Lecture Notes: Computers, Crime and Privacy 1996

[While I do not intend to follow the same structure in 1997, I will be covering much of the same material]

I. Class Mechanics: Seminar

• A. Everyone does a paper, due last day of class. You are urged to submit early drafts for comments.
• B. You have the option of doing a class presentation of the material of your paper, taking up to a full class period (if not too many people want to do it). The presentation may be by two people with related papers, but each person must produce his own paper.
• C. Materials: Two books (one available in machine readable form), cases, other readings. Students may suggest readings, and add material and links to the web page.
• D. I am reachable by EMail, preferably at ddfr@best.com.
• E. There is a web page.
  • 1. The page is being maintained by Angela Belluomine: Briggsp@hooked.net.
  • 2. Its address is: http://www.scu.edu/SCU/Programs/HighTechLaw/courses/ccp/ccp1.html
  • 3. If you wish to add material or links, or help with maintaining it, talk with her.
• F. Some material is also available on disk on reserve at the library.
• G. This is a new field; I hope to learn from your research as well as your learning from mine.

   

II. Three topics:

• A. Computer crime:
  • 1. What it is
  • 2. How it fits into the current structure of law
    • a. Is information property? When someone transported records of pirated outtakes from Elvis Presley recording sessions, was he only violating copyright law, or was he also transporting stolen property? His reply was that the records belonged to him--he had paid for their production. The court agreed--that time. Dowling v. United States.
    • b. How is it to be valued? In the Bell South case (US v Neidorf), the question was whether a copy of a text file on the workings of the 911 system was "stolen property worth more than $5000." Bell South claimed the value of what had been stolen was the cost of creating the original file--which they still had. In Lund v Virginia, a graduate student had "stolen" computer services from his university; the court found that what was stolen was only the physical output (punch cards, paper printout), to be valued as scrap.
    • c. The question of whether something should be a crime is not the same as the question of whether something should be done about it; alternative approaches include Civil law, Trade Secret, Copyright. ...
  • 3. How should computer crime (and other legal issues involving the new technology) be dealt with? At least three alternatives:
    • a. By analogy. Stealing information is "like" stealing property, for example.
    • b. By new legislation.
    • c. By realspace contract, property rules applied to the computers and communication lines that support cyberspace, etc. In other words, apply existing laws, not to cyberspace by analogy but directly to the physical support of cyberspace.
• B. Old privacy issues
  • 1. Protection against false information being distributed. (defamation law?)
  • 2. Protection against true information being distributed. (Privacy) Fair Credit Reporting Act. Is such protection desirable? Is providing it practical?
  • 3. Protection against government collection and distribution of information.
• C. New privacy issue: Privacy via encryption.
  • 1. Computers as promoters of privacy
  • 2. The downside of this includes privacy for activities which not only are but ought to be criminal--murder for hire, for example.
  • 3. What other social implications does such privacy have?

III. Privacy and encryption: The need

• A. With current communication technology, most notably EMail and cellular phones, it is physically difficult for the user to prevent others from intercepting his communication.
• B. Even if interception is made illegal, the law is difficult to enforce.
• C. The solution is touse encryption to make intercepted messages unreadable.

   

IV. Encryption: The technology (Detailed information is in the FAQ from rsa.com. Some excerpts are on p. 33 of BBB. The following is my simplified version.

• A. Public Key encryption for privacy.
  • 1. The user generates two keys: call them A and B. A message encrypted using key A cannot be decrypted using key A; it requires key B to decrypt. Similarly, a message encrypted with B requires A to decrypt. A cannot be calculated from B (or B from A) in any reasonable length of time.
  • 2. So you generate two keys, make one public, keep the other secret. Someone who wants to send you a message encrypts it with your public key; only you can read it (decrypting with your private key).
• B. Digital Signature. To prove you wrote something, encrypt it with your private key. The fact that your public key decrypts it (and generates a message, not garbage) shows that it was encrypted with your private key, which only you have.
• C. Digital Cash
  • 1. Desideratum: Be able tomake payments that neither your bank nor outside snoops can trace.
  • 2. My scheme:
    • a. Send the bank a dollar and a long number. Bank agrees to pay the dollar to whomever comes in with the number, and to change the number in response to a request accompanied with the current number.
    • b. When you want to buy something from someone with a dollar, you give him the number. He sends it to the bank, along with a new number it is to be changed to (which only he will know, making the dollar effectively his) and a second number to identify the transaction.
    • c. The bank posts, in some public place, the fact that the transaction associated with the second number has gone through. The recipient now knows that he has the dollar (i.e. the number you gave him really represented an unspent dollar), so he gives you the goods.
    • d. All this takes a second or two; the computers do the work.
  • 3. For Chaum's more elaborate version, see www.digicash.com on the web.
• D. Untraceable communications: You don't want people to know whom you are communicating with. Use an anonymous remailer.
  • 1. Send the remailer your message (encrypted with the recipient's public key)+the recipient's address, the whole thing encrypted with the remailer's public key.
  • 2. Remailer decrypts the outer layer of encryption with his private key, revealing the address and the (still encrypted) message. He sends it on.
  • 3. If you are afraid the anonymous remailer might be a snoop, relay your message through ten different remailers en route to its destination.
• E. Authentication problems: How do you know my public key is really my public key, and not a public key someone has fooled you into thinking is mine, in order to intercept communications to me and forge communications from me?
  • 1. Centralized solution--they are all in the phone book, each of us checks his own and spreads the word if it is bogus.
  • 2. Decentralized solution, a la Phil Zimmerman (PGP2). Your computer keeps track of who you got what public key from, and tells you how sure it is that the key is genuine according to the number and reliability of the sources.

V. The Supporting Technology: power, bandwidth, Virtual Reality

• A. With high speed computers and networks capable of carrying a lot of stuff (i.e. the near future) ...
• B. A large part of all human interaction can be done over the net via virtual reality.
• C. Now encryption issues become central privacy issues.

VI. Implications of strong privacy

• A. Transactions, conversations, etc. are technologically private. Interception is impractical, whether or not illegal.
• B. A firm can combine anonymity with brand name reputation! The firm's identity is defined by its public key: anyone who can read messages encrypted with that key and send message decryptable with that key is the firm.
• C. Obvious advantage: freedom of speech, assembly, etc. are techno- secure.
• D. advantage/disadvantage: Information sales and purchases are unobservable, thus untaxable.
• E. Disadvantage: Criminal firms with brand name--murder inc. Pirate publishers.
• F. Defense against the undesirable consequences can be by prohibition (of consequences or of strong privacy and its supporting technologies) or by using the technology for defense. Examples of the latter approach include:
  • 1. Contract substitutes for intellectual property? Maybe.
  • 2. True names: If they don't know who you really are, they can't hire a contract killer to kill you.
• G. Private Law.
  • 1. Robert Nozick, in part 3 of Anarchy, State and Utopia, described an ideal society made up of many communities with varying rules, free movement among them.
  • 2. Consider an EMail mailing list. It is a proprietary community, controlled by whoever controls the list of names. He can make and efnorce rules of conduct--with the sole sanction of expulsion.
  • 3. Imagine the same thing in virtual reality. You now have a real properietary community with private law. Lots of these give you a competitive market in which anyone can set up his own. Crypto-Anarchy.

     

8/23/95

I. Can strong privacy be stopped, and if so how?

• A. Prohibit encryption?
  • 1. Hard to enforce (you can hide messages in anything with a lot of data--pictures, for example, as the least significant bit of one of the colors)
  • 2. Very costly in lost opportunities. Without encryption on line banking, firms exchanging confidential information electronically between physically separated offices, etc. become hard and risky.
• B. You can slow the development of encryption by making it less profitable.
  • 1. That seems the obvious explanation of U.S. export controls over encryption.
  • 2. You cannot keep foreign powers from getting programs that are for sale in the U.S., so the controls cannot serve their putative purpose of keeping "arms" out of the hands of potential enemies, but ...
  • 3. If firms that include encryption in their software must produce and maintain a separate version abroad, that is a cost which makes including encryption less attractive, thus slows the spread of encryption to the general public.
• C. Nationalize Encryption: The Clipper chip initiative.
  • 1. The idea.
    • a. The government designs and has produced (by a private contractor) a chip for encrypting voice communications, intended to be included in encryption products.
    • b. The chip must be provided with a key for encrypting a communication session; the key exchange protocol is left to whoever is building the product.
    • c. Each chip has its own built-in key, which it uses to encrypt the session key. That plus the chip's serial number is encrypted using the law enforcement key (which all cops have, and soon everyone else--too many people to keep a secret). That chunk of information (the "law enforcement block") is then sent along with the encrypted ocnversation.
    • d. Police tap a phone, record the communication. They decrypt the law enforcement block, get the serial number of the chip.
    • e. The chip's key, in two pieces, is held by two escrow agencies, probably government departments, although one might be private. The police take the serial number and a court order to the escrow agencies, get the key.
    • f. Using the key, they decrypt the encrypted session key, use that to decrypt the conversation. Since they now have the chip key, they can decrypt the session key of any future conversations as well and listen to them.
  • 2. Problems:
    • a. Can it work? How do you prevent people from pre-encrypting their conversation, feeding that into the Clipper chip, so that when the police decrypt they get gibberish?
    • b. Is it secure? Why is the algorithm kept secret?
    • c. Do we trust the government? Forever?
    • d. Do other governments trust ours?
    • e. What is the point of the clipper chip if it is not compulsory? Why will the terrorists/drug lords/child pornographers etc. choose to use a form of encryption designed to be read by a police officer with a court order?
    • f. One answer is that the Clipper chip is supposed to become a standard, thus the only convenient form of encryption--what good does it do to use your own encryption if nobody else does? That suggests that it is aimed against the unsophisticated criminals. After all, people get caught by wire taps now, even though they know that wire taps happen.
    • g. A different answer is that the government has anticipated strong privacy and is trying to prevent it. If Clipper encryption is the only encryption available to the general public, then firms selling pirated software, assassination, etc. will have no safe way of communicating with the mass market.
• D. What about the alternative of private forms of encryption, with required escrow of keys?

   

• 8/28/95

I. About encryption:

• A. It involves converting plaintext (the message) to ciphertext (encrypting the message), sending the ciphertext, then having the recipient convert it back to plaintext (decrypt).
• B. The algorithm is the process for encrypting.
  • 1. Typically, algorithm is public (lots of people using it).
  • 2. Also makes it possible to test algorithm in order to see if you can crack it
  • 3. And analyze it to figure out whether other people will be able to crack it.
• C. The key is known only to the people encrypting and decrypting that particular message.
• D. One simple approach is substituting one letter for another. A different approach is scrambling the order of the letters.
• E. Given enough time and skill, and a large enough message, such a scheme can be decrypted without the key (the cipher can be broken).
• F. With the exception of a one time pad.
  • 1. That is a simple substitution cipher in which the key is as long as the message and the substitution rule changes at each letter. For instance:
    • a. The key starts 6 9 24 17 ...
    • b. The first letter of the message is "H." Substitute "N" because it is 6 letters later. The next letter is "E." Substitute "N" because it is 9 letters later. ....
    • c. Since each rule ("six letters later," "nine letters later") is used for only one letter, there is no way of figuring out the rule from one part of the message and using it to decrypt another part.
  • 2. With modern technology, one could create a one time pad in the form of a CDROM, make two copies, give one to your correspondent, and use it for the rest of your lives (assuming only text messages, adding up to a total of no more than 800 Megabytes or so).

II. Key distribution and management problems.

• A. How do you get the key to the person who will receive your message, while making sure that nobody else sees it?
• B. How are keys stored and who has access to which key?

III. Public key as a solution to both problems.

• A. Distribution: don't need secrecy, since the public key can be distributed to everyone, and the private key need not be distributed to anyone other than its original owner.
• B. Non-disclaimable
  • 1. Your signature proves that the message was sent by someone with access to your private key.
  • 2. You can claim that your private key got out somehow
  • 3. But that means conceding your fault, which makes it more practical for you to be liable (for the money that the message took out of your bank account to stay out, for example).
• C. The RSA faq excerpt explains the mathematics of its version of public key encryption in half a page--for the mathematically sophisticated.
• 1. The one-way nature of the encryption (a key cannot decrypt the message it encrypted) comes from the fact that it is easy to calculate the number n=pq, where p and q are very large primes, but is hard to find p and q starting with n (i.e. to factor n).
• 2. So RSA encryption could be broken if someone found a fast way of finding a number's prime factors. Nobody has yet, but neither has anyone proven that no such way exists.
• 3. Suggestive anecdote: Fermat, a famous French mathematician, once received a letter from a correspondent asking if a certain large number was prime. Fermat wrote back that it was not, given its prime factors. We do not know how he could have done so so fast (computers were very far in the future). So maybe he knew something we don't. (All this is from memory, and I do not vouch for its accuracy).
• D. Speed issue: Public key encryption is much slower than some forms of private key encryption. So what you really do is to generate a session key for your message, send that encrypted with the recipient's public key, and send the message encrypted with the session key using a fast private key algorithm.

III. A Digital Signature serves three functions--identify sender, prove sender, untampered text.

• A. One simple way is to encrypt the message using the sender's private key, then encrypt that plus the sender's name with the recipient's public key.
• B. One way of proving that a message has not been tampered with is to use a hash function--a procedure for calculating a number from the message. If the number (sent encrypted) does not correspond to the number calculated from the message you got (not necessarily encrypted), you know the message has been changed, deliberately or otherwise.
• C. Note the relevance of the ability to "prove" who sent a message to legal issues involving obscenty/indecency/and defamation.

IV. As computers get faster, they can encrypt faster, decrypt faster, and break encryption faster.

• A. So you use longer and longer keys--which take longer to encrypt and decrypt but are harder to break.
• B. It appears to be the case that the time it takes to break the encryption increases more, as the key gets longer, than the time to encrypt or decrypt. If so, encryption can get stronger as computers get faster.

8/30/95

I. Non-cryptographic attacks: Consider a simple password cracking problem. You are a hacker who had dialed into a computer and is trying to get privileges on it--which requires giving it a password it recognizes as associated with a legitimate user.

• A. Brute force approach--try all passwords.
• B. If passwords are invented by their users, try ...
  • 1. User's name. Common names.
  • 2. Example from the instructions provided to the users (i.e. "password")
  • 3. This does not work in most encryption contexts because the key is generated by a computer, and is a big number, not a word.
  • 4. DEC used to send their computers out with three sample accounts, each with a standard password. The buyer was supposed to disable those when he set up his own accounts. Some did not--so a hacker could get on via a sample account--preferably one designed for a system administrator, with privileges to match.
• C. Find the password by
  • 1. Watching the user type it (direct or via computer) .
  • 2. Searching the trash can
  • 3. Searching a user's wallet, apartment, etc.
• D. Piggyback.
  • 1. Physical version, where you need a key, card, etc. to enter. Wait by the door with your arms full of boxes of punch cards, come in after a legitimate user.
  • 2. If a user does not logout correctly, you just "continue" his session.
  • 3. You modify things to make sure the user does not logout correctly--but thinks he does.
• E. Social Engineering: Get a password by asking for it.
  • 1. "I am calling from outside and forgot ..."
  • 2. I am from the computer company, testing the machine, and I need your password.
  • 3. Pretend to be a superior official in the company.
  • 4. Bribe someone who knows, such as the secretary who actually does the computer stuff for her boss.
• F. Think about equivalent approach for breaking encryption.

II. Why does the government care about cryptography?

• A. NSA.
  • 1. Foreign govts might learn better codes, which would be harder to crack.
  • 2. they might realize that we can crack their codes--as the German and Japanese governbments did not realize in WWII.
  • 3. Might learn to crack our codes.
  • 4. But Russians are good mathematicians... . Letting them know what we know as well as what they know might make things a little easier for it, but it seems more likely that secrecy is intended to keep information from smaller countries and private citizens.
• B. FBI: Interested in being able to tap phones. It tried to get such a bill in 1992, succeeded in 1994.
  • 1. Digital Telephony may be mechanically harder to tap.
  • 2. Cellular phone calls, especially on a system designed to provide some privacy, may be harder to identify--you can intercept a message, but how do you find the conversation corresponding to a particular phone?
  • 3. Encrypted phones are useful when the conversation is over the air, but make wiretaps harder
  • 4. All three of these can be dealt with by the provider--but what if the user provides his own encryption?
  • 5. Old Phone Phreak version of the problem. People who knew the phone system well could route their calls by indirect routes, making it very hard to trace them.
  • 5. How much is the ability to tap phones worth?
• C. Have NSA, FBI etc. thought about strong privacy issues?

III. The question of standards:

• A. Arises twice in this discussion
  • 1. One reason the government chose DSS not RSA was apparently because RSA can also be used for encryption. By encouraging its use for one purpose, you make it easier for it to become a standard and be used for the other purpose. If I already have your public key in order to verify your messages, why not encrypt messages to you using it?
  • 2. The government may plan to "enforce" Clipper by making it a standard, rather than by making it mandatory. Since you have to use it for secure conversations with the government, you might as well use it for other conversations as well.
• B. What is a standard?
• C. How stable is a suboptimal standard?
  • 1. Examples:
    • a. English spelling seems to be very stable.
    • b. It used to be claimed that the Wankel ("rotary") engine was much better than the reciprocating engine (what we use in all cars except the Mazda RX7), but was not used because everyone had sunk money into optimizing the reciprocating. The evidence against is that NSU and Mazda both put a lot of effort into producing a commercially viable rotary engine, without much success.
    • c. It is claimed that the Qwerty keyboard is much inferior to the Dvorak keyboard, but remains dominant because it became a standard, more or less by accident, in the 19th century. For the evidence that that story is almost entirely mythical, see the article "The Fable of the Keys" in Journal of Law and Economics some years ago.
    • d. b and c suggest the difficulty of judging such claims--given that the "superior" alternative is not in use to be evaluated.
  • 2. How might an inefficient standard get established?
  • 3. How high are the costs of switching to the superior standard?
  • a. In the QWERTY/Dvorak case, the costs to some users (typists using many machines) were high, but to others (authors using their own machines, a firm that trained and retained its own typists) would be low. The fact that those inthe latter class did not switch over is evidence against the claim that Dvorak was much superior.
• D. standards also appear as an issue in discussions of intellectual property in computer law:
  • 1. The claim that something is a standard is usually assumed to be an argument against protecting it, since we want compatibility, but ...
  • 2. One might get compatibility by having a standard owned and licensed out.
  • 3. The fact that something is a standard might be an argument for protection; if we want good standards, we should give their inventors protection so they can make money by inventing them. One can argue that the superiority of the Mac interface is the result of the fact that Apple, through its copyrights on the Mac ROMs, had de facto ownership of the interface, thus an incentive to design it well and keep developing it.

I. Review:

• A. Another suggested paper topic. What are the legal (and reputational) risks to a university from giving its students access the internet, and how can they be controlled--with special attention to current policies at this university.
• B. Standards:
  • 1. Example of electric plug and socket. We keep using the first design to come into common use, not because it is better than alternatives, but because life is easier if all plugs fit all sockets.
  • 2. This suggests one model of a standard: Easy to devise, all alternatives about equally good, the first one that appears survives. That sounds like a situation where intellectual property protection is neither necessary nor desireable, since it simply raises the costs of standardization (new producers have to negotiate a licensing agreement with the owner of the standard).
  • 3. Consider an alternative model: A complicated standard, where getting right in the beginning and then modifying it to allow for new developments is important. That provides an argument for protection, to give someone an incentive to come up with a good standard and maintain it.
  • 4. A common alternative in such a situation is a standards committee.
• B. Net for Novices
  • A. What is it? A standard/protocol, not an organization. There are committees to set standards, but they have no legal authority.
  • B. EMail: How it works. Your computer sends the message, possibly in several packets, to another computer, which sends it ... until it reaches the destination.
  • C. FTP: A system for making files on one machine available to anyone else on the internet (anonymous ftp) or anyone else with the proper password.
  • D. Usenet News: Thousands of bulletin boards, each on a different topic, with no central site maintaining them. When you post, your machine has the post immediately and passes it on to other machines it communicates with.
    • 1. Some newsreaders provide filtering, making it possible for you to tell your machine that you do not want to read any more posts on a particular topic or by a particular poster.
    • 2. The structure of News raises problems for enforcing rules against obscenity, indecency, and defamation. Except for moderated groups, there is no filtering mechanism for what gets posted. And punishing after the fact is made difficult by the fact that a sophisticated user can make a post appear to originate somewhere other than his actual site.
  • E. Gopher: Lots of publicly accessable servers with information about what is where on the net.
  • F. The Web: A geographically distributed hypertext document. Anyone can put up a web page and link to any other page on the net.

     

II. On to Clipper

• A. The problem from the government's standpoint: widespread availability of encryption.
  • 1. We want it, so individuals and firms can protect themselves, but ...
  • 2. Law enforcement prefers to be able to read our mail.
• B. Solution: provide it, but make it vulnerable to anyone with a court order.
• C. Mechanics.
  • 1. Each chip has a serial number and a key (programmed in secure circumstances, escrowed in two pieces).
  • 2. Two phones negotiate a session key.
  • 3. Each chip transmits the conversation encrypted with the session key, plus a law enforcement block consisting of the serial number encrypted with the Law Enforcement Key plus the session key encrypted with the chip key.
  • 4. Law enforcement taps (with court order), decrypts the law enforcement block, gets serial number, goes to escrow agent, gets chip key, decrypts session key, decrypts conversation.
• D. Why escrow system might not guarantee access:
  • 1. Non-clipper chips could be used instead of the Clipper, or
  • 2. They could be used to pre-encrypt the message, then feed it into the Clipper, or ...
  • 3. A chip or software could be used to remove, or better to alter, the law enforcement block as it is being sent. It is possible to check that a "possibly correct" law enforcement block is being sent without having the chip's key, so you would have to produce a block that would pass that test.
  • 4. A bootleg clipper chip or the equivalent in software could be used to send what would look like a clipper encrypted conversation, but with a bogus serial number. This requires either corruption of the single producer of the chip or someone figuring out the algorithm.
  • 5. One might make all of these illegal, but that raises enforcement problems.
• E. Why it might not be private enough.
  • 1. The algorithm is secret, and may have a back door--either known to the NSA or yet to be discovered.
  • 2. Can we trust escrow agencies, courts?
  • 3. Once a chip is blown, it is blown forever. After the end of the wire tap the subject is supposed to be notified. But a law enforcement agent might be able to shift that chip to another phone for an illicit tap.
  • 4. What about bogus chips with known keys, produced (illicitly) by the Mycotronics midnight shift?
• F. Alternatives:
  • 1. Private escrowed encryption; you can sell an encryption product, provided you guarantee that the keys are escrowed somewhere with an agency that will accept a court order.
  • 2. Perhaps a court could compel production of the key. That might work for encrypted data on my hard disk, since my claim to have lost the key would not be believable. But for encrypted conversations, both parties simply throw away the key at the end of the conversation.
  • 3. Would such a requirement raise self-incrimination issues?
• G. What was the government trying to do?
  • 1. Perhaps they realized that sufficiently sophisticated criminals/spies, etc. could always get around the Clipper, but they were aiming it at the mass of unsophisticated criminals, or ...
  • 2. Perhaps they anticipated the strong privacy problems we have discussed, and were aiming Clipper at ordinary citizens who might wish to buy illegal goods or services (assassination, pirated software) from criminal firms.
  • 3. Perhaps they intended to get Clipper established as a standard during the window of opportunity before adequate private alternatives were availalbe.
  • 4. If so, they have lost to PGP for text and may be about to lose to Nautilus and PGPhone for voice.
    • a. Nautilus has been released; it is a public domain encryption program using a Dos computer and a modem. Like Clipper it does not provide key exchange; users must somehow exchange the key in advance. It is single duplex--only one person can talk at a time.
    • b. But given the current rate of progress, it may well be an adequate Clipper alternative within a year.
• H. Current status of the proposal(s)
  • 1. Clipper is being offered only for encrypting phone conversations--the equivalent for other uses is still under discussion. It is not yet to be mandatory.
  • 2. Export controls are supposed to be eased to permit the export of strong encryption (up to 64 bit keys), but only if some sort of escrow system is provided.
  • 3. As evidence of the practical difficulties of export controlls ... . Just after Nautilus was released (and made available on machines that cannot be accessed from abroad), someone from Australia posted on a newsgroup, asking for someone in the U.S. to get Nautilus and send it, via anonymous remailer, to his favorite server in Australia. In his next post he apologized for having made the request before checking the server--Nautilus was already there.

9/11/95

I. Odds and Ends

• A. Santa Clara access policy.
  • 1. What it apparently is
    • a. Computers to which students have open access are restricted to the SCU local net, so ...
    • b. Students can use them to access the Internet only through their accounts on the Vax.
    • c. This will not apply to computers to which only one student has access (i.e. when the dorms are wired)
    • d. And does not apply now to parts of the University, such as the Law School, which have arranged to be exempted fromthepolicy (i.e. the Law School library computers, which can use Netscape to access the net directly).
    • e. The justification for the policy is that it allows us to know who is responsible if a student does something on the net.
  • 2. How useful as a means of control is it to know whose account something was done from?
    • a. Not much use if users are not aware that they are doing bad things, thus not deterred.
    • b. If they are aware, the obvious solution is to use someone else's account.
    • c. Either watching someone type in his password, or finding it written ...
    • d. In which case the University could argue that the owner of the account is to blame for being careless with his password, even though he did not do whatever bad thing was done from his account...
    • e. But there are ways of getting access to someone's account that are not his fault, such as ...
    • f. Installing Last Resort of some other program that logs keystrokes to disk on a publicly accessible computer, coming back a day later, copying the keystroke log to your floppy, and harvesting passwords, or ...
    • g. Calling in to your account and being erroneously connected to someone else's, as has happened (information contributed by students during the discussion).
• B. White paper proposal:
  • 1. Make software or hardware that is primarily intended to break encryption in order to violate copyright rights illegal
    • a. This amounts to reversing the result in Vault v Quaid
    • b. And is a weaker standard than currently required to prove contributory infringement in other contexts (i.e. Betamax).
  • 1. It is proposed as a way of protecting intellectual property.
    • a. You can sell a disk of encrypted fonts, and let the buyer pay to have you decrypt the ones he wants.
    • b. And even if an expert could break your encryption, very few of your customers can,
    • c. Since they have to do it themselves, instead of using a program or machine or service provided by an expert, that now being illegal.
  • 2. It is also a way of protecting weak encryption
    • a. A snoop who is an expert cryptographer could break your encryption, but ...
    • b. Unless the information is very valuable, the snoops won't be expert cryptographers
    • c. And software that substitutes for being an expert may be hard to find
    • d. Since an important reason for writing such software is to crack encryption scemes used to protect copyrighted material.
  • 3. Which might keep people from bothering with strong encryption--and if everyone uses only weak encryption, it is a lot easier for NSA to read everyone's mail.
  • 4. There remains the problem of identifying things mainly intended to ...
  • 5. And the problem of preventing illegal public domain software tools from spreading across the net. PGP spread despite the fact that, at least initially, it seems to have been in violation of RSA patents.

The proposed section 1201 would provide:

No person shall import, manufacture or distribute any device, product, or component incorporated into a device or product, or offer or perform any service, the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent, without the authority of the copyright owner or the law, any process, treatment, mechanism or system which prevents or inhibits the violation of any of the exclusive rights of the copyright owner under section 106.

• C. Business Software Alliance testimony at the Sept 6th NIST meeting:
  • 1. Perhaps NSA wants to require key escrow abroad in order to get it at home.
    • a. If firms build in key escrow to their products in order to be allowed to export products with 64 bit keys
    • b. It is then a small step to require them to activate the key escrow features for domestic sales as well.
  • 2. There is commercial demand for key escrow for archives but not for communications.
  • 3. If the government is going to require key escrow for export, there is no reason to also limit the key length. It should be unlimited, to allow U.S. software firms to compete with foreign firms--which face no limit on key size.
  • 4. The government promised in 1992 that permitted key size would be increased over time to take account of increased computer power--but it did not happen.
  • 5. What we need is market driven escrow (voluntary, for archived information, to make sure you can get it if the key is lost)--without it (and long keys) U.S. industry is out in the cold.
• D. EPIC used the freedom of information act to get FBI files which made the argument that, in order for the Clipper proposal to work, it is necessary to prohibit private encryption.
• E. Netscape Cracking story: Someone used a bunch of computers to crack a message encrypted with the 40 bit key that Netscape used for copies used abroad.
  • 1. They use 40 bits because that is the limit of what it is permitted to export.
  • 2. The version used here uses 128 bits.
  • 3. And Netscape regards the incident as evidence that the ITAR restrictions should be lifted.
• F. Proposed new export policy as of Sept 6-7 mtg:
  • 1. It should be legal to export encryption products with 64 bit keys, provided
    • a. They provide for mandatory escrow
    • b. And the escrow is with agencies approved by the U.S. government.
  • 2. The product should have the key escrowed during manufacture or be inoperable until the key is escrowed.
  • 3. And should not decrypt messages produced by non-escrowed products.
• E. There is said to be a bogus Dole home page on the Internet. Suppose it is true. How does a firm or individual prevent other people from damaging his reputation by pretending to be him?

II. How important is wiretapping? Freeh's statement

• A. "Terrorist crime will get worse ..."
  • 1. How many people have been killed so far by terrorists in the U.S.?
  • 2. How many such crimes could have been prevented by wiretapping if, but only if, something like the digital telephony bill was in force?
    • a. Oklahoma City, if the current version of what happened is true, could not have been--there was no large scale conspiracy to tap.
    • b. World Trade Center? Maybe--but you would have to have a spy in the relevant circles to alert you to whom to tap, and once you have the spy tapping might be unnecessary.
    • c. We do not know the answer to the question, the FBI probably does not know. How plausible is their implicit opinion (that there are a substantial number of such crimes)?
• B. played a role in convicting tens of thousands of felons over a decade--out of how many? Data from the Statistical Abstract:
  • 1987: 10 million people arrested, 2 million plus for serious crimes. I don't have figures for convictions for the whole country, but for U.S. District courts alone it was about 44,000.
  • Convictions based on information received from wiretaps: 506
  • Offenses specified of which those people were convicted: homicide and assault: 18. Drugs and gambling: 514
• C. "The Administration has said time and again that it will not force key escrow on ..." (Freeh)
  From the initial Clipper Press Release:

  Q: If the Administration were unable to find a technological solution like the one proposed, would the Administration be willing to use legal remedies to restrict access to more powerful encryption devices?

  A: This is a fundamental policy question which will be considered during the broad policy review.

9/13/95

I. Non-clipper escrow solutions:

• A. Mandatory private software with fair ... .
  • 1. You cannot force software to have its keys escrowed, but ...
  • 2. You can force public public keys (!) to have escrowed private keys that match them
  • 3. Provided that the public keys are public enough so that law enforcement knows about them.
  • 4. And if they are not, how does your correspondent find your public key?
• B. What about software that provides voluntary key escrow with an escrow agent of your choice as an option?
  • 1. Easy sell. Many purchasers would like the security of being able to get their key back if it was somehow lost.
    • a. What about spoof requests? How sure is the escrxow agency that the request is really coming from the person whose key it is?
    • b. When you escrow, you specify just who has authority to ask for the key. Board of Directors? Can they be trusted not to be fooled into violating security, retrieving the key and letting it fall into the wrong hands?
  • 2. Mainly useful for records
  • 3. From the standpoint of law enforcement, this gives them part of what they want--if the information has been incrypted using a key escrowed somewhere, they can go to the escrow agent with a court order and demand the key, but ...
  • 4. What if the escrow agent is the equivalent of a Swiss Bank--with a reputation to protect for being very reluctant to release keys, even to law enforcement?
  • 5. One could use ITAR to get private escrow going by allowing the esport only of software that requires escrow... The NIST proposal. But who licenses the escrow centers?

     

II. Function of Clipper

• A. A pair of users can easily defeat it if it is not mandatory by using their own encryption instead.
• B. A pair of users can defeat it even if it is mandatory by pre-incrypting (thus not being obviously non-Clipper)--until they are tapped, and charged with illegal encryption.
• C. So it is chiefly designed to protect against a single "Rogue" user, a term which really covers three cases:
  • 1. Ordinary conversation, one side knows it is secret, other believes that it is not.
  • 2. I call you and guarantee privacy (outgoing)
  • 3. You call me and I guarantee privacy (incoming)
• D. Note that when they talk about a user "knowing" the conversation is or is not secret (i.e. cannot or can be read by a law enforcement official with a court order), they are mostly talking about what the Clipper Chip in his phone "knows."
  • 1. If the Clipper Chip in my phone realizes the other Chip is not kosher (i.e. is deliberately modifying the LEAF so that the conversation cannot be decrypted), it will refuse to decrypt the incoming message.
  • 2. So I have to not only approve of keeping the conversation secret, I also have to have a bogus Clipper Chip on my side to do it with.
  • 3. So the real objective (the most they can reasonably hope to achieve) is to make sure that it takes two bogus Clipper Chips to hold an untappable conversation.
  • 4. The initial design apparently failed to achieve that--as demonstrated by someone at Bell Labs. But it can be fixed.
• D. To make sure the other device knows if Clipper is being defeated, the Law Enforcement block contains a checksum of the session key encrypted only with the family key.
  • a. This only works if the family key is secret! Otherwise a rogue Clipper chip (or equivalent in software) can be built that gives the right checksum but gives the wrong session key (which is encrypted with the chip's key, which the other chip does not know and so cannot check on).
  • b. To keep the family key secret, it is built into a "Decrypt device" --a sort of reverse Clipper Chip. Like the Clipper Chip, it is presumably protected against reverse engineering. Nobody need know the family key--if you want to use it to decrypt the LEAF of intercepted communications, you check out a decrypt device.
  • c. So the Law enforcement block is secret--but how long until a decrypt device is stolen? That still does not let you build rogue Clipper chips (since you can't get the family key out of the device), but it does let you do traffic analysis (who is talking to whom) without a warrant.
  • d. One advantage to hardware is that while it can be stolen, it cannot be (easily) copied. So if one decrypt device is stolen, one criminal has it. If the family key got out, pretty soon everyone would have it.

III. Hardware v Software encryption--can we do the equivalent of Clipper in software?

• A. We need to use (tamper-proof) hardware if we use a classified algorithm
  • 1. since software could be disassembled to deduce the algorithm.
  • 2. But we don't need to use a classified algorithm--there are unclassified ones that will do just fine.
• B. Software can be modified to defeat the escrowed encryption
  • 1. But you can do the equivalent for hardware by pre-incryption
  • 2. All you need to equal Clipper is a system that requires modified programs on both ends to defeat the escrow system.
  • 3. Or in other words one that, like Clipper (once they fix it), prevents rogue communicators.
• C. Problem: If you use software, how do you keep the Family Key secret?
• D. Solution--use a public Family key for encryption, private for decryption (by law enforcement agent). So only the public key is built into the program.
• E. The receiver can construct the LEAF and check it is right! Since we no longer have keys associated with chips, the LEAF constructed by either key is the same. We encrypt the session key with the escrow agency's public key (fancier version for multiple agencies) and include it in the LEAF instead of escrowing chip keys with the escrow agency.
• F. Law enforcement takes the LEAF to the escrow agency, gets back session key.
• G. All of this is my somewhat simplified version of what the article proposes.
• H. The basic idea is that you can use public key encryption plus software to accomplish the same objective that the clipper chip accomplishes with private key encryption and hardware.

IV. Digital Telephony bill

• A. Does not cover encryption, unless it is provided by the phone company
• B. Rhetoric and general problems.
  • 1. Strong on: "staggering" costs, "Untold victims," "numerous lives," "Dismanteling organized crime groups (WW1 fighters), can assure you ... "disasterour results," "billions of dollars," numerous deaths, ravaged lives,"
• C. Cost/benefit info.Would not pass peer review.
  • 1. All numbers are from the FBI without auditing.
  • 2. Fulton fish market has no legal monopoly--$1/lb a large number. That claim (that organized crime raised the cost of fish in the U.S. by $1/lb) is sufficiently implausible to cast some doubt on other claims.

V. Cost/benefit calculations:

• A. What is the cost of crime?
  • 1. Zero--just a transfer?
  • 2. But the opportunity to transfer provides an incentive to spend resources tranferring, and that expenditure is a net waste...
  • 3. As long as you can steal $100 at a cost of $50, more people enter the stealing business, driving down the return (everything worth stealing is already stolen), so you reach equilibrium only when it costs about $100 to steal $100 (counting all costs, including risk of being caught and punished).
  • 4. So to first approximation, the cost of crime is equal to the amount stolen.
  • 5. Second aproximation:
    • a. The cost is less, because some people are especially good at stealing, and can steal $100 at a cost of $80 even though doing so costs the marginal thief $100.
    • b. The cost is more, because we have to include the cost of precautions that people take to defend themselves against being stolen from.
  • 6. The argument is not limited to theft. It also applies to legal ways of transferring--lobbying for legislation that benefits you at someone else's expense, for example.
  • 7. But this analysis applies to crimes such as theft, which are not what wiretaps mostly about.
• B. Victimless crimes?
  • 1. We don't even know the sign of their cost.
  • 2. On the fact of it, such crimes produce a benefit--which is why the "victims" (drug users, gamblers, customers of prostitutes) choose to participate.
  • 3. To argue for a cost, you need to claim that someone else somewhere is being hurt (or the customers are being hurt but don't know it), and how can you estimate the size of that effect.
• C. Tax evasion?
  • 1. If government expenditure is fixed, so that my evasion simply raises your taxes, then the analysis is like the analysis of theft, but ...
  • 2. If expenditures depend on how much government can collect, then my tax evasion reduces expenditures.
  • 3. If you think a dollar of government expenditure buy things more valuable than a dollar of private expenditures, the result is more costly than an equal amount of theft.
  • 4. If you think an extra dollar of government expenditure does net damage, then tax evasion produces a net benefit.

9/18/95

I. Readings from Chapter 6 of BBB

• A. Diffie:
  • 1. The FBI et. al. claim that Clipper and the digital telephony bill merely maintain the status quo between the citizen and law enforcement.
  • 2. But it really represents an attempt to lock in technological changes that favor the state.
    • a. When most interaction was face-to-face, it was hard to "tap" the conversations of people who were making an effort to keep them private.
    • b. The constitution did not provide a right of private conversation, presumably because it never occurred to the founders that it could be infringed.
  • 3. When it became possible to tap phones (and telegraphs) without notifying the victim of the "search," they did not "maintain the status quo" by forbidding it.
  • 4. This is not entirely fair--the law did restrict the right of the police to use the new technology, and did require that the victim of a wiretap eventually be notified.
• B. Froomkin: Would mandatory key escrow (i.e. all unescrowed encryption is illegal) be constitutional?
  • 1. First amendment--that depends on how important the court thinks the objective is relative to the chilling effect on those with unpopular opinions of being unable to have secure privacy for their conversations.
  • 2. Fourth amendment: Should the escrow (the original deposit of the chip key in a database) require a warrant?
    • a. Froomkin thinks there is a presumption that it would, but ...
    • b. Administrative searches, such as mandatory drug testing designed to deter crimes rather than reveal them, are permitted; this seems to fit that pattern.
    • c. Nothing similar has yet been permitted in the home, so perhaps this would be a good argument against requiring escrow for non-commercial speech.
    • d. Obvious counter-argument: They are not searching your house when they escrow your key--they are getting it from the producer of the chip, who turns it over willingly.
  • 3. Fifth amendment: Does any part of escrowed encryption require self-incrimination?
    • a. The initial disclosure of a key is not incriminating, since you haven't yet said anything that would incriminate you.
    • b. Is requiring you to send the LEAF, which includes information necessary to decrypt your conversation, unconstitutional? Is it analogous to requiring someone to give up his diaries, which under some circumstances has been held to violate the fifth amendment?
  • 4. Does it violate the constitutional right to privacy?
  • a. This requires a balancing test.
  • b. Whalen v Roe, which dealt with a state database of patients using controlled drugs (and found it consitutional), seems to imply that Clipper would pass, but ...
  • c. Since the court is especially solicitous of privacy in intimate affairs, and some marriages are conducted largely at long distance, perhaps encryption of "intimate interactions" over the net would be protected.
  • d. Sounds pretty dubious--at least until virtual reality gets a lot better.

I. Verisign is a new firm, marketing its product as a way of facilitating the use of digital signatures rather than an encryption approach. Nonetheless, it may be very important for the spread of strong privacy. Information can be found at: http://www.verisign.com/faqs/id_faq.html and, in much briefer form, below.

II. How does a digital signature work?

• A. Assume (for the moment) that the recipient knows your public key.
• B. A "hash function" converts the message into a long string of digits--a large number. Call that the message's "signature digest."
• C. You hash your message to create its signature digest, then encrypt the digest with your private key. Send that as the signature appended to your message.
• D. The recipient decrypts the encrypted digest with your public key to get back the signature digest. He hashes the message to calculate its signature digest for himself. He checks to make sure they are the same.
• E. Thus a digital signature serves two functions. It proves that you sent the message, and it proves that the message has not been tampered with.
• F. In order to serve the second function, it must be effectively impossible to start with a signature digest and generate a message that hashes to that number. Otherwise someone could intercept the message, hash it to calculate the signature digest, replace it with another message that produced the same digest, and send that (along with the original digital signature) on to the recipient. Remember--the message here is signed but not encrypted. The signature is supposed to authenticate both message and sender.
• G. There are several hash functions that have this characteristic.

II. So far we have assumed the recipient already has the sender's public key. We now drop that assumption. The sender can, of course, send the recipient his public key--but how can he prove that public key XYZ really belongs to person P? Until he does so, he cannot provide a digital signature--and without a digital signature, he cannot prove that the message is really being sent by him.

• A. Solution: Digital ID.
  • 1. If there is someone you trust and whose public key you know, then ...
  • 2. Your correspondent sends his name and public key in a document signed by that someone.
  • 3. Once he has such a document--an ID linking him to his public key and signed by someone who is trusted and whose public key is widely known--he can make copies and use them to identify himself not only to you but to anyone else who trusts the signer and knows his public key.
  • 4. We now have digital ID cards, which can be "shown" simply by transmitting a message.
  • 5. An Internet Driver's License--not in the sense of a license required to drive but rather of something that, like a driver's license, identifies you.
  • 6. Note that the person you show your ID to must not only have the signer's public key but also trust the signer to be careful about checking that someone who asks for an ID is who he says he is.
  • 7. In a way, this is more like the old "letter of introduction" than it is like a driver's license. There is no single person "authorised" to give it out--it all depends whom the recipient trusts.
• B. What if the sender and the recipient have no common acquaintances?
  • 1. I send you my digital ID signed by X (whom I know and you don't), along with a digitally signed letter from Y (who you know, and X knows, but I don't know) certifying that X is reliable and that his public key is 41690... . Since you now have X's public key, you can check his signature, thus verify my ID.
  • 2. You can run such a chain through many levels, with multiple certificates, up to one completely trusted certifying authority at the top.
  • 3. Or up to two somewhat trusted certifying authorities, since I can send you multiple certificates.
  • 4. For each step, you need a way of both knowing that that authority is reliable--that he checks people's identities before issuing them ID's--and knowing his public key.
    • a. You could get either fact, both, or neither from a certifying authority one step higher
    • b. You could get either, both, or neither from your own knowledge. For example ...
    • c. You may know that the boss of your company is reliable about issuing ID's to employees
    • d. But have to verify his public key via a certificate from some certifying authority.
    • e. What matters is that between his certificate and your knowledge you have both facts.

III. What Verisign is doing:

• A. Providing software and hardware so that a firm can set itself up as a certifying authority to certify keys inside or outside of the firm.
  • 1. In particular, the firm's private key must be known to nobody
  • 2. It resides inside tamperproof hardware, and is destroyed if the hardware is opened. The hardware is available from Verisign.
  • 3. This is similar tothe way in which the family key is protected under the Clipper Chip proposal. Nobody knows it--it is simply enbedded in hardware which a law enforcement agency can use.
  • 4. And the firm's public key is certified by Verisign.
• B. Setting up as a top level certifying authority itself.
• C. Establishing standards on how to be a certifying authority.

IV. Who are they?

• A. A spinoff from RSA; the chairman of their board is the president of RSA
• B. Their announcement on the net includes favorable quotes from: Visa, Ameritech, Mitsubishi, AOL, Apple, Netscape, Intel, Lotus, Microsoft, Sun, Dun and Bradstreet, GE Inf services. Some of those firms are also investors.
• C. The service they provide is Making it possible to prove that a public key belongs to an individual.

V. Details:

• A. A Digital ID contains, in addition to the name and public key of the person being sertified, the expiration date of the key, the name of the Certifying Authority that issued the Digital ID, the serial number of the Digital ID, and perhaps other information. And it includes the digital signature of the Digital ID issuer-- a Certifying Authority.
• B. Note that your public key is generated by you!
  • 1. You take it to a certifying authority with your passport or some other realworld ID to get your digital ID.
    • a. How careful is the authority to make sure you are you?
    • b. That is up to them.
    • c. And may help determine whether people accept the ID's they issue.
• C. The certifying authority maintains a list of cancelled keys.
  • 1. So if your private key somehow gets out, you tell the C.A. to cancel your keys.
  • 2. If you get a signed and certified message and you want to be really sure it is genuine, you check with the C.A. that certified it (i.e. that issued the certificate linking the sender to his public key) to make sure it has not been cancelled.
• D. All keys expire after some time delay (Verisign suggests two years).
  • 1. To guard against long term attacks.
  • 2. Because as computers get more powerful, you want to use longer and longer keys to be safe.

VI. Is a digital signature legally valid? We don't know yet.

• A. Utah has implemented laws qualifying digital signatures. Legislation has been intorduced in California and New York.
• B. You could sign a paper document agreeing to be bound by your digital signature, and to accept the digital signature of the person you are going to be doing business with..

VII. Verisign can be viewed as a Trojan Horse for Public Key Encryption!

• A. If you want to prevent widespread use of public key encryption, the obvious weak point to attack is the proces by which keys are made public.
  • 1. It is hard to search every computer in the country, but not so hard to close down whoever publishes the "public key phone book" for the whole country.
  • 2. Even if you cannot keep it from being published (perhaps abroad), you can force it underground, and thus make it hard for people to distinguish the real phone book from a bogus one .
• B. Suppose Verisign succeeds in establishing widespread institutions for digital ID's--allowing someone to prove that a particular public key is his.
  • 1. You want to correspond with a known person (i.e. you know his name and EMail address) whose public key you do not know. You email him asking for his public key.
  • 2. He sends you his public key--along with a certificate from a trusted CA (or chain of them) proving that it is his.
  • 3. You can now send him encrypted messages safely.
  • 4. We no longer need a public key phone book.
• C. So Verisign solves the verification problem, in a fashion similar to the solution used by PGP. Decentralized verification, since chains of CA's need not all go up to Verisign.
• D. Why are they putting all of this in terms of digital signatures?
  • 1. Because there are obviously good reasons why lots of firms would want a reliable system of digital signatures in place.
  • 2. Export of software for verifying digital signatures is legal
    • a. Provided that that software cannot be used for encryption
    • b. But the key element of strong privacy that they are providing is not public key encryption but institutions for verifying public keys
    • c. And once those institutions exist, you can use someone else encryption software (produced abroad or exported illegally in violation of ITAR).
  • 3. And nobody ever blew up a building with a digital signature.
    • a. Or in other words, although they potentially weaken the power of law enforcement
    • b. They do so in a less obvious manner than encryption
    • c. And are thus harder to get people scared of.
    • d. Very clever people these computer geeks.
• E. And now we see why the government wanted to establish DSS instead of RSA as the standard for digital signatures--because DSS does not also provide encryption capabilities.

0: Guest Lecturer--Silicon Valley's Computer Cop. Some bits.

• A. Very low police resources are devoted to computer cimre.
  • 1. 1-6 in Silicon Valley, the FBI has about seven people specializing in computer crime with CS degrees or the like--and they are not likely to be in the class of a Mitnick or Morris.
  • 2. If you are a cop and known to know something about computers, they assign you to search Dos computers--which is not a very interesting job.
  • 3. Is one reason for Clipper, Digital wiretaps, etc. that law enforcement knows it is very weak and wants some technological help>
• C. How do you prove evidence is real?
  • 1. On machine the defendant doesn't control, you don't.
  • 2. On machine he does control, better have witnesses.

I. Review Digisign

• A. The basic idea
  • 1. Digital signature requires recipient knows public key; it guarantees source and contents.
  • 2. To use a certificate to tie a public key to a person requires that you know the public key and reliability of the signer.
  • 3. Which you can get by some combination of your own knowledge and attached certificates of him by higher level C.A.'s
• B. The implementation
  • 1. They offer the hardware, software, RSA license
  • 2. Using existing standards for digital signatures based on RSA
  • 3. And will function as top level CA if you want them to.
• C. Why it matters: Level I
  • 1. With digital signatures, business on the internet is much easier.
  • 2. And potential spoofing problems involving Web, News, Mail can be dealt with.
  • 3. And we can construct Newsgroups etc. where people are not anonymous.
• D. Why it matters: Level II
  • 1. The weak link in a system of public key encryption is the phone book,
  • 2. Because it is a big project, and if driven underground hard to check.
  • 3. Digital signatures are the trojan horse that gets signature verification going, since ...
  • 4. You can ask someone for his certified signature.
  • 5. And harder to campaign against, which is
  • 6. Why NSA tried to push DSS over RSA.

II. The new hole in Netscape Security?

• A. Random vs pseudo random numbers.
  • 1. Turn on the computer from zilch, do everything the same, it gives the same random number!
  • 2. Solution one--physically random process, preferably quantum mechanical, built in.
  • 3. Solution two--stay pseudo, but seed the computer with a number determined by outside input.
  • 4. For instance, see it with the clock time at the instant the user starts the process, hits a key, etc.
• B. How Netscape generated keys:
  • 1. Seed was based on time in seconds, time in miliseconds since the last second, process number, and ...
  • 2. If you are on the same machine, watching the same clock, when the message goes through ...
  • 3. You observe seconds and aprox milliseconds, or get them from the header of his message, get the other numbers from the header or guess from a small set of alternatives (one of them is often 1 on X-Windows machines).
  • 4. Try out seeds until one works, and ...
  • 5. Thereafter they are generating new keys without reseeding!So having broken the encryption once, you can read everything else he sends anyone that session.
  • 6. On a different machine, it would probably harder, but if the clocks are accurate ... .
  • 7. In the worst case, there are 2 to the 47 possibilities for seeds, instead of the 2 to the 128th possible keys. That simplifies the problem roughly a billion billion million fold.
• C. Solution: Use a much wider range of seeds, depending on harder to observe things.
• D. Lessons.
  • 1. How long a brute force attack takes is not all you need to know. By this attack, the 40 bit and 128 bit versions of Netscape encryption were about equally easy to crack.
  • 2. The virtues of open examination. If people can look for holes, they may find them.
  • 3. Will Netscape open the new version?

III. Economic espionage problem?

• A. Former soviet? Unlikely. Too far behind, but ...
• B. Their unemployed spies, working for western companies, maybe.
• C. Intelligence agencies of allies etc. are a more likely threat. If so, encryption good enough to protect only against amateurs (40 bit, for instance) is not adequate.

IV. DSS--was the trap door intentional?

V. Is ITAR constitutional?

• A. Is it a prior restraint on publication?
• B. If so, ...Only restrictions on classified, or official information can be made
• C. And should be court reviewable etc.

I. Lund v Commonwealth of Virginia 232 S.E. 2d 745 (Va. 1977); SC of VA

• A. Larceny had to be of property, not of services.
  • 1. Old case, running a factory you do not own, someone else pays the wages (to employees who think this is ordinary overtime?), you buy inputs, sell product.
  • 2. Some states changed laws to cover services.
• B. The only property stolen consisted of printouts and cards.
  • 1. How do you value them?
  • 2. Cost of production?
    • a. Do you price it as funny money (numbers used for internal accounting--each department gets a budget of $X to be spent only on buying computer time), or
    • b. Try to estimate a real shadow price--the cost your use imposed on the owner.
  • 3. Value to the thief?
  • 4. Value to anyone else is aprox zero.
  • 5. The issue of valuation comes back in the Bellsouth case.
• C. Why prosecute? Why use criminal rather than civil law? VPI gave him his degree, so presumably they don't strongly disapprove of what he did.

II. United States v. Seidlitz 589 F.2d 152 (4th Cir. 1978)

• A. How do you apply ordinary law to computer contexts?
  • 1. "by means of false or fraudulent pretenses, representations, or promises ..." (Fed wire fraud statute). Representations to whom? Fraud implies human being fooled, no? Is picking a combination lock fraud?
  • 2. Was the owner of the computer "a party to" the phone calls between Seidlitz and their machine?
• B. Was he guilty? Was he stealing or testing for security holes?
  • 1. He could have walked off with Wylbur more easily while still working for them, presumably?
  • 2. Is Wylbur really a secret, or protected by contract? Lots of copies presumably.
  • 3. What does he want hard copy for? 1975 technology.
  • 4. Are all crimes crimes? I still have keys to U of Chicago Law School, because I never bothered to return them. If I am there over break and use them to go check a cite in the library, I may be technically trespassing (even breaking and entering?), but nobody associated with the institution would think of it that way.

III. United States v Jones 553 F. 2d 351 (4th Cir. 1977)

• A. Fraud or forgery?
  • 1. If real checks obtained by fraud, she is guilty, but ...
  • 2. If forged checks, she is innocent (of this crime)
• B. The computer "really issued" the checks so they were real checks fraudulently obtained?
• C. Or the computer was the tool Everston used to forge the checks, by changing the vendor number (before the checks were printed).
• D. Is the computer a tool used by Everston (district court's view) or did he defraud the computer, or Inglis, into writing a real check?
• E. What if no human intervened between the fraud and the writing?

IV. The People of New York v. Robert Versaggi

• A. Did he "intentionally alter ... computer data or a computer program?" No.
  • 1. The data and the program were untouched
  • 2. Do I alter my home wiring when I turn on the lights?
• B. He misused the computer.

I. If someone wants to do a paper on the pretensions of the Attorney General of Minnesota to rule the internet, some interesting questions might be:

• A. Is it legal?
  • 1. Scienter--if you cannot know that you are dealing with someone in Mn, can you be guilty of knowing that you were violating their law?
  • 2. What if he ought to know that what he is doing (gambling) is illegal for most of his customers?
• B. What are the realworld implications if the Mn claims are correct? What would the net look like?
• C. How might the law be changed to deal with such problems?
  • 1. Forced identification
  • 2. New jurisdictional rules
  • 3. Treat "telecommuting" like physical transportation. Citizens of Minnesota are free to go gamble in Las Vegas.
• D. Is this a new problem?
  • 1. Telephones
  • 2. Mail forwarding

II. The Hacker Crackdown: The sociology of computer crime

• A. What the cops know that ain't so:
  • 1. The Bell crash
    • a. Why should they believe the official version; perhaps
    • b. It was designed to prevent embarassment, or
    • c. avoid encouraging a repeat.
  • 2. Hacker self-glorificationf also encourages police suspicions.
• B. Illegal industries are poorly known; paranoia may reign
• C. "Hacker" and "Hacks."
  • 1. A "hack" was an odd and ingenious way of doing/designing something.
  • 2. A programmer seeing his first elephant might describe it as an impressive hack--"it picks up things how!?!"A Elephant.
  • 3. The word "Narc" has had a similar change through back etymology (deducing its meaning from a false guess at its origin). It originally meant a police spy, possibly from a Romany word for "nose." People heard it as narc=nark=narcotics agent.
  • 4. And "hacking" now implies something illegal and possibly destructive.
• D. Is it wrong? Whistling down the wire. Driving a car backwards.
• E. Consider ways of enforcing rules in hacker/phone freaker culture: instead of executing someone you turn him in to the police. Your weapon is information rather than force.
• F. Believing what people want to believe:
  • 1. Hackers want to believe they do no harm, computers are overpriced, ...
  • 2. Police want to believe that hackers are thieves.
  • 3. And that markets are organizations: Mafia. You can fight an organization.
• G. The effect of law enforcement on criminal industries
  • 1. Drugs
  • 2. Luciano: by an account attributed to him, the reason criminal firms joined together during prohibition was to cooperate in bribing police and judges.
• H. The files that were on the BBS's the police seized--should they have been there? similar information (on how to commit crimes) is in books sold openly. Should such be banned? Is the 1st amendment a good idea?
• I. Sting operations don't require phone taps.
• J. There may be a delicate balance between not treating hackers badly enough to make them want to commit largescale vandalism and not treating them well enough to make hacking an attractive and popular hobby.

III. U.S. v. Robert Riggs (and Craig Neidorf)

• A. What happened:
  • 1. Riggs copied a text document from a Bell South computer--it had a secrecy warning at the top.
  • 2. Neidorff edited it and published it in Phrack
  • 3. The file zipped back and forth across state lines in the process.
• B. Is it fraud?
  • 1. If you get the file by calling up a secretary and persuading her that you are someone she is supposed to send it to, then yes.
  • 2. If you get it by "persuading" a combination lock to let you in at night to steal the document, no.
  • 3. This case is somewhere between the two.
• C. No fiduciary relationship between Riggs and Bell South--is this deprivation of an intangible right (requires a fiduciary relationship to be fraud) or of property (does not)?
• D. Is what was transmitted a thing? "goods, wares or merchandise."
  • 1. Transmitting money counts.
  • 2. Does transmitting Bell's proprietary information count as transmitting "goods, ... ?" Yes, if affixed to a tangible medium. What if the medium is not stolen (U.S. v. Brown below)?
  • 3. This court holds that it counts even if what was transmitted is not tangible--others have disagreed.
  • 4. Anyway--the court says that computer storage is more like paper than like memory.
  • 5.But no computer was transported--just the information. What if trade secret information had been transmitted by a phone conversation?
• E. Is what was transferred the type of property that can be "stolen, converted or taken by fraud?"
• F. Dowling v U.S. holds that copyright violation does not qualify. Pirated records (from broadcasts), when transported across state lines, are not subject to the Federal Stolen Property statute. The criminal owned the records, and the intellectual property was not "goods, wares or merchandise."
• G. This court holds that trade secret can be stolen even if copyright can only be infringed.
• H. Are "Hacker" and "Legion of Doom" prejudicial terms?
• I. The real story:
  • 1. The Sysop of the BBS on which the document was stored reported it, the informationg got to Southern Bell security months before the document's publication, and nothing was done.
  • 2. Every document produced by Southern Bell for internal use had the same secrecy warning.
  • 3. The information was administrative, not technical. Maybe helpful for verbal fraud, but ...
  • 4. Southern Bell sold a document with more extensive information to anyone for $13.
• J. Is there a first amendment issue here? Neidorff is being charged with publishing something, not stealing it.
• K. Law enforcement was trying to "send a message"--discourage communication of information useful in committing crimes--i.e.
  • 1. BBS's and electronic journals that published
  • 2. Other people's phone ID and credit card numbers
  • 3. Information on how to get such things and
  • 4. Information on how to get entry to other people's computers.
  • 5. Worried, in this case, that the information might be used to sabotage the 911 system.
• L. Is this a legitimate objective? Books on "how to get even,", "Anarchist's Cookbook," etc. are protected by the First Amendment. They tried to achieve it by harassment--siezing computer systems as evidence and then (in many cases) neither indicting people nor returning the seized systems.
• M. Does Neidorff have legal recourse against the Feds? Against Bell South (which claimed the document was worth $80,000). Should he? Is Bell guilty of abuse of process?
  • 1. Bell's figure was a (much inflated?) estimate of the cost of producing the document. But ...
  • 2. They still had it. The relevant figure ought to be either
  • 3. The cost to them of the info getting out or the value to the thief.
  • 4. Both were trivial, since they were freely selling a document containing the same information.

IV. Unix source code cases. 1990.

• A. Law enforcement was following a trail from BBS to BBS via EMail
• B. Found a respectable computer consultant, who ...
• C. Had lots of Unix source code on his computer, and traded with similar people to get more.
• D. Is he a criminal with millions of dollars of stolen property?
  • 1. Obviously not--Bell can sue if there is any damage (there probably is not).
  • 2. If Bell does sue, they may find it harder to get contractors.
• E. Typically in such a case his equipment is seized but no charges are ever made! (Not here)
• F. What is happening? It is useful to have source code when doing subcontracting work. Bell is restrictive about giving it out. So A has source code for one part of Unix, B has it for another, they trade in order that neither has to persuade Bell to give him the code when and if he actually needs it. (conjecture)
• G. Should Bell worry about such behavior? If intellectual property is easy to steal, the best strategy may be to enforce your rights against people who misuse it, not against ones who simply have it.
• H. If Bell gets people like this thrown in jail, they may find it harder to hire consultants next time.
• I. Conjecture: Bell's right hand did not know what its left hand was doing. Bell Telephone people are trying to intimidate hackers and phone phreaks; Bell Unix people would not want their consultants arrested for harmless acts, even if they are iin violation of contract.\

VI. Review: Issues raised by the criminal cases.

• A. What is computer fraud? Is using a fake password analogous to lying to a person or to opening someone else's combination lock?
• B. What is information?
  • 1. In what sense does copying it deprive the owner of it?
  • 2. Does transporting it count as transporting "goods, wares or merchandise?"
    • a. Does it depend on the form in which it is transported--phone call or diskette?
    • b. Does it depend on who owns the diskette?
    • c. Does it depend on whether it is copyrighted or a trade secret?
  • 3. Can it be "stolen, converted or taken by fraud?"
  • 4. How do you measure its value?
    • a. Production cost? Clearly wrong.
    • b. Value to thief--perhaps, or ...
    • c. Cost to victim.
    • d. Note that the Neidorff case is a clear example of why the victim might lie about the value.

VII. Steve Jackson case:

• A. The facts:
  • 1. Steve Jackson Games had only a tenuous connection to anything illegal--an employee (Blankenship, aka Mentor) had Phrack on his board (Phoenix), and had posted talk about a planned decryption service.
  • 2. Phoenix was an ideological board with no stolen credit cards, codes, etc., on it. Blankenship invited telephone people to come on the board and argue with hackers.
  • 3. Kluepful is the guy who was told about the 911 document and chose not to do anything about it.
  • 4. Izenburg ran a BBS on his own machine, connected with Terminus. Foley urged him to admit all sorts of things, none of them true. He let them seize his machine as evidence; he was charged with nothing. Six months later he asked about getting it back, as of two years later he still had not done so.
  • 5. "Erik Bloodaxe," co sys-op of Phoenix, had his stuff seized. Two years later, they still had it. No charge.
  • 6. Secret Service raided Phoenix, seized everything, no charges, two years later still had it--including his wife's thesis. No copy provided.
  • 7. They also raided Steve Jackson Games, apparently on the theory that Jackson's computers might have evidence and that Mentor might be able to erase it if warned.
    • a. Seized work in progress,
    • b. Working equipment,
    • c. Files of BBS EMail system.
    • d. Nobody was charged with anything.
    • e. Warrant was bogus--alleged false statement linking SJG to E911 case, attributed to Kluepfel, who denied it.
  • 8. GURPS Cyberpunk was the almost finished manuscript seized. A book, not a game.
  • 9. The next day, Jackson asked for the book back, so he could finish publishing it. Was told by an agent that it was a "manual for computer crime." Later told the same thing by other agents. He was not told about the connection to the 911 document case until months later when the warrant was unsealed.
    • a. This gave everyone reason to believe for some months that it was a prior restraint case.
    • b. And leaves suspicion that it really was a prior restraint case--that once the Secret Service saw GURPS Cyberpunk, they concluded that Steve Jackson was a bad guy and ought to be treated accordingly.
    • c. Supposedly, Secret Service still uses stuff from Cypherpunk in their computer crime training video.
  • 10. The secret Service claims they did not know of either the Privacy Protection Act or that SJG was a publisher.
  • 11. They were, however, informed of the latter fact during the raid
  • 12. And of both the next day.
  • 13. The Secret Service refused to give copies of anything, did not return the bulk of what was seized for almost four months.
• B. The Verdict
  • 1. The Secret Service was not liable for defects in the initial warrant application
  • 2. Not liable for damages for the first day of the seizure
  • 3. Liable for damages for the rest of the year for violation of Privacy Protection act in searching a publisher
  • 4. Not liable for damages thereafter because because they were balanced by SJG's gains from publicity
  • 5. Not a violation of the Wire and Electronic Communications ... act interception rules because reading a stored message is not interception,
  • 6. But it does violate the "Stored Wire and Electronic Communications and Transactional Records Access" procedures set out by the act for getting access to stored communications, so $1000/plaintiff statutory damages. What about the other 362 plaintiffs? Collatoral estoppal does not apply to the government, so presumably they all have to litigate if they want their $1000/plaintiff.
• C. Some narrow legal issues:
  • 1. No damages for day 1, ordinary damages for the next 4 months. Should it be ordinary damages for day 1 (negligence), punitive thereafter (deliberate violation of the law)? But the U.S. waiver of sovereign immunity does not cover punitive damages, so you cannot get them against the government.
  • 2. SJG got damages only for 1990, because of their later gain from publicity. Is that offset proper? If I buy a SJ game out of sympathy for Steve Jackson as a victim of the Secret Service, do I really intend the money to go to reduce their civil liability to him?
  • 3. Suppose the victim was not a publisher--does the Secret Service have a legal obligation to minimize damage? Consider the wife's thesis. Would it be possible to institute a class action covering all such cases, asking for an injunction requiring the Secret Service to institute a policy of prompt copying and return? The data, not the computer, is the evidence.
  • 4. What about requiring them to permit victim to copy? Greenhouse?
• D. Broader issue: Is the whole campaign in violation of the first amendment?
  • 1. The objective was to suppress the distribution of information in order to suppress crime.
  • 2. When is that legal?
• E. Still broader issue: What are the limits on police imposition of costs instead of indictment?
  • 1.Old style: beat someone up.
  • 2. Arrest someone, let him cool off in jail over night, drop charges.
  • 3. Seize a computer.
  • 4. All of them work because the police have the threat that, if the victim objects, they could impose larger costs, at some cost to themselves (indict, jail, maybe lose the case).
  • 5. Is this a bad thing, or a necessary adjustment to the real world?
  • 6. How might it be prevented or limited? Should police or police departments be liable, and when?
  • 7. Would that give police an incentive to make dubious indictments instead of dubious seizures?
  • 8. What about obligated to use the least costly method?
• F. Sociology issue: "Those Kids aren't Criminals"
  • 1. How does, or should, the law separate acts by those trying to make money, do injury, etc. from equally illegal acts done as a prank, etc.?
  • 2. By age--asking for child drug runners.
  • 3. By intent--criminal copyright infringement example.
  • 4. Moral sanction as one form of deterrence--breaks.
  • 5. Partly a problem here because of inverted hierarchy of age/expertise
  • 6. Leopold and Loeb?

VIII. "Sending a Message"

• A. If the message was designed to deter legal but wicked acts ...
• B. Is sending it unconstitutional?
• C. Steve Jackson--does the SS still think Cyberpunk Hackers is computer crime? They apparently (asserted by a correspondent) still use it in their training videos.
• D. Why didn't they give back the computers, or their contents?
  • 1. To restrain publication
  • 2. To impose costs
  • 3. Because they did not want to admit they hadn't found anything?
• E. How do you stop it?
  • 1. Make police civilly liable for costs they impose on someone if the victim is not indicted? But that gives them an incentive to indict innocent people, imposing still more costs.
  • 2. If not convicted? but that gives them an incentive to convict innocent people.
  • 3. If the police do not get their evidence in the least costly practical way.
  • 4. Note the intimidation problem--victims may not protest if the police could impose still larger costs on them. Consider our computer cop's comment about how cooperative ISP/BBS types are.

IV. Sociology issue: "Those Kids aren't Criminals"

• 1. How does, or should, the law separate acts by those trying to make money, do injury, etc. from equally illegal acts done as a prank, etc.?
• 2. By age--that is asking for child drug runners.
• 3. By intent--for example, copyright infringement is not criminal if not done for profit.
• 4. Moral sanction as one form of deterrence.
• 5. Partly a problem here because of inverted hierarchy of age/expertise. The kids know enough more than the grownups to be able to do serious damage.
• 6. Leopold and Loeb? Those kids' prank consisted of murder.

V. Odds and Ends:

• A. Cancelmoose.
  • 1. Explain:
    • a. Spamming: The practice of sending one posting, often commercial, to many unrelated news groups.
    • b. Cancelling: A poser can cancel his post on some machines. So can someone else, by forging a cancel message from the original poster.
    • c. The Moose: Someone has software that he uses to routinely cancel spammed posts.
  • 2. Consider it as a non-legal defense against a legal but undesirable practice.
  • 3. Is it an illegal act?
    • a. forgery? Who are you fooling?
    • b. misrepresentation, defamation, injurious falsehood.
    • c. Unauthorised use?
    • d. Note: Sysop of a machine chooses (or doesn't) to permit automated cancels on his machine.
  • 4. Alternative: Moose filter? Some way so that those who approved of the Moose's activity could follow his instructions to cancel, those who did not could ignore them, with the Moose using a digital signature to prove messages were from him.
  • 5. Apparently Moose is doing something along these lines in his new software.

  "However, the problem is becoming moot, as Cancelmoose(tm) (moose@cm.org) has devised a new mechanism, called NoCeM, that will let you set your system to respond however you'd like to PGP-signed requests from people you authorize, where responses include things like not showing you the postings andshowing you only the postings that are named in the requests. So you can get a lot more control over spam without having to open your system up to forgeable cancels."

According to Restatement (2d) of Torts sec. 623A,

"One who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if

 

(a) he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and

 

(b) he knows that the statement is false or acts in reckless disregard of its truth or falsity."

 

I: The old nightmare: Computers as the end of privacy.

• A. Two forks: Public (government information about you) and private (credit bureaus etc.).
• B. Privacy (should there be limitations on true information? Probably true info?)
  • 1. Is privacy more or less of a problem now than in the past?
    • a. Much less--consider small town vs city. The computer only partly reverses this ...
    • b. The modern credit agency knows less about you than your neighbors would have known.
    • c. Does freedom and autonomy include a right to commit fraud? What about "social fraud"--being friendly with people who would not be if they knew the truth about you?
    • d. Is having information with some errors more unfair than if the information was not there at all, so that people would be treated the same independent of the truth about them?
    • e. Does a right not to have misleading information in your file improve the accuracy of the reporting system? There may be useful information that they cannot prove is true.
  • 2. If there is a less privacy, is that a bad thing?
    • a. Better information technology leads to a decrease in privacy.
    • b. But not necessarily to an increase in the risk of being damaged by false information about oneself. Better technology may make it easier to distinguish true information from false. Computerised credit reports are likely to be much more reliable than gossip.
    • c. Does an improvement in information technology lead to a shift in power? If so, is it from those who do not have information to those who do, or from bad guys to their potential victims? If an employer can find out which actual and potential employees are good and which bad, does that mean that the employer has more power over workers, or that good workers have increased power to get rewarded for working well, and bad workers less power to get rewarded for working badly? Similarly, does improved credit information mean a transfer of power from borrowers to lenders, or from deadbeats to people who pay their bills?
    • d. There are at least two potential ways of dealing with privacy problems. One is to restrict the gathering, distribution and use of information about people. The other is to permit people to do things, such as encrypting their communications, that keep the information from ever getting out.
• C. Can one effectively control the use of credit information--even if the law says you can? How can you have it accessible enough to be useful and still enforce rules saying that only those with a legitimate use can get it?

II. Public Fork:

• A. Merriken v. Cressman: A school drug prevention program
  • 1. The proposal:
    • a. Collect lots of personal information about kids
    • b. Without getting informed consent from parents
    • c. And use it to figure out which ones are at risk of drug use, in order to
    • d. Take preventive action.
  • 2. Arguments against it:
    • a. If you decide a kid is likely to use drugs, that may be a self-fulfilling prophecy or lead to scapegoating by other children.
    • b. Gathering the information may be a violation of family privacy and the child's loyalty
    • c. "Preventive action" means incompetent psychotherapy by amateurs
    • d. Inadequate precautions to keep the information private.
  • 3. Constitutional issues:
    • a. Privacy, freedom of speech, etc.
    • b. No consent to waiver of rights (even supposing they are waivable).
    • c. A balancing test is appropriate, but goes heavily against permitting the program.
• B. Robert P. Whalen v. Richard Roe. Can NY state maintain a file of names and addresses of those who have gotten a prescription for controlled substances?
  • 1. Precautions by state--barbed wire, locks, 17 people have access, 24 might get it.
  • 2. After 20 months, data had been used in two investigations.
  • 3. District court enjoined enforcement of that part of the statute as a needlessly broad infringement on the privacy of patients.
  • 4. Supreme Court: Legislation that has some effect on liberty or privacy need only be a reasonable attempt to achieve a legitimate state goal; it cannot be enjoined just because the court thinks it is unnecessary.

     

III. Rogan v City of Los Angeles

• A. Against a municipality, must show
  • 1. deprivation of protected interest
  • 2. due to an official policy etc.
• B. Erroneous information, identifying Rogan as a wanted murder suspect. Suspect (escapee) had gotten his birth certificate.
  • 1. Readily available information that would avoid confusion was not included. Real suspects physical characteristics. Also a bulletin, more narrowly distributed, with that info.
  • 2. Rogan arrested, held, checked, wrong man, released. five times.
  • 3. The information was repeatedly reentered, as per policy, with no checking.
• C. Plaintiff deprived of rights because
  • 1. NCIC record violated fourth amendment particular description requirement.
  • 2. Maintanance and reentry caused further arrests without due process of law.
• D. By policy of L.A.?
  • 1. Police officers were not trained in how to amend information in the system or the need to do so.
  • 2. They did not even know it was possible to do so, nor did they consider doing so after initial misidentification incidents.
  • 3. Crotsley had a policy, inconvenient to victim, for dealing with such situations.
• E. Result
  • 1. L.A. is liable.
  • 2. Officers are not because of qualified immunity.

     

IV. Private fork: Thompson v San Antonio Retail Merchants Association

• A. Automatic capture of information--strengths and weaknesses.
  • 1. Cheap and easy way of adding information, but ...
  • 2. Individual merchant may be careless, since he does not pay costs of error.
  • 3. Did in fact misidentify one William D. Thompson (bad debt) with another and
  • 4. Wards denied the latter credit.
  • 5. He thought it was because of a recent past felony conviction for burglary (probation)
  • 6. Took a lot of trouble and a court suit to get them to fix their records
• B. Is SARMA testifying to facts or transmitting them?
  • 1. Suppose the information was added to the data base with a note of its source? Can SARMA then shift the blame and the liability to the merchant who reported the information?
  • 2. Is it libel to report another's libel? Yes, often. So shifting the liability will not work--they will both be liable.
• C. FCRA imposes duty of reasonable care--which was not met here.
• D. Damages. $10,000+costs
  • 1. Humiliation and and mental distress, because ...
  • 2. He was falsely suspected of reneging on a $77 debt, when ...
  • 3. He was in fact only a convicted felon!
  • 4. One suspects punitive etc. motives in the court.

     

V. Fair Credit reporting act.

• A. [[paragraph]] 609 Disclosures
  • 1. Credit agency must provide subject with all nonmedical information it has on him,
  • 2. Provide him the sources except for investigative consumer reports, and
  • 3. Tell him who the recipients of the information are.
  • 4. The act immunizes credit bureaus against defamation suits and the like, except for violating specific provisions or acting with malice.
• B. [[paragraph]] 611 Procedure for disputing and recording disputes, and correction.
• C. [[paragraph]] 613 Public Record Information for employment
  • 1. Information goes to court or grand jury, or anyone the subject wants it to go to, or to anyone with a legitimate business purpose in connection with a transaction involving that subject.
  • 2. Legal rules on when information becomes obsolete.
    • a. Why? Bankruptcy 10 yrs.
    • b. Only applies to small transactions.

III. Obscenity on-line

• A. Obscenity vs Indecency
  • 1. Obscene--It is constitutional to forbid people in general from reading it. A work is obscene if:
    • a. The average person, defined by community standards, would find that the work as a whole appeals to the pruriant interest, and
    • b. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
    • c. The work, taken as a whole, lacks serious literary, artistic, political or scientific value. Not defined by local community standards.
  • 2. Indecent--may be kept from to children, but not from adults (except to the extent that keeping it from adults is an unavoidable consequence of keeping it from children).
  • 3. Sable Communications v FCC:
    • a. The invention of Dial-a-porn resulted in a series of acts, regulations, suits on how much the providers could be constrained in order to protect children.
    • b. 1988 act--total ban on both obscene and indecent, no FCC regulations to limit serving children required.
    • c. The court held that banning obscene speech is constitutional, even though the standard of obscenity will vary from place to place. The burden is on the provider to tailor its product accordingly.
    • d. Indecent speech is protected by the 1st amendment, so the law must restrict it more narrowly to only protect children. That part of the 1988 act is unconstitutional.
    • e. FCC v Pacifica--banned dirty words only by time of day. And broadcasting "can intrude on privacy without prior warning as to program content, uniquely accessible to children, even those too young to read." "Captive audience, ... unwilling listeners." So the case for regulating radio is stronger than for regulating telephone conversations.
    • f. Alternatives suggested by the FCC: require credit card, an access code obtained by providing proof of age, or a scrambler only sold to adults.
    • g. Dissent (Brennan, Marshall, Stevens) holds that imposing criminal penalties for distributing obscene material to consenting adults is constitutionally intolerable, because of the vagueness of the definition of obscene, hence chilling effect.
• B. How does this apply to networks?
  • 1. The act applies to anyone who : "Makes obscene communication by means of telephone for commercial purpose" or "permits any telephone facility under such person's control to be used for ..." That might apply to Compuserve EMail and other forms of electronic communication to people using modems over telephone lines. Even if the EMail or posting is not made for commercial purposes, you could argue that its transmission (by Compuserve, or a commercial net access provider) is.
  • 2. A future act directed at networks would raise constitutional issues similar to those in Sable. Obscene could be prohibited but indecent could probably not be if less extreme alternatives were available. The difficulty of dealing with a multitude of community standards would not prevent such an act.
  • 3. Currently, alt.talk.sex is not under the act because it is not commercial. But access providers arguably are!
• C. Technical issue--possible control and associated liability.
  • 1. Posters must identify themselves via digital signature. Require the poster of indecent or obscene material to restrict his post to "World minus K12," or "World minus Prudes."
  • 2. Posting machine--require users to label posts as "adult only," "PG," ... ?
  • 3. Receiving machine--require it to provide its community standards in a way that makes it possible for posters to include it out if their posts would offend its community.
  • 4. Who defines the code--courts? Internet standards committee?
  • 5. What about an owned information utility such as Compuserve or AOL? Must they require age evidence for customers?

I. Why it matters:Interactive Services Association: Not just obscenity. defamation, franchise, real estate laws, ...

II. Tangibility, means of transmission:

Does law apply only to tangible objects: U.S. v. Carlin only case to interpret. Phone sex case under. USC 1465 "facility or means of interstate commerce."!= "any means of communication?" as judge instructed jury. Congress could have added computer, phone terms to statute, did for child porn, did not here when revised. AG had given the opinion that 1465 did not cover phone transmission. not "by private conveyance" (section the govt chose to rely on)

[prosecution denies tangible, claims Carlin was wrong]

III. Who transported it? Transfer initiated by customer. like Buying book and bringing it home. They paid for the call. Civil analog.

IV. What is the relevant community?

CA? Local police had seized, looked at, released. Not child porn.