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TUCoPS :: Cyber Law :: electrif.txt

Elec. Comm. & Civil Liberties




July 1992                                              Vol. 4; Issue 5

                         ELECTRIFYING SPEECH
     New Communications Technologies and Traditional Civil Liberties

    =------------------------------------------------------------=
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             INTRODUCTION:  NEW COMMUNICATION TECHNOLOGIES 

     Since the personal computer ushered in a communication revolution 
about 15 years ago, the accompanying technology has been likened to 
everything from the printing press to Hyde Park Corner, from the 
postal system to talk radio. Pungent as these analogies are, their 
limitations point up the essential uniqueness of computer-mediated 
communication. While the printing press made possible the mass 
dissemination of information, computers can individualize information 
and increase its flow a thousandfold. In the process, they change the 
nature of communication itself.      

     Few Americans are unaffected by this revolution, whether they 
rely on computers to do their taxes, write a novel, serve up money 
from a bank machine, or make airplane reservations -- and then guide 
the plane safely back to land. Those who are "on-line" "talk" to 
people whom they may never meet face-to-face and form "virtual 
communities" in "Cyberspace" -- a place without physical dimensions, 
but with the capacity to store vast amounts of facts, conversation, 
messages, written or voice mail and graphic images. 

     While it is axiomatic that these new capabilities can open up 
faster, easier and more inclusive communication, they also call into 
question long held assumptions about individual and communal rights.  
Some are old questions in a new context: What, if any, is the role of 
the government in regulating electronic communication? As more and 
more information is recorded and stored automatically, how can the 
right of privacy be balanced with the right to know? What happens to 
individual protections when information is a salable commodity? Does 
the form in which information is kept change the government's 
obligation to inform its citizens? 

     Other questions arise from the new technologies: When borders can 
be breached by a keystroke and texts and images can be reproduced and 
modified without ever being published, what happens to definitions of 
intellectual property, scholarship, conversation, publication, 
community, even knowledge itself? 

     In 1983, Ithiel de Sola Pool began his seminal book, Technologies 
of Freedom, with the warning that "Civil liberty functions today in a 
changing technological context." As if to prove him right, the 
government is now proposing a $2 billion investment in computer 
networking technologies which will radically alter the way American 
communicate. Because the technological context changes more rapidly 
than the laws regulating it, the debate about how we want to live in 
an electronic world is both volatile and urgent.

                  ELECTRONIC COMMUNICATION AND THE LAW 

     United States law has not treated all communication technology 
alike. As Pool notes, regulatory policy is based on different 
assumptions and varies among print, common carriage and broadcasting, 
which were the three prominent modes of mass communication when he 
wrote. Thus, lawmakers and jurists delineating free speech sought to 
minimize traditional controls on printed speech by rejecting the types 
of censorship associated with it, such as prior restraint, taxation 
and seditious libel. But early regulators, with an eye to the social 
good, had no qualms about requiring common carriers, such as the 
postal and telegraph systems, to provide universal service without 
discrimination. Their successors, assuming that the broadcast spectrum 
was a scarce commodity, designed a regulatory system for radio and TV 
based on government licensing, business advertising and a limited 
number of channels. Later regulations included the Fairness Doctrine 
(imposing on licensed broadcasters an obligation to cover issues 
fairly), which regulated the content of speech. But as technologies 
merge, traditional distinctions among the modes are no longer 
applicable. Today, for instance, anyone regulating electronic bulletin 
boards is looking at a cross between a publisher and a bookstore that 
operates by means of the telephone, a common carrier. 

     Historically, the law has responded to, not anticipated, 
technological changes, often reacting repressively when a new 
technology challenges the status quo. As in the past, regulation of 
electronic communication has been influenced more by market and 
political forces than constitutional principles or legal issues. But 
electronic communication policy is still fluid enough to allow for 
questions about who should set the policy and to what end.

                        The Constitution 

     Among the most active participants in the policy discussion is 
Computer Professionals for Social Responsibility (CPSR), a public 
interest group formed to explore the impact of computers on society. 
In March 1991, CPSR held the First Conference on Computers, Freedom & 
Privacy in Burlingame, California. The concerns addressed at the 
conference fell into three broad civil liberty categories: protecting 
speech, protecting privacy, and gaining access to government 
information. 

     In an opening address, constitutional scholar Laurence Tribe 
posed a question of his own: "When the lines along which our 
Constitution is drawn warp or vanish, what happens to the Constitution 
itself?"  The sections of the Constitution Tribe was referring to in 
relation to electronic communication are: 

     # the First Amendment, with its prohibition against laws 
abridging freedom of speech, assembly, or the press; 

     # the Fourth Amendment, protecting people and their property from 
unreasonable government intrusion; 

     # the Fifth Amendment, guaranteeing due process of law and 
exemption from self-incrimination; 

     # the Ninth and Fourteenth Amendments, which reinforce other 
rights and provisions in the Constitution. 

     In applying these long-standing guarantees in the burgeoning 
electronic forum, Tribe recommends that policy makers look not at what 
technology makes possible, but at the core values the Constitution 
enshrines. The overarching principles of that document, he maintains, 
are its protection of people rather than places, and its regulation of 
the actions of the government, not of private individuals. Other 
central values Tribe notes are the ban on governmental control of the 
content of speech; the principle that a person's body and property 
belong to that person and not the public; and the invariability of 
constitutional principles despite accidents of technology. 

     To insure that these values prevail as technology changes, Tribe 
proposes adding a 27th amendment to the Constitution to read: 
     "This Constitution's protections for the freedoms of speech, 
press, petition and assembly, and its protections against unreasonable 
searches and seizures and the deprivation of life, liberty or property 
without due process of law, shall be construed as fully applicable 
without regard to the technological method or medium through which 
information content is generated, stored, altered, transmitted or 
controlled."

                       Who Regulates and How 

     Speakers at the conference did not argue with Tribe's goal of an 
enlightened electronic communication policy on the part of the 
government, but some disagreed over who should be responsible for 
formulating that policy and whatever regulations accompany it.   

     Jerry Berman, a longtime privacy advocate who is now Director of 
the Washington office of the Electronic Frontier Foundation, warned 
that, in light of the courts' current record on civil liberties, any 
strategy giving them primary power to settle electronic speech 
disputes was dangerous. He argued instead for legislative controls. 

     Others worried that lawmakers, misunderstanding or 
misinterpreting existing electronic speech problems, would push 
through harsh and intrusive regulations. Steve McLellan, a special 
assistant to the Washington Utilities Commission, cited efforts in his 
state by phone companies wanting to institute caller ID systems. The 
companies lobbied for authorization of that technology by portraying 
it as customer protection, a way to combat obscene and crank phone 
calls. The constitutional privacy issues got buried in politics until 
the utilities commission announced that it would approve caller-ID 
tariffs only if they provided for blocking mechanisms provided free 
and at the discretion of the customer. 

     Yet another potential regulatory force was posited by Eli Noam, 
Director of the Center for Telecommunications and Information Studies 
at Columbia University. Noam suggested that computer- based 
information networks will become quasi-political entities, not 
subordinated to other jurisdictions, as they tax, set standards of 
behavior and mediate conflicts among their members, and band together 
to influence economic and social policy.  Current Regulation 

     There are myriad laws on the federal and state levels with 
potential impact in the electronic forum: the Privacy Protection Act, 
Freedom of Information Act, Wiretap Act, Paperwork Reduction Act, 
sunshine laws, obscenity laws, and laws regulating copyright, 
trademark, interstate commerce, and product liability. As New York 
attorney Lance Rose points out, this proliferation of laws tends to 
reinforce the most restrictive standard -- because computer users and 
service providers cannot inform themselves about all potentially 
relevant rules, they are well-advised to stay within the boundaries of 
the strictest regulation that may apply. 

     Congress has also passed legislation aimed directly at electronic 
communication within the government, including: 
      # the Computer Matching and Privacy Protection Act of 1988, 
which prohibits government agencies from combining discrete 
computerized personal records as a basis for taking adverse action 
against an individual until the results of the match have been 
verified independently; 
      # the Computer Security Act of 1987, designed to improve the 
security and privacy of federal computer systems; 
      # the Electronic Communication Protection Act of 1986, which 
safeguards electronic communication from interception, disclosure and 
random monitoring without a court order; and stipulates that a court 
order must be time-limited and must specify the information sought;  
      # the Computer Fraud and Abuse Act of 1984 (revised in 1986), 
which criminalizes unauthorized entry, and taking or alteration of 
information from computers; authorizes fines and imprisonment up to 20 
years under certain circumstances; and gives the Secret Service 
authority to investigate potential offenses. In an effort to balance 
the punitive aspects of the Act, Sen. Patrick Leahy (D-VT) introduced 
an amendment to the 1991 crime bill that defines criminal liability in 
electronic communication cases as intent to damage, rather than as the 
technical concept of unauthorized access. The bill (S. 1322) will come 
up for a vote again in 1992. 

     Both the Computer Fraud and Electronic Communication Protection 
Acts include exceptions to their non-disclosure provisions for service 
providers who "may divulge" the content of a communication to a law 
enforcement agency if the contents "appear to pertain to the 
commission of a crime." Bulletin board operators have voiced concern 
over the ambiguity of this provision, questioning if it implies a duty 
on their part to report on the content of their boards.   

           THE ELECTRONIC FRONTIER: SOME SKIRMISHES 

     It is by no means a foregone conclusion among potential 
regulators of electronic speech that it is wholly protected by the 
First Amendment, but even if that were agreed upon, the issue of how 
to determine the limits of what is permissible, desirable and 
necessary would still loom large. The discussion has been framed by a 
set of paradigms, in which the electronic forum is portrayed as a mix 
of the past - - the American frontier -- and a wholly new phenomenon, 
Cyberspace.  

     The term Cyberspace comes from William Gibson's novel, 
Neuromancer. It is the "place" telephone conversations and most 
financial transactions exist, the home of cyberpunks, and the bane of 
those who prefer to keep personal information private. Though subject 
to legal and social pressures, there is still something untamed about 
it, and so, a writer in Wyoming named John Perry Barlow coined the 
term "the electronic frontier."  

     Hoping to seize the initiative in taming this territory, Barlow 
teamed up with computer entrepreneur Mitch Kapor to create the 
Electronic Frontier Foundation (EFF). Since it began in July 1990, the 
EFF has provided guidance to legislators and courts about civil 
liberties on the frontier, and legal assistance to those whose 
liberties have been threatened.

                            Frontier Law 

     Even with much of its territory up for grabs, Cyberspace has been 
populated for some time, albeit by groups with widely divergent 
perceptions of the communal good. On one side are "hackers," a 
sometimes pejorative term, but used neutrally here to describe people 
who gain unauthorized access to computers for whatever purpose. These 
hackers see themselves as unfettered, adventuresome cowboys who, in 
keeping with the frontier myth, are being fenced in by the settlers -- 
the business interests who have staked claim to the terrain -- and by 
the law that tends to protect these established interests.  

     The cowboys defend computer hacking as a harmless pastime, as a 
pioneering activity that expands the boundaries of what is 
electronically possible, or as a political response to proprietary 
interests and individual profit. The settlers attack it as criminal, 
antisocial and malicious activity that costs everyone in money and 
security. By some estimates, computer crime accounts for as much as $5 
billion in losses to government and business yearly. 

     One of the most publicized cases of computer crime involved a 
virus (a software program that can alter data or erase a computer's 
memory) that was unleashed in 1988 over InterNet, an international 
computer network. The virus, known as the Worm, was written by Robert 
Morris, a graduate student at Cornell University, who claimed that he 
had created it as a prank before it got loose and infected thousands 
of government and academic computers. As a first-time offender, Morris 
was given a light sentence, but the principle established by the case 
has been allowed to remain: to get a conviction for computer abuse, 
the government need only prove unauthorized access, not intent to 
harm. This ruling has been compared to punishing a trespasser for the 
more serious offense of burglary or arson. 

     The Morris virus not withstanding, the bulk of computer crime is 
not committed by hackers, but involves credit card fraud or theft by 
people within large companies, which are often reluctant to report it 
and publicize their vulnerability. In setting up the Electronic 
Frontier Foundation, Barlow and Kapor were reacting most directly to 
Operation Sun Devil, a part of a federal effort to combat computer 
crime, which had as its most visible targets young computer hackers 
and their systems of communication.  

     On May 8, 1990, armed with 28 search warrants in 14 cities, 
Secret Service agents seized at least 40 computers and over 50,000 
disks of data from individuals they suspected of possessing illegally- 
obtained information. Only seven arrests resulted, although the 
government kept and searched the computers and software of more who 
were not charged. Information obtained by CPSR under a Freedom of 
Information request reveals that the Secret Service had been 
monitoring on-line communication and keeping files on individuals who 
had committed no crime for several years prior to the raids.

                       Steve Jackson Games 

     The February before the Sun Devil raids, a grand jury indicted 
Craig Neidorf, a student and the publisher of an electronic magazine 
called Phrack, for reprinting a document stolen from a Bell South 
computer. Three hackers had already been sentenced to prison for 
stealing the document, which concerned a 911 emergency system. The 
phone company claimed the document was highly sensitive and set its 
value at $79,499. When Neidorf's case came to trial that July, 
however, it was revealed that the document was publicly available at a 
cost of $30. The government dropped the charges, but the magazine had 
already ceased publication, and Neidorf had incurred about $100,000 in 
legal costs. 

     The Bell South file had been made available to bulletin board 
systems (BBSs) around the country, including one operated by an 
employee of Steve Jackson Games (SJG), a creator and publisher of 
computer games in Austin, Texas. While looking for evidence against 
the employee, Secret Service agents searched the bulletin board run by 
Jackson and found the draft of a rule book for a fantasy game called 
GURPS Cyberpunk. They decided it was a manual for breaking into 
computers.  

     On March 1, 1990, agents raided SJG and seized computers, drafts 
of the game, and all the information and private communication stored 
on the computer used for the bulletin board. Jackson was never charged 
with a crime, but none of his equipment or files was returned until 
nearly four months later. He was forced to lay off half of his 
employees and estimates that the raid cost him $125,000 in publishing 
delays. This is a small-scale equivalent of seizing the printing 
presses and files of The New York Times because the Pentagon papers 
were found on their premises; such raids are expressly forbidden by 
the Privacy Protection Act. 

     With the help of the Electronic Frontier Foundation, Jackson is 
suing the Secret Service for violating his Constitutional rights. 
Specifically, his lawyers are arguing that the request for the search 
warrant caused a prior restraint of a publication, was misleading 
because it did not tell the judge that SJG was a publisher, did not 
meet the specificity requirement of the Fourth Amendment, and failed 
to establish probable cause that criminal activity was taking place. 
The case is in litigation.  

     Meanwhile, the EFF has been working on model search and seizure 
guidelines, which they hope to persuade the American Bar Association 
to adopt in place of its current guidelines for the issuance of search 
warrants relating to business records. In an attempt to make searches 
less intrusive and destructive, EFF recommends that:  

     1. computers used for publishing or electronic bulletin boards be 
afforded the same First Amendment protections as other means of 
publication; 
     2. in determining if just cause for seizure of equipment and 
software exists, judges shift the emphasis from what is 
technologically possible (e.g. an electronic trip wire that can erase 
all data) to what is likely to happen;  
     3. the search of computer disks take place on a business's 
premises, whenever possible; 
     4. under most circumstances, computers be seized only when they 
are the instruments of a crime.  

			Bulletin Boards 

     Electronic bulletin board systems are an increasingly pervasive 
mode of electronic communication and probably the most vulnerable to 
censorship. Part of the problem stems from a lack of definition. Are 
bulletin boards publishers, common carriers, broadcasters, electronic 
file cabinets, owners of intellectual property, private forums, 
libraries, newsstands, a combination, or none of the above? How they 
are categorized will determine if and how they are regulated. 

     BBSs are relatively new, dating from about 1978; today, as many 
as 60,000 may be operating in the U.S. Though most are small and 
specialized, the government operates several big ones, such as 
InterNet, and businesses run others, including the two largest: 
Prodigy (owned by IBM and Sears) and CompuServe (a subsidiary of H & R 
Block). These BBSs allow individuals to "log on" to a host computer by 
use of a modem and telephone lines. Once they are hooked up, users can 
participate in electronic conferences, or conversations, send 
electronic or E-mail to specific individuals, and "post" messages 
directed at a general audience. 

     Most BBSs neither monitor nor control E-mail, but many edit or 
otherwise restrict the messages on their bulletin boards. Some, such 
as the Whole Earth 'Lectronic Link (the WELL) in Sausalito, CA, place 
all responsibility for words posted on their system with the author, 
removing only clearly illegal or  libelous material. The WELL 
community of about 5,000 members so far has regulated itself 
effectively. Other systems are less tolerant. 

     In 1988, Stanford University attempted to block a jokes section 
of the bulletin board Usenet after becoming aware of an ethnically 
derogatory joke posted on it. The ban, though official policy, could 
not be implemented technically, and the jokes continued to be 
available throughout the campus. After a protest by students and 
faculty, the ban was lifted. 

     Prodigy has been more successful in controlling the content of 
its bulletin board. It claims the right to do so as a private company 
contracting with customers to deliver a service, and as a publisher 
selecting the content of its on-line publication much as an editor 
edits a letters-to-the-editor page. Messages are first scanned by a 
computer to catch words and phrases Prodigy deems offensive, then 
vetted by employees before being posted.  

     This editing has made for considerable controversy in Prodigy's 
three years of existence. In 1989, Prodigy cut out a section of its 
bulletin board called "health spa" after a yeasty exchange between 
homosexuals and fundamentalists. The next year, it banned messages 
from members protesting its pricing and editorial policies. Then this 
past year, the Anti-Defamation League publicly condemned the bulletin 
board for carrying grossly anti-Semitic messages. Prodigy responded 
that the messages were protected speech, but added the puzzling 
explanation that it made a distinction between derogatory messages 
aimed at individuals and those aimed at groups. 

     The question of what legal precedent to apply to bulletin boards 
moved closer to resolution with a court ruling late in 1991. In Cubby 
v. CompuServe, an electronic newsletter called Skuttlebut claimed that 
it had been defamed by a competitor known as Rumorville, which 
CompuServe publishes on its Journalism Forum. A federal judge in New 
York likened electronic bulletin boards neither to publishers nor 
common carriers, but to distributors of information such as 
newsstands, bookstores and libraries to which a lower standard of 
liability applies. He decided, therefore, that CompuServe could not be 
held liable for statements published through its electronic library, 
particularly because it had no reason to know what was contained 
there.


                ELECTRONIC INFORMATION AND PRIVACY 

     Private facts about individuals are much easier to gather and 
store on computer than on paper and are much more accessible to 
unauthorized scrutiny. Thus, computer monitoring challenges 
traditional expectations of privacy, exposes nearly every facet of an 
individual's life to potential public view and commercial use, alters 
the relationship between employers and employees, and opens the way 
for unprecedented government surveillance of citizens. For these 
reasons, concerns about the courts' vitiating the Fourth Amendment 
intensify when computer-based communication and surveillance are 
involved.   

     Gary Marx, professor of sociology at MIT, notes ten 
characteristics of new kinds of computer- based monitoring that make 
them particularly intrusive:   
     They transcend boundaries...that traditionally protect privacy. 
     They permit the inexpensive and immediate sharing and merging 
          and reproducing of information.
     They permit combining discrete types of information.
     They permit altering data. 
     They involve remote access which complicates accountability issues
     They may be done invisibly
     They can be done without the subject's knowledge or consent. 
     They are more intensive.
     They reveal previously inaccessible information. 
     They are also more extensive and they cover broader areas.

                       Privacy and Property 

     At a meeting of Computer Professionals for Social Responsibility 
held in Cambridge, MA October 1991, John Shattuck, Vice President for 
Government, Community and Public Affairs at Harvard University, noted 
that when the Bill of Rights was written, personal liberty was closely 
linked to private property. Thus, the Fourth Amendment protected 
concrete things and places from unreasonable government intrusion.  

     This idea was first upheld in relation to electronic technology 
in 1928, when the Supreme Court ruled in Olmstead v. United States 
that the Fourth Amendment did not apply to wiretapping because 
telephone communication was not a material thing. (It was in his 
dissent on this ruling that Justice Brandeis defined privacy as "the 
right to be left alone.")   

     The principle of protection for tangible property remained 
largely unchallenged until 1967. Then, in Katz v. United States, the 
Supreme Court decided that the Fourth Amendment "protects people, not 
places," and was, therefore, applicable to wiretapping and electronic 
eavesdropping. This decision brought a person's ideas, politics and 
communication under the Amendment's protection for the first time, and 
set "reasonable expectation" as the standard by which to measure 
privacy rights. According to Shattuck, it also began a revolution in 
Fourth Amendment law. 

     From 1967 until the Electronic Communication Protection Act was 
passed in 1986, the only electronic communication covered by law was 
what could be heard. Nearly all computer-based  communication remained 
outside traditional and legal privacy protections, even as it was 
becoming the dominant technology.         

     Much of digital communication in the U.S., including medical, 
insurance, personnel and retail transactions still lacks firm legal 
protection from intrusion, and the FBI recently proposed legislation 
that would require that all new telephone systems be designed to allow 
wiretapping, an ability the agency fears is endangered by new 
technology. In the privacy arena, the United States still lags far 
behind Canada, Australia and Western Europe, where at least six 
countries have a constitutional right to privacy and data protection.  
Commercial Uses 

     The Fourth Amendment and the Privacy Protection Act apply only to 
the federal government, leaving commercial intrusion to be addressed 
piecemeal over the past two decades. For instance, the Supreme Court 
ruled in 1976 that there was no constitutional protection for personal 
information held by a bank because bank customers do not own these 
documents. In response, Congress passed the Right to Financial Privacy 
Act two years later to create a statutory protection for bank records.  

     In 1977, the federal Privacy Protection Study Commission looked 
at the Privacy Act, seen then as a flawed compromise, and issued over 
100 recommendations, many of which died at birth. However, one 
recommendation -- that the Privacy Act not be extended to the private 
sector, which should be allowed to comply voluntarily -- was more or 
less adopted by default.   

     Other laws have since been passed to control private access to 
personal information, including the Fair Credit Reporting Act (1970), 
the Debt Collection Act (1982), the Cable Communications Policy Act 
(1984) and the Video Privacy Protection Act (1988). Recently, Rep. 
Robert Wise (D- WV), chair of the Subcommittee on Government 
Operations, tried to establish a Data Protection Commission, but 
without giving it regulatory power.    

     As technology makes its easier to match databases and repackage 
personal information in commercially valuable forms, unease increases 
over the amount of information gathered and retained, where it comes 
from, how accurate it is, what use is made of it, and how individuals 
can control that use, especially when it is reused. Again, computers 
exacerbate the problem because they create a pervasive and long-
lasting information trail that is decreasingly under the control of 
the individual involved. 

     Often there is no direct relationship between individuals and the 
keeper of information about them, as with credit bureaus. Other 
businesses, such as telephone companies and airlines, collect 
information routinely without external regulation of who sees the 
records or how long they are kept. Even when there is an intimate 
connection, as with medical information, the lack of legal protection 
allows genetic information and records of job-related injuries, for 
example, to end up in private databases that are available to 
employers and insurance companies. 

     Control over one's personal facts becomes even more tenuous when 
data collected by one organization are sold to another, which happens 
regularly without the individual's consent. This "second use" takes 
place primarily among businesses, but non-profit groups sell their 
mailing lists, and government agencies compare databases with 
businesses and each other: tax returns with welfare or student-loan 
records, for example. In 1991, Governor William Weld of Massachusetts 
proposed selling computer access to state Registry of Motor Vehicles 
records to private companies, but was dissuaded by vocal legislative 
opposition to the plan. 

     Privacy advocates are also troubled by deceptive data collection 
techniques and inaccurate information that can be difficult and 
expensive to correct. In July 1991, six state attorneys general sued 
TRW, one of the three big credit-reporting companies, for failure to 
correct major reporting errors. TRW eventually agreed to supply 
individuals with free copies of their credit files on request; other 
companies still charge for such reports. 

     Computers also provide a mechanism for fighting this Big Brother 
scenario. In 1990, Lotus Marketplace worked with Equifax, another 
consumer data collector, to put portions of its database onto compact 
disk so that marketing information about individuals could be sold in 
a convenient format to businesses. When the plan became public, it 
occasioned an outcry of surprising proportions -- about 30,000 
responses, many from people who had learned about the project through 
electronic forums, and nearly all negative. In January 1991, Equifax 
and Lotus bowed to the pressure and scrapped the project.   Privacy 
Protections 

     For the past several years, privacy advocates have been working 
to pass policies and laws to protect individuals from the unwanted 
intrusions into their personal lives that computers make easy and 
appealing to businesses. The guiding principles for privacy policy are 
well summed up in a 1989 paper written by Jerry Berman and Janlori 
Goldman for the Benton Foundation: 
     1. Information collected for one purpose should not be used for a 
different purpose without the individual's consent. 
     2. Policy should be developed with an eye towards new advances in 
information technology and telecommunications. 
     3. Legal limits should be placed on the collection and use of 
sensitive information -- the more sensitive the information, the more 
rigorous the disclosure standard. 
     4. Individuals must be provided with easy access to their 
records, including access to computerized records, for the purpose of 
copying, correcting, or completing information in the records. 
     5. Exemptions for non-disclosure should be clearly justified and 
narrowly tailored to suit the requester's need. 
     6. Legislation should include enforcement mechanisms, such as 
injunctive relief, damages, criminal penalties, and reimbursement of 
attorney's fees and costs.

                       Watching Employees 

     Also in the private sector, computers are increasingly being used 
to track employees' use of time, productivity, and communication with 
each other and the public. According to Karen Nussbaum, Executive 
Director of 9to5, the national organization of office workers, the 
work of 26 million employees is monitored electronically, and the 
evaluation and pay of 10 million is determined by computer-generated 
statistics. This kind of monitoring is more intrusive than human 
supervision, she points out, because it watches the personal habits of 
employees and because it is constant. 

     As a form of surveillance, employers often reserve the right to 
read the electronic mail of employees and may do so because the 
Electronic Communications Privacy Act protects electronic mail only on 
public networks. The E-mail systems of large corporations, including 
Federal Express and American Airlines, automatically inform workers 
that the company may read mail sent over the systems. Other companies 
do not inform, but read anyway. When an employee of Epson America, a 
California- based computer company, learned that this was the 
company's practice and complained, she was fired the next day. Her 
lawsuit charging wrongful termination is in litigation. 

     In the fall of 1991, Sen. Paul Simon (D-IL) introduced 
legislation (S. 516) which would require that employees and customers 
be notified if their electronic communication and telephone 
conversations are being monitored, either in specific instances or as 
a policy of their employer. Rep. Pat Williams (D-MT) has introduced 
similar legislation in the House (HR. 1218), and both bills are in 
committee.  Government Surveillance 

     The United States government is the largest collector of 
information about people in this country and perhaps the largest 
keeper of personal information in the world. This information consists 
mostly of separate records, such as tax and social security files, but 
in a 1986 study, Congress's Office of Technology Assessment determined 
that, because these files can be matched and combined, a de facto 
national database on Americans already exists. 

     Other information is gathered by surveillance. The FBI's National 
Crime Information System (NCIC) is a high-speed, computerized system 
containing criminal justice information, including Secret Service 
investigations, missing person files, and criminal histories or "rap 
sheets." The system began in 1967 and now runs about one million 
transactions each day. Information is maintained on a computer in 
Washington, DC, which is connected to each state and to 60,000 offices 
including those of sheriffs, prosecutors, courts, prisons, and 
military investigators. For instance, a police officer using the NCIC 
system to find out if a driver he or she has stopped is wanted for a 
crime can call up fingerprints and photos on the database to make an 
on-the-spot identification. 

     The NCIC is proud of the efficiency of its system and claims that 
it has built in safeguards against inaccuracy and abuse. Civil 
libertarians, however, have doubts. In addition questioning whether 
arrests for current actions should be made on the basis of past 
behavior, they point out that data on arrests may be stored separately 
from data on convictions, and that computers make it harder to control 
the spread of inaccurate, outdated or ambiguous information. They also 
fear that the ease in using the system will encourage police to be 
less discerning in stopping people for investigation.  

     There is concern too that the system can be used for purposes 
other than criminal justice, with information shared when someone 
applies for a government or military job or a professional license. In 
1988, the FBI suggested connecting the NCIC to the computers of the 
Department of Health and Human Services, the IRS, the Social Security 
Administration and the Immigration and Naturalization Service; the 
plan was eventually defeated. More recently, alarms were raised by 
disclosures that the FBI conducted years of surveillance of political 
opponents of the Reagan administration's Central American policy, 
though they had committed no crime.

                    Library Awareness Program 

     On June 8, 1987, a clerk at Columbia University's Math/ Science 
Library was approached by two FBI agents who asked for information 
about "foreigners" using the library. This was, the agents said, part 
of the Library Awareness Program under which the FBI tried to enlist 
the assistance of librarians in monitoring the reading habits of 
"suspicious" individuals, variously defined as people with Eastern 
European or Russian-sounding names or accents, or coming from 
countries hostile to the U.S. 

     It is still unclear how extensive the program is -- FBI officials 
have given contradictory information -- but the American Library 
Association (ALA) has verified 22 visits in various parts of the 
country that appear to have had the same purpose, and, in one 
statement, the FBI said the program was 25 years old. The FBI has also 
requested computerized check-out records from technical and science 
libraries and has asked private information providers, including Mead 
Data Central and Charles E. Simon Co., to help monitor use of their 
databases. Although public and university libraries do not have 
classified information, the FBI has justified its interest in library 
use by a version of the "information mosaic" theory: that discrete and 
benign pieces of information can be put together to present a danger 
to national security and therefore need to be controlled. 

     Monitoring library usage is illegal in 44 states and the District 
of Columbia and violates an ALA policy, dating from 1970, that 
prohibits the disclosure of information about patrons' reading habits.  

     In July 1987, the ALA wrote the FBI to inquire about the Library 
Awareness Program, and the National Security Archive filed an FOIA 
request asking for records about the program. The FBI responded that 
it had no records under that name, and Quin Shea, who was then Special 
Counsel to the Archive, says they probably didn't, since the real name 
of the program is classified. The Archive filed a second FOIA request 
that September, and the ALA filed its own requests in October and 
December.  

     In September 1988, the ALA Intellectual Freedom Committee met 
with high-level representatives of the FBI. That same month, FBI 
Director William Sessions wrote Rep. Don Edwards (D-CA) that the 
program would be limited to technical libraries in the New York City 
area, presumably where the concentration of spies is greatest, and 
that cooperation of librarians would be voluntary. It was only in the 
summer of 1989, after Edwards and other members of Congress had gotten 
involved and the Archive had sued the FBI, that about 1200 pages of 
documents were released. These showed, among other things, that some 
librarians did cooperate. The Archive is again suing the FBI for the 
release of more material.

                ACCESS TO GOVERNMENT INFORMATION 

     Privacy advocates and policy makers have long emphasized the 
importance of an individual's right to review information held about 
him or her. But, though the federal government has been collecting 
large amounts of information since the end of the last century, the 
public's right to monitor that information and the government's 
activities, has gained cache only fairly recently. 

     The Freedom of Information Act (FOIA) was passed in 1966, and 
strengthened in 1974, followed in 1976 by the Sunshine Act. These laws 
gave the public greater access to information about government 
practices and decision making. Significantly, this swing toward 
openness in government took place at the same time that technological 
developments provided the government with ever greater information- 
collecting abilities. 

     Information policy, the means by which government information is 
made available, can be divided into three broad categories: 
disclosure, access and dissemination. The past decade has seen 
cutbacks in all three areas: for example, a 10% annual increase in 
classification decisions since 1982; the elimination or privatization 
of one in four government publications since 1981 under the Paperwork 
Reduction Act; and foot dragging or outright hostility on Freedom of 
Information requests. In addition, the computerization of government 
operations has consistently been designed for bureaucratic efficiency 
with little interest in increased openness or access.  Electronic 
Access and Freedom of Information 

     One major area of debate in information policy is the effect of 
computerization on the FOIA. Theoretically at least, it is easier to 
search and retrieve records by computer than by hand, thereby 
lessening the burden on the responding agency and making them more 
amenable to FOI requests. But it is also likely that the volume and 
variety of requests will grow as the possibilities of information 
searches become apparent.  

     The Act mandates that records of the executive branch of 
government be available to the public on request, exempting only nine 
narrowly-defined categories, and it is almost universally accepted by 
now that electronic records are covered along with those on paper. 
There have been legal decisions to the contrary, which have placed 
privacy above disclosure concerns, but these have usually involved 
requests for information to be used commercially.  

     However, since the FOIA was written with paper records in mind, 
it left unaddressed the questions of what constitutes a record and a 
reasonable search, and what format is required for making information 
available. These and other disputes are currently being arbitrated by 
the courts, Congress and the agencies involved. The balancing act 
between access and privacy also becomes trickier with electronic 
storage of information. In 1977, the Supreme Court looked at a state's 
records of people who obtained prescription drugs legally and 
determined that this centralized file included sufficient safeguards 
to protect privacy, making it constitutional. Still, the Court found 
that government collection of personal information did pose a threat 
to privacy because "that central computer storage of the data thus 
collected...vastly increases the potential for abuse of that 
information." A similar privacy concern informed a more recent Supreme 
Court decision in which the Reporters Committee for Freedom of the 
Press was denied access to FBI criminal history records in 
computerized form. 

     In addition to arguing against disclosure on privacy grounds, the 
Justice Department has opposed requests for records analyzed and 
combined by computer, maintaining that this is equivalent to creating 
a new record, something the FOIA does not require an agency to do. 
Independent studies, however, tend to conclude that this is more like 
searching through an electronic filing cabinet and suggest that 
disputes be settled by applying a standard of reasonable effort, a 
term yet to be defined satisfactorily.  

     A third major area of dispute is the form in which the requested 
information is made available. This problem arises in two different 
situations: where the data exist in more than one format and a 
requester has a preference, and where they do not exist in the format 
requested. The first is more common and more controversial. In 1984, a 
district court ruled that the government does not have to provide 
information in a requested format in order to fulfill its FOIA 
obligation (Dismukes v. Department of Interior, 603 F. Supp. 760 (DDC 
1984)). But in Department of Justice v. Tax Analysts (492 U.S. 136 
(1989)), the court determined that an agency can withhold a record 
only if it falls under one of the delineated exemptions. This ruling 
suggests that such a rationale would override Dismukes in a new court 
case. 

     In 1989, the Justice Department asked federal agencies how they 
viewed their obligations under FOIA to provide electronic information. 
The survey found wide variation among agencies, but a tendency against 
disclosure:  
     # 76% of the respondents did not think the law required them to 
create new, or modify existing, computer programs to search for 
requested information; 
     # 47% did not think they had to create new programs to separate 
disclosable from classified information;
     # 59% did not think the FOIA required them to comply with the 
requested format. 

     Sen. Leahy is attempting to codify these requirements through a 
proposed Electronic Freedom of Information Improvement Act (S. 1939), 
which will come up for a hearing this spring. This amendment to the 
FOIA would require agencies to provide records in the form requested 
and make a reasonable effort to provide them in electronic form, if 
requested, even if they are not usually kept that way. It defines 
"record" to include "...computer programs, machine readable materials 
and computerized, digitized, and electronic information, regardless of 
the medium by which it is stored..."  "Search" is defined to include 
automated examination to locate records. 

     While many researchers and journalists support Leahy's bill, some 
public interest groups worry that, like other legislation targeting 
electronic communication, this will draw unwelcome scrutiny to the 
issue. Instead, they support an evolutionary process involving 
education and specific appeals to agencies.

                 Transactional Data and the IRS 

     The manipulation of data in a usable format is a useful tool in 
analyzing how government agencies really work. One particularly rich 
vein is transactional information, data recorded by government 
agencies in the course of their work. When this information is matched 
with other statistics, it can be analyzed to reveal what might 
otherwise be obscured about the activities of the government.  

     A successful practitioner of this kind of investigation is 
investigative journalist David Burnham. In A Law Unto Itself: Power, 
Politics and the IRS, Burnham reports that computerized files obtained 
from the IRS revealed that audit rates vary widely among sections of 
the country, as does the likelihood of property seizure for delinquent 
taxes. He also discovered that there had been no increase in non- 
compliance rates over the past 15 years, although the IRS used the 
threat of increasing tax evasion as a basis for requesting new money 
for enforcement. The IRS had failed to adjust for inflation or margin 
of error in their calculations. 

     Burnham drew some of his conclusions from the work of Susan Long, 
Director of the Center for Tax Studies at Syracuse University. Burnham 
and Long founded the Transactional Records Access Clearinghouse (TRAC) 
with the goal of forcing the release of government data not available 
before. Long, who began her siege on the IRS in 1969, filed 13 FOIA 
requests to that agency and frequently took it to court to force it to 
open its records. She won a precedent-setting victory in Long v. IRS 
(596 F. 2nd 362 (9th Cir. 1979), with a ruling that the FOIA 
definition of "record" covered data on computer tapes. Her lawsuit, 
concerned the Taxpayer Compliance Measurement Program (TCMP), which 
measures the effectiveness of the IRS system and determines who will 
be audited. Although the data produced were kept so secret that they 
were withheld even from the Government Accounting Office, Long found 
that the information had little effect on the IRS's audit coverage, 
even when it pointed up regions or classes that were under- audited.

         ENHANCING FREE EXPRESSION WITHIN THE ELECTRONIC FORUM 

     The dangers of assuming that because a technology is value-free 
and neutral, the uses to which it is put will also be benign are well-
documented and real. But for all the new or magnified threats to 
individual liberties arising from computer-assisted communication, the 
electronic forum also offers the means to increase those liberties by 
expanding the possibilities for talking and working together and for 
building political and social alliances. Widespread and fairly 
allocated computerized resources can offer: increased citizen 
participation in and oversight of government affairs; assembly, 
organizing and debate unrestricted by geographical distances or 
boundaries; decentralized decision making; a challenge to news and 
publishing monopolies; rapid international exchange of information; 
and individually-tailored, focused information to combat the 
information glut that interferes with communication. 

     Stewart Brand has said that information wants to be free, and 
this may be nowhere more true than in electronic communication, which, 
by its very design, abhors censorship and monopolies (though history 
has proven that technology does not outsmart repression for long). It 
is important that those concerned with civil liberties enter the 
electronic forum with a mixture of optimism and vigilance and take 
part in the debate on its future while that debate is still open. 


FOR FURTHER INFORMATION:  


Berman, Jerry and Janlori Goldman. 
A Federal Right of Information Privacy: The Need for Reform. 
Washington, DC: Benton Foundation, 1989.

Berman, Jerry. "The Right to Know: Public Access to Electronic 
Public Information." Software Law Journal
Summer 1989:491-530 (reprinted by The Markle Foundation).

Burnham, David. A Law Unto Itself: Power, Politics and the IRS. NY: 
Random House, 1989.

  "        " The Rise of the Computer State. NY: Random House, 1983.

Demac, Donna A. "The Electronic Book." American Writer Winter 1992.

Ermann, M. David et al. Computers, Ethics, & Society. NY: Oxford UP, 
1990.

Index on Censorship July 1991. Section on computers and free speech.

"Is Computer Hacking a Crime? A Debate From the Electronic 
Underground." Harper's March 1990:45-57.

Lacayo, Richard. "Nowhere to Hide." Time 11/11/91: 34-40.

Office of Information and Privacy. Department of Justice Report on 
"Electronic Record" Issues Under the Freedom of Information Act. 
Washington, DC, 1990.

Perritt, Henry H. Jr. (prepared report). Electronic Public Information 
and the Public's Right to Know.
Washington, DC: Benton Foundation, 1990.

Pool, Ithiel de Sola. Technologies of Freedom. Cambridge, MA: 
Harvard UP, 1983.

Proceedings of The First Conference on Computers, Freedom & Privacy.
Los Alamitos, CA: IEEE Computer
Society Press, 1991.

Reporters Committee for Freedom of the Press. 
Access to Electronic Records. Washington, DC, 1990.

Rosenberg, Roni. Selected and Annotated Bibliography on 
Computers and Privacy. Palo Alto: Computer
Professionals for Social Responsibility.

Scientific American. Special issue on communications, computers 
and networks. Sept. 1991.

Shattuck, John and Muriel Morisey Spence. Government Information 
Controls: Implications for Scholarship,
Science and Technology. Association of American Universities 
occasional paper, 1988.

Westin, Alan. Privacy and Freedom. NY: Atheneum, 1967.


RESOURCES

ACLU Project on Privacy and Technology
122 Maryland Avenue, NE
Washington, DC 20002
(202) 675-2320
privacy issues

Computer Professionals for Social
Responsibility
National Office
P.O. Box 717
Palo Alto, CA 94302
415/322-3778
general political and social issues

Electronic Frontier Foundation
155 Second Street
Cambridge, MA 02141
617/864-0665
general political and legal issues 

National Writers Union
13 Astor Place, 7th floor
New York, NY 10003
(212) 254-0279
intellectual property issues

Public Citizen
2000 P Street, Suite 700
Washington, DC 20036
(202) 833-3000
privacy issues

Reporters Committee for Freedom of the Press
1735 Eye Street, NW, suite 504
Washington, DC 20006
(202) 466-6312
access to government information

Transactional Records Access Clearinghouse
478 Newhouse II
Syracuse, NY 13244
(315) 443-3563
access to government information


For more information, contact:
Gara LaMarche, (212) 972-8400 (o)
(718) 789-5808 (h)
                           *   *   *   


This newsletter is a publication of the Fund for Free Expression, 
which was created in 1975 to monitor and combat censorship around the 
world and in the United States. It was researched and written by Nan 
Levinson,a freelance writer based in Boston and the U.S. correspondent 
for Index on Censorship.

The Chair of the Fund for Free Expression is Roland Algrant; Vice 
Chairs, Aryeh Neier and Robert Wedgeworth; Executive Director, Gara 
LaMarche; Associate, Lydia Lobenthal. The members are Alice Arlen, 
Robert L. Bernstein, Tom A. Bernstein, Hortense Calisher, Geoffrey 
Cowan, Dorothy Cullman, Patricia Derian, Adrian DeWind, Irene Diamond, 
E.L. Doctorow, Norman Dorsen, Alan Finberg, Francis FitzGerald, Jack 
Greenberg, Vartan Gregorian, S. Miller Harris, Alice H. Henkin, Pam 
Hill, Joseph Hofheimer, Lawrence Hughes, Ellen Hume, Anne M. Johnson, 
Mark Kaplan, Stephen Kass, William Koshland, Judith F. Krug, Jeri 
Laber, Anthony Lewis, William Loverd, Wendy Luers, John Macro, III, 
Michael Massing, Nancy Meiselas, Arthur Miller, The Rt. Rev. Paul 
Moore, Jr., Toni Morrison, Peter Osnos, Bruce Rabb, Geoffrey Cobb 
Ryan, John G. Ryden, Steven R. Shapiro, Jerome Shestack, Nadine 
Strossen, Rose Styron, Hector Timerman, John Updike, Luisa Valenzuela, 
Nicholas A. Veliotes, Kurt Vonnegut, Jr., Gregory Wallance and Roger 
Wilkins.

The Fund for Free Expression is a division of Human Rights Watch, 
which also includes Africa Watch, Americas Watch, Asia Watch, Helsinki 
Watch, Middle East Watch, and special projects on Prisoners' Rights 
and Women's Rights. The Chair is Robert L. Bernstein and the Vice 
Chair is Adrian W. DeWind. Aryeh Neier is Executive Director; Kenneth 
Roth, Deputy Director; Holly J. Burkhalter, Washington Director; Susan 
Osnos, Press Director. 



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