(Introduction from moderator: the first issue is a tactical angle in
the battle to allow encryption to be exported. The second shows the
determination of governments to regulate electronic networks without
having the least bit of understanding about them.--Andy)
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EFFector Online Volume 09 No. 04 Apr. 17, 1996 •••@••.•••
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
IN THIS ISSUE:
Privacy & Free Speech Victory in Early Phase of Bernstein Case
EFF Opposes Ridiculous and Anti-Net Trademark Bill in Georgia
CDA Case Updates: Net 1, Government 0
Upcoming Events
Quote of the Day
What YOU Can Do
Administrivia
* See http://www.eff.org/Alerts/ or ftp.eff.org, /pub/Alerts/ for more
information on current EFF activities and online activism alerts! *
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Subject: Privacy & Free Speech Victory in Early Phase of Bernstein Case
-----------------------------------------------------------------------
FEDERAL COURT DENIES GOVERNMENT'S MOTION TO DISMISS BERNSTEIN CASE,
ACKNOWLEDGES SOURCE CODE AS SPEECH
PRESS RELEASE Electronic Frontier Foundation Contacts:
April 17, 1996 Shari Steele, Staff Counsel
301/375-8856, •••@••.•••
Lori Fena, Executive Director
415/436-9333, •••@••.•••
Denying the government's motion for dismissal in mathematician Daniel
Bernstein's suit against the State Department, Judge Marilyn Patel in the
Northern District of California ruled Monday that source code in
Bernstein's cryptographic algorithm, "Snuffle," is speech that is
protected from prior restraint by the First Amendment.
* LANDMARK RULING
This is the first time a U.S. court has ruled that source code is speech
under First Amendment analysis. Previously, courts have held that
software is speech for copyright law only.
The decision states in part:
"This court can find no meaningful difference between computer language,
particularly high-level languages as defined above, and German or
French....Like music and mathematical equations, computer language is
just that, language, and it communicates information either to a computer
or to those who can read it....Thus, even if Snuffle source code, which
is easily compiled into object code for the computer to read and easily
used for encryption, is essentially functional, that does not remove it
from the realm of speech....For the purposes of First Amendment analysis,
this court finds that source code is speech."
The full text of the decision can be found at
http://www.eff.org/pub/Legal/Cases/Bernstein_v_DoS/Legal/Decision_041596/
in GIF image format (ASCII text will be made available as soon as possible,
at http://www.eff.org/pub/Legal/Cases/Bernstein_v_DOS/Legal/041596.decision
Judge Patel's acknowledgment that source code enjoys Constitutional
protection has implications that reach far beyond cases involving the
export of cryptography. The decision holds importance to the future of
secure electronic commerce and lays the groundwork needed to expand First
Amendment protection to electronic communication.
Because of its far-reaching implications, the Bernstein case is being
watched closely not only by privacy advocates, but by the entire computer
industry, the export and cryptography communities and First Amendment
advocates.
* CASE WILL PROCEED
The decision allows Bernstein to continue with his lawsuit that the
International Traffic in Arms Regulation (ITAR) acts as a prior restraint
on speech and that the ITAR is overbroad and vague.
EFF is very pleased with Judge Patel's ruling and believes that it bodes
well for Bernstein's ultimate success in trial, which is now scheduled to
proceed with the normal pre-trial and trial sequence of events.
The court drew an important distinction between the Bernstein case and
other cases involving export controls on cryptography. The government has
cited several cases involving the Export Administration Act as reasons
why the Bernstein case should be dismissed. Judge Patel recognized that
the Constitutional questions being raised by Bernstein differ
significantly from the policy questions raised in the cases introduced by
the government.
Judge Patel also ruled that Bernstein could bring his case even though
the Arms Export Control Act specifically precludes judicial review,
because what Bernstein is asking the court to review (i.e., the
constitutionality of the statute and its regulations) was not what had
been precluded (i.e., the government's determination in a particular
instance whether or not something was exportable). "With respect to
constitutional questions, the judicial branch not only possesses the
requisite expertise to adjudicate these issues, it is also the best and
final interpreter of them."
* CASE BACKGROUND
As part of her decision, Judge Patel determined that only the source code
was at issue in the case, not Bernstein's academic paper describing the
source code. Bernstein tried to get the government to rule separately on
the paper and the code back in 1993 by filing separate commodity
jurisdiction requests. The State Department merged the requests and
rejected them all. On June 29, 1995, after Bernstein and EFF filed suit,
the government sent Bernstein a letter saying that the paper could be
published and never had been forbidden. While Judge Patel claimed that
the issue of the paper now appeared to be moot, she commented, "It is
disquieting than an item defendants now contend could not be subject to
regulation was apparently categorized as a defense article and subject to
licensing for nearly two years, and was only reclassified after plaintiff
initiated this action."
* THE ELECTRONIC FRONTIER FOUNDATION
EFF, a non-profit civil liberties organization working in the public
interest to protect privacy, free expression, and access to online
resources and information, is a primary sponsor of the Bernstein case.
EFF helped to find Bernstein pro bono legal counsel, is a member of the
Bernstein legal team, and organized amicus briefs from members of the
academic community and computer industry to support this case.
------------------------------
Subject: EFF Opposes Ridiculous and Anti-Net Trademark Bill in Georgia
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[Note: That's the US state of Georgia, not the Republic of Georgia.]
Many state and local governments have passed legislation that appear to be
unconstitutional restraints on speech sent over the Internet. One state
that recently passed a Bad Law is Georgia. Georgia House Bill 1620
currently sits on the governor's desk awaiting his signature. EFF weighed
in and voiced our concerns about this legislation, asking the governor to
veto the bill.
Among the problems with this legislation is that it would not only make
it a crime to use someone else's trademark in user IDs, domain names, and
other online contexts - regardless of the fact that in most cases the
trademarks in question would not even apply, and it would also
criminalize the use of pseudonyms, and furthermore make it illegal to
link from your homepage to another site without permission.
The constitutionality of the law, as well as it's wisdom, is highly
questionable, as is the compatibility of it with existing intellectual
property law (for example it could essentially grant the first to
trademark a term or name in a particular field a monopoly on online use
of that term or name, in *all* fields, despite that fact that any number
of non-competiting companies can have nearly identical trademarks in
completely different areas of commerce.)
Incidentally, BellSouth appears to be a major mover-n-shaker behind this
legislation, and has filed suit (two days before announcing plans to
enter into the Internet service market, no less) against an
online service, realpages.com, for alleged trademark violation
(BellSouth's tradmark is "The Real Yellow Page". Confusingly similar?
Applicable at all? Not likely.)
Very similar legislation has existed in draft form in California for
some time, and may hit other states and countries soon. Keep and eye out!
EFF Staff Counsel Shari Steele send the following letter to Georgia Governor
Zell Miller, explaining the problems with the new act and encouraging a veto.
Electronic Frontier Foundaton
1550 Bryant Street, Suite 725
San Francisco, CA 94103
(415) 668-7171; (415) 668-7007 (fax)
Internet e-mail: •••@••.•••
Governor Zell Miller
State Capitol
Atlanta, GA 30334
April 16, 1996
Via Facsimile: (404)656-5948
Dear Governor Miller,
I am writing to you in my capacity as Staff Counsel for the Electronic
Frontier Foundation (EFF) to ask that you veto Georgia House Bill 1630,
Computer or telephone network; transmitting misleading data. EFF was
founded in July of 1990 to work on protecting the free speech and privacy
rights of users of new technology. Since that time, EFF has been
involved in numerous battles against laws and actions that restrict the
free speech rights of users of electronic bulletin board systems (BBSs)
and the Internet. I fear that the Georgia legislature has just passed a
bill which, if signed into law, will significantly hamper the
development of the Global Information Infrastructure (GII, frequently
referred to the Information Superhighway) and will result in an
unconstitutional restraint on the free speech rights of the citizens of
Georgia, the United States, and the global Internet.
To help you understand the ramifications of this legislation, I'd like to
take a minute to explain some basic things about electronic communications.
First, individuals are not identified online by their "real world"
names. Instead, they are identified by electronic mail addresses, which are
composed of a "user ID" and the "location" of the individual's network
access provider. Sometimes an individual gets to choose his or her own
e-mail user-ID. But sometimes a random user ID is assigned to the
individual by the service provider. For example, the online service
provider CompuServe assigns user IDs like 102527.2327 and 75223.2153, which
do not clearly identify the sender of the electronic message.
Even where an individual gets to select his or her own user ID, it is rare
that a person identifies him or herself by full name. In fact, many
people identify themselves instead by words or heroes in which they have
a personal interest. For example, I know a person whose user ID is
calliope. I know another whose user ID is mnemonic, named for the
character "Johnny Mnemonic" in the science fiction novel of the same
name by William Gibson. I know yet another whose user ID is elvis.
Even my user ID, which is ssteele, does not clearly distinguish me
from others with the last name of Steele and the first initial "S."
This brings us to the first problem with the current bill. The language of
the bill makes it illegal for a sender of a message to "falsely
identify" him or herself. All of the user IDs I've mentioned
are false identifications, similar to the "handles" people use on citizen's
band radios. It is and has always been legal for people to use any name
they choose as long as it isn't for a fraudulent purpose. I can be
Samuel Clemens to one set of people and Mark Twain to another set and
nobody is harmed. Or Andrew Hamilton and Publius. Or •••@••.••• and
Shari Steele. While it is true that some people may be harmed when
others intentionally create confusion, by sending a message designed to
look like it came from an identifiable other person, the bill
criminalizes a vast array of everyday conduct in its attempt to reach this
harm. Besides, there are already laws on the books that make it illegal
to commit fraud or to fraudulently use the likeness of another that can
be enforced where harm has occurred. Georgia House Bill 1630 makes
criminals of the vast majority of us who communicate online.
Next, the Internet is comprised of thousands of computers connected to one
another. The World Wide Web is a graphical area of the Internet that
allows users to move seamlessly from site to site by simply clicking on
a mouse button. This is often referred to as "surfing the net" and is a
basic quality to the World Wide Web. For example, I could get to Wired
magazine's web site by clicking on a button at the Electronic Frontier
Foundation's web site. I then would be seamlessly transported to
Wired's site. Wired magazine loves this arrangement, because
the more people they get visiting their web site, the more successful
the site is.
Which brings us to the second problem with the current bill. The language
of the bill would make it illegal to create a button on our web site
with Wired's "trade name" or "logo" without first obtaining "permission
or authorization" from Wired magazine. Of course Wired magazine would
give us permission -- they do not want to have a web site that no one
visits. In fact, the more sites that "link" to Wired's site, the better
it is for Wired. It's like making it illegal to take a copy of a
newspaper that is labeled "free" on the top without first obtaining
permission from the publisher. Or like making it illegal to look up a
friend's phone number in the phone book and put it into a neighborhood
directory or a bridge club newsletter. The problem is that H.B. 1630
would make criminals out of virtually everyone with a web site (for all web
sites link to others) when the sites being linked to would always give
permission for the link.
Furthermore, because of its vague language, it appears that the bill would
make it a crime even to mention Wired magazine in writing an electronic
review of their magazine or their articles without first obtaining their
permission. The right to criticize other peoples' work is basic to our open
society; it is how errors are corrected and differences of opinion are
aired. It would be senseless to have the right to criticize a story
from the New York Times without being able to mention that the story was
printed in the New York Times! Even if reviewers went to the
effort contemplated in the bill of contacting the company and asking its
permission, many companies would refuse permission to use their names in
reviews that disagreed with the companies. This sabotages the
whole process of critical review that keeps our society tending toward truth.
Finally, the entire purpose of the bill seems to be to protect intellectual
property, such as trademarks and logos. But there are already laws in
place on both federal and state levels that protect these things. The
legislature has created a poorly crafted, unconstitutional law to protect
something that is already protected. There is no rational reason to make
criminals out of all users of the Internet.
I hope that I have helped shed some light on the dangers of this
