 A Not Terribly Brief History 
 of the Electronic Frontier Foundation
 
 by John Perry Barlow
 
 Thursday, November 8, 1990
 
 
 The Electronic Frontier Foundation was started by a visit from the FBI.
 
 In late April of 1990, I got a call from Special Agent Richard Baxter of the 
 Federal Bureau of Investigation.  He asked if he could come by the next 
 day and discuss a certain investigation with me.  His unwillingness to 
 discuss its nature over the phone left me with a sense of global guilt, but I 
 figured turning him down would probably send the wrong signal.
 
 On Mayday, he drove to Pinedale, Wyoming, a cow town 100 miles north 
 of his Rock Springs office (where he ordinarily investigates livestock theft 
 and other regional crimes).  He brought with him a thick stack of 
 documents from the San Francisco office and a profound confusion about 
 their contents.
 
 He had been sent to find out if I might be a member of the NuPrometheus 
 League, a dread band of info-terrorists (or maybe just a disaffected former 
 Apple employee) who had stolen and wantonly distributed source code 
 normally used in the Macintosh ROMs.  Agent Baxter's errand was 
 complicated by a fairly complete unfamiliarity with computer technology. 
 I realized right away that before I could demonstrate my innocence, I 
 would first have to explain to him what guilt might be.
 
 The three hours I passed doing this were surreal for both of us. Whatever 
 this source code stuff was, and whatever it was that happened to it, had 
 none of the cozy familiarity of a few yearling steers headed across the 
 Wyoming border in the wrong stock truck.
 
 What little he did know, thanks to the San Francisco office, was also pretty 
 well out of kilter.  He had been told, for example, that Autodesk, the 
 publisher of AutoCAD, was a major Star Wars defense contractor and that 
 its CEO was none other than John Draper, the infamous phone phreak 
 also known as Cap'n Crunch.  As soon as I quit laughing, I started to 
 worry.
 
 I realized in the course of this interview that I was seeing, in microcosm, 
 the entire law enforcement structure of the United States. Agent Baxter 
 was hardly alone in his puzzlement about the legal, technical, and 
 metaphorical nature of datacrime.
 
 I also found in his struggles a framework for understanding a series of 
 recent Secret Service raids on some young hackers I'd met in a Harper's 
 magazine forum on computers and freedom.  And it occurred to me that 
 this might be the beginning of a great paroxysm of governmental 
 confusion during which everyone's liberties would become at risk.
 
 When Agent Baxter had gone, I wrote an account of his visit and placed it 
 on the WELL, a computer BBS in Sausalito which is  digital home to a 
 large collection of technically hip folks, including Mitch Kapor, the father 
 of Lotus 1-2-3.
 
 Turns out Mitch had also been visited by the FBI, owing to his having 
 unaccountably received of one of the source code disks which 
 NuPrometheus scattered around.  Mitch's experience had been as 
 dreamlike as mine.  He had, in fact, filed the whole thing under General 
 Inexplicability until he read my tale on the WELL.  Now he had enough 
 corroboration for his own strange sense of alarm to begin acting on it.
 
 Several days later, he found his bizjet about to fly over Wyoming on its 
 way to San Francisco.  He called me from somewhere over South Dakota 
 and asked if he might literally drop in for a chat about Agent Baxter and 
 related matters.
 
 So, while a late spring snow storm swirled outside my office, we spent 
 several hours hatching what became the Electronic Frontier Foundation. I 
 told him about the sweep of Secret Service raids which had taken place 
 several months before and their apparent disregard for the Bill of Rights.
 
 Alarmed, he gave me the phone number of Harvey Silverglate, whose 
 willingness to champion unpopular causes was demonstrated by his 
 current defense of Leona Helmsley.  He said that Harvey would probably 
 know if this were as bad as it was starting to sound.  He also said that he 
 would be willing to pay the bills that generally start to appear whenever 
 you call a lawyer.
 
 I finally found Harvey in the New York offices of Rabinowitz, Boudin, 
 Standard, Krinsky and Lieberman, a firm whose long list of successfully 
 defended liberties includes the Pentagon Papers case.  I told him and Eric 
 Lieberman what I knew about recent government flailings against 
 cybercrime.  They were even less sanguine than I had been.
 
 The next day a trio code-named Acid Phreak, Phiber Optik, and Scorpion 
 entered the walnut-panelled chambers of Rabinowitz, Boudin and told 
 their tales to a young lawyer there named Terry Gross.  While EFF as a 
 formal organization would not exist for another two months, its legal arm 
 was already flexing its muscle.
 
 A few days later I received a phone call from the technology writer for the 
 Washington Post.  He was interested in following up on the Harper's 
 forum, and knew nothing of Mitch's and my joint endeavors.  I filled him 
 in, hoping to expose the Secret Service.  Several days later, the Post 
 published the first of many newspaper stories, all of which could have 
 shared the same headline: LOTUS FOUNDER DEFENDS HACKERS.
 
 While this was an irritating misrepresentation...we were more interested 
 in defending the Constitution than any digital miscreants...the publicity 
 produced a couple of major supporters:  Steve Wozniak, who called and 
 offered an unlimited match to Mitch's contributions, and John Gilmore 
 (Sun Microsystems employee #5) who e-mailed me a six figure offer of 
 support.
 
 Meanwhile, the list of apparent outrages lengthened.  We learned about 
 an Austin role-playing games publisher named Steve Jackson whose office 
 equipment had been confiscated by the Secret Service in an apparent effort 
 to restrain his publication of a game called Cyberpunk which they tght, 
 with ludicrous inaccuracy, to be " a handbook for computer crime.
 
 All over the country computer bulletins being confiscated, undelivered e-
 mail and all.  A Secret Service dragnet called Operation Sundevil seized 
 more than 40 computers and 23,000 data disks from teenagers in 14 
 American cities, using levels of force and terror which would have been 
 more appropriate to the apprehension of urban guerrillas than barely post-
 pubescent computer nerds.
 
 And there was the Craig Neidorf case.  Neidorf, also known by the nom de 
 crack Knight Lightning, had published an internal BellSouth document in 
 his electronic magazine Phrack.  For this constitutionally protected act, 
 Neidorf was being charged with interstate transport of stolen property 
 with a possible sentence of 60 years in jail and a $122,000 in fines.
 
 I wrote a piece about these events called Crime & Puzzlement.  Although I 
 did so at the request of the Whole Earth Review...it made its first print 
 appearance in the Fall 1990 issue of WER...I " published"  it on the Net in 
 June and was astonished by the response.  It was like planting a fence-post 
 and discovering that the " ground"  into which you've driven it is actually 
 the back of a giant animal which quivers and heaves at the irritation.
 
 By July, I was receiving up to 100 e-mail messages a day.  They came from 
 all over the planet and expressed nearly universal indignation.  I began to 
 experience datashock, but I also realized that Mitch and I were not alone in 
 our concerns.  We had struck a chord.
 
 In Cambridge, Mitch was having something like the same experience. 
 Since the Washington Post story, he found himself bathed in media glare. 
 However, the more he learned about ambiguous nature of law in 
 Cyberspace, the more of his considerable intellectual and financial 
 resources he became willing to devote to the subject.
 
 In late June, Mitch and I threw several dinners in San Francisco, to which 
 we invited major figures from the computer industry.  We weren't 
 surprised to learn than many of them had exploits in their past which, 
 undertaken today, would arouse plenty of Secret Service interest.  It 
 appeared possible that one side-effect of current government practices 
 might be the elimination of the next generation of computer 
 entrepreneurs and digital designers.
 
 It also became clear that we were dealing with a set of problems which was 
 a great deal more complex and far-reaching than a few cases of 
 governmental confusion. The actions of the FBI and Secret Service were 
 symptoms of a growing social crisis: Future Shock.  America was entering 
 the Information Age with neither laws nor metaphors for the appropriate 
 protection and conveyance of information itself.
 
 We realized that our legal actions on behalf of a few teen-age crackers 
 would go on indefinitely without much result unless something were 
 done to ease social tensions along the electronic frontier.  The real task at 
 hand was the civilization of Cyberspace.  Such an undertaking would 
 require more juice and stamina than two men could muster, even 
 amplified by the Net and a solid financial supply.  We would need some 
 kind of organizational identity.
 
 With this in mind, we hired a press coordinator, Cathy Cook (who had 
 formerly done PR for Steve Jobs), set a squad of lawyers to work on 
 investigating the proper organizational tax status, and, over a San 
 Francisco dinner with Stewart Brand, Nat Goldhaber, Jaron Lanier, and 
 Chuck Blanchard, we selected a name and defined a mission.
 
 We announced the formation of the Electronic Frontier Foundation at the 
 National Press Club on July 10.  Mitch and I were joined for the 
 announcement by Harvey Silverglate, Terry Gross, and Steve Jackson.
 
 We were also joined by Marc Rotenberg of the Washington office of 
 Computer Professionals for Social Responsibility.  One of our first official 
 acts had been to grant that organization $275,000 for a project on 
 computing and civil liberties.  CPSR would keep a wary eye on 
 developments " inside the Beltway"  and work in conjunction with 
 congressional staffers to see that any legislation dealing with access to 
 information was sensibly drafted.
 
 While in Washington, we also took inventory of the terrain, meeting 
 with congressional staffers, the Washington civil liberties establishment, 
 and officials from the Library of Congress and the White House.  The area 
 to be covered, from intellectual property to telecommunications policy to 
 law enforcement technique, was daunting, as were the ambient levels of 
 confusion and indifference.
 
 We also generated an enormous amount of press.  And it became apparent 
 that not everyone was persuaded of our cause.  Business Week called Mitch 
 naive for his willingness to believe that computer crackers were somehow 
 less dangerous that drug kingpins.  Various burghers of the computer 
 establishment, ranging from the executive director of the Software 
 Publishers Association to a columnist for ComputerWorld, called us fools 
 at best and, more likely, dangerous fools.
 
 The Wall Street Journal printed a particularly hysterical piece which alleged 
 that the document Craig Neidorf (into whose case we had entered a 
 supporting amicus brief) had published was a computer virus capable of 
 bringing down the emergency phone system for the entire country.  In fact, 
 the text file which Neidorf distributed dealt with the bureaucratic 
 procedures of 911 administration in the BellSouth region and contained 
 nothing which could be used to crack a system.  Indeed, it contained 
 nothing which could not be easily obtained through by legal means.
 
 We persevered.  Our first major break came in late July.  Thanks in part to 
 the expertise of John Nagel, a witness we introduced to  Neidorf's lawyer, 
 the government was forced to abandon its case against Neidorf after 4 days 
 in Chicago's Federal Court.
 
 Although our briefs supporting Neidorf's activities under the 1st 
 Amendment were not admitted, it became apparent, before such loftier 
 matters could even be broached, that the Secret Service had indicted him 
 with no clear understanding of the purpose or availability of the 
 document he had distributed.  Like Agent Baxter, they knew too little to 
 critically examine the misinformation they had been given by the 
 corporate masters, in this case, officials at Bellcore.
 
 Following the resolution of the Neidorf case, and, to some extent because 
 of it, skepticism of EFF has moderated considerably.  If anything, the most 
 recent press accounts of our activities have been almost fulsome in their 
 praise.  Recent favorable coverage has appeared in the New York Times, 
 The Economist, Infoworld, Information Week, PCweek, and Boston 
 Magazine.
 
 Since July, we have been absurdly busy on numerous fronts:  We've 
 worked on raising public awareness of the issues at stake.  We are 
 organizing legal responses to the original and continuing intemperance of 
 law enforcement. We have worked on the political front, developing and 
 lobbying for rational computer security legislation. We have started to 
 create a network of interested experts on computer security, intellectual 
 property, telecommunications policy, and international information 
 rights.  And lately we've been attending to the organizational demands of 
 the non-profit equivalent of a hyper-successful computer startup.
 
 The following is a cursory digest of these activities.

 
 
 The EFF in Public
 
 We believe that critical to taming the electronic frontier is creating a sense 
 of the stakes among both the computer literate and the general public.  We 
 have combined public appearances, that incredibly blunt instrument, the 
 Media, and electronic interaction to cover a lot of consciousness since July. 
 It's a good thing Mitch has that airplane.
 
 We have continued to build a constituency within the computing 
 community, convening small gatherings of computer professionals from 
 across the hacker/suit spectrum.  Mitch, Harvey, and I have also addressed 
 larger forums such as the CPSR Annual Meeting, the International 
 Information Integrity Institute meeting on computer security, the 
 Computer Science and Telecommunications Board of the National 
 Academy of Science and Engineering, Stewart Alsop's Agenda '91, 
 MacHack, the Boston Computer Society, Ars Electronica, the Kennedy 
 School of Government, and numerous others.
 
 We have done more press interviews and call-in radio shows than I can 
 remember.  Woz appeared on Good Morning America with Assistant 
 Arizona AG (and Operation Sundevil architect) Gail Thackery.  EFF has 
 appeared prominently in national publications ranging from Newsweek to 
 Spin, most of the major daily newspapers, and nearly every computer trade 
 publication from Information Week to Mondo 2000.  A writer for The New 
 York Times Magazine is currently at work on a major piece about EFF.
 
 I have agreed to write a regular column on the Electronic Frontier for the 
 Communications of the ACM.  And Mitch and I have been invited to 
 submit pieces to Scientific American, Issues in Science and Technology, and 
 Whole Earth Review.
 
 We set up two Usenet newsgroups, comp.org.eff.news and 
 comp.org.eff.talk. eff.news is moderated by Glenn Tenney and contains a 
 selection of the best articles posted in eff.talk.  We began an EFF forum on 
 the WELL (which soon became among the most active conferences there, 
 right behind Sex and the Grateful Dead). We are setting up our own 
 USENET node on the Net, eff.org,  with a Sun IV in our Cambridge office 
 and the guidance of volunteer sysop Spike Ilacqua.  When fully 
 operational, the machine will run the Caucus conferencing system and 
 should have a 56kb Internet connection.  Finally, we are investigating the 
 possibility of setting up an EFF conference on Compuserve.
 
 We have read and personally generated over 4 megabytes of e-mail since 
 June.  Lately, Jef Poskanzer has been maintaining  the EFF's electronic 
 mailing list, which is now approaching 1000 names.  Information 
 distributed through eff.news is also sent to the mailing list.
 
 Concerned that our approach is a little too electronic, we are now trying to 
 connect more directly with folks who might be interested in EFF but who 
 are not online.  Our newsletter, the first edition of which you now have in 
 your hands, is part of that effort.  Primarily the work of Rick Doherty and 
 Dan Sokol, we intend to publish The EFFector a minimum of 4 times a 
 year.
 
 Finally, we are working with Jim Warren and a variety of groups to 
 organize a major international conference on Communications, Privacy, 
 and Freedom to be held in San Francisco in March of 1991.  This gathering 
 is being designed to include citizens who are not technologically 
 sophisticated.
 
 
 Legal Issues
 
 In the beginning, we had thought that most of our activities would either 
 take place in court or on the way there.  While this hasn't quite been the 
 case, legal matters still require much of our time and by far the lion's share 
 of our expenditures.
 
 Since the Neidorf case, most of our legal activity has been, of necessity, 
 low-profile.  It is not strategically sound to announce lawsuits well in 
 advance of filing them, and, while there remains a lot of dubiously 
 confiscated equipment in constabulary storage, we are not going to 
 jeopardize our ends by telegraphing their means.  We are currently 
 preparing cases on a variety of fronts, proceeding at the deliberate pace 
 characteristic of both geology and the law.
 
 We remain primarily interested in those cases in which constitutional 
 issues are at stake.  We are investigating incidents in which the First 
 Amendment rights of computer users may have been abridged, where 
 searches and seizures appear to have exceeded the authority of the Fourth 
 Amendment, where the government seems to have violated the 
 Electronic Communications Privacy Act, and where warrants have been 
 issued with insufficient cause.  There is no shortage of legal opportunities 
 here.  The problem is picking the best ones.
 
 We are still working with two law firms, Silverglate and Good of Boston 
 and Rabinowitz, Boudin, Standard, Krinsky, and Lieberman of New York. 
 We also have dealings with Katten, Muchin & Zavis, the Chicago firm of 
 Craig Neidorf's attorney, Sheldon Zenner, and are considering offers of pro 
 bono assistance from a number of other firms around the country.
 
 We recently hired Mike Godwin, a freshly minted Texas lawyer and 
 USENET adept, to sort through the factual and legal details of the many 
 cases we are being asked to intervene in.  In his short time with us, he has 
 investigated several cases to determine their fit with EFF's constitutional 
 mission, their winnability, and their likelihood of producing clear legal 
 precedent.
 
 We have a conference call of the EFF Legal Committee every other 
 Wednesday to discuss the current state of our cases and any new 
 possibilities we might wish to take on.  The Legal Committee includes 
 Mitch, Mike Godwin, Harvey Silverglate, Sharon Beckman (of Silverglate 
 & Good), Terry Gross (of Rabinowitz, Boudin), and myself.  We also have 
 a private conference on the WELL to distribute briefs, documents, and 
 other legal information among the members of the committee.
 
 Mike Godwin is also EFF's liaison with a committee of the American Bar 
 Association which is investigating government actions in Operation 
 Sundevil.  Chaired by Judge William McMahon of Ohio, the committee is 
 devising ABA guidelines for computer searches and seizures.  EFF will 
 have an important role in establishing the committee's recommendations.
 
 
 The Art of the Possible
 
 Despite the patience it requires, the political process offers many 
 opportunities to pursue EFF's agenda.  We have been working on two 
 different fronts to promote government rationality toward computer use, 
 in Washington, where we are working closely with the CPSR Civil 
 Liberties and Computing Project which we funded, and in Massachusetts 
 where we have been successful in developing model legislation.
 
 CPSR, through the able efforts of Marc Rotenberg, has filed a lawsuit in 
 federal district court in the District of Columbia to obtain information 
 from the FBI about the monitoring of computer bulletin boards.  This 
 follows similar efforts which forced the Treasury Department to admit 
 that the Secret Service was in fact monitoring BBS's.
 
 Marc also testified before the Subcommittee on Technology and Law of the 
 Senate Judiciary Committee on S. 2476, the Computer Abuse 
 Amendments Act of 1990.  CPSR supported the proposed addition of a 
 recklessness misdemeanor provision, calling attention to problems 
 surrounding Operation Sun Devil and the civil liberties issues raised by 
 the investigation of computer crime.  The testimony was well received 
 and widely reported in the press, but Congress adjourned before passing 
 the amendments.
 
 In Massachusetts, we headed off a misguided computer crime bill which 
 had made it all the way to the desk of Governor Dukakis.  Not only did we 
 persuade the Governor not to sign it, we organized an effort to rewrite the 
 bill for re-submission to the Massachusetts Legislature.
 
 Sharon Beckman of Silverglate and Good drafted much of the new 
 legislation, which, if it passes, will serve as a model law for other states to 
 emulate.  The new bill draws a clear distinction between computer trespass 
 and actual malice, proposing appropriate penalties for each.  It also 
 instructs law enforcement agencies to be aware of the constitutional issues 
 involved in the investigation of computer crime.
 
 
 Intellectual Property
 
 This phrase has always sounded like an oxymoron to me.  " Property" 
 seems to imply something more tangible than the mysterious stuff to 
 which the term applies, and it is from this ambiguity that arises much of 
 the difficulty along the electronic frontier.  Just as limited bandwidth was 
 the excuse for applying censorship to broadcast media, it appears that the 
 zealous protection of intellectual property presents the greatest threat to 
 free digital expression.
 
 For this reason, the definition and regulation of intellectual property is a 
 matter of great concern to EFF.  However, we recognize that the 
 established canon of copyright and patent law is so fundamentally 
 inadequate to the demands of the Information Age that any effort to made 
 a significant difference in this area could consume all of EFF's resources.
 
 Nevertheless, both Mitch and I intend to devote a lot of our personal time 
 to this issue.  Mitch is especially well situated to make a difference.  As the 
 author of the most successful (as well the most pirated) piece of software 
 in history, he has an important and credible voice amid the babble of 
 obsolete legalisms which surrounds the discussion of intellectual property.
 
 Marc Rotenberg is also working in this area.  He attended the first meeting 
 of the Office of Technology Assessment panel on intellectual property. 
 Marc recommended that the OTA give careful consideration to the public 
 interest issues that might be raised by various forms of intellectual 
 property protection.  The OTA has agreed to host a workshop on this topic 
 and has asked CPSR to prepare a short report.
 
 
 Designing the Future Net
 
 Sometimes it seems as if all of humanity is engaged in a Great 
 Work...which I imagine to be the hard-wiring of human consciousness.  It 
 is as if we must literally connect ourselves electronically before we can 
 appreciate the connections which have always existed. 
 
 As exalted as such an undertaking might sound, the actual wiring process 
 is as tedious as any endeavor I can imagine.  In addition to building hard 
 infrastructure...fiber optic cabling, link stations, and microwave 
 towers...the policy process surrounding telecommunications and 
 information delivery is arcane and convoluted beyond ability of any but 
 the most dedicated student to understand it.  As a consequence, those large 
 institutions with a clear financial stake are the only entities which have 
 taken the trouble.
 
 This leaves the average citizen with no voice in the some of the most 
 important decisions about how his future will be designed.  Fortunately, 
 Mitch is also willing to take these issues on.  Working with Jerry Berman 
 of the ACLU, Mitch and the EFF intend to create an " information 
 consumers communications policy forum"  to bring together the Baby 
 Bells, AT&T, other telcos, the FCC, newspaper publishers, online 
 information services, and other stakeholders to discuss how their vision 
 of the future of the Net serves the public interest. 
 
 Mitch is also meeting with Net hackers and visionaries to begin to 
 develop a sense of where we want to go and how we might get there.  His 
 own vision:  " a reliable digital network available to everyone with no 
 restrictions on content and policies which promote information 
 entrepreneurship.S He will be devoting a lot of his time to this issue. 
 Again, EFF will support his efforts to the extent it can do so without 
 diminishing its effectiveness on the civil liberties front.
 
 
 An Information Bill of Rights
 
 When we first defined the mission of the Electronic Frontier Foundation, 
 we saw our task as assuring the application of the U.S. Constitution to 
 digital media.  And this remains much of what we are about.
 
 However, information has little natural regard for national borders or 
 local ordinances.  Cyberspace is transnational.  During the tsunami of e-
 mail which Crime & Puzzlement elicited, there were many items from 
 foreign countries.  Their authors wanted to know how they could protect 
 or establish their rights of free expression.  And I had no idea what to tell 
 them.
 
 The question arose again at Esther Dyson's recent East-West Technology 
 Conference in Budapest which Mitch and I attended.  EFF was well-known 
 among the Soviets at this meeting, some of whom were already involved 
 in drafting what they called an Information Bill of Rights. (One young 
 Moscow programmer had managed to hack together an Internet 
 connection through Finland in order to contact me.)
 
 Like intellectual property and telecom policy, the development of 
 international principles of free digital speech is a large angel to wrestle 
 with.  We will have to be careful not to allow this immense task to divert 
 EFF from its specific legal agenda.  But neither can we ignore the fact that 
 Cyberspace is hardly an American territory.
 
 
 Nuts and Bolts
 
 The Electronic Frontier Foundation grew from an effort to fight a specific 
 legal brushfire into a full-fledged Cause much faster than we could have 
 imagined.  And, like any explosive start-up, it spends a lot of time playing 
 catch-up.
 
 Electronically amplified, Mitch and I were able to personally conduct 
 much of EFF's business in the first few months of operations.  But 
 gradually we had to confront the fact that while the Net is very broad, it is 
 also quite shallow.  Without even a sense of their physical location, we 
 have been unable to marshal the hundreds of people who have e-mailed 
 us with their volunteered services.  Also, we found ourselves 
 administering a significant cash-flow in both donations and expenditures. 
 (By year's end, EFF will have spent around $220,000. Our tentative 1991 
 budget predicts expenses of almost half a million.)
 
 So, despite a mutual terror of bureaucracy and organizational sclerosis, we 
 have started to adopt some institutional trappings.
 
 First, in order to satisfy the requirements for a 501c3 tax status (which we 
 should have in about six months), we found that we needed something 
 more substantial than two guys with modems.  Thus, on October 9, we 
 held our first official board meeting and formally elected Stewart Brand, 
 Steve Wozniak, and John Gilmore to join us as board members.
 
 And we have started to take on staff.  In addition to the affore-mentioned 
 Mike Godwin, we have contracted Judith Nies to come in to the office 
 once a week and work on correspondence the requests for information 
 which come in via the telephone and mail.
 
 We have also advertised for an Executive Director. We hope to hire this 
 individual soon and expect him/her to  attend to the many administrative 
 details which have begun to gobble our time (Mitch has been especially 
 swamped.). Upon his/her arrival, we will be able to devise policies
 regarding membership, coordination of volunteers, local chapters, and 
 other organizational dimensions.
 
 Finally, after many months as eff@well.sf.ca.us, we have established a 
 location in the material world.  Our office is at:
 
 The Electronic Frontier Foundation
 155 Second St.
 Cambridge, MA     02141
 (617)864-0665
 (617)864-0866 fax
 
 We are determined that EFF will remain an agile, swift-moving sort of 
 outfit.  We will adopt any new bureaucratic manifestations with the 
 greatest skepticism.  But we are being bombarded with many legitimate 
 requests for assistance, advice, and information.  In order to respond 
 rapidly and appropriately, the Electronic Frontier Foundation has had to 
 become an institution. One method by which we hope to maintain 
 organizational lightness involves keeping a clear distinction between 
 strategy and tactics.
 
 On the strategic level, EFF has a very broad mission involving such 
 amorphous endeavors as defining intellectual property, helping establish 
 a transnational culture of information, designing telecommunications 
 policy, sponsoring humane software design... civilizing Cyberspace.  With 
 an appropriate sense of their limitations, the board members will remain 
 responsible for these matters.
 
 This will prevent the staff's losing tactical focus on more tangible action 
 items like litigation, political action, communicating through the press 
 and across the Net, and organizational care and feeding.
 
 
 The Kicker
 
 The problem with history is that it keeps happening.  Today, as I was 
 working on this EFF mini-biography, I learned that Mitch has just had his 
 fingerprints subpoenaed by the FBI.  Turns out they are now examining 
 the NuPrometheus distribution disks for fingerprints and want to be able 
 to sort his out.  Or, perhaps, search for their appearance on other disks... 
 
 So the Wheels of Justice grind blindly on.  And we will go on trying to 
 prevent anyone's being ground up in them. 
 
 THE ELECTRONIC FRONTIER FOUNDATION
 One Cambridge Center, Suite 300
 Cambridge, MA       02142
 617/577-1385
 617/225-2347 fax
 eff@well.sf.ca.us
 
 
 Saturday, July 21, 1990
 
 
 Good people,
 
 Greetings.  Some of you who read Crime and Puzzlement when it first
 went digital and offered immediate help in dealing with the issues
 raised therein.  It's been five weeks since I promised to get back to
 you "shortly."  It is now clear that we are operating on political
 rather than electronic time.  And political time, though not so
 ponderous as geologic time or, worse, legal time, is hardly swift.  The
 Net may be instantaneous, but people are as slow as ever.
 
 Nevertheless, much has happened since early June.  Crime and Puzzlement
 rattled all over Cyberspace and has, by now, generated almost 300
 unsolicited offers of help...financial, physical, and virtual.  At
 times during this period I responded to as many as 100 e-mail messages
 a day with the average running around 50.  (The voice of Peter Lorre is
 heard in the background, repeating, "Toktor, ve haf created a
 *monster*.")
 
 Well, we have at least created an organization.  Lotus founder Mitch
 Kapor and I have founded the Electronic Frontier Foundation, an
 endeavor for which we have immodest ambitions.  Descending from the
 Computer Liberty Foundation mentioned in Crime and Puzzlement, the EFF
 has received initial (and extremely generous) funding from Mitch, Steve
 Wozniak, and another Silicon Valley pioneer who wishes to remain
 anonymous.  We have also received many smaller offers of support.
 
 As you will see in the accompanying press release, we formally
 announced the EFF at a press conference in Washington on July 10.  The
 press attention was lavish but predictable...KAPOR TO AID COMPUTER
 CRIMINALS.  Actually, our mission is nothing less than the civilization
 of Cyberspace.
 
 We mean to achieve this through a variety of undertakings, ranging from
 immediate legal action to patient, long-lasting efforts aimed at
 forming, in the public consciousness, useful metaphors for life in the
 Datasphere.  There is much to do.  Here is an abbreviated description
 of what we are already doing:
 
 *       We have engaged the law firms of Rabinowitz, Boudin, Standard,
 Krinsky & Lieberman and Silverglate & Good to intervene on behalf of
 Craig Neidorf (the publisher of Phrack) and Steve Jackson Games.  (For
 a digest of the legal issues, please see the message following this
 one.)  We became involved in these particular cases because of their
 general relevance and we remain alert to developments in a number of
 other related cases.
 
 Despite what you may have read, we are not involved in these legal
 matters as a "cracker's defense fund," but rather to ensure that the
 Constitution will continue to apply to digital media.  Free expression
 must be preserved long after the last printing press is gathering
 museum dust.  And we intend an unequivocal legal demonstration that
 speech is speech whether it finds form in ink or in ascii.
 
 *       We have funded a significant two-year project on computing and
 civil liberties to be managed by the Computer Professionals for Social
 Responsibility.  With it, we aim to acquaint policy makers and law
 enforcement officials of the civil liberties issues which may lie
 hidden in the brambles of telecommunications policy.  (A full
 description of this project follows.)
 
 *       During the days before and after the press conference, Mitch
 and I met with Congressional staffers, legal authorities, and
 journalists, as well as officials from the White House and Library of
 Congress.  Thus we began discussions which we expect to continue over a
 period of years.  These informal sessions will relate to intellectual
 property,  free flow of information, law enforcement training and
 techniques, and telecommunications law, infrastructure, and
 regulation.
 
 Much of this promises to be boring as dirt, but we believe that it is
 necessary to "re-package" the central issues in more digestible, even
 entertaining, forms if the general public is to become involved in the
 policies which will fundamentally determine the future of American
 liberty.
 
 *       Recognizing that Cyberspace will be only as civilized as its
 inhabitants, we are working with a software developer to create an
 "intelligent front end" for UNIX mail systems.  This will, we hope,
 make Net access so easy that your mother will be able cruise around the
 digital domain (if you can figure out a way to make her want to).  As
 many of you are keenly aware, the best way, perhaps the only way, to
 understand the issues involved in digital telecommunications is to
 experience them first hand.
 
 These are audacious goals.  However, the enthusiasm already shown the
 Foundation indicates that they may not be unrealistic ones.  The EFF
 could be like a seed crystal dropped into a super-saturated solution.
 (Or perhaps more appropriately, "the hundredth monkey.")  Our
 organization has been so far extremely self-generative as people find
 in it an expression for concerns which they had felt but had not
 articulated.
 
 In any case, we are seeing a spirit of voluntary engagement which is
 quite a departure from the common public interest sensation of "pushing
 a rope."
 
 You, the recipients of this first e-mailing are the pioneers in this
 effort.  By coming forward and offering your support, both financial
 and personal, you are doing much to define the eventual structure and
 flavor of the Electronic Frontier Foundation.
 
 And much remains to be defined.  We are applying for 501(c)3 status,
 which means that your contributions to the Foundation will be tax
 deductible at the time this status is granted.  However, tax-exempt
 status also places restrictions on the ability to lobby which may not
 be consistent with our mission.  Like many activist organizations, we
 may find it necessary to maintain two organizations, one for lobbying
 and the other for education.
 
 We are in the process of setting up both a BBS in Cambridge and a Net
 newsgroups.  None of this is as straightforward as we would have it
 be.  We have also just received an offer of production and editorial
 help with a newsletter.
 
 What can you do?  Well, for starters, you can spread the word about EFF
 as widely as possible, both on and off the Net.  Feel free, for
 example, to distribute any of the materials included in this or
 subsequent mailings, especially to those who may be interested but who
 may not have Net access.
 
 You can turn some of the immense processing horsepower of your
 distributed Mind to the task of finding useful new metaphors for
 community, expression, property, privacy and other realities of the
 physical world which seem up for grabs in these less tangible regions.
 
 And you can try to communicate to technically unsophisticated friends
 the extent to which their future freedoms and well-being may depend on
 understanding the broad forms of digital communication, if not
 necessarily the technical details.
 
 Finally, you can keep in touch with us at any of the above addresses.
 Please pass on your thoughts, concerns, insights, contacts,
 suggestions, and, and most importantly, news of relevant events.  And
 we will return the favor.
 
 
 Forward,
 
 
 
 John Perry Barlow
 for The Electronic Frontier Foundation
 
 
 If you would like a recently amended digital version of Crime and
 Puzzlement, please let us know, and we will e-mail you one.  We would
 prefer, of course, that you simply buy the August issue of Whole Earth
 Review, in which it will appear.
 
 Finally, we also have available an excellent paper on hackers by
 Dorothy Denning, a widely respected computer security expert with DEC.
 
 
 ************************************************************ 
 About the EFF
 General Information
 Revised August 1990
 ************************************************************
 
 The EFF (formally the Electronic Frontier Foundation, Inc.) has
 been established to help civilize the electronic frontier; to make
 it truly useful and beneficial not just to a technical elite, but
 to everyone; and to do this in a way which is in keeping with our
 society's highest traditions of the free and open flow of information
 and communication.
 
 The EFF now has legal status as a corporation in the state of
 Massachusetts.  We are in the process of applying to the IRS for
 status as a non-profit, 501c3 organization. Once that status is
 granted contributions to the EFF will be tax-deductible.
 
 ************************************************************
 Mission of the EFF
 ************************************************************
 
 1.      to engage in and support educational activities which
 increase popular understanding of the opportunities and challenges
 posed by developments in computing and telecommunications.
 
 2.      to develop among policy-makers a better understanding of
 the issues underlying free and open telecommunications, and support
 the creation of legal and structural approaches which will ease
 the assimilation of these new technologies by society.
 
 3.      to raise public awareness about civil liberties issues
 arising from the rapid advancement in the area of new computer-based
 communications media and, where necessary, support litigation in
 the public interest to preserve, protect, and extend First Amendment
 rights within the realm of computing and telecommunications
 technology.
 
 4.      to encourage and support the development of new tools which
 will endow non-technical users with full and easy access to
 computer-based telecommunications.
 
 ************************************************************ 
 Current EFF Activities
 ************************************************************
 
 >  We are helping educate policy makers and the general public.
 
 To this end we have funded a significant two-year project on
 computing and civil liberties to be managed by the Computer
 Professionals for Social Responsibility. With it, we aim to acquaint
 policy makers and law enforcement officials of the civil liberties
 issues which may lie hidden in the brambles of telecommunications
 policy.
 
 Members of the EFF are speaking at computer and government conferences
 and meetings throughout the country to raise awareness about the
 important civil liberties issues.
 
 We are in the process of forming alliances with other other public
 interest organizations concerned with the development of a digital
 national information infrastructure.
 
 The EFF is in the early stages of software design and development
 of programs for personal computers which provide simplified and
 enhanced access to network services such as mail and netnews.
 
 Because our resources are already fully committed to these projects,
 we are not at this time considering additional grant proposals.
 
 >  We are helping defend the innocent.
 
 We gave substantial legal support in the criminal defense of Craig
 Neidorf, the publisher of Phrack, an on-line magazine devoted to
 telecommunications, computer security and hacking. Neidorf was
 indicted on felony charges of wire fraud and interstate transportation
 of stolen property for the electronic publication of a document
 which someone else had removed, without Neidorf's participation,
 from a Bell South computer.  The government contended that the
 republication of proprietary business information, even if the
 information is of public significance, is illegal.  The EFF submitted
 two friend of the court briefs arguing that the publication of the
 disputed document was constitutionally protected speech.  We also
 were instrumental in locating an expert witness who located documents
 which were publicly available from Bell South which contained all
 the information in the disputed document.  This information was
 critical in discrediting the government's expert witness.  The
 government dropped its prosecution in the middle of the trial, when
 it became aware that its case was untenable.
 
 EFF attorneys are also representing Steve Jackson Games in its
 efforts to secure the complete return and restoration of all computer
 equipment seized in the Secret Service raid on its offices and to
 understand what might have been the legal basis for the raid.
 
 We are not involved in these legal matters as a "cracker's defense
 fund," despite press reports you may have read, but rather to ensure
 that the Constitution will continue to apply to digital media.  We
 intend to demonstrate legally that speech is speech whether it
 finds form in ink or in ASCII.
 
 ************************************************************
 What can you do?
 ************************************************************
 
 For starters, you can spread the word about EFF as widely as
 possible, both on and off the Net. Feel free, for example, to
 distribute any of the materials included in this or other EFF
 mailings.
 
 You can turn some of the immense processing horsepower of your
 distributed Mind to the task of finding useful new metaphors for
 community, expression, property, privacy and other realities of
 the physical world which seem up for grabs in these less tangible
 regions.
 
 And you can try to communicate to technically unsophisticated
 friends the extent to which their future freedoms and well-being
 may depend on understanding the broad forms of digital communication,
 if not necessarily the technical details.
 
 Finally, you can keep in touch with us at any of the addresses
 listed below.  Please pass on your thoughts, concerns, insights,
 contacts, suggestions, and news. And we will return the favor.
 
 ************************************************************
 Staying in Touch 
 ************************************************************
 
 Send requests to be added to or dropped from the EFF mailing list
 or other general correspondence to eff-request@well.sf.ca.us.  We
 will periodically mail updates on EFF-related activities to this
 list.
 
 If you receive any USENET newsgroups, your site may carry two new
 newsgroups in the INET distribution called comp.org.eff.news  and
 comp.org.eff.talk.  The former is a moderated newsgroup of
 announcements, responses to announcements, and selected discussion
 drawn from the unmoderated "talk"  group and the mailing list.
 
 Everything that goes out over the EFF mailing list will also be
 posted in comp.org.eff.news, so if you read the newsgroup you don't
 need to subscribe to the mailing list.
 
 Postings submitted to the moderated newsgroup may be reprinted by
 the EFF.  To submit a posting, you may send mail to eff@well.sf.ca.us.
 
 There is an active EFF conference on the Well, as well as many
 other related conferences of interest to EFF supporters.  As of
 August 1990, access to the Well is $8/month plus $3/hour.  Outside
 the S.F. Bay area, telecom access for $5/hr. is available through
 CPN.  Register online at (415) 332-6106.
 
 A document library containing all of the EFF news releases, John
 Barlow's "Crime and Puzzlement" and others is available on the
 Well.  We are working toward providing FTP availability into the
 document library through an EFF host system to be set up in Cambridge,
 Mass.  Details will be forthcoming.
 
 Our Address:
 
 The Electronic Frontier Foundation, Inc.
 One Cambridge Center, Suite 300
 Cambridge, MA 02142
 
 (617) 577-1385
 (617) 225-2347 (fax)
 
 After August 25, 1990:
 
 The Electronic Frontier Foundation, Inc.
 155 Second Street
 Cambridge, MA 02142 
 
 We will distribute the new telephone number once we have it.
 ************************************************************
 
 Mitchell Kapor (mkapor@well.sf.ca.us)
 John Perry Barlow (barlow@well.sf.ca.us)
 
 Postings and email for the moderated newsgroup should be sent
 to "comp-org-eff-news@well.sf.ca.us".
 
 ************************************************************
 
 
 
 FOR IMMEDIATE RELEASE
 
 Contact: Marc Rotenberg (202) 775-1588
 
 CPSR TO UNDERTAKE EXPANDED CIVIL LIBERTIES PROGRAM
 
 Washington, D.C., July 10, 1990 -- Computer Professionals for Social
 Responsibility (CPSR), a national computing organization, announced
 today that it would receive a two-year grant in the amount of $275,000
 for its Computing and Civil Liberties Project.  The Electronic Frontier
 Foundation (EFF),founded by Mitchell Kapor,  made the grant to expand
 ongoing CPSR work on civil liberties protections for computer users.
 
 At a press conference in Washington today, Mr. Kapor praised CPSR's
 work, "CPSR plays an important role in the computer community.  For the
 last several years, it has sought to extend civil liberties protections
 to new information technologies.  Now we want to help CPSR expand that
 work."
 
 Marc Rotenberg, director of the CPSR Washington Office said, "We are
 obviously very happy about the grant from the EFF.  There is a lot of
 work that needs to be done to ensure that our civil liberties
 protections are not lost amidst policy confusion about the use of new
 computer technologies."
 
 CPSR said that it will host a series of policy round tables in
 Washington, DC, during the next two years with lawmakers, computer
 users, including (hackers), the FBI, industry representatives, and
 members of the computer security community.  Mr. Rotenberg said that the
 purpose of the meetings will be to "begin a dialogue about the new uses
 of electronic media and the protection of the public interest."
 
 CPSR also plans to develop policy papers on computers and civil
 liberties, to oversee the Government's handling of computer crime
 investigations, and to act as an information resource for organizations
 and individuals interested in civil liberties issues.
 
 The CPSR Computing and Civil Liberties project began in 1985 after
 President Reagan attempted to restrict access to government computer
 systems through the creation of new classification authority.  In 1988,
 CPSR prepared a report on the proposed expansion of the FBI's computer
 system, the National Crime Information Center.  The report found serious
 threats to privacy and civil liberties.  Shortly after the report was
 issued, the FBI announced that it would drop a proposed computer feature
 to track the movements of people across the country who had not been
 charged with any crime.
 
 "We need to build bridges between the technical community and the policy
 community," said Dr. Eric Roberts, CPSR president and a research
 scientist at Digital Equipment Corporation in Palo Alto, California.
 "There is simply too much misinformation about how computer networks
 operate.  This could produce terribly misguided public policy."
 
 CPSR representatives have testified several times before Congressional
 committees on matters involving civil liberties and computer policy.
 Last year CPSR urged a House Committee to avoid poorly conceived
 computer activity.  "In the rush to criminalize the malicious acts of
 the few we may discourage the beneficial acts of the many,"  warned
 CPSR.  A House subcommittee recently followed CPSR's recommendations on
 computer crime amendments.
 
 Dr. Ronni Rosenberg, an expert on the role of computer scientists and
 public policy, praised the new initiative.  She said, "It's clear that
 there is an information gap that needs to be filled.  This is an
 important opportunity for computer scientists to help fill the gap."
 
 CPSR is a national membership organization of computer professionals,
 based in Palo Alto, California.  CPSR has over 20,000  members and 21
 chapters across the country. In addition to the civil liberties project,
 CPSR conducts research, advises policy makers and educates the public
 about computers in the workplace, computer risk and reliability, and
 international security.
 
 For more information contact:
 
 Marc Rotenberg
 CPSR Washington Office
 1025 Connecticut Avenue, NW
 Suite 1015
 Washington, DC 20036 202/775-1588
 
 Gary Chapman
 CPSR National Office
 P.O. Box 717
 Palo Alto, CA 94302
 415/322-3778
 
 ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
 
 
 ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
 
 ELECTRONIC FRONTIER FOUNDATION
 
 LEGAL CASE SUMMARY
 July 10, 1990
 
 The Electronic Frontier Foundation is currently providing litigation
 support in two cases in which it perceived there to be substantial civil
 liberties  concerns which are likely to prove important in the overall
 legal scheme by  which electronic communications will, now and in the
 future, be governed,  regulated, encouraged, and protected.
 
 Steve Jackson Games
 
 Steve Jackson Games is a small, privately owned adventure game
 manufacturer located in Austin, Texas.  Like most businesses today,
 Steve Jackson Games uses computers for word processing and bookkeeping.
 In addition, like many other manufacturers, the company operates an
 electronic bulletin board to advertise and to obtain feedback on its
 product ideas and lines.
 
 One of the company's most recent products is GURPS CYBERPUNK, a science
 fiction role-playing game set in a high-tech futuristic world.  The
 rules of the game are set out in a game book.  Playing of the game is
 not performed on computers and does not make use of computers in any
 way.  This game was to be the company's most important first quarter
 release, the keystone of its line.
 
 On March 1, 1990, just weeks before GURPS CYBERPUNK was due to be
 released, agents of the United States Secret Service raided the premises
 of Steve Jackson Games.  The Secret Service:
 
 %  seized three of the company's computers which were used in the
 drafting  and designing of GURPS CYBERPUNK, including the computer used
 to run the electronic bulletin board,
 
 %  took all of the company software in the neighborhood of the computers
 taken,
 
 %  took with them company business records which were  located on the
 computers seized, and
 
 %  destructively ransacked the company's warehouse, leaving many items
 in disarray.
 
 In addition, all working drafts of the soon-to-be-published GURPS
 CYBERPUNK game book -- on disk and in hard-copy manuscript form -- were
 confiscated by the authorities.  One of the Secret Service agents told
 Steve Jackson that the GURPS CYBERPUNK science fiction fantasy game book

 was a, "handbook for computer crime."
 
 Steve Jackson Games was temporarily shut down.  The company was forced
 to lay-off half of its employees and, ever since the raid, has operated
 on  relatively precarious ground.
 
 Steve Jackson Games, which has not been involved in any illegal activity
 insofar as the Foundation's inquiries have been able to determine, tried
 in  vain for over three months to find out why its property had been
 seized, why  the property was being retained by the Secret Service long
 after it should have  become apparent to the agents that GURPS CYBERPUNK
 and everything else in the company's repertoire were entirely lawful and
 innocuous, and when the company's vital materials would be returned.  In
 late June of this year, after attorneys for the Electronic Frontier
 Foundation became involved in the case, the Secret Service finally
 returned most of the property, but retained a number of documents,
 including the seized drafts of GURPS CYBERPUNKS.
 
 The Foundation is presently seeking to find out the basis for the search
 warrant that led to the raid on Steve Jackson Games.  Unfortunately, the
 application for that warrant remains sealed by order of the court.  The
 Foundation is making efforts to unseal those papers in order to find out
 what  it was that the Secret Service told a judicial officer that
 prompted that  officer to issue the search warrant.
 
 Under the Fourth Amendment to the United States Constitution, a search
 warrant may be lawfully issued only if the information presented to the
 court by the government agents demonstrates "probable cause" to believe
 that evidence of criminal conduct would be found on the premises to be
 searched.  Unsealing the search warrant application should enable the
 Foundation's lawyers, representing Steve Jackson Games, to determine the
 theory by which Secret Service Agents concluded or hypothesized that
 either the GURPS CYBERPUNK game or any of the company's computerized
 business records constituted criminal activity or contained evidence of
 criminal activity.
 
 Whatever the professed basis of the search, its scope clearly seems to
 have  been unreasonably broad.  The wholesale seizure of computer
 software, and  subsequent rummaging through its contents, is precisely
 the sort of general  search that the Fourth Amendment was designed to
 prohibit.
 
 If it is unlawful for government agents to indiscriminately seize all of
 the  hard-copy filing cabinets on a business premises -- which it surely
 is -- that  the same degree of protection should apply to businesses
 that store information electronically.
 
 The Steve Jackson Games situation appears to involve First Amendment
 violations as well.  The First Amendment to the United States
 Constitution prohibits the government from "abridging the freedom of
 speech, or of the press".  The government's apparent attempt to prevent
 the publication of the GURPS CYBERPUNK game book by seizing all copies
 of all drafts in all media prior to publication, violated the First
 Amendment.  The particular type of First Amendment violation here is the
 single most serious type, since the government, by seizing the very
 material sought to be published, effectuated what is known in the law as
 a "prior restraint" on speech.  This means that rather than allow the
 material to be published and then seek to punish it, the government
 sought instead to prevent publication in the first place.  (This is not
 to say, of course, that anything published by Steve Jackson Games could
 successfully have been punished.  Indeed, the opposite appears to be the
 case, since SJG's business seems to be entirely lawful.)  In any effort
 to restrain publication, the government bears an extremely heavy burden
 of proof before a court is permitted to authorize a prior restraint.
 
 Indeed, in its 200-year history, the Supreme Court has never upheld a
 prior  restraint on the publication of material protected by the First
 Amendment,  warning that such efforts to restrain publication are
 presumptively  unconstitutional.  For example, the Department of Justice
 was unsuccessful in  1971 in obtaining the permission of the Supreme
 Court to enjoin The New York Times, The Washington Post, and The Boston
 Globe from publishing the so-called Pentagon Papers, which the
 government strenuously argued should be enjoined because of a perceived
 threat to national security.  (In 1979, however, the government sought
 to prevent The Progressive magazine from publishing an article
 purporting to instruct the reader as to how to manufacture an atomic
 bomb.  A lower federal court actually imposed an order for a temporary
 prior restraint that lasted six months.  The Supreme Court never had an
 opportunity to issue a full ruling on the constitutionality of that
 restraint, however, because the case was mooted when another newspaper
 published the article.)
 
 Governmental efforts to restrain publication thus have been met by
 vigorous  opposition in the courts.  A major problem posed by the
 government's resort to the expedient of obtaining a search warrant,
 therefore, is that it allows the government to effectively prevent or
 delay publication without giving the  citizen a ready opportunity to
 oppose that effort in court.
 
 The Secret Service managed to delay,  and almost to prevent, the
 publication of an innocuous game book by a legitimate company -- not by
 asking a court for a prior restraint order that it surely could not have
 obtained, but by asking  instead for a search warrant, which it obtained
 all too readily.
 
 The seizure of the company's computer hardware is also problematic, for
 it  prevented the company not only from publishing GURPS CYBERPUNK, but
 also from operating its electronic bulletin board.  The government's
 action in shutting down such an electronic bulletin board is the
 functional equivalent of shutting down printing presses of The New York
 Times or The Washington Post  in order to prevent publication of The
 Pentagon Papers.  Had the government sought a court order closing down
 the electronic bulletin board, such an order effecting a prior restraint
 almost certainly would have been refused.  Yet by obtaining the search
 warrant, the government effected the same result.
 
 This is a stark example of how electronic media suffer under a less
 stringent  standard of constitutional protection than applies to the
 print media -- for no  apparent reason, it would appear, other than the
 fact that government agents  and courts do not seem to readily equate
 computers with printing presses and  typewriters.  It is difficult to
 understand a difference between these media  that should matter for
 constitutional protection purposes.  This is one of the  challenges
 facing the Electronic Frontier Foundation.
 
 The Electronic Frontier Foundation will continue to press for return of
 the  remaining property of Steve Jackson Games and will take formal
 steps, if  necessary, to determine the factual basis for the search.
 The purpose of these  efforts is to establish law applying the First and
 Fourth Amendments to  electronic media, so as to protect in the future
 Steve Jackson Games as well as  other individuals and businesses from
 the devastating effects of unlawful and  unconstitutional government
 intrusion upon and interference  with protected property and speech
 rights.
 
 United States v. Craig Neidorf
 
 Craig Neidorf is a 20-year-old student at the University of Missouri who
 has  been indicted by the United States on several counts of interstate
 wire fraud  and interstate transportation of stolen property in
 connection with his  activities as editor and publisher of the
 electronic magazine, Phrack.
 
 The indictment charges Neidorf with:  (1) wire fraud and interstate
 transportation of stolen property for the republication in Phrack of
 information which was allegedly illegally obtained through the accessing
 of a  computer system without authorization, though it was obtained not

 by Neidorf but by a third party; and (2) wire fraud for the publication
 of an   announcement of a computer conference and for the publication of
 articles which allegedly provide some suggestions on how to bypass
 security in some computer systems.
 
 The information obtained without authorization is a file relating to the
 provision of 911 emergency telephone services that was allegedly removed
 from the BellSouth computer system without authorization.  It is
 important to note that neither the indictment, nor any briefs filed in
 this case by the  government, contain any factual allegation or
 contention that Neidorf was  involved in or participated in the removal
 of the 911 file.
 
 These indictments raise substantial constitutional issues which have
 significant impact on the uses of new computer communications
 technologies.  The prosecution of an editor or publisher, under
 generalized statutes like wire  fraud and interstate transportation of
 stolen property, for the publication of  information received lawfully,
 which later turns out to be have been "stolen," presents an
 unprecedented threat to the freedom of the press.  The person who should
 be prosecuted is the thief, and not a publisher who subsequently
 receives and publishes information of public interest.  To draw an
 analogy to the print media, this would be the equivalent of prosecuting
 The New York Times and The Washington Post for publishing the Pentagon
 Papers when those papers were dropped off at the doorsteps of those
 newspapers.
 
 Similarly, the prosecution of a publisher for wire fraud arising out of
 the  publication of articles that allegedly suggested methods of
 unlawful activity  is also unprecedented.  Even assuming that the
 articles here did advocate  unlawful activity, advocacy of unlawful
 activity cannot constitutionally be the basis for a criminal
 prosecution, except where such advocacy is directed at  producing
 imminent lawless action, and is likely to incite such action.  The
 articles here simply do not fit within this limited category.  The
 Supreme  Court has often reiterated that in order for advocacy to be
 criminalized, the  speech must be such that the words trigger an
 immediate action.  Criminal  prosecutions such as this pose an extreme
 hazard for First Amendment rights in all media of communication, as it
 has a chilling effect on writers and  publishers who wish to discuss the
 ramifications of illegal activity, such as  information describing
 illegal activity or describing how a crime might be  committed.
 
 In addition, since the statutes under which Neidorf is charged clearly
 do not  envision computer communications, applying them to situations
 such as that  found in the Neidorf case raises fundamental questions of
 fair notice -- that  is to say, the publisher or computer user has no
 way of knowing that his  actions may in fact be a violation of criminal
 law.  The judge in the case has  already conceded that "no court has
 ever held that the electronic transfer of  confidential, proprietary
 business information from one computer to another  across state lines
 constitutes a violation of [the wire fraud statute]."  The  Due Process
 Clause prohibits the criminal prosecution of one who has not had fair
 notice of the illegality of his action.  Strict adherence to the
 requirements of the Due Process Clause also minimizes the risk of
 selective or arbitrary enforcement, where prosecutors decide what
 conduct they do not like and then seek some statute that can be
 stretched by some theory to cover that conduct.
 
 Government seizure and liability of bulletin board systems
 
 During the recent government crackdown on computer crime, the government
 has on many occasions seized the computers which operate bulletin board
 systems ("BBSs"), even though the operator of the bulletin board is not
 suspected of any complicity in any alleged criminal activity.  The
 government seizures go far beyond a "prior restraint" on the publication
 of any specific article, as  the seizure of the computer equipment of a
 BBS prevents the BBS from publishing at all on any subject.  This akin
 to seizing the word processing and  computerized typesetting equipment
 of The New York Times for publishing the Pentagon Papers, simply because
 the government contends that there may be information relating to the
 commission of a crime on the system.  Thus, the government does not
 simply restrain the publication of the "offending"  document, but it
 seizes the means of production of the First Amendment activity so that
 no more stories of any type can be published.
 
 The government is allowed to seize "instrumentalities of crime," and a
 bulletin board and its associated computer system could arguably be
 called an  instrumentality of crime if individuals used its private
 e-mail system to send  messages in furtherance of criminal activity.
 However, even if the government has a compelling interest in interfering
 with First Amendment protected speech, it can only do so by the least
 restrictive means.  Clearly, the wholesale seizure and retention of a
 publication's means of production, i.e., its computer system, is not the
 least restrictive alternative.  The government  obviously could seize
 the equipment long enough to make a copy of the  information stored on
 the hard disk and to copy any other disks and documents, and then
 promptly return the computer system to the operator.
 
 Another unconstitutional aspect of the government seizures of the
 computers of bulletin board systems is the government infringement on
 the privacy of the electronic mail in the systems.  It appears that the
 government, in seeking warrants for the seizures, has not forthrightly
 informed the court that private mail of third parties is on the
 computers, and has also read some of this private mail after the systems
 have been seized.
 
 The Neidorf case also raises issues of great significance to bulletin
 board  systems.  As Neidorf was a publisher of information he received,
 BBSs could be considered publishers of information that its users post
 on the boards.  BBS  operators have a great deal of concern as to the
 liability they might face for  the dissemination of information on their
 boards which may turn out to have been obtained originally without
 authorization, or which discuss activity which may be considered
 illegal.  This uncertainty as to the law has already caused a decrease
 in the free flow of information, as some BBS operators have removed
 information solely because of the fear of liability.
 
 The Electronic Frontier Foundation stands firmly against the
 unauthorized  access of computer systems, computer trespass and computer
 theft, and strongly supports the security and sanctity of private
 computer systems and networks. One of the goals of the Foundation,
 however, is to ensure that, as the legal framework is established to
 protect the security of these computer systems, the unfettered
 communication and exchange of ideas is not hindered.  The Foundation is
 concerned that the Government has cast its net too broadly, ensnaring
 the innocent and chilling or indeed supressing the free flow of
 information.  The Foundation fears not only that protected speech will
 be curtailed, but also that the citizen's reasonable expectation in the
 privacy and sanctity of electronic communications systems will be
 thwarted, and people will be hesitant to communicate via these networks.
 Such a lack of confidence in electronic communication modes will
 substantially set back the kind of experimentation by and communication
 among fertile minds that are essential to our nation's development.  The
 Foundation has therefore applied for amicus curiae  (friend of the
 court) status in the Neidorf case and has filed legal briefs in support
 of the First Amendment issues there, and is prepared to assist in
 protecting the free flow of information over bulletin board systems and
 other computer technologies.
 
 For further information regarding Steve Jackson Games please contact:
 
 Harvey Silverglate or Sharon Beckman
 Silverglate & Good
 89 Broad Street, 14th Floor
 Boston, MA  02110
 617/542-6663
 
 For further information regarding Craig Neidorf please contact:
 
 Terry Gross or Eric Lieberman
 Rabinowitz, Boudin, Standard, Krinsky and Lieberman
 740 Broadway, 5th Floor
 New York, NY 10003
 212/254-1111
 
 
 ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
 
 LEGAL OVERVIEW
 
 THE ELECTRONIC FRONTIER AND THE BILL OF RIGHTS
 
 Advances in computer technology have brought us to a new frontier in
 communications, where the law is largely unsettled and woefully
 inadequate to deal with the problems and challenges posed by electronic
 technology.  How the law develops in this area will have a direct impact
 on the electronic communications experiments and innovations being
 devised day in and day out by millions of citizens on both a large and
 small scale from coast to coast. Reasonable balances have to be struck
 among:
 
 %       traditional civil liberties
 %       protection of intellectual property
 %       freedom to experiment and innovate
 %       protection of the security and integrity of computer
         systems from improper governmental and private
         interference.
 
 Striking these balances properly will not be easy, but if they are
 struck too far in one direction or the other, important social and legal
 values surely will be sacrificed.
 
 Helping to see to it that this important and difficult task is done
 properly is a major goal of the Electronic Frontier Foundation.  It is
 critical to assure that these lines are drawn in accordance with the
 fundamental constitutional rights that have protected individuals from
 government excesses since our nation was founded -- freedom of speech,
 press, and association, the right to privacy and protection from
 unwarranted governmental intrusion, as well as the right to procedural
 fairness and due process of law.
 
 The First Amendment
 
 The First Amendment to the United States Constitution prohibits the
 government from "abridging the freedom of speech, or of the press," and
 guarantees freedom of association as well.  It is widely considered to
 be the single most important of the guarantees contained in the Bill of
 Rights, since free speech and association are fundamental in securing
 all other rights.
 
 The First Amendment throughout history has been challenged by every
 important technological development.  It has enjoyed only a mixed record
 of success.  Traditional forms of speech -- the  print media and public
 speaking -- have enjoyed a long and rich history of freedom from
 governmental interference.  The United States Supreme Court has not
 afforded the same degree of freedom to electronic broadcasting,
 however.
 
 Radio and television communications, for example, have been subjected to
 regulation and censorship by the Federal Communications Commission
 (FCC), and by the Congress.  The Supreme Court initially justified
 regulation of the broadcast media on technological grounds -- since
 there were assumed to be a finite number of radio and television
 frequencies, the Court believed that regulation was necessary to prevent
 interference among frequencies and to make sure that scarce resources
 were allocated fairly.  The multiplicity of cable TV networks has
 demonstrated the falsity of this "scarce resource" rationale, but the
 Court has expressed a reluctance to abandon its outmoded approach
 without some signal from Congress or the FCC.
 
 Congress has not seemed overly eager to relinquish even
 counterproductive control over the airwaves.  Witness, for example,
 legislation and rule-making in recent years that have kept even
 important literature, such as the poetry of Allen Ginsberg, from being
 broadcast on radio because of language deemed "offensive" to regulators.
 Diversity and experimentation have been sorely hampered by these rules.
 
 The development of computer technology provides the perfect opportunity
 for lawmakers and courts to abandon much of the distinction between the
 print and electronic media and to extend First Amendment protections to
 all communications regardless of the medium.  Just as the multiplicity
 of cable lines has rendered obsolete the argument that television has to
 be regulated because of a scarcity of airwave frequencies, so has the
 ready availability of virtually unlimited computer communication
 modalities made obsolete a similar argument for harsh controls in this
 area.  With the computer taking over the role previously played by the
 typewriter and the printing press, it would be a constitutional disaster
 of major proportions if the treatment of computers were to follow the
 history of regulation of radio and television, rather than the history
 of freedom of the press.
 
 To the extent that regulation is seen as necessary and proper, it should
 foster the goal of allowing maximum freedom, innovation and
 experimentation in an atmosphere where no one's efforts are sabotaged by
 either government or private parties.  Regulation should be limited by
 the adage that quite aptly describes the line that separates reasonable
 from unreasonable regulation in the First Amendment area:  "Your liberty
 ends at the tip of my nose."
 
 As usual, the law lags well behind the development of technology.  It is
 important to educate  lawmakers and judges about new technologies, lest
 fear and ignorance of the new and unfamiliar, create barriers to free
 communication, expression, experimentation, innovation, and other such
 values that help keep a nation both free and vigorous.
 
 The Fourth Amendment
 
 The Fourth Amendment guarantees that "the right of the people to
 be secure in their persons, houses, papers, and effects, against
 unreasonable searches and seizures, shall not be violated, and no
 Warrants shall issue, but upon probable cause, supported by Oath
 or affirmation, and particularly describing the place to be
 searched, and the persons or things to be seized."
 
 In short, the scope of the search has to be as narrow as
 possible, and there has to be good reason to believe that the
 search will turn up evidence of illegal activity.
 
 The meaning of the Fourth Amendment's guarantee has evolved over time in
 response to changing technologies.  For example, while the Fourth
 Amendment was first applied to prevent the government from trespassing
 onto private property and seizing tangible objects, the physical
 trespass rationale was made obsolete by the development of electronic
 eavesdropping devices which permitted the government to "seize" an
 individual's words without ever treading onto that person's private
 property.  To put the matter more concretely, while the drafters of the
 First Amendment surely knew nothing about electronic databases, surely
 they would have considered one's database to be as sacrosanct as, for
 example, the contents of one's private desk or filing cabinet.
 
 The Supreme Court responded decades ago to these types of technological
 challenges by interpreting the Fourth Amendment more broadly to prevent
 governmental violation of an individual's reasonable expectation of
 privacy, a concept that transcended the narrow definition of one's
 private physical space.  It is now well established that an individual
 has a reasonable expectation of  privacy, not only in his or her home
 and business, but also in private  communications.  Thus, for example:
 
 %  Government wiretapping and electronic eavesdropping are   now limited
 by state and federal statutes enacted to  effectuate and even to expand
 upon Fourth Amendment protections.
 
 %  More recently, the Fourth Amendment has been used, albeit with
 limited success, to protect individuals from undergoing   certain random
 mandatory drug testing imposed by  governmental authorities.
 
 Advancements in technology have also worked in the opposite direction,
 to diminish expectations of privacy that society once considered
 reasonable, and thus have helped limit the scope of Fourth Amendment
 protections.  Thus, while one might once have reasonably expected
 privacy in a fenced-in field, the Supreme Court has recently told us
 that such an expectation is not reasonable in an age of surveillance
 facilitated by airplanes and zoom lenses.
 
 Applicability of Fourth Amendment to computer media
 
 Just as the Fourth Amendment has evolved in response to changing
 technologies, so it must now be interpreted to protect the reasonable
 expectation of privacy of computer users in, for example, their
 electronic mail or electronically stored secrets.  The extent to which
 government intrusion into these private areas should be allowed, ought
 to be debated openly, fully, and intelligently, as the Congress seeks to
 legislate in the area, as courts decide cases, and as administrative,
 regulatory, and prosecutorial agencies seek to establish their turf.
 
 One point that must be made, but which is commonly misunderstood, is
 that the Bill of Rights seeks to protect citizens from privacy invasions
 committed by the government, but, with very few narrow exceptions, these
 protections do not serve to deter private citizens from doing what the
 government is prohibited from doing.  In short, while the Fourth
 Amendment limits the government's ability to invade and spy upon private
 databanks, it does not protect against similar invasions by private
 parties.  Protection of citizens from the depredations of other citizens
 requires the passage of privacy legislation.
 
 The Fifth Amendment
 
 The Fifth Amendment assures citizens that they will not "be deprived of
 life, liberty, or property, without due process of law" and that private
 property shall not "be taken for public use without just compensation."
 This Amendment thus protects both the sanctity of private property and
 the right of citizens to be proceeded against by fair means before they
 may be punished for alleged infractions of the law.
 
 One aspect of due process of law is that citizens not be prosecuted for
 alleged violations of laws that are so vague that persons of reasonable
 intelligence cannot be expected to assume that some prosecutor will
 charge that his or her conduct is criminal.  A hypothetical law, for
 example, that makes it a crime to do "that which should not be done",
 would obviously not pass constitutional muster under the Fifth
 Amendment.  Yet the application of some existing laws to new situations
 that arise in the electronic age is only slightly less problematic than
 the hypothetical, and the Electronic Frontier Foundation plans to
 monitor the process by which old laws are modified, and new laws are
 crafted, to meet modern situations.
 
 One area in which old laws and new technologies have already clashed and
 are bound to continue to clash, is the application of federal criminal
 laws against the interstate transportation of stolen property.  The
 placement on an electronic bulletin board of arguably propriety computer
 files, and the "re-publication" of such material by those with access to
 the bulletin board, might well expose the sponsor of the bulletin board
 as well as all participants to federal felony charges, if the U.S.
 Department of Justice can convince the courts to give these federal laws
 a broad enough reading.  Similarly, federal laws protecting against
 wiretapping and electronic eavesdropping clearly have to be updated to
 take into account electronic bulletin board technology, lest those who
 utilize such means of communication should be assured of reasonable
 privacy from unwanted government surveillance.
 
 Summary
 
 The problem of melding old but still valid concepts of constitutional
 rights, with new and rapidly evolving technologies, is perhaps best
 summed up by the following observation.  Twenty-five years ago there was
 not much question but that the First Amendment prohibited the government
 from seizing a newspaper's printing press, or a writer's typewriter, in
 order to prevent the publication of protected speech.  Similarly, the
 government would not have been allowed to search through, and seize,
 one's private papers stored in a filing cabinet, without first
 convincing a judge that probable cause existed to believe that evidence
 of crime would be found.
 
 Today, a single computer is in reality a printing press, typewriter, and
 filing cabinet (and more) all wrapped up in one.  How the use and output
 of this device is treated in a nation governed by a Constitution that
 protects liberty as well as private property, is a major challenge we
 face.  How well we allow this marvelous invention to continue to be
 developed by creative minds, while we seek to prohibit or discourage
 truly abusive practices, will depend upon the degree of wisdom that
 guides our courts, our legislatures, and governmental agencies entrusted
 with authority in this area of our national life.
 
 For further information regarding The Bill of Rights please contact:
 
 Harvey Silverglate
 Silverglate & Good
 89 Broad Street, 14th Floor
 Boston, MA  02110
 617/542-6663
