🚀 go-pugleaf

Jon L writes:
 
> I agree with Mike G. that EFF's legal work is underpublicized. Mike, I
> do think it'd be an excellent idea for you to post something here about
> your work, and perhaps cc the membership lists for the various groups.
 
Here's a preliminary version of an account of my work that we are working
up into a funding proposal for EFF-Cambridge. I'll let the individual
group folks, who may have seen an earlier version of this, decide whether
to send it on to their lists.
 
------
 
Mike Godwin
EFF General Counsel
November 24, 1992
 
 
The following is a description of my responsibilities. The first category,
EFF legal services, takes the majority of my time.
 
 
EFF LEGAL SERVICES
 
 
The primary legal services I provide are basic counselling and referrals.
EFF does not charge for this, and you do not have to be an EFF member to
call or write and ask for help. I answer general questions about computer
law and telecommunications law at the federal level as well as in the
jurisdictions in which I am admitted to the bar (currently Texas, the
District of Columbia, and Massachusetts). When appropriate, I instruct
people to seek further consultation with lawyers in their respective
jurisdictions, giving them referrals to specific lawyers when possible.
(EFF maintains a database of attorneys who've volunteered to do some kinds
of work on these kinds of cases.) I often mail out source materials to
individuals and organizations. (One of the most frequently requested
materials is the original complaint filed by Steve Jackson Games in its
lawsuit against the U.S. government--many lawyers find that the complaint
is a good primer on civil-liberties issues raised by the search and
seizure of a computer bulletin-board system.) More frequently, I talk to
people on the telephone. The kinds of questions I deal with tend to fall
into the following three general areas:
 
 
General questions about legal issues. A caller may be a sysop who's been
told by someone that it's against the law to read users' e-mail, and she
wants to know whether this is true. Or it may be a user who wants to know
if it's legal to upload a scanned image of a copyrighted photograph to a
BBS for downloading by other users. Or it may be a hobbyist programmer who
wonders if he may be held liable if a computer virus he writes somehow
"escapes" and infects and damages other systems. Usually these questions
are aimed at *anticipated* legal risks (the caller wants to know ahead of
time if  her actions will lead to legal trouble), but a significant number
of the calls are from people who wonder if their *current* activities are
illegal or create risks of legal liability.  For example, a lot of sysops
of "pirate" BBSs have acquired the notion that they can't be held liable
for providing access to unauthorized copies of commercial software because
it's "the guy downloading the stuff who's doing the copying"--I tell them
they are mistaken and point out the legal risks of providing such access.
A small but consistent fraction of callers prefer to remain anonymous. I
respect their wishes, and try to give just as much help to anonymous
callers as to those who identify themselves.
 
Requests for help in criminal cases. Basically, these types of requests
fall into two categories, which I call "target cases" and "non-target
cases" :
 
A "target case" is one in which the request is from someone (the "target")
who is very likely to become, or who has already become, a defendant in a
state or federal case. I may get the request from the target personally,
or I may get a call from the target's lawyer. (If the target doesn't have
a lawyer, my first priority is to do what I can to help him get one.
Although EFF does not normally provide funds for legal representation in
criminal cases, I can tell a caller how to go about contacting a private
defense lawyer or a public defender.) I'll ask the caller for basic facts
about the case, and, once I'm in contact with his lawyer, I'll do what I
can to help the lawyer learn the relevant law and gather the necessary
facts to prepare the case. Even the very best defense lawyers are likely
to be unfamiliar with the legal and evidentiary issues raised by
computer-crime investigations--I'm often able to give them a running start
on their case preparation. Among the services I have offered have been a)
discussing computer searches with defense lawyers who wish to challenge
their legality in evidence-suppression hearings, b) reviewing and
commenting on appeal briefs in computer-crime cases, and c) providing
names of expert witnesses or lawyers for defendants who need them.
 
On a few occasions, a case may raise a particularly unusual and important
civil-liberties issue, and I'll make a recommendation to EFF management as
to whether EFF should formally support the case in some way.
 
A "non-target case" is one in which the person asking for assistance or
advice is not an actual or prospective defendant, but her rights or
interests have somehow been affected by a criminal investigation or by the
actions of law-enforcement officials. (The classic example is one in which
a non-target sysop's BBS or networked computer has been seized as part of
an investigation of one the system's users.) As in target cases, I may
advise her lawyer, but I often can resolve things quickly by acting
directly as a representative for the person asking for help. For example,
in a recent Washington State case, I helped a non-target negotiate a quick
return of his equipment, which federal agents had seized and searched as
part of a multi-state criminal investigation. I have also been contacted
by the management of America On-Line to explain certain of that service's
obligations under the Electronic Communications Privacy Act., and by the
management of a CompuServe forum to discuss possible liability for export
of restricted cryptographic software.
 
Requests for help in civil cases. Normally, EFF won't take sides in a
civil case unless it clearly raises an important civil-liberties issue.
One such case involved the manufacturers of a VCR-programming device who
threatened to sue individuals participating in a discussion of their
coding algorithms on the Usenet newsgroup sci.crypt. The company's lawyer
insisted that the Usenetters' efforts at figuring out the algorithms by
deducing them from the codes published in TV Guide listings and elsewhere
was a violation of their copyright, patent, and trade-secret interests. I
researched their claim and confirmed the Usenet posters' belief that their
research did not violate any intellectual-property protections of the
manufacturers' products, and I represented their position to the
manufacturer, telling the company that the posters were engaged in
Constitutionally protected speech and inquiry. After several convesations
between me and the company's lawyer, the company dropped its claims. (The
sci.crypt posters' research was eventually published as a paper in the
journal CRYPTOLOGIA--Vol. XVI, Number 3, July 1992--in which the authors
thanked EFF for their legal assistance.)
 
Requests for help in situations where there's no criminal or civil case.
This category includes situations in which, for example, a college student
has his computer-access privileges suspended because a "hacker newsletter"
is discovered by a system administrator rummaging through the student's
directory. (I've explained to more than one system administrator that mere
possession of such information does not make one a computer intruder, and
that their rummaging may have violated the students' rights.) Or a
university computer center may decide to suspend some kinds of Usenet
newsgroups, justifying their actions by saying they're afraid the sexually
oriented newsgroups are illegal. (I've written and spoken to university
administrators to explain that virtually none of the discussions in the
sexually oriented newsgroups on Usenet qualify legally as
"obscenity"--instead, they're protected expression under established
American Constitutional law.) 
 
Beyond casework. In addition to individual casework:  I have represented
EFF's legal services primarily on three forums--the WELL, Usenet, and
CompuServe. As a result of my presence there, I have been receiving an
increasing amount of casework, requests for legal advice, and invitations
to speak. The number of these cases has increased in response to my
presence online--it also has increased in response to my public
appearances. After the Second Computers, Freedom, and Privacy conference,
for example, I had three or four cases referred to me by people who met me
in Washington.
 
I can be reached for legal help of the sort described above at
617-864-0665, or through my e-mail addresses: mnemonic@eff.org or at
76711,317 on CompuServe.
 
 
 
EFF LITIGATION EFFORT
 
As mentioned above, I perform the case intake and analysis functions for
EFF's litigation effort. Normally, prospective cases can be handled by
informal advice or referrals. Occasionally I recommend to the EFF
Litigation Committee that a particular case be taken on by EFF. If we take
on a case, I play a supervisory or advisory role in the conduct of the
case by outside counsel. Of the cases where we've invested time and money,
only the Steve Jackson Games case is an ongoing case.
 
Steve Jackson Games: A summary
 
On March 1, 1990, the United States Sercret Service, pursuing an
investigation of suspected computer "hacking," searched the business
offices and warehouse of an Austin, Texas game publishing company named
Steve Jackson Games.  The Secret Service seized several of the company's
computers, including the computer used to run the Steve Jackson Games'
electronic bulletin board system, named "Illuminati," along with related
computer and hardware and computer files.  Neither the company nor its
owner, Steve Jackson, was suspected of any wrongdoing.  No charges have
been filed against anyone in the investigation which led to this search
and seizure.
 
In May of 1991, Steve Jackson Games, Steve Jackson, and three users of the
"Illuminati" bulletin board system sued the United States Secret Service,
the United States, two of the Secret Service agents who conducted the
search, and a private investigator for Bellcore.  The suit seeks
compensation for the losses suffered by the company from the search and
seizure of its property, and for the delay in returning that property,
which included drafts of a soon-to-be-published fantasy role-playing game,
GURPS Cyberpunk.  The suit
also seeks compensation for the seizure of e-mail of the Illuminati users,
and for attorney's fees and costs incurred in bringing suit.
 
The lawsuit alleges that the government agents violated the Privacy
Protection Act of 1980, the Electronic Communications Privacy Act, the
Fourth Amendment's protections against unreasonable searches and seizure,
and the First Amendment.  The case raises important issues concerning the
civil liberties protecting the operation and use of electronic bulletin
board uses, as well as important questions about the conduct of government
searches and seizures of computers, computer information, and electronic
communications.
 
The Defendants' first line of defense has been defeated; the Court has
denied their motions to dismiss and for summary judgment. Discovery is
nearly completed, and the facts are developing along the lines
anticipated, and favorably to the plaintiffs.  The federal court's
schedule is unpredictable; depending upon the Court's schedule, the case
could be tried as early as February of 1993.
 
(Presumably, I would be in Austin during some or all of the trial in an
advisory role.)
 
 
 
EDUCATION AND POLICY
 
I have also added on roles that fall within EFF's education and
public-relations efforts. These include:  
 
Writing articles. I've written for EFF, for computer information services,
and for traditional print publications concerning the importance of civil
liberties for users of computer-based communications. (I also do some
editing of other EFF writers' articles.) A revised version of a paper I
presented last fall at the 50th Annual convention of the American Society
of Criminologists will be distributed by the Computer Underground Digest
and published as a pamphlet by EFF. My article on the First Amendment on
the Electronic Frontier is also being published as an EFF pamphlet. I have
recently published in the Cardozo Law Forum an article exploring the legal
status of information as property in computer-crime cases.
 
Conducting presentations. I have done presentations for law-enforcement,
computer-security, and general audiences on the civil-liberties
implications of computer searches and seizures, on the Constitutional Law
issues relevant to computer communications, and on the international-law
norms for freedom of speech on international computer networks. This
spring saw me do quite a bit of travelling to speaking events. Apart from
Computers, Freedom, & Privacy II, I have spoken at American University
(for a graduate journalism seminar), the ISSA annual convention in
Houston, at student-run symposia in New York and Texas, user groups, and
the Trenton Computer Faire. My appearance at the New York Amateur Computer
Club was taped and broadcast on radio. Mitch Kapor and I spoke
together at the FBI-sponsored International Computer Crime Conference in
Charleston, South Carolina to an international group of law-enforcement
personnel.
 
Researching policy issues for EFF. The issues I have researched included
the extent to which system operators should be held criminally or civilly
liable for text and programs posted on their systems by third parties, the
statutory approaches to computer crime among the states and the federal
system, the evidence issues raised by use of duplicate computer files, and
the scope of computer-crime law in Massachusetts.
 
Supervising law-student interns. I have taken on interns who are eager to
do groundbreaking research on legal issues relating to computer crime and
computer-based communications. These interns also take part in legal and
policy research projects. Recent interns Brent Britton and Julia Kogan
played key roles in developing materials for the Massachusetts Computer
Crime Commission report (see below).
 
Press relations. I regularly provide information about EFF and its positions
on major issues to members of the press.
 
Conferences. I have participated in the planning of Computers, Freedom,
and Privacy 3, in which issues relevant to EFF's agenda are raised and
discussed. I am a frequent program participant in other conferences and
forums dealing with these issues. I will be chairing the panel of judges
for the 1993 Pioneer Awards, sponsored by EFF.
 
Online forums. I have maintained a consistent EFF presence on two
forums--the WELL and Usenet.  In addition to receiving requests for help
with particular cases and requests for specific legal advice, I have
worked to inform the general readership of these forums about EFF policy
and issues, and I contribute to general discussions of these issues and
about general legal matters. 
 
Massachusetts Computer Crime Commission.  I have been Mitch Kapor's
assistant in developing the work of the Massachusetts Computer Crime
Council, which is due to report to Governor Weld in early 1993. I 
chair the drafting committee that is actually producing the report.