free speech in cyberspace.txt

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                              FREE SPEECH IN CYBERSPACE                              FREE SPEECH IN CYBERSPACE                              FREE SPEECH IN CYBERSPACE


                     The First Amendment and the Computer Hacker                     The First Amendment and the Computer Hacker                     The First Amendment and the Computer Hacker
                                Controversies of 1990                                Controversies of 1990                                Controversies of 1990





                                         by                                         by                                         by

                                   ROBERT R. BERRY                                   ROBERT R. BERRY                                   ROBERT R. BERRY





            A Thesis submitted to the faculty of The University of North
                Carolina at Chapel Hill in partial fulfillment of the
             requirements for the degree of Master of Arts in the School
                        of Journalism and Mass Communication.

                                     Chapel Hill

                                        1991















                                                            Approved by:

                                                Cathy L. Packer, Advisor
                                                     Ruth Walden, Reader
                                                   John Semonche, Reader


























































                        Copyright (c) 1991 by Robert R. Berry





                                  Table of Contents



            Chapter 1. New Questions for a New Medium..................1
            Chapter 2. The Net........................................28
            Chapter 3. Hackerphobia...................................52
            Chapter 4. Operation Sun Devil............................79
            Chapter 5. Conclusions...................................115
            Bibliography.............................................128






                                     CHAPTER ONE:                                     CHAPTER ONE:                                     CHAPTER ONE:

                            New Questions for a New Medium                            New Questions for a New Medium                            New Questions for a New Medium

               Introduction               Introduction               Introduction

               In the spring of 1990, a 20-year-old student at the

            University of Missouri in Columbia was prosecuted in a

            federal court because of something he published.  The

            information he published was true, it was of public concern,

            and it had come to him through legal channels.  Nonetheless,

            the government charged that his publication was part of a

            conspiracy to commit fraud and that his information-

            gathering activities and publication amounted to interstate

            transportation of stolen property.

               Shouldn't the First Amendment have protected Craig

            Neidorf from prosecution?  Unfortunately, the answer to that

            question is unclear because of the technology he used to

            deliver his message.  Neidorf's publication was electronic.

            He created it as text on his computer and distributed it

            over a network to other computer users who read it on their

            video screens.  It went from author to audience without ever

            existing in tangible form.  And the information whose

            publication led to his prosecution -- a document describing

            a telephone system -- came to him through the same channels.

            For the first time, a federal court confronted this

            question: How does the First Amendment apply to computer-

            based communication?

               Craig Neidorf's prosecution was only one part of a

            crackdown on computer crime that in 1990 aroused widespread






            concern over civil liberties and computer use.  In another

            case, Steve Jackson Games, a small publishing company in

            Austin, Texas, found itself nearly put out of business when

            the Secret Service raided its premises and confiscated its

            computers -- all because the agency suspected it might find

            contraband information on the computers.1

               Was the government casting its net too broadly in its

            campaign against computer crime, infringing on free speech

            in the process?  The events of 1990 demonstrated better than

            any before the confused and uncertain state of the law as it

            applied to computer-based communication.



               The Problems of a New Medium               The Problems of a New Medium               The Problems of a New Medium

               Advances in computer technology over the past decade have

            made computers available to a vast number of people and

            irrevocably changed the way most work is done in this

            country.  The United States Department of Commerce estimated

            in 1988 that as many as 38 million personal computers would

            be installed by 1991, with 28 percent of all American

            households computer-equipped.2  But computers have proved to

            be more than tools for word processing and math;

            increasingly, the computer is a communication tool.


                                

            1See, e.g., Costikyan, "Closing the Net," Reason, Jan. 1991,
             at 22; Kapor, "Civil Liberties in Cyberspace," Scientific
             American, Sept. 1991, at 116.

            2National Technical Information Service, U.S. Dept. of
             Commerce, NTIA Information Services Report (1988), at 27.


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               Today, anyone with a computer and a modem3 -- and an

            estimated 19 million modems are currently installed4 --

            possesses the means to communicate with thousands of other

            computer users.  Available services include hundreds of

            commercial online information services such as CompuServe

            and Prodigy.5  These services provide electronic access to

            major news services such as USA Today, Dow Jones and the

            Associated Press.  They also provide their own news, advice

            columns, movie and music reviews, and hundreds of other

            features online.  Syndicated columns from writers such as

            Dave Barry and Mike Royko are available by electronic

            subscription for users who have electronic mail addresses on

            any of the major national computer networks.6  And a

            probably uncountable number of amateur newsletters and

            magazines produced by individuals are distributed

            electronically via computer networks to small lists of

            subscribers.  Electronic bulletin boards7 number as many as

                                

            3A modem is a device used to translate digital computer data
             into electrical signals capable of transmission over
             telephone lines.

            4NTIA Report, supra note 2, at 29.

            5One directory lists 718 online informations services
             worldwide. Cuadra/Elsevier, Directory of Online Databases
             (vol. 12, nos. 1 and 2 (Jan. 1991)).

            6Online advertisement from ClariNet, a service that
             distributes syndicated publications electronically (April
             9, 1991).

            7Bulletin boards are "computer systems that function as
             centralized information sources and message switching
             systems for a particular interest group. Users dial up the


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            100,000.8  Available to an increasing number of people at

            constantly shrinking expense, the computer and modem may be

            the 1990s equivalent of the mimeographed handbill.

               Clearly, "the press" no longer requires ink or paper.

            Some of these publications9 are direct electronic analogues

            of magazines, newspapers, newsletters and pamphlets, while

            others are entirely new forms; but none need ever exist on

            paper.  A new medium of mass communication, distinct from

            print but sharing many of its essential characteristics, is

            spreading, and as computers become ever more accessible, its

            continued spread is inevitable.

               Because these forms of communication may be well on their

            way to becoming the dominant ones, it is important that the

            law be ready to accommodate them.  But the existing models

            of media law are inadequate to the task.  Today's system

            divides technologies of communication into essentially three

            tiers of First Amendment protection.10  Most protected are

            traditional print media, newspapers and magazines, which

                                                                        
             bulletin board, review and leave messages for other users
             as well as communicate to other users attached to the
             system at the same time." Freedman, The Computer Glossary
             80 (4th ed. 1989), at 80.

            8L. Wood, D. Blankenhorn, "State of the BBS Nation," Byte,
             Jan. 1990, at 298.

            9Although the technology is new, there can be no doubt that
             these activities are indeed publishing. Black's Law
             Dictionary defines publish as "[t]o make public; to
             circulate; to make known to people in general.  To issue;
             to put into circulation."

            10See, e.g,, De Sola Pool, infra note 18; Becker, infra note
             73, at 829-30.


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            enjoy great, though not absolute, freedom from government

            control under the First Amendment.11  The middle ground is

            occupied by the broadcast media, radio and television.

            Although the First Amendment still protects broadcast

            journalists from governmental interference with day-to-day

            editorial decision-making,12 broadcasters are nonetheless

            subject to government licensing and many other requirements

            dictated by the FCC and Congress.13  Least protected by the

            First Amendment -- or most regulated -- are common carriers,

            telephone and other wire communication systems operated by

            companies such as AT&T.  Common carriers operate under

            strict guidelines governing access, rates, even content.

            Because common carriers have almost no control of how their

            facilities are used, however, they are generally immune from

            liability for misuse.14

               None of these legal models can comfortably encompass

            computer-based communication.  The content of such

            communication -- written text -- is most analogous to print,

                                

            11See, e.g., Near v. Minnesota, 283 U.S. 697 (1931); New
             York Times Co. v. Sullivan, 376 U.S. 254 (1964), New York
             Times Co. v. United States, 403 U.S. 713 (1971), Miami
             Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).

            12See, e.g., CBS v. Democratic National Committee, 412 U.S.
             94 (1973).