computer rights vs first and forth amentment right.txt

黑客培训教程

words, the Secret Service should have known exactly what they were

looking for.) By taking all computer records, the Service not only

effectively shut Jackson down, but violated  the Fourth Amendment.

        The only "probable cause" that the Secret Service had for

seizing Jackson's computers was that Jackson had hired a former "hacker"

to work on Gurps Cyberpunk.  A "hacker" is a member of an underground

subculture dedicated to breaking and entering computer systems.  While

this is illegal, the hacker community in general frowns upon the

stealing of data for personal profit, but does it instead for bragging

rights and the thrill of gaining illicit access to a "guarded" area of

cyberspace.  This is not unlike breaking the speed limit for kicks and

the excitement of defying authority.  If this is indeed why the Service

raided Steve Jackson Games,  this sets another frightening precedent

regarding privacy - will employers now check to see if applicants are

hackers along with the "normal" checks for arrest records?  This may be

an effect that the Service was looking for.  According to Steve Jackson,

the Secret Service suspected this staff member of wrongdoing at home,

not at Steve Jackson Games (Computer Underground Digest, 3.20).

        At the time of this writing, the search warrant remained sealed.

If the object of the search, according to the warrant, was evidence of

the staffer's wrongdoing, only evidence of that crime should have been

retained. If the object was the game, the agents should have taken just

the hard copy and soft copy regarding Gurps Cyberpunk.  By taking the

whole computer system of Steve Jackson Games, the FBI seriously hindered

the lawful commercial activities of the company.  By holding the

computer equipment and software for three months, Steve Jackson Games

was almost put out of business.  The non-relevant equipment and software

should have been returned promptly.

        Along with the computer equipment and software seized, the

agents disconnected and confiscated Steve Jackson Games' BBS.  A BBS,

or Bulletin Board System, is a centralized, information gathering and

dissemination point for many computer users.  The BBS contains e-mail

from and for those users, who can access the system with their home

computer's modem through normal phone lines.  Many users who don't

have network access through a university or the organization they work

for use a BBS to enter cyberspace.  The BBS stores personal mail for

these users and enables them to read it when they are logged on.  U.S.

postal mail is considered private.  Electronic mail is the same as

physical mail in that it should be protected by the same privacy rights

that physical mail is.  In the next section, the seizure of personal

mail is explored in detail.

        Even though Steve Jackson Games did eventually publish Gurps

Cyberpunk, the company was hit hard by the loss of its information.

They had to recreate the game from rough drafts and memory.  But, a

positive result did come out of the SJG case.  Mitch Kapor, founder of

Lotus Development Corp, and associate John Perry Barlow, established the

Electronic Frontier Foundation (EFF) with the purposes of educating the

public about computer-based media and supporting litigation to extend

First Amendment rights into the computer world.  The EFF intervened in

the Jackson case, pushing the government to restore SJG's equipment.  In

April, 1991 the EFF in conjunction with Steve Jackson Games filed a

civil suit against the U.S. Secret Service and several of the

individuals responsible for the raid and the withholding of Jackson's

property.  Unfortunately, at the time of this writing, more detail about

this precedent setting case was unavailable.

        Although it will not set a legal precedent, there is a similar

case on the books.  The Alcor Life Extension Foundation is an

organization that, for a large fee, will freeze an individual's body

upon death.  In December, 1987, the Riverside County Coroner's Office

accused Alcor of hastening the death of cryogenic participant Dora Kent

by prescribing her a lethal dose of barbituates (Computer Underground

Digest, 1.04).  In January 1988, law enforcement officers raided Alcor's

headquarters and confiscated its computer equipment.  Like the Steve

Jackson Games case, the search warrant for the Alcor foundation did not

specify what information that should have specifically be confiscated.

The section of the warrant pertaining to computer seizures follows:

            All electronic storage devices, capable of storing
        electronic data regarding the above records, including magnetic
        tapes, disk (floppy or hard), and the complete hardware
        necessary to retrieve electronic data including CPU (central
        processing unit), CRT (viewing screen), disc or tape drives,
        printer, software, and operation manuals for the above said
        computer, together with all handwritten notes or printed
        material describing the operation of the computer
        (Computer Underground Digest, 1.04).

        In other words, the officers were directed to seize all

computers and computer equipment from the Alcor site.  Even though the

warrant states that only computer equipment  "...capable of storing

electronic data regarding the above records..."  should be seized, this

can be interpreted as a warrant to seize all computer equipment because

any equipment is capable of holding data about Dora Kent.  So once

again, the warrant was very wide reaching and vague, exactly what the

Fourth Amendment is  supposed to protect against.

        But in this case, the issue became more focused.  H. Keith

Henson, a member of Alcor, claimed that personal e-mail belonging to

himself and 13 other Alcor members was "stolen" by the raiding officers.

Although Henson repeatedly tried to get the court to turn over the

private e-mail, on the account that it had no relevance to the Dora Kent

case, they would not return it.  So Henson and his group sued the FBI

for not intervening on their behalf in this case (Computer Underground

Digest, 1.04).

        The stealing of private e-mail like in the Alcor case is another

precedent that can have dangerous repercussions.  This is the equivalent

of law enforcement officers obtaining a search warrant for a post office

because some of its employees were suspected of illegal activities, and

proceeding to seize all mail contained in the post office and reading

it, and not returning it to its intended recipients.

        At the time of this writing, Alcor case was settled out of

court. The result of the settlement was not available.

        As we can see from these examples, there is a fundamental

difference in how the legal community in the U.S. views printed and

electronic media.  Print media is protected by the First Amendment;

electronic media is not.  This is a difference that should not exist.

Almost all newspapers and magazines exist in electronic form before they

are printed.  Electronic digests follow the same process, but they leave

out the final step - the actual printing.  There have been cases of

electronic hacker magazines being shut down for publishing hacked

(stolen) documents.

        However there is a hacker magazine called 2600 that doesn't

leave out the final step.  Printed, not electronic, copies are sent to

subscribers.  2600 has included similarly hacked documents, but has

never been accosted. According to 2600 editor Emmanuel Goldstein, it is

because of the physical printing, "I've got one advantage.  I come out

on paper and the Constitution knows how to deal with paper." (Barlow).

Computer based media and e-mail should have the same Constitutional

protection as the written word.  But it doesn't.  Why not?

        We can answer this question by tracing history back to the late

1700's when the Framers were writing the Constitution. They had no

concept of computers or electronic communication at its current level.

Because of this excusable lack of foresight, the Constitution and Bill

of Rights do not contain specific provisions for computer based speech

and the computerized press.  In fact, the word "press" implies the

printed press, not actual process of disseminating information to large

numbers of people.  In the Fourth Amendment, an individual's "papers"

are safe from unreasonable search and seizure.  Electronic, or

unprinted, "papers" are not specifically protected.  In strict

interpretations of the Constitution, electronic media are not protected.

Of course, this is nonsense since the only difference between an article

in a newspaper or magazine and an article stored electronically, that is

intended to be printed, is the act of printing.

        Using the Steve Jackson Games and Alcor cases as a basis,

it is proposed that the following guidelines be legislated:

        1) If computer information is to be seized, the search warrant
           must explicitly describe the data sought.  The officers
           carrying out the search should seize only the storage devices
           (floppy disk, hard disk, magnetic tape) holding this
           information.

        2) If the storage device(s) seized contain other information as
           well as the data described by the warrant, the wanted data
           should be copied them the storage device should be promptly
           returned.

        3) If any electronic mail is confiscated, only the pieces from
           or to suspects of the crime should be read.  The rest should
           be promptly returned unread to the addressees.


        By following these guidelines, we can avoid many violations of

individual privacy that the Constitution, in its current wording,

allows.  In the final section a somewhat radical step to help our

society into the information age is recommended.


IV: Where Do We Go From Here?

        The untamed electronic frontier is an intimidating domain for

the computer illiterate.  Many view this mysterious technology as

responsible for whittling away their personal rights and privacy.  Thus

they find it fearful and intimidating.  Ironically, the only way that

the electronic frontier can "dehumanize" an individual is if that

individual is ignorant of what it really is.  We've seen that we can't

continue to function at our current level of society without computer

technology, but unless the users of this technology are monitored, they

can use it to invade the privacy of individuals.  If the general

populace is educated, they will have the background to challenge these

intruders.

        But where do we start?  As we have seen before, the outdated

wording of the Constitution promotes this dread image of computers and

electronic media.  Perhaps a good place to start would be with the

Constitution.  The current wording of the Bill of Rights is archaic, and

it represents the mind-frame that many people still have.  Computer

technology and cyberspace must not be viewed as separate from or outside

of laws protecting free speech and privacy.

        The First and Fourth Amendments don't explicitly mention

electronic media. They should regard rights in the electronic world of

cyberspace as just as important as those in the physical world.  A new

amendment stating that the rights guaranteed by the First, Fourth, and

any other amendment for that matter, apply to cyberspace would prevent

many of the violations we have discussed from happening. (As the final

revision of this paper was about to be printed, word was received that

Laurence Tribe of Harvard Law School had proposed discussion of just

such an amendment. However, this author's proposal was developed

independently of Tribe's.)

       If a new amendment is a step too far, then legislation and

precedent setting legal decisions must be made.  There seems to be a ray

of hope in the Steve Jackson Games case, but it will take several such

cases to approach the benefit of a Constitutional amendment.

        The global village is just around the corner.  Whether it is a

technological utopia of peace and freedom or an aspect of Orwell's

"1984" depends on decisions made now.










































                                 Bibliography

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      Burnham, David, The Rise of the Computer State, (1980, Vintage
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      Barlow, John Perry, Crime and Puzzlement. **

      Computer Underground Digest, Volume 1.04, April 11th, 1990. *

      Computer Underground Digest, Volume 3.20, May 12, 1991.*

      Consumer Reports, "What Price Privacy," (May, 1991, pp. 356-360).

      Epstein, Aaron, "The Shadow of Your File," The Progressive, (v47,
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      Fisher, Lawrence M., "Lotus Database Cancelled," (New York Times,
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        * These are electronic publications.  If copies cannot be found,
          feel free to contact the author.

       ** This document was originally disseminated electronically, then
          was published in Harper's Magazine.  The author used the
          original version.