents and copyrights are
supposed to aid in the dissemination of information, but still, this
does not make information 'free'.  You still have to pay to use it.
There are people working on revisions to copyright law to make it more 
practical in this time of widespread electronic data in hopes to promote
electronic publishing and libraries.  

Although I feel as you do, that information should be free to anyone who
cares to read it, I cannot justify stealing the bread out of someone's
mouth.  A man who spends his entire wealth to do research in the hopes
of making a profit from the information later.  How could you rob him of
his investment?

There are also a lot of people out there willing to provide information for
free.  GNU is an excellent example of this.  It won't take a change in
government officials or laws or anything like that to alter society.  The
change will come from individuals who are tired with the way things are and
are willing to sacrifice to live their dreams.  By their examples will we
save our selves.  

I guess what I'm trying to say by that preaching is, don't steal from
others if they are unwilling to give.  Reinvent the wheel, but copyleft
it this time.

Thom
-- 
Thomas Kunselman                              {rutgers,uunet}!ukma!tek          
Planning and Institutional Research       	bitnet: irkunsel@ecuvm1.bitnet
East Carolina University			internet:tek@ms.uky.edu
Greenville, NC 27858		(Educate, Don't Legislate!)

nagle@well.sf.ca.us (John Nagle) (08/28/90)

In article <36823@ut-emx.UUCP> petrilli@walt.cc.utexas.edu (Chris Petrilli) writes:
>	The Constitution was designed to protect speech that we (the
>people, and the government) find "unsuitable."  Speech that no one
>dislikes doesn't need protection.  I find it amusing that the SS sees
>"electronic publishing" as inferior to conventional paper printing.  If
>such things as "Phrack" had been published on paper, and distributed as
>such, the SS wouldn't have dared to attack; fear of the reaction of the
>"press" (newspapers/television) would have stopped them, even if they
>ignored its unconstitutionality.  

       Many people, including John Barlow, have enunciated the position
that "Phrack", as an electronic publication, was considered inferior to
a paper publication from a legal standpoint.  As one of the people 
involved in the trial (as a technical expert for the defense) I have to 
point out that this is not correct.  The indictment refers to "Phrack" 
as a publication, and Craig as its publisher.  The fact that "Phrack"
was distributed electronically was barely mentioned at trial.  The
case turned on the content of "Phrack", not its medium.  Craig could
have done everything he did by U.S. Mail and still been charged, although
probably under the mail fraud sections of the U.S. Code rather than the
wire fraud sections.



					John Nagle

mnemonic@walt.cc.utexas.edu (Mike Godwin) (08/29/90)

In article <20062@well.sf.ca.us> nagle@well.sf.ca.us (John Nagle) writes:

>       Many people, including John Barlow, have enunciated the position
>that "Phrack", as an electronic publication, was considered inferior to
>a paper publication from a legal standpoint.  As one of the people 
>involved in the trial (as a technical expert for the defense) I have to 
>point out that this is not correct.  The indictment refers to "Phrack" 
>as a publication, and Craig as its publisher.  The fact that "Phrack"
>was distributed electronically was barely mentioned at trial.  The
>case turned on the content of "Phrack", not its medium.  Craig could
>have done everything he did by U.S. Mail and still been charged, although
>probably under the mail fraud sections of the U.S. Code rather than the
>wire fraud sections.

John, I have to disagree with you here on the issue, although I don't
disagree with your statement of the facts. It is true that Neidorf could
have been indicted just as easily if Phrack had been produced on a
printing press. And, of course, it is true that Phrack was referred
to as a "publication" in the indictment and at trial (it is difficult
to see how the government could have referred to it any other way
without being overly vague).

The point I believe Barlow was making, and the point I want to make
here, is that Phrack, though admittedly a publication, was considered
"inferior" in terms of its claims of First Amendment protection, and
that this attitude was reflected both in the characterization of Neidorf's
activity as part of a "scheme to defraud" and in the decision to
indict. I think Terry Gross is correct when he states that if The New
York Times had taken part in the same activity, its editor would not
have been indicted.



--Mike



Mike Godwin, UT Law School  |    "We need a new cosmology.
mnemonic@ccwf.cc.utexas.edu |     New Gods. New Sacraments. 
(512) 346-4190              |     Another drink."
                            |          --Patti Smith

spaf@cs.purdue.EDU (Gene Spafford) (08/31/90)

In article <36649@ut-emx.utexas.edu> mnemonic@walt.cc.utexas.edu (Mike Godwin) writes:
>The point I believe Barlow was making, and the point I want to make
>here, is that Phrack, though admittedly a publication, was considered
>"inferior" in terms of its claims of First Amendment protection, and
>that this attitude was reflected both in the characterization of Neidorf's
>activity as part of a "scheme to defraud" and in the decision to
>indict. I think Terry Gross is correct when he states that if The New
>York Times had taken part in the same activity, its editor would not
>have been indicted.

Okay, let's leave the NY Times out of this -- they have a tradition
and enough money for lawyers so as to get away with almost anything.

Let's suppose I ran a hobbyist newsletter.  I ran it off on a Xerox
machine on an irresgular basis, had a cover page with a title and
issue number, and I mailed it out to anybody who asked for a copy
(fellow hobbyists).  My name is right there on the inside as "editor."

Now, are you claiming that if I published your MasterCard number in my
newsletter and encouraged my readers to use that number to buy things,
I wouldn't be liable for fraud charges because I had a publication
that is in some sense "superior" to an electronic newsletter like
Phrack?  Just because it's published on paper?

I just don't believe it!

The fact that Phrack was electronic doesn't mean it was "inferior" or
given higher priority for action.  I bet the Secret Service would have
done the same thing if it was an occasionally-published paper.  The
problem was the alleged nature of the material published in an
"unofficial" form.  If Phrack had not been sent out electronically --
if it had been printed off, copied & mailed, then I bet they would
have indicted for mail fraud rather than wire fraud.  And would as
many people have taken umbrage at the case if that had happened?

The real problem was that the government didn't have the in-house
expertise to make a proper assessment of the loss or sensitivity of
the material.  They relied on outside sources for that information and
didn't get sufficient confirmation.  That's a problem with procedure,
and a problem with the folks at Southern Bell.  It is not a statement
that the electronic publication was "inferior" to a printed version.

Comparing things to the NY Times or Newsweek or even 2600 magazine is
specious.  We have no comparable electronic publications with open
subscriptions, regular publication schedules, salaried employees, and
so on.  
-- 
Gene Spafford
NSF/Purdue/U of Florida  Software Engineering Research Center,
Dept. of Computer Sciences, Purdue University, W. Lafayette IN 47907-2004
Internet:  spaf@cs.purdue.edu	uucp:	...!{decwrl,gatech,ucbvax}!purdue!spaf

fair@Apple.COM (Erik E. Fair) (08/31/90)

In the referenced article, spaf@cs.purdue.edu (Gene Spafford) writes:

	Comparing things to the NY Times or Newsweek or even 2600
	magazine is specious.  We have no comparable electronic
	publications with open subscriptions, regular publication
	schedules, salaried employees, and so on.

Rarely do I disagree with my learned colleague; however, I humbly
submit that the ClariNet information service fits the given description.

ClariNet is published in Waterloo, Canada, and distributed using the
same mechanisms as USENET. It is a going concern, with at least two
employees, distribution to any person who wishes to subscribe, and they
publish quite regularly.

I'm still waiting for some enterprising soul to set themselves up as
the USENET News Agency, with reporters all over the globe - instant
competition for AP, UPI, Reuters, etc...

	a happy ClariNet subscriber,

	Erik E. Fair	apple!fair	fair@apple.com

obrien@aero.aero.org (Michael O'Brien) (09/01/90)

In article <11503@medusa.cs.purdue.edu>, spaf@cs.purdue.EDU (Gene
Spafford) writes:

|> Comparing things to the NY Times or Newsweek or even 2600 magazine is
|> specious.  We have no comparable electronic publications with open
|> subscriptions, regular publication schedules, salaried employees, and
|> so on.

Yes we do.  If Clarinet doesn't qualify I don't know what possibly could.
It's even international.
--
Mike O'Brien
obrien@aerospace.aero.org

a577@mindlink.UUCP (Curt Sampson) (09/02/90)

> spaf@cs.purdue.EDU writes:
> 
> I don't believe that [Clarinet is a "publication"].
> 
> The folks at Clarinet originate nothing new with the material they
> transship (unless things have changed recently).  Nor do they do
> anything to the material of an editorial nature.  All they do is take
> in information from wire services & syndication organisations,
> classify it according to which Clarinet newsgroup and keywords headers
> belong, then ship it out.

I don't think that "publishing" implies presenting anything original.  My
Random House says to publish is "to issue (printed or otherwise reproduced)
textual or graphic material for sale or distribution to the public."
Publishing never implies authorship or originality, and I think that even
classifying items and putting it under different headings qualifies as an
editorial judgement.

If someone simply took the text of a work that is now out of copyright (say, a
Shakespeare play), typeset it, and printed up ten thousand copies, would that
be publishing?  I think it would.  By your definition (not original, no
editing) it wouldn't be.

        -cjs    ( Curt_Sampson@mindlink.UUCP )

spaf@cs.purdue.EDU (Gene Spafford) (09/02/90)

Both Erik Fair and Mike O'Brien suggest that Clarinet may qualify as a
regular electronic publication.

I don't believe that it does.

The folks at Clarinet originate nothing new with the material they
transship (unless things have changed recently).  Nor do they do
anything to the material of an editorial nature.  All they do is take
in information from wire services & syndication organizations,
classify it according to which Clarinet newsgroup and keywords headers
belong, then ship it out.  

That isn't a publication, it's a clipping service.

That isn't intended to detract from Clarinet, btw.  I think it is an
innovative and useful service (if I had the disk space, I might
enroll).   However, I don't see that as an example of a true
electronic publication with paid subscribers, regular issues, etc.
-- 
Gene Spafford
NSF/Purdue/U of Florida  Software Engineering Research Center,
Dept. of Computer Sciences, Purdue University, W. Lafayette IN 47907-2004
Internet:  spaf@cs.purdue.edu	uucp:	...!{decwrl,gatech,ucbvax}!purdue!spaf

peter@sugar.hackercorp.com (Peter da Silva) (09/03/90)

In article <11521@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes:
> Both Erik Fair and Mike O'Brien suggest that Clarinet may qualify as a
> regular electronic publication.

Whether it does or not, OtherRealms, Vaporware, and Athene certainly do.
-- 
Peter da Silva.   `-_-'
<peter@sugar.hackercorp.com>.

weber@world.std.com (Robert P Weber) (09/04/90)

In article <11521@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes: 

>That isn't intended to detract from Clarinet, btw.  I think it is an
>innovative and useful service (if I had the disk space, I might
>enroll).   However, I don't see that as an example of a true
>electronic publication with paid subscribers, regular issues, etc.

A small quibble:  a publication need not have paid subscribers to be
considered a "true electronic publication." The library of congress has
issued several ISSNs (International Standard Serials Numbers) to 
electronic publications that do not have paid subscribers.  Some of
these exist on BITNET and other networks and address a variety of 
subjects in many disciplines.

Bob Weber

 

david@twg.com (David S. Herron) (09/04/90)

Besides OtherRealms (and those other two which were mentioned..)
there are some monthly magazines published over on BITNET.  I no longer
remember all the details since I, thankfully, no longer deal with
BITNET.  The main one was (the last time I looked) run by (I think)
Chris Conklin of CUNY's user services department.  It is/was monthly,
featured articles from BITNET users, listed sightings of new services
on BITNET and even had an editorial column from the editor.

In other words, a magazine.

It's been running for a few years.

One can look on digest-style mailing lists as "Fanzines".  (Fanzine:
magazine consisting largely or entirely of pieces written by the
readers of the Fanzine).

heh.. the Risks digest as a Fanzine.. heh heh  :-)


-- 
<- David Herron, an MMDF & WIN/MHS guy, <david@twg.com>
<- Formerly: David Herron -- NonResident E-Mail Hack <david@ms.uky.edu>
<-
<- Sign me up for one "I survived Jaka's Story" T-shirt!

spaf@cs.purdue.EDU (Gene Spafford) (09/05/90)

Geez, I feel dumb!  I subscribe to bother OtherRealms and the Risks
Digest, and I would have no quibble with calling either a full-fledged
publication. 

The original point I was trying to make is that there is a significant
difference between a regularly-scheduled publication with identifiable
staff and open subscriptions, and someone xeroxing off a letter in
their basement that they mail off to a circle of friends.  Whether or
not such a difference is found in case law or not, I dunno.  Would one
of our lawyer/readers care to comment?

Comparing Phrack to the NY Times is not a convincing or appropriate
analogy, nor is comparing this newsgroup to NPR's All Things
Considered. :-)
-- 
Gene Spafford
NSF/Purdue/U of Florida  Software Engineering Research Center,
Dept. of Computer Sciences, Purdue University, W. Lafayette IN 47907-2004
Internet:  spaf@cs.purdue.edu	uucp:	...!{decwrl,gatech,ucbvax}!purdue!spaf

bzs@world.std.com (Barry Shein) (09/05/90)

The Online Book Initiative catalogues Athene, OtherRealms, The
Crucible, Quanta, The Online Journal of Distance Education and
Communication, Postmodern Culture and GNUS (FSF). Perhaps there are
others, that was a quick glance.

-- 
        -Barry Shein

Software Tool & Die    | {xylogics,uunet}!world!bzs | bzs@world.std.com
Purveyors to the Trade | Voice: 617-739-0202        | Login: 617-739-WRLD

bzs@world.std.com (Barry Shein) (09/05/90)

From: spaf@cs.purdue.EDU (Gene Spafford)
>The original point I was trying to make is that there is a significant
>difference between a regularly-scheduled publication with identifiable
>staff and open subscriptions, and someone xeroxing off a letter in
>their basement that they mail off to a circle of friends.  Whether or
>not such a difference is found in case law or not, I dunno.  Would one
>of our lawyer/readers care to comment?

True. Friends who left the USSR before glasnost tell me that regularly
scheduled publications with identifiable staffs and open subscriptions
were quite common there and really not all that different than ones we
have here in many ways, unoffensive, broad-appeal, pap that was easy
to agree with.

What was heavily licensed and controlled was photocopying, precisely
to stop what you describe, informal (i.e. uncontrollable) newsletters
passed amongst circles of friends.

Food for thought?
-- 
        -Barry Shein

Software Tool & Die    | {xylogics,uunet}!world!bzs | bzs@world.std.com
Purveyors to the Trade | Voice: 617-739-0202        | Login: 617-739-WRLD

mnemonic@walt.cc.utexas.edu (Mike Godwin) (09/05/90)

In article <11503@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes:
>
>Now, are you claiming that if I published your MasterCard number in my
>newsletter and encouraged my readers to use that number to buy things,
>I wouldn't be liable for fraud charges because I had a publication
>that is in some sense "superior" to an electronic newsletter like
>Phrack?  Just because it's published on paper?
>
>I just don't believe it!

Believe it. "Mere advocacy" of unlawful action is protected by the 
First Amendment. See U.S. v. Benjamin Spock, for example.

This is one of the interesting areas in criminal and Constitutional
law; there is a dividing line between speech/action that is 
Constitutionally protected and that which is criminal. In the 
hypothetical case you mention, fraud liability would accrue only
if the editor was actually part of a scheme to defraud (e.g., he
would share in the profits).

>The fact that Phrack was electronic doesn't mean it was "inferior" or
>given higher priority for action.  I bet the Secret Service would have
>done the same thing if it was an occasionally published paper.

There is reason to doubt this; publications similar to PHRACK have
not been prosecuted. The difference between those publications and
PHRACK? The former use printing presses or their equivalent.

>If Phrack had not been sent out electronically --
>if it had been printed off, copied & mailed, then I bet they would
>have indicted for mail fraud rather than wire fraud.  And would as
>many people have taken umbrage at the case if that had happened?

I certainly would have; it would have been an abuse of the mail-fraud
statute.

>Comparing things to the NY Times or Newsweek or even 2600 magazine is
>specious.  We have no comparable electronic publications with open
>subscriptions, regular publication schedules, salaried employees, and
>so on.  

If you cannot see the irony of your making this comment *right after*
you said it was false to note that PHRACK is inferior in its claim to
First Amendment protection .... 

Press freedoms were not meant to belong only to those who can afford
to fight in the courts for them. The same First Amendment applies both
to the TIMES and to your hypothetical newsletter publisher. The same
goes for freedom of speech and freedom of association, both of which
are grounded in the First Amendment, and both of which are threatened
by indiscriminate hacker dragnets and "punishment by seizure."

Gene, many of the comments you have made about the kinds of things
covered by the First Amendment suggest you could use a little 
First Amendment reading. I recommend Melville Nimmer's treatise
NIMMER ON FREEDOM OF SPEECH to start with. Then try reading the 
texts of a few cases like Brandenburg v. Ohio, 395 U.S. 444 (1969)
and its progeny.

If you do read up on some Con. law, perhaps it won't quite startle
you so much to discover that "mere advocacy" of unlawful action is
protected by the First Amendment.



--Mike






Mike Godwin, UT Law School  |    "We need a new cosmology.
mnemonic@ccwf.cc.utexas.edu |     New Gods. New Sacraments. 
(512) 346-4190              |     Another drink."
                            |          --Patti Smith

spaf@cs.purdue.EDU (Gene Spafford) (09/05/90)

In article <BZS.90Sep4203058@world.std.com> bzs@world.std.com (Barry
Shein) tries to draw a comparison with Soviet publication policies
and concludes with:
>Food for thought?

Yes, and in the Soviet Union, incidents of violent crime are
significantly lower than in the US, the rate of deaths from heart
disease are much lower, and the literacy rate is higher than here.

A second course of the same inane "food for thought."

( Explanation for the sarcasm-impaired:
   In general, just because it happens in the Soviet Union doesn't
automatically mean it is undesireable, as implied by Barry's
reference, even if it were a valid comparison in the current context;
cause and (implied) effect are much more complicated than such
statements suggests.)
-- 
Gene Spafford
NSF/Purdue/U of Florida  Software Engineering Research Center,
Dept. of Computer Sciences, Purdue University, W. Lafayette IN 47907-2004
Internet:  spaf@cs.purdue.edu	uucp:	...!{decwrl,gatech,ucbvax}!purdue!spaf

archer@elysium.esd.sgi.com (Archer Sully) (09/06/90)

In <11560@medusa.cs.purdue.edu> spaf@cs.purdue.EDU (Gene Spafford) writes:

*In article <BZS.90Sep4203058@world.std.com> bzs@world.std.com (Barry
*Shein) tries to draw a comparison with Soviet publication policies
*and concludes with:
*>Food for thought?
*
*Yes, and in the Soviet Union, incidents of violent crime are
*significantly lower than in the US, the rate of deaths from heart
*disease are much lower, and the literacy rate is higher than here.
*
*A second course of the same inane "food for thought."
*

"Those who would give up liberty for security deserve neither."
			-- Ben Franklin (paraphrased)

Gene appears to fall into this category.

--
Archer Sully          |  "Would you like some Bill sperm with that?"
archer@esd.sgi.com    |                      -- Bill Stevenson

bzs@world.std.com (Barry Shein) (09/06/90)

Look Gene,

If you have something to contribute, contribute. But your persistent
insipid, shallow grandstanding and attempts to draw attention to
yourself as "Mr. Security" are really quite pathetic and have been a
laughingstock of the Unix community for years (if not just an
embarrassment.)

For years now, back to and including your San Diego "ethics" seminar
at USENIX, where your "brilliant" definition of ethics as "timeless"
didn't last thru the first audience question, (at which point you
embarrassedly backed off entirely) have been laughable and devoid of
even the slightest hint that you have any background or have even read
a single book in fields of ethics, law, communications law, or
anything you profess about other than some technical knowledge of how
networks work. Or perhaps you never understood any pages you looked
at.

It is astounding to me to watch you time and again make statements
like there are no regular publications on networks, then get pelted
with counter-examples and just say "oops, sorry..."

This latest attack (on me) is typical of your total disinterest in
engaging in forum or investigation of that which you are quick to jump
to a podium to extemporate on.

You answer facts with sarcasm, typical of the methods of a frustrated,
mediocre, grandstander.

In short, sir, I call you a charlatan, a quack, and a fool. Now go
away. I hope I have now warned others.



From: spaf@cs.purdue.EDU (Gene Spafford)
>In article <BZS.90Sep4203058@world.std.com> bzs@world.std.com (Barry
>Shein) tries to draw a comparison with Soviet publication policies
>and concludes with:
>>Food for thought?
>
>Yes, and in the Soviet Union, incidents of violent crime are
>significantly lower than in the US, the rate of deaths from heart
>disease are much lower, and the literacy rate is higher than here.
>
>A second course of the same inane "food for thought."
-- 
        -Barry Shein

Software Tool & Die    | {xylogics,uunet}!world!bzs | bzs@world.std.com
Purveyors to the Trade | Voice: 617-739-0202        | Login: 617-739-WRLD

jim@baroque.Stanford.EDU (James Helman) (09/06/90)

Given the previous message, which should get the higher priority:
better security or better ethics?  Either could have prevented it.

Maybe spaf is right that "helping to establish a sense of
responsibility in users of networks and computers" is as important as
protecting our rights.  Irresponsibility can cause a loss of support
or in severe cases even a backlash.  It could be quite a mess, a
muckraker's holiday.  The global NET: home of forgers, slanderers,
pornographers, crackers ...  ... send in the cops...

Better to be sane now than sorry later.

Jim Helman
Department of Applied Physics			Durand 012
Stanford University				FAX: (415) 725-3377
(jim@KAOS.stanford.edu) 			Voice: (415) 723-9127

mnemonic@walt.cc.utexas.edu (Mike Godwin) (09/06/90)

In article <11548@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes:
>
>The original point I was trying to make is that there is a significant
>difference between a regularly-scheduled publication with identifiable
>staff and open subscriptions, and someone xeroxing off a letter in
>their basement that they mail off to a circle of friends.

Not as far as the First Amendment is concerned. There is no hierarchy
of protected publications with the NEW YORK TIMES at the top.

Gene, are you just trying to make up Constitutional law as you go along?

>  Whether or
>not such a difference is found in case law or not, I dunno.  Would one
>of our lawyer/readers care to comment?

Why not provide some citation of the source of your conviction that the
First Amendment wasn't intended to protect little publications as much
as it protects big ones? Perhaps it has not occurred to you that at the
time of the drafting of the Bill of Rights, almost ALL publications were
produced on small presses, with limited readership.

>Comparing Phrack to the NY Times is not a convincing or appropriate
>analogy, nor is comparing this newsgroup to NPR's All Things
>Considered. :-)

Indeed. On a professional news program, you wouldn't be able to get
away as much with making outrageous statements about the Constitution.



--Mike




Mike Godwin, UT Law School  |    "We need a new cosmology.
mnemonic@ccwf.cc.utexas.edu |     New Gods. New Sacraments. 
(512) 346-4190              |     Another drink."
                            |          --Patti Smith

rabbit@hyprion.ddmi.com (Dr. Roger Rabbit) (09/06/90)

In article <BZS.90Sep5153313@world.std.com> bzs@world.std.com (Barry Shein) writes:
}
}Look Gene,
}
}If you have something to contribute, contribute. But your persistent
}insipid, shallow grandstanding and attempts to draw attention to
}yourself as "Mr. Security" are really quite pathetic and have been a
}laughingstock of the Unix community for years (if not just an
}embarrassment.)
}

Now now, lets not get insulting. I agree that Mr. Spafford seems to
be willing to ignore people's rights in favor of security. The only
thing that I have to add is the quote from Ben Franklin: 
   
    "Those that would trade liberty for security deserve neither"

I for one would rather deal with the so-called "criminals" (and there
aren't as many of them out there as the SS would lead us to beleive)
than with an oppressive gov't under which I would have no civil rights.

If these points have been covered already, please forgive me. I just  
started receiving this group today.
-- 
>>> BAN: Nuclear Power, US Intervention in South America, Toxic Waste
>>> (Including dip) Trash Incinerators, Nuclear Weapons, Poverty, 
>>> Racism, Sexism, Specieism, etc... Write to: Toons for a Better World,
>>> 2001 Yatza St., Toontown, CA 90128 E-MAIL: rabbit@hyprion.thundercat.com

dbc@bushido.uucp (Dave Caswell) (09/06/90)

In article <BZS.90Sep5153313@world.std.com> bzs@world.std.com (Barry Shein) writes:
*You answer facts with sarcasm, typical of the methods of a frustrated,
*mediocre, grandstander.
*
*In short, sir, I call you a charlatan, a quack, and a fool. Now go
*away. I hope I have now warned others.
*
I don't think you can make someone go away, even if everyone wishes they
would.  Don't worry, everyone ignores the quack, I mean Spaf.
-- 
David Caswell                             dbc%bushido.uucp@umich.edu

jik@athena.mit.edu (Jonathan I. Kamens) (09/06/90)

In article <50@hyprion.ddmi.com>, rabbit@hyprion.ddmi.com (Dr. Roger Rabbit) writes:
|> The only
|> thing that I have to add is the quote from Ben Franklin: 
|>    
|>     "Those that would trade liberty for security deserve neither"

  If you're going to "quote", then quote, and if you're going to "paraphrase",
then paraphrase, but don't paraphrase and say you're quoting.

  Benjamin Franklin said, "They that can give up essential liberty to obtain a
little temporary safety deserve neither liberty nor safety."

-- 
Jonathan Kamens			              USnail:
MIT Project Athena				11 Ashford Terrace
jik@Athena.MIT.EDU				Allston, MA  02134
Office: 617-253-8495			      Home: 617-782-0710

mbrown@tonic.osf.org (Mark Brown) (09/06/90)

In article <11548@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes:
>The original point I was trying to make is that there is a significant
>difference between a regularly-scheduled publication with identifiable
>staff and open subscriptions, and someone xeroxing off a letter in
>their basement that they mail off to a circle of friends.  Whether or

WHAT!?!?!?!
Even if I run off a 'braodsheet', and pass it out for free in the street, I'm
*still* protected by the First!

Please, Gene, tell me you dodn't *really* believe this!
[cf: Thomas Paine]
Mark Brown   IBM AWD / OSF  |"How do I explain to clients that society believes
The Good     mbrown@osf.org |buying a (rock of crack) is three or four times
The Bad     uunet!osf!mbrown|as bad as raping a woman?" --Robert Jakovitch,
The Ugly     (617) 621-8981 |Broward [FL] Asst. Public Defender [AP 12/7/90]

mnemonic@walt.cc.utexas.edu (Mike Godwin) (09/06/90)

In article <11560@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes:
>( Explanation for the sarcasm-impaired:
>   In general, just because it happens in the Soviet Union doesn't
>automatically mean it is undesireable, as implied by Barry's
>reference, even if it were a valid comparison in the current context;
>cause and (implied) effect are much more complicated than such
>statements suggests.)

So, Gene, you're saying it might be a GOOD thing to suppress the
American equivalent of samizdat publications?

When you so consistently display your lack of knowledge of, and contempt
for, First Amendment values, why do you profess to be so startled
at the vigor with which people reject your authoritarian formulations?


--Mike







Mike Godwin, UT Law School  |    "We need a new cosmology.
mnemonic@ccwf.cc.utexas.edu |     New Gods. New Sacraments. 
(512) 346-4190              |     Another drink."
                            |          --Patti Smith

spaf@cs.purdue.EDU (Gene Spafford) (09/07/90)

In article <12945@paperboy.OSF.ORG> mbrown@tonic.osf.org (Mark Brown) writes:
>In article <11548@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes:
>>The original point I was trying to make is that there is a significant
>>difference between a regularly-scheduled publication with identifiable
>>staff and open subscriptions, and someone xeroxing off a letter in
>>their basement that they mail off to a circle of friends.  Whether or
>
>WHAT!?!?!?!
>Even if I run off a 'braodsheet', and pass it out for free in the street, I'm
>*still* protected by the First!
>
>Please, Gene, tell me you didn't *really* believe this!

What does it mean to be "protected by the First"?

If the sheet you have run off in your basement slanders several
private citizens, and if it contains people's MasterCard numbers with
instructions on how to use those numbers to commit fraud, you are
definitely not "protected."  Neither is the publisher or editor of a
regular newspaper who publishes the same thing.

The first amendment prohibits Congress from passing any law that
abridges the freedom of the press.  That means, at least, there can be
no prior restraint.  It also does NOT mean that the "press" has any
immunity from the law.  It furthermore does not define "the press."

I still contend that there is a significant difference between an
established newspaper and something run off in one's basement.
I have asked if there are any lawyers out there who *know* if that
difference has ever been the subject of a court case or law, or if
there is a formal legal definition of what "the press" is.

Note that I have nowhere stated whether I believe there *should* be a
difference in the law.  I do believe that members of the press should
not be immune for their actions.

This thread of discussion started when I pointed out that comparing
the New York Times to Phrack for purposes of argument is probably
specious.  I asked for someone with proper background to post a
definitive reply so that people have some facts to talk to.
Unfortunately, the only replies are from people who don't have the
information, and/or who choose to insult me for suggesting that the
current situation doesn't match their world-view.

I have a second question for any legal historian types out there.  A
comparison has been made here between the Phrack case and the Pentagon
Papers.  The theme has been that law enforcement didn't try to
confiscate the printing presses of the newspaper.  Yes, but the
question I have is, did they obtain a search warrant and confiscate
any of the newspaper's files?  The confiscations & searches done
recently on computer systems seems to have been done because they have
attached storage, not because they are used as publishing tools.  If
that is the case, the comparison obviously falls to pieces.

I'm not going to pursue this point further unless someone with
appropriate research and facts cares to fill in the background for
the rest of us.
-- 
Gene Spafford
NSF/Purdue/U of Florida  Software Engineering Research Center,
Dept. of Computer Sciences, Purdue University, W. Lafayette IN 47907-2004
Internet:  spaf@cs.purdue.edu	uucp:	...!{decwrl,gatech,ucbvax}!purdue!spaf

spaf@cs.purdue.EDU (Gene Spafford) (09/07/90)

In article <50@hyprion.ddmi.com>, rabbit@hyprion.ddmi.com (Dr. Roger Rabbit) writes:
> Now now, lets not get insulting. I agree that Mr. Spafford seems to
> be willing to ignore people's rights in favor of security. The only
> thing that I have to add is the quote from Ben Franklin: 
>    
>     "Those that would trade liberty for security deserve neither"

How did you derive that conclusion?  I'm *very* interested in
preserving people's rights.  However, there is no such thing as an
unlimited right.  Abuse or perceived danger of "rights" is a sure way
to get the great unwashed masses opposed to the rights and the related
benefits.  Consider that the growing death toll from gunshot wounds
has people willing to abridge (or more narrowly define) the right to
bear arms.  The growing concerns over drug use in the worksplace is
resulting in more and more people willing to give in to warrantless
and/or clearly un-Constitutional searches.  Growing fear over AIDS is
resulting in loss of privacy rights.

If something is not done to help curb the growing and blatant abuse of
computers by a small segment of the population, the majority are going
to be very willing to ignore the rights and wishes of those who use
computers and know them best.  If we, as a community, don't help stop
the breakins and vandalism, we'll get tarred with the same brush, so
to speak.  Witness what has already happened to the word "hackers."


> I for one would rather deal with the so-called "criminals" (and there
> aren't as many of them out there as the SS would lead us to beleive)
> than with an oppressive gov't under which I would have no civil rights.

1) You are in little danger of having no civil rights.
2) You should be able to have civil rights and also not have to deal
with criminals.  The two are not mutually exclusive.
3) There are probably more criminals than you think -- I'd be
interested on knowing what data you are using to draw your conclusion?
   a)  Ten criminals doing 10 million dollars of damage is not
       much (if any) worse than 1 million criminals doing a $100 damage each.
   b)  What numbers have the Secret Service "led us to believe"?
-- 
Gene Spafford
NSF/Purdue/U of Florida  Software Engineering Research Center,
Dept. of Computer Sciences, Purdue University, W. Lafayette IN 47907-2004
Internet:  spaf@cs.purdue.edu	uucp:	...!{decwrl,gatech,ucbvax}!purdue!spaf

gl8f@astsun7.astro.Virginia.EDU (Greg Lindahl) (09/07/90)

In article <11608@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes:

> The confiscations & searches done
>recently on computer systems seems to have been done because they have
>attached storage, not because they are used as publishing tools.

So *that*'s why the Feds took Steve Jackson's LaserWriter.

I was wondering.

--
"Perhaps I'm commenting a bit cynically, but I think I'm qualified to."
                                              - Dan Bernstein

spaf@cs.purdue.EDU (Gene Spafford) (09/07/90)

[Follow-ups have been directed to alt.flame   If you aren't interested
in reading my replies to Barry Shein's insults, you can skip this now.]

In article <BZS.90Sep5153313@world.std.com>, bzs@world.std.com (Barry
Shein) responds to my criticism of his posting with a personal attack:

> If you have something to contribute, contribute. But your persistent
> insipid, shallow grandstanding and attempts to draw attention to
> yourself as "Mr. Security" are really quite pathetic and have been a
> laughingstock of the Unix community for years (if not just an
> embarrassment.)

Hmmm, I guess this means you won't be joining the fan club?
Let me also note somewhere that you are the official spokesman for the
Unix community...I must have missed the proclamation.

Also, I have never portrayed myself as "Mr. Security" or even signed
any of my letters that way.  My area of expertise is consequences of
software failure, and alternatives.  That includes testing, debugging,
fault-tolerant systems, and to some extent security.  I also know a
fair amount about Unix security, and about computer vandalware.

If the fact that I have published refereed articles, gotten
competitive grants, been invited to conferences to speak, written
books, been named to national boards, been invited to testify before
Congress, and consulted with law enforcement agencies internationally
has resulted in someone mistaking me for an expert, my apologies.

Also, if speaking my mind makes me a laughingstock, I'll gladly take
that role.

> For years now, back to and including your San Diego "ethics" seminar
> at USENIX, where your "brilliant" definition of ethics as "timeless"
> didn't last thru the first audience question, (at which point you
> embarrassedly backed off entirely) have been laughable and devoid of
> even the slightest hint that you have any background or have even read
> a single book in fields of ethics, law, communications law, or
> anything you profess about other than some technical knowledge of how
> networks work. Or perhaps you never understood any pages you looked
> at.

(It was a panel, not a seminar, BTW.)  My San Diego appearance was
very bad -- no argument there.  It might have beend that I had a case
of bronchial pneumonia and was running a temperature of over 102 at
the time of the panel that had something to do with my
less-than-stellar performance.  Or, it may have been that I don't
function well in live debates with a hostile audience.  I prefer to be
able to stop and think some, and check references, before responding.
It's also difficult to try to phrase an explanation of a complex topic
(like the nature of ethics, or the difference between ethics and law)
to a crowd where many (most) members have no background in the area.
Try it some time -- it's harder than it looks...at least if you are
really interested in educating the audience.

Your other assertions don't even warrant a response here.  Anybody who
wants a copy of my vita or a reading list of material I believe
relevant to the area is free to contact me.  However, I am interested
in how many other of my presentations you have attended to be able to
form such a comprehensive assessment?

> It is astounding to me to watch you time and again make statements
> like there are no regular publications on networks, then get pelted
> with counter-examples and just say "oops, sorry..."

My statement was that there were no regular publications comparable to
the New York Times.  Hell, I *make* one series of regular publications
on the network.

I still don't think there is anything comparable, but I conceded that
there are some electronic publications that meet many of the obvious
qualifications, although I had not thought of them when making my
original point.

Please try to read what I write.  You might be less astounded.

> This latest attack (on me) is typical of your total disinterest in
> engaging in forum or investigation of that which you are quick to jump
> to a podium to extemporate on.

I made no attack on you.  Up until I read your response, I have had
considerable respect for you.  I called your statement inane.  That
was not an insult directed at you.   Your argument in that previous
posting is still inane (lacking meaning; silly).  You picked two
vaguely related factoids and implied that we could draw some
meaningful conclusion from them out of context.  

As for my disinterest in engaging in forum, well, I guess you haven't
been reading my postings, have you?

> You answer facts with sarcasm, typical of the methods of a frustrated,
> mediocre, grandstander.

I'm glad you identified the sarcasm.  That form of answer is a classic
method of reply to the deserving.  There is little frustration here.
As to the other two points, I don't think either of us is in a
position to judge.

> In short, sir, I call you a charlatan, a quack, and a fool. Now go
> away. I hope I have now warned others.

1) A charlatan is an imposter.  To my knowledge, all my postings have
been under my real name.  If I'm not really Gene Spafford, you better
notify the folks at Purdue (among others) -- they'll be quite upset.
They like to know who is *really* on their faculty and teaching classes.

2) A "quack"?  I have never practiced medicine.  I have worked as an EMT
and I teach for the Red Cross, but I am very careful not to give
medical advice.  Heck, I even discourage my students from addressing
me as "Dr." although I worked damned hard to earn my degree.

3) A fool.  My wife thinks so. :-) You think so.  Others probably do
too.  Responding to your diatribe probably plants me firmly in that
camp with others.  So be it.  Luckily, my colleagues and students
don't view me in quite the same light (or with as little evidence or
consideration).

4) I may go away from this newsgroup, as it appearsmost people aren't
interested in arguing the points I bring up, and others seem more
interested in being personally insulting when they are challenged.
However, I won't "go away" from the issues or the community.

5)  You have indeed warned others.  I leave it to them to judge what
you have warned them of, and of whom.
-- 
Gene Spafford
NSF/Purdue/U of Florida  Software Engineering Research Center,
Dept. of Computer Sciences, Purdue University, W. Lafayette IN 47907-2004
Internet:  spaf@cs.purdue.edu	uucp:	...!{decwrl,gatech,ucbvax}!purdue!spaf

mnemonic@walt.cc.utexas.edu (Mike Godwin) (09/07/90)

In article <11608@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes:
>
>What does it mean to be "protected by the First"?

Mark means that the same Constitutional provisions apply to newsletter
publishers that apply to THE NEW YORK TIMES.

>If the sheet you have run off in your basement slanders several
>private citizens, and if it contains people's MasterCard numbers with
>instructions on how to use those numbers to commit fraud, you are
>definitely not "protected."  Neither is the publisher or editor of a
>regular newspaper who publishes the same thing.

Gene, please read the cases. As I noted before, you can publish anything
you want, in any form you want, so long as the publication is not itself
part of a scheme to defraud. In the case you describe above, it is
probable that such activity *would* be part of such a scheme.

It is, of course, particularly vicious of you to try and analogize
this to the Neidorf case.

>The first amendment prohibits Congress from passing any law that
>abridges the freedom of the press.  That means, at least, there can be
>no prior restraint.  It also does NOT mean that the "press" has any
>immunity from the law.  It furthermore does not define "the press."

Gene, I love it when you talk law. No one is arguing that the press is
totally free from the law (e.g., obscenity or libel law). But the press
IS totally free to publish *anything* that is not obscenity or libel
(or, rarely, something the mere publication of which threatens 
national security, but there are few cases on this point, and fewer
still in which the government has won).

I own more than one book that actually includes instructions on how
to break the law. Those books are protected, and my ownership of them
also is protected.

>I still contend that there is a significant difference between an
>established newspaper and something run off in one's basement.
>I have asked if there are any lawyers out there who *know* if that
>difference has ever been the subject of a court case or law, or if
>there is a formal legal definition of what "the press" is.

Gene, I have a law degree. I can promise you that there is no
difference. I keep citing you sources about the scope of press law
(try Tribe's AMERICAN CONSTITIONAL LAW 2d, pp.785-1061, for a
good overview of First Amendment jurisprudence, or try NIMMER ON
FREEDOM OF SPEECH by Melville Nimmer), but you *never read any of them.*

In any case, the Phrack cases also implicate First Amendment speech and
associational freedoms.

If you'd like to see how First Amendment jurisprudence applies specifically
to the Phrack case, try reading the amicus curiae brief submitted
by Terry Gross of Rabinowitz, Boudin on behalf of the Electronic 
Frontier Foundation.

>Note that I have nowhere stated whether I believe there *should* be a
>difference in the law.

Actually, you seem to have implied this belief pretty strongly. Why
not take a stand now, Gene? Shouldn't small publications have the
same protections as THE NEW YORK TIMES?

>  I do believe that members of the press should
>not be immune for their actions.

This is a non sequitur. If their actions are Constitutionally protected,
the members of the press are, perforce, immune to prosecution for them.

>This thread of discussion started when I pointed out that comparing
>the New York Times to Phrack for purposes of argument is probably
>specious.

Inventing some Constitutional law in the process. But, Gene, you
haven't been reading your Supreme Court cases:

"The liberty of the press is not confined to newspapers and periodicals.
It necessarily embraces pamphlets and leaflets....The press in its
historical connotation comprehends every sort of publication which
affords a vehicle of information and opinion."
                   --Lowell v. City of Griffin, 303 U.S. 444, 452 (1938)

Moreover, freedom of the press includes "the right of the lonely
pamphleteer who uses carbon paper or a mimeograph as much as of the
large metropolitan publisher who utilizes the latest photocomposition
methods."  Branzburg v. Hayes, 408 U.S. 665, 704 (1972).

You may also be interested, Gene, in Tucker v. Texas, 326 U.S. 517 (1946),
in which a statute punishing door-to-door distribution of literature was
held invalid as an abridgement of freedom of the press.

>  I asked for someone with proper background to post a
>definitive reply so that people have some facts to talk to.

What do you consider "the proper background," Gene? Agreeing with
you? Obviously you consider my knowledge of Constitutional law and
criminal law inadequate, although it is unclear what criterion you're
applying to me. Perhaps if I get hired as a prosecutor you'll pay
more attention?

>Unfortunately, the only replies are from people who don't have the
>information, and/or who choose to insult me for suggesting that the
>current situation doesn't match their world-view.

I keep providing the information, but you keep ignoring it.

>I have a second question for any legal historian types out there.  A
>comparison has been made here between the Phrack case and the Pentagon
>Papers. The theme has been that law enforcement didn't try to
>confiscate the printing presses of the newspaper.

That is certainly *one* of the themes.

>  Yes, but the
>question I have is, did they obtain a search warrant and confiscate
>any of the newspaper's files? The confiscations & searches done
>recently on computer systems seems to have been done because they have
>attached storage, not because they are used as publishing tools.  If
>that is the case, the comparison obviously falls to pieces.

Gene, are you under the impression that the REASON for the search
justifies shutting down a printing press or its electronic 
equivalent? Are you under the impression that a seizure that has
the *incidental* effect of shutting down a publication has no 
First Amendment implications?

You can be sure, Gene, that if there was a search warrant in the 
in the Pentagon Papers case, it would have been allowable if
it *didn't* shut the paper down. See Zurcher v. Stanford Daily,
436 U.S. 547 (1978).

But if a search warrant *did* have the effect of shutting down
a publication, you may be sure that First Amendment interests
are implicated, regardless of the size of the press involved.
It takes only minimal reading of First Amendment law to determine
this.

In any case, the issue in New York Times Co. v. United States,
403 U.S. 713 (1971), was not the validity of a search warrant,
but the government's desire to employ prior restraint.

>I'm not going to pursue this point further unless someone with
>appropriate research and facts cares to fill in the background for
>the rest of us.

I realize that I'm not a Spafford-approved source of information.
But, then, I'm not an apologist for government excesses, either,
which probably explains it.



--Mike

Mike Godwin, UT Law School  |    "We need a new cosmology.
mnemonic@ccwf.cc.utexas.edu |     New Gods. New Sacraments. 
(512) 346-4190              |     Another drink."
                            |          --Patti Smith

peter@ficc.ferranti.com (Peter da Silva) (09/07/90)

In article <11608@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes:
> If the sheet you have run off in your basement slanders several
> private citizens, and if it contains people's MasterCard numbers with
> instructions on how to use those numbers to commit fraud, you are
> definitely not "protected."  Neither is the publisher or editor of a
> regular newspaper who publishes the same thing.

Did Phrack publish master-card numbers and instructions on how to use those
numbers to commit fraud? I'm pretty sure that stuff like that has shown
up in the "Getting Even" series, or "Dirty Tricks". Or how about the
"Anarchist's Cookbook"? Or some of the stuff in the back of "Soldier of
Fortune"?

OK, so "Phrack" was more like "Soldier of Fortune" than the "Times". It
should still be protected speech under the 1st amendment.
-- 
Peter da Silva.   `-_-'
+1 713 274 5180.   'U`
peter@ferranti.com

jef@well.sf.ca.us (Jef Poskanzer) (09/07/90)

In the referenced message, spaf@cs.purdue.edu (Gene Spafford) wrote:
}This thread of discussion started when I pointed out that comparing
}the New York Times to Phrack for purposes of argument is probably
}specious.

Well, it turns out that the government disagrees, since the indictment
against Craig Neidorf referred to him as a publisher and to Phrack as a
publication.  (Relevant quotes:  "At all time relevant herein, CRAIG
NEIDORF, defendant herein, was a publisher and editor of a computer
hacker newsletter known as 'PHRACK'.", "...and then publishing the
information from the computerized files in a hacker publication...")

It was not a first amendment issue at all.  Gene's line of argument is
what is specious.
---
Jef

  Jef Poskanzer  jef@well.sf.ca.us  {ucbvax, apple, hplabs}!well!jef
"Nor is the people's judgement always true; the most may err as grossly
                      as the few." -- John Dryden

rabbit@hyprion.ddmi.com (Dr. Roger Rabbit) (09/07/90)

In article <1990Sep6.032222.22818@athena.mit.edu>, jik@athena.mit.edu (Jonathan I. Kamens) writes:
> 
>   If you're going to "quote", then quote, and if you're going to "paraphrase",
> then paraphrase, but don't paraphrase and say you're quoting.
> 
I'm sorry. What I gave was a paraphrase. You had the correct quote.


-- 
>>> BAN: Nuclear Power, US Intervention in South America, Toxic Waste
>>> (Including dip) Trash Incinerators, Nuclear Weapons, Poverty, 
>>> Racism, Sexism, Specieism, etc... Write to: Toons for a Better World,
>>> 2001 Yatza St., Toontown, CA 90128 E-MAIL: rabbit@hyprion.thundercat.com

rabbit@hyprion.ddmi.com (Dr. Roger Rabbit) (09/07/90)

In article <11608@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes:
}In article <12945@paperboy.OSF.ORG> mbrown@tonic.osf.org (Mark Brown) writes:
}>In article <11548@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes:
}>>The original point I was trying to make is that there is a significant
}>>difference between a regularly-scheduled publication with identifiable
}>>staff and open subscriptions, and someone xeroxing off a letter in
}>>their basement that they mail off to a circle of friends.  Whether or
}>
}>WHAT!?!?!?!
}>Even if I run off a 'braodsheet', and pass it out for free in the street, I'm
}>*still* protected by the First!
}>
}>Please, Gene, tell me you didn't *really* believe this!
}
}What does it mean to be "protected by the First"?
}

It means (to me at least) that you have the right to speak and to publish
whatever you wish. If it slanders someone, they can sue you for defamation
of character, etc but not for publishing itself. The same goes for illegal
activities. If you publish a list of credit card numbers, etc, you should
be prosecuted for engaging in credit fraud, not for publishing. The publishing
should NEVER be a crime, only the act of commiting a crime. There are many
ways in which these kinds of crimes can take place (ie: giving out the
credit card number by phone, by e-mail, by US mail, etc). You must
separate the act of publishing from the crime - they are not the same
thing.

}If the sheet you have run off in your basement slanders several
}private citizens, and if it contains people's MasterCard numbers with
}instructions on how to use those numbers to commit fraud, you are
}definitely not "protected."  Neither is the publisher or editor of a
}regular newspaper who publishes the same thing.
}
Not protected from prosecution for fraud but protected from prosecution
because you publish.

}The first amendment prohibits Congress from passing any law that
}abridges the freedom of the press.  That means, at least, there can be
}no prior restraint.  It also does NOT mean that the "press" has any

It also means that they cannot "punish" people afterwards for publishing.
If the law doesn't really say it, it ought to.

}immunity from the law.  It furthermore does not define "the press."
}
}I still contend that there is a significant difference between an
}established newspaper and something run off in one's basement.

There are differences as far as quality, but not 1st Amendment 
protection, buddy. 

}I have asked if there are any lawyers out there who *know* if that
}difference has ever been the subject of a court case or law, or if
}there is a formal legal definition of what "the press" is.
}

If you are trying to exclude some published material because it is
"run off in a basement somewhere", then you are a dangerous man, Mr.
Spafford. These "pamphlets" were the voices which called the opressed
masses in Poland and other Eastern European countries. I have no patience 
for people who try to interpret the constitution in a way that limits
rights. 

}Note that I have nowhere stated whether I believe there *should* be a
}difference in the law. 

Whew - I hope not.

}I do believe that members of the press should
}not be immune for their actions.
}

Yes, but again - if they commit fraud or slander, prosecute the fraud or
slander, not the publishing.

}I have a second question for any legal historian types out there.  A
}comparison has been made here between the Phrack case and the Pentagon
}Papers.  The theme has been that law enforcement didn't try to
}confiscate the printing presses of the newspaper.  Yes, but the
}question I have is, did they obtain a search warrant and confiscate
}any of the newspaper's files?  The confiscations & searches done
}recently on computer systems seems to have been done because they have
}attached storage, not because they are used as publishing tools.  If
}that is the case, the comparison obviously falls to pieces.
}

You know - I wonder why the SS just doesn't get a computer expert to 
come with them to the site of the raid and duplicate the hard drive
contents? Why do they need to take someone's machine?? ... And, I DON'T
want to hear anything that implies that "Oh well, if we're raiding them,
they must be guilty of something...."



-- 
>>> BAN: Nuclear Power, US Intervention in South America, Toxic Waste
>>> (Including dip) Trash Incinerators, Nuclear Weapons, Poverty, 
>>> Racism, Sexism, Specieism, etc... Write to: Toons for a Better World,
>>> 2001 Yatza St., Toontown, CA 90128 E-MAIL: rabbit@hyprion.thundercat.com

brent@media-lab.MEDIA.MIT.EDU (Brent C.J. Britton) (09/07/90)

In article <55@hyprion.ddmi.com>, rabbit@hyprion.ddmi.com (Dr. Roger
Rabbit) writes:
> You know - I wonder why the SS just doesn't get a computer expert to 
> come with them to the site of the raid and duplicate the hard drive
> contents? 

Good point.  Police do have drug experts and bomb squads, why not someone
who knows how to perform an "information raid" intelligently?  For that
matter, how about bringing someone along who understands the 4th amendment?

Why is the SS (and not the FBI, e.g.) conducting these raids anyhow? 
Something to do with the nature of the charges, I suppose; anyone know?

brent
--
Brent C.J. Britton <brent@media-lab.media.mit.edu> "I never expect to
see a perfect work from imperfect man." -- Publius (Alexander Hamilton)

jsaxon@cs.tamu.edu (James B Saxon) (09/07/90)

There's an organization that STOPS PAPER JUNKMAIL!!!!

Here's where to write:


Mail Preference Service and/or Telephone Preference Service
Direct Marketing Association
6 East 43rd Street
New York, NY  10017


According to the info [a friend has]  on this group, they distribute their
listings quarterly, so it may take a while before the flow of junk
mail slows.



--
 ---- \ / ----	  /--------------------------------------------\  James Bennett Saxon
|   O|	 |   O|	  |  "I ought to join the club and beat you    |  Visualization Laboratory
|    |   |    |   |   over the head with it." -- Groucho Marx  |  Texas A&M University
 ----     ----   <---------------------------------------------/  jsaxon@cssun.tamu.edu

spaf@cs.purdue.EDU (Gene Spafford) (09/08/90)

> Why is the SS (and not the FBI, e.g.) conducting these raids anyhow? 
> Something to do with the nature of the charges, I suppose; anyone know?

Yes.  The laws most often applied to computer abuse/crime are from
Title 18, US Code, Sections 1030 (Computer Fraud and Abuse Act), 1029
(Credit Card Fraud Act), and 1343 (Wire fraud).

Admittedlly, saying "often" means "based on a history of about a dozen
cases."

The Secret Service is specifically charged with investigations of 1029
and 1030, while the FBI normally has jurisdiction over 1343.

More details on request.
-- 
Gene Spafford
NSF/Purdue/U of Florida  Software Engineering Research Center,
Dept. of Computer Sciences, Purdue University, W. Lafayette IN 47907-2004
Internet:  spaf@cs.purdue.edu	uucp:	...!{decwrl,gatech,ucbvax}!purdue!spaf

len@giza.cis.ohio-state.edu (Len Rose) (09/08/90)

In a previous article rabbit@hyprion.UUCP (Dr. Roger Rabbit) writes:

>You know - I wonder why the SS just doesn't get a computer expert to 
>come with them to the site of the raid and duplicate the hard drive
>contents? Why do they need to take someone's machine?? ... And, I DON'T
>want to hear anything that implies that "Oh well, if we're raiding them,
>they must be guilty of something...."


 In most cases they did bring so called experts with them. Unfortunately,
 from personal experience it seemed as if the "expert" wasn't. Having to 
 explain how to decrypt files, perform a file scan, start an lp daemon,
 and shut down an active system made me wonder.  These "experts" were from
 Bell South, Bellcore, and AT&T. 

 In regards to Phrack Magazine publishing anything illegal, I don't
 believe they ever did.  Most of the articles were culled either from
 legitimate sources or were submitted by kids living in the past. I cannot
 claim to be an expert on Phrack however, since I didn't read it often.

 Perhaps what I say doesn't mean much anymore, but I do have something
 to contribute.. even if it's from a prison cell.

 Len 

limonce@pilot.njin.net (Tom Limoncelli) (09/08/90)

In article <3319@media-lab.MEDIA.MIT.EDU> brent@media-lab.MEDIA.MIT.EDU (Brent C.J. Britton) writes:

> Why is the SS (and not the FBI, e.g.) conducting these raids anyhow? 
> Something to do with the nature of the charges, I suppose; anyone know?

These cases deal with credit cards.  The Treasury Department controls
credit cards.  The Treasury Department controls the SS.  Therefore,
the SS investigates these cases.

FBI is under the executive branch.  The SS is under the treasury.
This was done to aide the ballance of power.  (and give Alexander
Hamilton the ability to "accidently" let George Washington get shot...
JUST KIDDING!)

-Tom
-- 
Tom Limoncelli
List addresses in a .sig?  Yeck.  If "reply" doesn't work my other
addresses won't work either.

limonce@pilot.njin.net (Tom Limoncelli) (09/09/90)

In article <Sep.8.01.37.24.1990.10423@pilot.njin.net> limonce@pilot.njin.net (Tom Limoncelli) writes:

> These cases deal with credit cards.  The Treasury Department controls

Small clarification.  Whether or not "these cases deal with credit
cards", "these cases" are often accused of CC fraud.

Almost all the cases around here in the last 8 years have been accused
of CC fraud.  Whether or now it was anywhere near being true is a
different matter.

-Tom
-- 
Tom Limoncelli
List addresses in a .sig?  Yeck.  If "reply" doesn't work my other
addresses won't work either.

a80@mindlink.UUCP (Greg Goss) (09/09/90)

> rabbit@hyprion.ddmi.com writes:
> 
> In article <11608@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene You know - I
> wonder why the SS just doesn't get a computer expert to
> come with them to the site of the raid and duplicate the hard drive
> contents? Why do they need to take someone's machine?? ... And, I DON'T
> want to hear anything that implies that "Oh well, if we're raiding them,
> they must be guilty of something...."
> 

There are too many "tricks" to hide information.

You mentioned Poland.  One of the solidarity tricks was to circulate a floppy
with some report on tractor production or something boring on it.  Then you
take Norton and unerase a file with some innocuous name and read the
newsletter.  Then you erase it again and pass it on.

It is too easy to miss an entire partition of the HD that may not be mounted in
your default boot-up.  There may be an entire drive in the system that doesn't
show up unless you use a device driver of some sort.

Information could be stored in blocks marked "bad" in the appropriate tables.
I had a drive a year ago with 2 meg of bad sectors.   A 1/4 meg of information
could be hidden amongst that pretty easily.

.../greg

jkp@cs.HUT.FI (Jyrki Kuoppala) (09/10/90)

I feel kinda silly citing the U.S. constitution to Spaf a second time
in a short time a bit far from the U.S.  But then, Bush & Gorba were
here just today discussing important matters (so they say) under ten
miles from where I sit now so maybe I live in an important place ;-)

In article <11608@medusa.cs.purdue.edu>, spaf@cs (Gene Spafford) writes:
>The first amendment prohibits Congress from passing any law that
>abridges the freedom of the press.  That means, at least, there can be
>no prior restraint.  It also does NOT mean that the "press" has any
>immunity from the law.  It furthermore does not define "the press."

Begin quote
                                   AMENDMENT I
 
    Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or
petition the Government for a redress of grievances.

End quote

Nothing at all is said about 'the press'.

[ The first citing for Spaf was when Spaf stated on Risks 10.25 that
"The purpose of copyright is to protect the commercial interest of the
copyright holder (author or publisher)."  This is not so.  From the
U.S. Constitution Art 1.8:

"The Congress shall have power ..... To promote the progress of
science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and
discoveries."
]

>I still contend that there is a significant difference between an
>established newspaper and something run off in one's basement.
>I have asked if there are any lawyers out there who *know* if that
>difference has ever been the subject of a court case or law, or if
>there is a formal legal definition of what "the press" is.

When talking about freedom of speech, I don't see any reason why there
should be a difference, neither have I heard of a difference
practised.  So maybe Spaf should point out why a difference would be
needed or point out some references where a difference has been
practised.  In short, Spaf, where did you get the idea of the difference ?

//Jyrki

daven@svc.portal.com (09/10/90)

In article <36649@ut-emx.utexas.edu> mnemonic@walt.cc.utexas.edu (Mike Godwin) writes:
>The point I believe Barlow was making, and the point I want to make
>here, is that Phrack, though admittedly a publication, was considered
>"inferior" in terms of its claims of First Amendment protection, and
>that this attitude was reflected both in the characterization of Neidorf's
>activity as part of a "scheme to defraud" and in the decision to
>indict.

Can someone explain what the legal issue is surrounding the claim that
Phrack is "inferior"?  First off, what does the term mean in this
context? Then how does it relate to the First Amendment protection?

I'm not well versed in legalise, but I do want to understand what is at
issue here.

Thanks!

Dave Newman


-- 
-------------------------------------------------------------------------------
Dave Newman - Sofware Ventures        | daven@svc.portal.com | AppleLink: D0025
Berkeley, CA  (415) 644-3232          | AOL: MicroPhone      | CIS: 76004,2161
-------------------------------------------------------------------------------

mnemonic@walt.cc.utexas.edu (Mike Godwin) (09/10/90)

In article <1990Sep10.001627.4360@svc.portal.com> daven@svc.portal.com writes:
>
>Can someone explain what the legal issue is surrounding the claim that
>Phrack is "inferior"?  First off, what does the term mean in this
>context? Then how does it relate to the First Amendment protection?

There is no *legal* basis for thinking that PHRACK has a claim to
First Amendment protection that is at all inferior to that of 
The New York Times. (This is true in spite of Gene Spafford's
expressions of disbelief.)

As a practical matter, government agents have been far more willing
to take action that shut down the computer equivalents of publications
and printing presses. This is the sense in which the term "inferior"
has been applied (by me, since you're quoting my posting).


--Mike



Mike Godwin, UT Law School  |"If the doors of perception were cleansed
mnemonic@ccwf.cc.utexas.edu | every thing would appear to man as it is,
(512) 346-4190              | infinite."
                            |                 --Blake

edp@jareth.enet.dec.com (Eric Postpischil (Always mount a scratch monkey.)) (09/10/90)

In article <11609@medusa.cs.purdue.edu>, spaf@cs.purdue.EDU (Gene Spafford)
writes:

>1) You are in little danger of having no civil rights.

I disagree.  Did you see my article "The Bill of Rights, a Status Report"?  I
posted it to several newsgroups earlier this week.  Every part of the Bill of
Rights is being threatened by actual incidents, court decisions, and/or pending
legislation.  The powers of government are creeping; they increase insidiously
and are very difficult to take back.

>2) You should be able to have civil rights and also not have to deal
>with criminals.  The two are not mutually exclusive.

I think they are exclusive.  Actually, I think the latter is impossible,
strictly speaking.  That is, we will never be able to completely eliminate
crime.  Our government can provide a skeletal structure for society.  It can
provide goals that encourage productivity and happiness and discourage crime. 
But making it so that people did not have to deal with criminals would require
strict controls, strong power, and great information about people.  There just
is not any way to prevent everybody from committing unethical acts without
controlling everybody.  And that requires an oppressive government.


				-- edp

brent@media-lab.MEDIA.MIT.EDU (Brent C.J. Britton) (09/10/90)

In article <1990Sep9.220203.17233@santra.uucp>, jkp@cs.HUT.FI (Jyrki
Kuoppala) writes:
>                                    AMENDMENT I
>  
>     Congress shall make no law respecting an establishment of religion, or
> prohibiting the free exercise thereof; or abridging the freedom of speech, or
  [missing line]
> petition the Government for a redress of grievances.

I probably will not be the first to point this out, but you left out this
line:

"of the press; or the right of the people peaceably to assemble, and to"

I hate to pick nits, but, uh, kind of a large one here.

>     //Jyrki

Brent C.J. Britton <brent@media-lab.media.mit.edu> "I never expect to
see a perfect work from imperfect man." -- Publius (Alexander Hamilton)

browns@iccgcc.decnet.ab.com (Stan Brown, Oak Road Systems) (09/11/90)

In article <1990Sep9.220203.17233@santra.uucp>, jkp@cs.HUT.FI (Jyrki Kuoppala) writes:
> I feel kinda silly citing the U.S. constitution to Spaf a second time
> in a short time a bit far from the U.S.  But then, Bush & Gorba were
> here just today discussing important matters (so they say) under ten
> miles from where I sit now so maybe I live in an important place ;-)
> 
> In article <11608@medusa.cs.purdue.edu>, spaf@cs (Gene Spafford) writes:
>>The first amendment prohibits Congress from passing any law that
>>abridges the freedom of the press.  That means, at least, there can be
>>no prior restraint.  It also does NOT mean that the "press" has any
>>immunity from the law.  It furthermore does not define "the press."
> 
> Begin quote
>                                    AMENDMENT I
>  
>     Congress shall make no law respecting an establishment of religion, or
> prohibiting the free exercise thereof; or abridging the freedom of speech, or
> petition the Government for a redress of grievances.
> 
> End quote
> 
> Nothing at all is said about 'the press'.

Jyrki, whatever you're quoting from skipped a line or so.  The correct
text is

Congress sshall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof, or abridging the freedom of speech, or
of the press, or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.

So the press is right in there.

Stan Brown, Oak Road Systems, Cleveland, Ohio, U.S.A.         (216) 371-0043
The opinions expressed are mine. Mine alone!  Nobody else is responsible for
them or even endorses them--except my cat Dexter, and he signed the power of
attorney only under my threat to cut off his Cat Chow!

rabbit@hyprion.ddmi.com (Dr. Roger Rabbit) (09/11/90)

In article <3108@mindlink.UUCP> a80@mindlink.UUCP (Greg Goss) writes:
}> rabbit@hyprion.ddmi.com writes:
}> 
}> In article <11608@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene You know - I
}> wonder why the SS just doesn't get a computer expert to
}> come with them to the site of the raid and duplicate the hard drive
}> contents? Why do they need to take someone's machine?? ... And, I DON'T
}> 
}
}There are too many "tricks" to hide information.
}
}You mentioned Poland.  One of the solidarity tricks was to circulate a floppy
}with some report on tractor production or something boring on it.  Then you
}take Norton and unerase a file with some innocuous name and read the
}newsletter.  Then you erase it again and pass it on.
}
[Other tricks mentioned]

Thats why I said that they should send someone in to look at the machine.
Give the owner of the machine a choice: "Either you let this expert take
as much time looking at your machine as he deems neccessary, or we take
it away." That would seem to me to be the more reasonable approach to take 
in an "innocent until proven guilty" system.
 
I personaly beleive that the SS confiscations are an attempt to bypass
Due Process in order to punish those that they think are guilty. Perhaps
they don't have enough evidence for an indictment, perhaps they don't want
to spend the $$$ for a trial - whatever. In any event, the government is
pissing on The Constitution and I don't like it a bit. (Yes - I have 
already written lengthy letters to my US Reps and Senators about this.)
 
By the way - could someone E-MAIL me the address of the EFF so that I
can get more involved in their organization. We had better take back our
rights before it becomes neccessary to use guns to do so.
 

-- 
>>> BAN: Nuclear Power, US Intervention in South America, Toxic Waste
>>> (Including dip) Trash Incinerators, Nuclear Weapons, Poverty, 
>>> Racism, Sexism, Specieism, etc... Write to: Toons for a Better World,
>>> 2001 Yatza St., Toontown, CA 90128 E-MAIL: rabbit@hyprion.ddmi.com

bzs@world.std.com (Barry Shein) (09/12/90)

The problem is quite clear...

If criminals aren't caught etc then clearly they have won.

BUT the problem I believe most people on this group are concerned
with is:

	If the (relatively few) criminals manage to create
	an atmosphere of fear and cause basic rights and our
	ability to do business to be under attack THEN THE
	CRIMINALS HAVE ALSO WON!

Perhaps that latter is not a result they want, but the effect is in
many ways more heinous.

In the former case, we can take care and learn how to protect
ourselves from, what we hope remains, a small minority of
irresponsible or malicious people, random chance.

In the latter case, we are all under attack and the govt is acting as
a pervasive agent in all our lives, we can't defend against that by
putting "bars on the windows" etc., when the govt knocks to take our
systems we have to let them in the front door.

So, although responsible use and ethical issues are certainly an
interesting topic, right now we have an atmosphere of fear created by
recent, very real events.

I run a public access unix system, I make a good part of my livelihood
off it.

Right now I don't know if a competitor or malicious person can create
an account, put some credit card numbers in a private file in that
account (or even just mail them to himself or perhaps to an account
that hasn't logged in recently, from some other phony account) and
call the SS to put me out of business (I assure you, carting my
systems away would send me downtown in one hour to just file Chapter
11 and throw in the towel, I can't imagine how I'd begin to cover
overhead in such a situation.)

Basically, the current situation sucks. And believe me, potential
investors are well aware of these risks from the government. Swell.

See, that's the sort of second-order effect one has to deal with, as
they say, "in the real world".

If one is concerned with criminals, well, there are various ways to
deal with it which usually just increase the cost of doing business a
little. But if the govt is threatening to act in arbitrary and
unpredictable ways everyone runs for the hills, you can't fight City
Hall as they say (oh, you can be a martyr but it ain't a way to make a
living unless you're a lawyer..., and I can assure you investors
aren't interested in the injustice of it all.)

I'll chance the occasional cracker, I can tighten up security, I can
do frequent backups and other techniques. But I can't do a thing
against being harrassed by my govt the way places like Steve Jackson
Games have been.

Even being exonerated in the end would be an almost useless outcome,
swell, they destroyed my business and my career but I should be
thankful they didn't send me to jail?

	THE CURRENT ATMOSPHERE OF FEAR MUST BE STOPPED!!!

Consider this a cry of anguish, pain and anxiety from a fellow
citizen.

	"...in this country, you do not call the police, they
	call you..."

		-What a friend was told when he was robbed
		years ago in a well-known east-bloc country.
-- 
        -Barry Shein

Software Tool & Die    | {xylogics,uunet}!world!bzs | bzs@world.std.com
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