free speech in cyberspace.txt

a collection of mega hacking tools

            to regulation but most vulnerable in liability cases and

            common carriers as most regulated but generally immune to

            liability, with broadcasters in the middle.  With only a

            couple of exceptions -- Beall's scheme of licensing BBSs and

            Hurwitz's argument in favor of content regulation for

            teletext -- the authors are opposed to governmental

            regulation of electronic publishing.  However, the authors

            devote themselves to answering narrow questions, questions

            either of BBS sysop liability or of the regulatory status of

            two obscure technologies, teletext and videotex.

               In the literature there seems to be agreement on several

            specific questions.  First, BBS sysops should be held liable

            for messages on their boards only when they are in some way

            involved with or aware of the illegality.  Second, a new

            legal framework may be necessary to accommodate these media.

            And third, the First Amendment does apply to computer-based

            communication.

               Missing from most of the literature is recognition of a

            serious First Amendment threat or an attempt to discover the

            specific sources of that threat.  With the exception of De

            Sola Pool's forward-looking book and Katsh's philosophical

            article, most authors seem to perceive only technical legal

            difficulties.  While most authors conclude, or even assume,

            that the First Amendment applies to computer communication,

            they do not seem to see implications for the mainstream of

            First Amendment law.  Computer-based communication is


                                         20






            portrayed either as something still far in the future or as

            a "niche" medium of interest only to computer hackers and

            scientists.  It is depicted as only peripheral to the speech

            the First Amendment is intended to protect.

               In fact, however, such electronic communication is in use

            today by a vast number of people with diverse interests,

            using inexpensive and readily available technology.  It is

            already a significant and important forum for speech on

            almost every conceivable topic.  The way in which this

            medium is used indicates that it is not peripheral to First

            Amendment "core speech."  It should be considered in the

            mainstream of First Amendment-protected expression.  If

            computer-based media are to become a dominant channel for

            information delivery in the future, it is vitally important

            that the decisions made today regarding the treatment of

            these media be the right ones.



               Objectives               Objectives               Objectives

               Perceptions of a threat to the First Amendment freedoms

            of computer-based communication have come not from codified

            policies -- of which there are few -- but from de facto

            policies emerging from an unsettled and chaotic area of law.

            These de facto policies are, in turn, the product of

            precedent-setting events such as the Craig Neidorf and Steve

            Jackson cases and other controversies of 1990.

               Krasnow, Longley and Terry, in their book The Politics of

            Broadcast Regulation, begin their analysis with the idea


                                         21






            that "there is no such thing as 'government regulation';

            there is only regulation by government officials."76  In

            other words, particularly with a medium as new as this one,

            attention is best directed not toward codified regulations

            but rather toward the attitudes and agendas of the people

            who will create them -- people both in and out of the

            government.  The legal treatment of any new technology will

            ultimately be a product of political pressures, different

            players with different agendas pushing in different

            directions.  The result will depend upon whose voice is

            heard most strongly.

               The embryonic field of computer-communication law is

            characterized by several different facets of government and

            the private sector influencing policy formation.  These

            include Congress, which has responded primarily to economic

            pressures related to computer crime, but has passed statutes

            incidentally affecting computer communication; the courts,

            which only recently and at the lowest levels have been asked

            to recognize constitutional protection for computer

            communication; and law enforcement agencies, which have

            caused the most visible controversies by enforcing computer

            crime laws zealously and without evident regard for free

            speech.  Other entities exerting an influence on the

            policymaking process include the computer-user community,

                                

            76Krasnow, Longley, and Terry, The Politics of Broadcast
             Regulation 9 (citing Loevinger, The Sociology of
             Bureacracy, 24 Business Lawyer 9 (1968)) (3d ed. 1982).


                                         22






            particularly the "computer underground" and the hacker

            subculture, which have been the focus of the recent

            controversies; and the Electronic Frontier Foundation, a

            political action group founded to protect the civil

            liberties of computer communicators.

               This thesis will examine the political development of de

            facto policies affecting the First Amendment freedoms

            associated with computer-based communication, particularly

            during the important events of 1990.  It will examine the

            legislative history of the relevant federal statutes and the

            events surrounding the important cases, including those of

            Craig Neidorf and Steve Jackson, and the Secret Service's

            "Operation Sun Devil," and attempt to identify the roles of

            the major players in this process.



               Research Questions and Methodology               Research Questions and Methodology               Research Questions and Methodology

               The specific research questions addressed by this thesis

            are:

               1) Does a threat to the freedom of computer-based               1) Does a threat to the freedom of computer-based               1) Does a threat to the freedom of computer-based

            communication represent a threat to the core meaning of the            communication represent a threat to the core meaning of the            communication represent a threat to the core meaning of the

            First Amendment?            First Amendment?            First Amendment?

               In order to answer this question, this thesis will first

            explore the nature of computer-based communication as it is

            used today.  After an overview of the technology that makes

            such communication possible, it will examine the way in

            which this medium is used.  It will demonstrate that

            computer-based communication is a vital and important


                                         23






            medium, and that users of this medium are members of a

            community engaged in "core speech" deserving of the highest

            constitutional protection.

               2) Who are the important players involved in the               2) Who are the important players involved in the               2) Who are the important players involved in the

            controversies of 1990 and the formation of computer-            controversies of 1990 and the formation of computer-            controversies of 1990 and the formation of computer-

            communication policy and what are their roles?            communication policy and what are their roles?            communication policy and what are their roles?

               The thesis will then examine in detail the important

            cases of 1990 and the events surrounding them in an attempt

            to discover the role of each major player involved.  The

            players themselves will be identified, and the contribution

            of each will be evaluated.  This will include an exploration

            of the legislative history of the statutes involved in these

            cases, as well as factual accounts from news media and other

            sources of the events surrounding the 1990 controversies.

            Source documents, including legislative debates,

            indictments, written court opinions, search warrant

            affidavits, briefs and policy statements will provide

            insight into the motives and objectives of each player.

               3) Based upon the roles of the players involved, what is               3) Based upon the roles of the players involved, what is               3) Based upon the roles of the players involved, what is

            the general direction of the law?            the general direction of the law?            the general direction of the law?

               From this analysis should emerge an overall picture of

            the regulatory atmosphere, the degree of the First Amendment

            threat and what the future may hold for these new media.



               Organization               Organization               Organization

               Chapter Two will describe the technological foundation of

            today's computer-based communication media in order to


                                         24






            define terms and concepts important to this topic.  It will

            briefly describe the way in which these media are used, in

            order to establish that a genuine outlet for First

            Amendment-protected speech is involved.  It will also

            introduce the culture of computer hackers, which plays an

            important part in events described later.

               Chapter Three will examine the legislative history of the

            computer crime laws that served as the authority for the

            hacker crackdown of the late 1980s and 1990.  This chapter

            will study the role of Congress as a regulatory player and

            will also reveal the early involvement of two other players

            that figure prominently in later events: computer hackers

            and law enforcement.

               Chapter Four will discuss in detail the major cases of

            1990 and the surrounding events that have been the focus of

            the recent controversies over First Amendment freedoms and

            computer communication.  These events demonstrate the

            involvement of four important players in this regulatory

            process: computer hackers, law enforcement agencies, the

            courts and the Electronic Frontier Foundation.

               Chapter Five will summarize and discuss the preceding

            material and will attempt to identify the direction of the

            law based upon the roles of the involved players.



               Limitations               Limitations               Limitations

               Some legal aspects of this new communication technology,

            while important, will not be included in this thesis.


                                         25






               First, any examination of computers and civil liberties

            seems to include a discussion of privacy.  Computers provide

            new ways of collecting and retrieving information about

            individuals, and many civil libertarians see this use of

            computers as a threat to privacy.  However, privacy law will

            not be a part of this thesis.

               Second, the communication of data by electronic

            transmission introduces a host of new and difficult

            questions of copyright and patent.  While these questions

            are intriguing, they could themselves be the basis of

            another thesis.  While the law of intellectual property

            plays a part in some of the cases involved in this area,

            extended discussion of copyright or patent law is beyond the

            scope of this thesis.

               Third, where this thesis discusses computer-crime laws,

            it will limit such discussion to the federal statutes

            involved in the hacker-crackdown controversies of 1990.

            Consequently, state computer-crime laws, of which there are

            many, will not be discussed.



               A Note About Sources and Citations               A Note About Sources and Citations               A Note About Sources and Citations

               Because of the nature of this topic, a large number of

            the sources used in this thesis are themselves electronic

            publications, or are source documents made available through

            electronic means.  Citation of such documents is

            problematic, as conventional citation forms are not readily

            adaptable to nonprinted sources.  In this thesis, citation


                                         26






            of an electronic document will provide complete

            identification of the publication and the source through

            which it was obtained.  Because electronic publications do

            not generally have page numbers, citation to a specific

            passage in an electronic document will give the line number

            in the file.