Electronic Speech, Press & Assembly
Thursday, March 28, 1991
Eric Lieberman, Chair
Copyright (c) 1991 IEEE. Reprinted, with permission, from The First Conference on Computers, Freedom and Privacy, held March 26-28, 1991, in Burlingame, California. Permission to copy without fee all or part of this material is granted provided that the copies are not made or distributed for direct commercial advantage, the IEEE copyright notice and the title of the publication and its date appear, and notice is given that copying is by permission of the Institute of Electrical and Electronics Engineers. To copy otherwise, or to republish, requires a fee and specific permission.
Published in 1991 by IEEE Computer Society Press, order number 2565. Library of Congress number 91-75772. Order hard copies from IEEE Computer Society Press, Customer Service Center, 10662 Los Vaqueros Circle, PO Box 3014, Los Alamitos, CA 90720-1264.
LIEBERMAN: Good morning. _ To my right are the various panel members.
First is Jack Rickard, who is the editor of Boardwatch Magazine and runs the Boardwatch Online Information Service.
To Jack's right is John McMullen, a consultant and journalist with McMullen and McMullen, a 13-year-old consulting firm and a journalist for NewsBytes.
To John's right is Dave Hughes, who describes himself as an electronic citizen and is managing general partner for Old Colorado City Communications. Dave has a very interesting background. He is a retired army colonel [who] served in two wars and was an advisor to the Secretary of Defense prior to undertaking his present line of work.
Next is George Perry, general counsel for Prodigy in White Plains, New York, about whom many of you know.
And, finally, on the right is Lance Rose, an attorney in New York with the firm Wallace & Rose. Lance is the co-author of the second edition of The Syslaw Book [L.L.M. Press]. He does legal work in electronic funds transfer and electronic publishing, and he also represents many service providers and system operators.
I am an attorney in New York, concentrating in the areas of constitutional litigation and civil liberties. I'm general counsel to something called the National Emergency Civil Liberties Committee, and I have had the honor of doing some legal work for the Electronic Frontier Foundation.
Twenty years ago, when I graduated from law school, Daniel Ellsberg copied a number of papers called the Pentagon Papers and delivered them to the New York Times and the Washington Post. I mentioned it because it was the first case I worked as a young lawyer with Leonard Boudin, my partner - my later partner. At that time I was a young associate.
I mentioned this case because I think it bears some relevance to what we're going to talk about today. Ellsberg was indicted for, among other things, stealing the Pentagon Papers and then stealing the information on the Pentagon Papers. What's interesting, of course, is that the New York Times was never prosecuted for publishing the information provided to it, which it of course knew had been taken "without authorization" - as the government put it - stolen. [laughter] _ Whatever efforts the government made to prohibit the New York Times from publishing the stolen information were not predicated on the basis it was purloined or stolen but rather that it was national-security information.
_ As you probably know, the Supreme Court held that - even though, to a majority of justices, the information contained in the Pentagon Papers did have a negative impact upon the foreign-policy interests of the United States - the government could not prohibit it from being published.
Now, what relevance does that have for our subject today? Well, as you know, computer-bulletin-board operators and electronic publishers have been subject to searches and seizures, to indictments or threatened indictments, and to de facto injunctions against publication - by the seizing of the means of publication based upon charges that stolen information, or misappropriated information, was contained in or on their bulletin boards or in their publications.
Questions arise as to whether and to what extent they can be liable for permitting such stolen information to appear on their bulletin boards if they knew it was stolen or if they were merely negligent or if they didn't have any idea about it. And questions are raised about whether they can in effect be shut down, be forced to stop operations entirely whether or not they might be criminally liable for publishing or permitting such information to be published or repeated or included on computers.
_ Going back to the New York Times analogy, even if the New York Times had been prosecuted in some way for - and did have some criminal responsibility for - having that _ stolen information within it, the Supreme Court made clear that it could not be prohibited from publishing it.
If systems operators are to be held liable, what kind of chilling effect is this going to have upon this growing means of communication and interchange of information? Are we to require them to be censors of what appears on bulletin boards and in electronic publications, either to avoid liability themselves or as a practical matter to avoid being shut down at all?
The underlying question in all this, as it was in the Pentagon Papers case, is how to apply the core values of the First Amendment to this new and developing technology. To law-enforcement officials investigating a suspected computer crime, the computer is nothing more than evidence of or the instrumentality of the crime, to be seized and held like any other piece of evidence.
But a computer is much more than that. It is much more than an electronic file cabinet which stores information. It is the means of interchange of expression. It is Hyde Park. It is Thomas Paine's, Common Sense. It is a newspaper, or a magazine, or a bookstore.
PRODIGY PROTESTER INTERRUPTION
AUDIENCE MEMBER: I just want them to know that the same_.
LIEBERMAN: Excuse me, sir.
AUDIENCE MEMBER: _kind of censorship that_.
LIEBERMAN: Excuse me, sir, we're_.
AUDIENCE MEMBER: _you're guilty of_. You're not allowing Prodigy to be answered.
LIEBERMAN: You're not allowing me to speak.
AUDIENCE MEMBER: [inaudible] _to deal with probably one of the most important_..
LIEBERMAN: Sit down, please, sir.
AUDIENCE MEMBERS: Sit down. Shut up. Shaddup. Sit down.
AUDIENCE MEMBER: Well, you're not going to get the answer to what you want.
AUDIENCE MEMBERS: [inaudible] There are better ways of dealing with this_. [inaudible]
LIEBERMAN: Sir, if you want to speak_. Sir, if you want to stand up and raise some questions_.
AUDIENCE MEMBER: No, you want to discuss the whole issue.
LIEBERMAN: There are other issues to be discussed here, too, sir.
AUDIENCE MEMBER: You'll see this is the most important.
LIEBERMAN: Well, everyone always thinks their issues are the most important. That's what we have interchange of ideas for.
END OF INTERRUPTION
The computer, as I was saying, is more than a storage-retrieval system, a source of evidence. Rather it is the means of creative expression. It is the artists palette. It is the poet's muse. When it is seized and held it cannot perform these functions.
It is essential that law-enforcement and legal procedures be adopted to permit First Amendment values to flourish, not that First Amendment values be undermined to permit business-as-usual by law enforcement and the courts. These are important questions. They may arise in marginal contexts where audiences for expression may be small. Where conduct or speech may even approach or even cross the line of protected activity.
But that is precisely the context where First Amendment freedoms must be most vigorously fought for. The major communications giants of this country will be able to protect themselves. But the First Amendment was meant to and must protect more than the speech of large corporate media.
Moreover, the fight to ensure protection must be waged now - and vigorously. The view expressed by some that there is no need for vigilance now, that the issues will take care of themselves, is either myopic or cynical. Once bad precedent is established it becomes enthroned as doctrine. It can take many years, if ever, to overthrow.
Professor Tribe mentioned how motion pictures for many years in this country were held not to be even protected by the First Amendment. The experience we have had with the broadcasting media, the limited protections that they have been provided under the First Amendment and the limited protections that the people have had for access to those media, is the result of enthroned precedent from 50 or 60 years ago which is still invoked to permit censorship.
We must not permit similar history to develop in cyberspace. As Justice Douglas warned, "Oppression, like darkness, does not come upon us suddenly. It creeps upon us step by step virtually unnoticed until suddenly we recognize that twilight has passed and it is nighttime and we are not free." We cannot permit this to happen in the area of computer technology.
I will now introduce Jack Rickard, who will be our first panelist.
RICKARD: My name is Jack Rickard. I edit a small monthly publication called Boardwatch Magazine. It primarily covers an emerging cottage industry in the electronic-bulletin-board systems and small on-line services.
I'd like to talk a little bit today about what bulletin boards are and the direction I see them taking in the future. We've talked a lot this week or heard a lot of information about privacy and civil rights. I was raised in a rather large family in a rather small town - I'm not sure I know what privacy is or what I'd do with it if I ever had any. [laughter] But I do think it's an important issue and I've learned a great deal this week.
Probably of a greater concern to me regarding our rights as individuals in the future is our ability to access usable information out of a cloud that is building, a hurricane of over-information that threatens, if it continues, to serve as nothing more than nonsense deforesting large tracts of our national acreage. I am a little bit hopeful in this somewhat gloomy prospect of information that there may be a way to rationalize it.
To focus the amount of information we are producing on a weekly basis, which probably exceeds that produced in most of the preceding centuries, would take an enormous lens, or perhaps a million rather tiny ones. In this I see the possibility of the bulletin-board system as a speciality-publishing medium where individuals can focus information on very narrow topics.
We have within our population a very unvalued but curious type of person. I call them a "native librarian." You may have come across them. They know every baseball card ever issued. They have information about every model airplane style that has ever been done. One man has 20,000 articles of information about Superman, a caped person who has a violent allergy to green rocks. He can tell you off the top of his head who manufactured a lunch bucket in 1962 with Superman painted on the cover.
It's incredible the depth of detail that some of these people use. In the last few years, electronically, the bulletin-board technology has allowed individuals essentially to publish an Everyman's Press. Ward Christensen probably is credited with putting up the first desktop bulletin- board system in February of l978. We estimated in December of l989 that there were approximately l5,000 public-dial-up bulletin-board systems in the United States that would welcome your call. We estimate this month about 32,000. I fully expect 60,000 by the end of the year.
It is kind of an emerging cottage industry. Right now most of it focuses around catering to the technical mind that is active on-line. In the past it has been entirely a hobby-type situation. We are seeing some economic basis form for it now in small cottage groups and individuals. Bob and Tracy Mahoney in Shorewood, Wisconsin, operate 233 lines now and have a very enviable lifestyle, and they do it pretty much entirely on their own. [There is] Mike Sussell in New York with the Invention Factory, Neil Fleming in Toronto with Canada Remote Systems, Jim Maxey in Lake Oswego [Oregon]. We are developing a core of people who have made it in the bulletin-board-system world economically. But they are a very, very small percentage of the bulletin boards in operation.
There has developed a big urge among the baby-boom swell in our population to get out of the corporate world and the large centralized institution that's causing them a great deal of stress in their workday. And the bulletin-board system potentially offers a means for home-based or cottage-based business where they can be free of that. So the dream is set. We have a few success stories to point to and it's beginning to take off. The future of the electronic bulletin board is going to move a little bit away from the technical end of shareware, of software and how to program in the "C" language.
And we're already seeing some pretty good examples of that happening as the native or natural librarians start to see this as a way to present the information about their topic of passion. We've got bulletin- board systems on genealogy; the collection of rare coins; we recently did a story on a marvelous old system about sailing ships, tall ships; treasure hunting; birdwatching; Central American politics; yacht racing; gun collecting; home-education issues; the rights of adoptive fathers; model railroading.
[There is] a beautiful system right in our own backyard in Boulder on the care and feeding of cockatiels. [These are] intensely interesting subjects for these people: Scuba diving; hot-air ballooning; amateur radio; stereo components; ferrets as pets (one of my favorites); turtles and snakes; bacteria; orchids; weather-satellite imaging.
There [are] boards catering to a variety of handicaps, in that some of this technology is very empowering for those otherwise physically limited by hearing or paralysis problems, [or] head injuries.
A number of political issues, almost any activism, feminism, gay rights, etc , is developing not only bulletin boards but in some cases networks of bulletin boards on this single topic. Botany. Advice for government whistle-blowers was a recent story we did.
An example of how they operate in this venue: We did a story on a man who ran a bulletin-board system for adoption issues. Essentially, he'd spent most of his adult life searching for his biological mother. [He] found her in Germany almost a year after she had been struck dead by lightning. [He] put up a system on how to find your parents or your child, or whether you should want to or not; an on-line bibliography of virtually every printed book, magazine article done in the 20th Century on the topic, where you can go and use this as a pointer for more information on it.
He had the full text of every Ann Landers and Dear Abby column ever done in 20 years on the subject of adoption. It was a marvelously focused system, and I think we'll to see a lot more of these.
Right now this industry is very much in an embryo or fetus stage. The economic underpinnings are very shaky. It's largely driven by individuals funding this out their rent money. They are putting up systems, gathering information, laboring long into the night to provide some focus and accessibility to information in our future. And they are doing it out of their pockets. There is not a whole lot of economic basis for them. The world is not swamping in to join them and they are a little bit fragile.
Against that backdrop we have some current legal items that pose a problem. The view of most of the people that run the bulletin-board systems of our legal system is that it best serves itself and provides a very comfortable living to lawyers, judges and bureaucrats. And the hapless yuck that happens to wander into its web usually winds up being economically destroyed.
The case of Craig Neidorf or Steve Jackson does very little to reassure the people who are developing these systems that that's not the case.
If they have full faith of their innocence on any number of complex legal issues, and [faith] that they will be found innocent, they can still be completely and thoroughly bankrupt because of the legal costs involved in defending that innocence. So I think that [we need to look at] the problems of some of these systems operators if they are to survive past the fledgling stage or, as Mitch Kapor so aptly put it yesterday, "this petri dish of experimentation." We need to look very carefully at how we apply our legal system to the issues of electronic bulletin boards. Thank you.
LIEBERMAN: Thank you, Jack. John McMullen will now speak.
McMULLEN: I have been involved with computer processing since l962, beginning work with the Department of Defense. So perhaps, with Ted Nelson and Peter Neumann, I go back probably longer than anyone in this room with computer technology - so far back that when I go to 2600 meetings, Zod, who was referred to yesterday, said, "Well, you can't have anything to do with computers. You're too old."
[I will provide] just a review of my background and some the distinctions that we've had to face as this technology moves or brings us into what we have to be considering now.
Because, during all this time - particularly when we've been in our own business - we have had to look at things and make distinctions based in some cases under the rules of law but in other cases just common sense. And the distinction seems to be growing and growing and in John Barlow's words in, "Crime and Puzzlement," [article in Whole Earth Review, 1990] very difficult to keep up with.
From '62 to '78, I was involved in [management of] large commercial data processing. And while with such firms as Dean Witter and Company and then Morgan Stanley as the director of data processing, [I] got involved with some of the early communications, transmitting great data from New York to San Francisco, putting in electronic message- switches - doing the kind of things that hadn't been done before but [which] fell under normal business practices. They were regulated by telephone companies. There were all the problems of crossing the United States, but [they were] fairly definable.
In _ l978, when we formed our own business and I went to work for Barbara McMullen, who is the best boss I ever had, _ things changed. Things were so new in the industry - and we were involved as enthusiasts, being very active in computer clubs and as consultants trying to make a living, and very shortly after that as journalists doing reviews - that we were faced with varied distinctions.
At the same time we might be beta testing the original version of Lotus 1-2-3, we might also be reviewing a new version of VisiCalc for a publication and advising our clients in what they might do on microcomputers for spreadsheets.
So we constantly had to build Chinese walls and say, "This is different from this. This is my role in this particular function and I have to both protect myself and people that I deal with that these aren't overlapping." As consultants we were trying to charge a substantial dollar for our advice, whereas as an officer in a computer club we were giving it away. So we really had to keep these walls up.
_ [When] we were dealing with writing for various publications - in some cases being paid for it, in other cases for computer clubs giving it away - once again [we] had to make some distinctions. It completely changed when you get into electronic communications.
For the last year and a half we've been editing the East Coast edition of an on-line news service called "NewsBytes" and concentrating on the issues that we're here to discuss. If you look at that NewsBytes as an example, it's published commercially. There's 30 stories a day that go up on GEnie. It's picked up on a weekly basis by America Online, by NEWSnet, by Dialog, by some Hong Kong and Japanese services. And it's also downloaded for publication by people like Computer Currents and it's downloaded by corporations to feed into their corporate database. It's a commercial activity.
As a commercial activity, number one you have the responsibility of protecting your copyrights; you have the responsibility of not plagiarizing from other electronic media. [Plagiarizing] is much easier now, because you don't have to retype something; you can grab things from certain places, just copy and change two words and drop it in. So the whole concept of plagiarism is changing.
We also have all the responsibility of protecting ourselves, perhaps, under all the publishing laws: the libel, the defamation, for other things like that. So that's probably clearly definable - perhaps. There are no rulings on this as a publication.
Also, _ many of you involved in the WELL are aware that anything I feel is of particular interest to these issues, I post _ on the WELL, which is a not-for-profit, for NewsBytes anyhow, operation. And with my permission things that I have written are disseminated to readers on the WELL.
With certain exceptions, I do not expect that to be copied and to be disseminated through other news services. We have had a service that was supplying information of an electronic nature to Prodigy. And this group, without our permission, had been using NewsByte stories on Prodigy. The management of NewsBytes consulted with Prodigy and I believe that went away fairly rapidly.
Under the terms of the WELL, it's always been considered that the things we post there belong to us and _ people do not have the option to duplicate them and to send them off. So maybe that's more clearly defined, but it's different from what goes on directly for a commercial service for NewsBytes. I have also given permission, when I have been asked, to duplicate things for the Computer Underground Digest [CUD] and for the EFF publication, should they choose, and I have given blanket permission there. So they then have the right to pass this on. They're also not for profit.
EFF publications really interest me because they are one of the few that are publishing directly similar material electronically through the network and also they have a printed version. It will be interesting to see if they have the same responsibilities and protections on both types of publications.
There are other newsletters. There is, for instance, Craig Neidorf's, Phrack. Phrack was started in l985. It was distributed directly to 300 people with a readership perhaps up to 3,000. It was a not-for-profit publication and, as many know, it suspended publication in December, l989, when Craig's equipment was taken and he was later charged and indicted.
They probably would not have taken away GEnie's computers if they found something objectionable in NewsBytes. The chances are we had much greater protection than Craig did. Definitely [for] things appearing on the Associated Press wire, _ they would not have closed the Associated Press that obviously has much deeper pockets than NewsBytes, [which] in turn has much deeper pockets than Craig Neidorf.
So here again we have more distinctions. We have distinctions under the law and under practice. It has been defined [as] to what the responsibilities and the rights of the Associated Press are. It's not quite as clear what NewsBytes' rights are, even though we copyright our material. It was obviously not clear what Craig Neidorf's rights were. So there are more distinctions.
I think what this conference has brought to the table is hopefully an attempt anyhow or the ability to look at these distinctions and try to respond to them. We have some that want to rush directly into the legal battlefield and define the electronic frontier, to define what the rights and responsibilities of electronic publishers are, but not confuse them with e- mail to what our rights and responsibilities are.
There are others that say - and they'll say it on the panel here - that it's too early to rush in. And I think I would stand with them. I _ think that if this group can't understand, [recognizing] that they must have some difficulty with the nuances of these definitions - that certainly our legislators will have difficulty. I applaud EFF for [its] efforts in trying to bring understanding and promoting the forum, CPSR and particularly Jim Warren, who's gone out of his way to provide us with this forum. Thank you.
LIEBERMAN: Thank you, John. We'll now hear from Dave Hughes.
HUGHES: I'll wear my [western-style] hat up here [applause] so that there's no question who I am, where I'm from or what values I represent even in the electronic age. _ [places laptop computer on podium, and turns it on, accessing the notes for his talk]
I've been on-line for probably five hours a day for the past ten years, at my own expense as an individual. I have read at least 20-million words on-line during that time and have produced probably a million of my own. And have operated a series of on-line systems, from free BBSs at $8.50 a month with 50,000 callers in a few years to my current global- interconnected, Internet-connected subscription as well as free section for political discussion.
While my body lives in a delightfully small place called Old Colorado City - at the foot of Pikes Peak - which this microcomputer helped build, my mind lives and works in many virtual communities around the world. I use this technology for the serious work of building and defining the future - personally, economically, politically, educationally, technologically and culturally.
I am a citizen of the Western Frontier of the Information Age. And from my 63 years' experience with the ways of the world - and you will find paragraphs of mine in presidential speeches - to Old Colorado City, I have formed a few strong opinions about how it should function. In the few minutes we all have, face to face here, I will just stress one major point, and if you do not live in the future as I do then read my cursor! [laughter]
The first principal, which I fiercely hold and will vigorously defend, is that what I and others are largely doing, that is unprecedented in law, regulation and the general culture in the past, is speech: electronic speech, dialog, electronic debate, discourse, whether on the simplest local bulletin board run by a hacker or the largest corporate telecommunication services, like Prodigy, MCI Mail or CompuServe or the Internet itself.
And on my own systems as a small business or through the Internet to Japan, funded by the National Science Foundation; or from riding hard to the electronic assistance of one of my sons in China at the height of Tiananmen Square by alligator clips, cursor, Kermit and Procomm; to connecting up my tiny granddaughters in Seattle to global BarbieNet; to determining the outcome of elections in Colorado Springs where, when the lawyers of the mayor who read the private electronic mail told me it was not illegal, I simply went on-line and he appeared on page eight of the New York Times with people, including lawyers here, saying, "Yes, it was illegal." So I have to even teach the lawyers in my own town, who are being well- and over-paid, what the hell the Electronic Privacy Act of l986 actually said.
Or even sitting in a booth of Rogers Bar using electronic democracy, which is equipped with RJ-11 jacks - if you ever visit it - at the booths, in order to determine the outcome of the political system in my town. Or dialing into the WELL here in California to take back the best ideas to apply to my neighborhood while leaving the rest of this crazy state and insufferable congestion and weird values behind. [laughter]
And when this summer I will be riding high country [around] Cody, Wyoming, with my western saddle [that] I am equipping with an LCD in the top of the roping horn [laughter] [with] buttons on each side and packet radio in the saddlebag, it will still be speech. It may be with the fingers for the tongue or the ear of the eye, but it is still speech! [applause] Discussion! Not for the production of permanent records or copyrighted material or legal statements, but for _ mind-to-mind communication.
And _ we had better think clearly in applying those first political principles of this nation to the governance of virtual societies we will all be living in.
When I think about the relationship of the future I live in to the past of this nation, it occurs to me _ that Benjamin Franklin would have been the first owner of a microcomputer, undoubtedly an Apple; Thomas Jefferson would have written the Declaration of Independence on an IBM PC in Word Perfect 5.0 and probably Windows. But Tom Paine would have [put] Common Sense on a pirate bulletin board with a Commodore 64. [applause]
And I don't want any corporate or government King George treading on my cursor. [applause] We must have absolute freedom of electronic speech. We do not need to confuse data as speech with data as property or computers and networks as places or premises which can be entered into, legally or illegally. We, whose bodies may live in the disappearing physical frontiers of America but who ride out in the perpetual frontier - which will never be settled - of the Electronic West, do not want to be fenced in by regulation or law which prematurely tries to settle this territory or consolidate a political-economic-social-cultural revolution that has barely gotten started, before we understand it.
I am uneasy [about] what seems to be an implicit assumption of this conference, that we must rush to legislation no matter where you stand on each side. Over a hundred years ago my grandfather on the plains of Colorado used twin Colt 44s, called the Great Equalizers. In Old Colorado City I use my laptop computer and modem as [a] Great Equalizer to shoot it out on any political street with the most powerful interest[s] in town or the nation, and I haven't had to call the marshall yet.
So while I appreciate much that I have heard here so far in this admirable effort to bridge the gap between the free-spirited cowboy hackers and the marshalls of authority, be careful about the assumption that we need to do something before we know what the natural laws of electronic communities might be.
And while public, human, group activity will have to be redefined legally on account of the new technologies of the mind, I am confident that we in America already have the precedents in law, shared values and practice for dealing with the issues of property, publication, privacy of speech in the informational age so long as we concentrate on the activities, motivation, purposes of the people connected to these machines and not simply the machines themselves.
That's enough for now. We can continue the discussion. I'm always on line somewhere in the world singing my ASCII songs. But bring your cursor, for Gutenberg is dead. I'm trying to bury the old bastard. I cannot be found on paper, only on screens. See you on-line, partner. Together we can make this country work. Just beware of those suits from Washington or sandals from California. [laughter and applause] Thank you! [applause]
LIEBERMAN: Thank you. Now we'll hear from George Perry.
PERRY: I hope everybody is awake after all that. Thank you, Dave, for that wonderful lead in. Actually, I was torn this morning as to whether to show up with a sombrero or an aloha shirt. But I decided to come as I was.
I really enjoy the opportunity to speak before this group and to talk about the critical issues that this group is discussing. We look at Prodigy as one of the principal pioneers of the electronic frontier. And at the same time we recognize that _ the pioneers on the physical frontier _ didn't always get along either. But nevertheless they succeeded in ultimately settling the frontier, to the dismay of some, I might add, but I think largely to the benefit of many.
I think we're all involved in that very serious endeavor right now. I assume that the reason for my being elected, as they so genteelly put it, to be a participant on this panel, was not because of my great constitutional law acumen, but rather because _ Prodigy has, in its role as a service provider, been in the media in the last six months over some of its policies. I will not repeat the details of that dispute, because I suspect there aren't two people in the room that don't know them fairly well unless they have been out of the country for the last six months. I specifically don't want to engage in a discussion of the specific facts of that dispute because I don't think it's relevant to this group to get into an argument or even get into a discussion about whose view of the facts is correct. I don't think that's what you're here for.
I think what you're here for is to think about the overriding legal and business principles that are involved in these issues. One of the things that I think I come away from this conference with - and the previous [CPSR] conference in Washington in February - is that the key benefit of these kinds of conferences is to get the other person's perspective; to see something from somebody else's viewpoint.
I think that in order for you to understand Prodigys perspective it's necessary to give you a little bit of background and a little bit of the business strategy and philosophy of the Prodigy service in order to see where we're coming from.
Prodigy was established seven years ago. We spent four years in development of the service before we had a product at all. We've had a product on the market only for two and a half years out of that seven. We began a roll-out on a city-by-city basis and at some point in time we decided that we'd had enough of that and we went national last September. We now have national availability of the service.
The service and the company, really, was established with a fundamental guiding vision, and that was to play a leading role in the development of a new medium, based on the rapidly developing computer and telecommunications technologies that we believe will make electronic-delivered information and transactional services an everyday part of the lives of millions of Americans by the middle of this decade.
I think we are the first and I honestly believe we are still the only company operator who is seriously trying to attack that problem - the problem of bringing these kinds of information services to the general public as opposed to the people who typically are in this room - that is to say, people who are already computer literate and know how to deal with the media. _ Seven years ago that was a fairly aggressive goal, I might add.
In order to achieve that goal _ we had two fundamental principles. One, we had to provide value and we had to provide ease of use. As John Quarterman said, "If you don't make it easier people aren't going to use it." And I think that's right. The second _ guiding principal was that we had to make it affordable to the average American family. It had to be accessible _ largely through a local telephone call. It had to be accessible at a low, predictable price, particularly at an untimed charge in order to encourage use and not discourage use.
To achieve the first principle, ease of use and value, we spent a great deal of time developing what I think is the most user-friendly interface on the market today. It uses color and graphics, which caused us to make some tradeoffs, [and] which has drawn some criticism from the computer elite because it in effect slowed the system down a bit and required a relatively high-function computer.
At the same time it did contribute very much to the ease of use and to the value of the service. We added what we believe [are] rich editorial, commercial and transactional applications - including, by the way, commercial content. We were the first to do that and we have, I think, pioneered the idea of unique advertising design for this medium.
In the transactional area, in addition to merchandise shopping and other on-line gateways, we brought with the Prodigy service two means of communication: one was private member-to-member electronic mail; and the other was something equivalent to bulletin boards, that is to say a public forum in which you could have one-to-many communications.
I would like to take this opportunity on the private e-mail point to say that there has been a widespread disinformation campaign about that subject to the effect that Prodigy reads private electronic mail. I will say uncategorically today, without question, that is untrue. There's not a shred of truth in it. We were instrumental _ - no, that's the wrong word - we participated with Jerry Berman in the development of the Electronic Communications Privacy Act and we are committed to religiously complying with its provisions.
But the important point with the Prodigy service [is] that electronic communications is not the service. It is a small part of service and that's at least one of the basic differences between us and what I would think of as a private bulletin board.
_ Let me just tell you where I think Prodigy is and where it isn't in terms of this debate. First, we view ourselves as a private company, privately owned, privately operated with a full right to run our business as we see fit. We have the right to make our mistakes and _ we'll let the market decide whether those mistakes are fatal or not.
I think Professor Tribe was right when he said the Constitution regulates action on the part of the government. And although many people have tried to make this into a First Amendment question, it simply isn't. In the context of Eli Noam's discussion Tuesday night, as it relates common carriers or contract carriers, we are not a common carrier. We are a contract carrier. We have a contract with every member on the service. And that contract regulates the relationship between us and a member. And under that contract we have certain rights and the member has certain rights, and we try to exercise those judiciously.
Finally I would like to simply say we do think of ourselves as a publisher in many of the respects of the things that we do. I don't think that, having said that, _ it needs to paint every bulletin board operator into a publisher's mold. I think you have to look at what the company is doing, not what their label is, to decide what their liabilities and obligations are in this industry.
_ I will just close by commenting on Eli Noam's point the other night that diversity is the comparative advantage of the American society. I think if we can do anything it is to do things to promote diversity in this area, not to limit diversity. Thank you! [applause]
LIEBERMAN: Thank you. Now we'll hear from Lance Rose.
ROSE: Hello everybody. Cyberspace, the digital world, has emerged as an arena of social, commercial and political relations between people. There are two fairly obvious propositions that I think everybody either recognizes or should recognize. People are still people even in cyberspace. And many of the laws people have created to organize the social world are following them right into cyberspace. And I suppose I shouldn't add that lawyers are also following them into cyberspace. [some laughter]
I'm going to now give a laundry list of some of the laws that apply. Some of them you've been hearing a lot about. Some of them have not had a mentioned at all. First, the laws that have received a lot of scrutiny, discussion, attention, outrage and so forth in this conference: privacy rights, First Amendment rights, criminal laws, rights to data security that some of the big companies would like to assert. There are many other laws and rights in this cyberspace world.
One set of rights that everybody is fairly familiar with, at least by name, are intellectual-property rights: copyrights, copyrights in text files and data files. _ Most of the messaging (or all of the messaging) in the databases that we encounter are subject to copyrights. Also image files, audio files and software are subject to copyrights.
On a somewhat larger scale, when you look at a system there might also be copyrights in the way that the system itself is arranged - a new incipient version of "look and feel" that we may be looking forward to. There're also, related to copyrights, moral rights, which are a fairly recent thing to consider in this country. They were introduced by the Berne Convention [the century-old international copyright agreement that the United States joined in the late 1980s] in a very vague and ambiguous way, but they will be coming to bear at some point.
Two major moral rights are the right of integrity and right of paternity. The right of integrity means that nobody shall change the form of your expression. It sounds like something you might be getting on the copyrights but it's more absolute and may be something you can contract away. The right of paternity is the right to claim or disclaim rights: the use of your name or attributing a given message or a piece of text or data or other work to you, to claim or disclaim it. And this is not something that we've had in our laws up to now and we may be seeing in the future.
There are also trademark rights in the digital world. The opening screen on someone's bulletin board or the name of a bulletin board is a trademark. Somebody's handle may turn out, in a bulletin-board scenario, _ to be a trademark right or perhaps through related right of publicity would be involved there.
I mentioned trade secrets. Anybody can have a trade secret. Anybody exchanging information through e-mail could be asserting a trade-secret right as well as a confidentiality right. And there are different parameters on that type of protection. Patent rights on software, I'll just mention that. There are contract rights. And I'll go into that a little bit more in a moment. Rights not to be injured. Rights not to be defamed. We talk about First Amendment. There are people out there being defamed - that's where the First Amendment comes up - or potentially defamed. Rights not to have your materials on-line damaged or taken. Under traditional legal theories this might be considered rights against conversion, rights against trespass and so forth.
Product warranty laws: To the extent that there's software or possibly even text files that could injure people or cause some type of loss there might be warranties involved, including implied warranties that nobody necessarily knows they are making, but they're made anyway. When we get into services that are provided on-line, for instance banking services, you will have truth-in-lending laws, regulations E and Z of the Federal Reserve Board relating to transactions - relating to your bank account and transactions relating to your credit cards.
Securities laws for people who do any type of securities-related work on-line: If somebody offers educational services on-line [he or she] will get the laws and regulations relating to education for degree-granting institutions, and so on.
So I propose that we defocus a little bit, along with all this focus, and consider the broad range of laws that might be involved in any given situation. The interaction between these laws [is] very complicated. Things are further complicated by the fact that there can be several different laws on the same subject coming from different governmental authorities.
For any interstate communications system, there will be the laws of many states potentially involved. The laws of the home state of anybody logging onto a system can be the laws controlling for that person. And there can be overlaps between laws from the same governmental authorities. We see that in the criminal laws and the various laws that apparently can be chosen almost at will by prosecutors in a given case. And they can use a couple of laws to charge somebody on and at one point have that dismissed and start in on another law. _ It seems like the laws are Silly Putty.
OK, I want to give quickly a couple of examples of interactions and overlaps between different kinds of laws. _ Bulletin-board system operators and service providers are subject to many, many different potential criminal laws. They can be subject to laws that would cover distribution of viruses, and there are specific laws coming up on that; laws relating to obscenity; laws relating to trafficking in credit-card numbers and other access devices; laws relating to trafficking in pirated software. The standards of conduct, and liability and intent under all these laws can be somewhat different. There are many different statutes: The Computer Fraud and Abuse Act; the law - I forget the title of it - against using credit-card numbers; the ECPA [Electronic Communications Privacy Act]; wire-fraud laws; interstate transportation of stolen property; and laws of all the states.
For the prosecutor, this is a smorgasbord of prosecutorial options. For the service provider, it's a spin of the roulette wheel of risks. In addition, there are federal- and state-law standards. The problem here is that a system provider is not going to analyze every single law that might apply to it and use it appropriately for the kind of situation it applies to. Much more likely, they will look at the most restrictive laws and use that to create the standard for conduct. They know if they play it safe by the most-restrictive law they're also likely to be playing it safe by the less- restrictive laws.
So out this mass of laws what we end up with is the lowest common denominator, most highly restricted standard. _ We end up with the most-restrictive standards guiding the kinds of activities that bulletin- board operators and service providers of all kinds will be engaging in with respect to the users. _There are many examples. That's just one out of the bushel.
My conclusion is that there is a great diversity of laws that service providers must pay attention to. This can lead to the most restrictive legal standards controlling and unpredictable systemic consequences of the interactions of these laws. The result of this structural problem can be highly restrictive rules for electronic services and networks - and these problems exist for the smallest systems and for the largest; [from] the mom-and-pop bulletin board (or maybe just mom, or just pop) to Prodigy, Dow Jones and CompuServe.
The answers are not easy at all and are in the end probably a larger project - _ not more important but a larger project - than the privacy and First Amendment projects that are under discussion here.
First, _ all laws relating to electronic systems should be enacted on the national level overriding all state-law control. It's time to realize that provincial state laws are just a hindrance to proper development of interstate electronic systems.
Second, all laws regarding electronic services must be carefully designed to interact well with other laws with this purpose in mind: to create a well-defined, reasonable, overall legal environment for both electronic-service providers and the users of those services. Thank you.
LIEBERMAN: Thank you. [applause]
OK, _ [panelists' comments] then we'll take questions. _ My comments _ are as follows:
Several people have suggested that we should just leave things alone and not really press these issues now, let things develop. The problem as I see it is that the law will develop whether we like it or not, and we can either participate or let the rules be written by others. Once they are written, they'll be very hard to change. And this is particularly true with respect to the application of constitutional rights of electronic speech, assembly and privacy.
Prosecutors who seize and shut down computer boards and electronic publications are not acting out of an evil motive. They just start from a different point of view - the point of view of how best to investigate and prosecute crime.
We must provide the other point of view. We must insist upon the generous application of the First and Fourth amendment[s] to these processes, and explain to the courts, to prosecutors and to anyone else how to protect these constitutional values in the context of law enforcement. We must do it now, in my view, or it will be too late. Jack?
RICKARD: I'd just like to concur pretty much with Dave's comments. I think we are at a new era. I'm a little frightened and what I've heard this week has all been very collegial and congenial, but I see a sword hanging over my baby. [some laughter] And what I am hearing in return that will be offered in exchange is protection from "C" source code in closets, protection from the dissemination of obscure Bell South E-911 [911 emergency telephone system] documents and perhaps Bill Gates will be saved the ignominy of a couple copies of "Windows" passing around on bulletin-board systems.
The scale of priorities I don't think is appropriate here - that those type items take precedence over our constitutional rights to freedom of speech and to freedom of association, and our ability to publish information and develop this infant technology. [applause]
McMULLEN: In 1983, Barbara McMullen and I wrote one of the first books on microcomputer communications. It was interesting history. It took all of a year for the publisher to get the book out the door because he was used to publishing books on COBOL that had a lifespan of 20 years. Our book was out of date about a month before it was published.
One of the points that we made that's still relevant, was that there is tremendous information available through the network in microcomputers. It was the most under-used resource we as a society had, or have. Eight years later, progress has been underwhelming. We really have, if anything perhaps, widened the gap because of the amount of computers out there and the utilization of the system.
NewsBytes is available to 4-million people, _ a larger circulation than any newspaper I'm _ aware of. But the people that are using the systems, up until Prodigy, were people that could understand the sign-on for CompuServe or for GEnie or even worse, God, the Internet.
It's become fashionable to knock Prodigy. Prodigy as a user interface, when it's thought about, for those of us that work with computers, was frustrating, terrible, whatever you want to call it. There's been all sorts of issues on their role as a publisher. The important thing that I look at, though, is that we've taken a service supported by an undermanned computer and we've [created a service] that literally sucks thousands of people that weren't there before into using communications. They've also caused GEnie and CompuServe and these other folks to reduce their rates and perhaps open it.
So perhaps they're setting a trend for user interface. We can debate these other things, but we shouldn't lose sight of the fact that they've sucked people into our frontier and they've made a dramatic service in that point.
HUGHES: I very much agree with the comments up here about diversity. I still hold that these tools are tools of the mind and we're dealing with human behavior. And when I hear [Lance] Rose at once rattle off all the laws, and he could continue to do them even more, he's talking about human-behavior laws, not computers_.
I disagree violently that it should be done in Washington, at least until every damn congressman and all the attorneys who advise them and their staffs are on-line. [applause] So few are I do not want them to make laws on the technology and the human behavior that they do not themselves participate [in]. They are not qualified, even though elected. [applause] So I have trouble with Washington.
Part of that is also because I think [about] what happened in the compromises made to our original principles of our country at the outset: the Industrial Age required things to be of scale, to be economic. Big government, big city, big business. That's the way we had to function in the Industrial Age. But these are decentralizing tools, and I swear we're going to be better to have a decentralized [system], where the individual and his rights and his activities and his pursuit of happiness can be done. Thus I do not see the centralization and homogenization of these so much as the decentralization, and thus I would prefer my city council, whom I can hold accountable on-line more than I would Congress, which is very hard to hold accountable for anything at the distance.
Prodigy. I agree with them. Really. It is up to the user or the publisher, if you will, or the provider, and this in case contract law, to do what they want. I think they've made a terrible mistake, but not legally or ethically. I just think they've made a stupid business mistake. The point is that they've chosen to be a publisher.
_ They've done one marvelous thing for me. Not only have they forced prices down, they happen to be using the North American Presentation-Level Protocol Syntax (NAPLPS) as the basis, because it's the only way you could have a Macintosh and a PC look at the same picture. And I'm not even sure the corporate lawyer would know that. But on the other hand they're spending billions of dollars preparing my market, because I believe in interactive graphics as an act of speech [laughter and applause] and I'm teaching Indians to do it. So terrific! Keep doing it. You're preparing my market. If you fail you will fail economically, and I do not intend to bother you legally. Thank you. [applause]
PERRY: Why do I always follow you? [laughter]
HUGHES: Because we're out in the lead. [laughter]
PERRY: I must say that I share the schizophrenia that you've heard coming out [of] a large part of this panel about the tension between trying to figure out what we ought to do in order to solve the problems. The other side of that is: This is a very, very new industry, it's a very, very new technology, and I think there's a tremendous risk in jumping too fast to try to define it in all of its four corners before you really figure out where it's going.
So I'm sort of torn between those two situations. I really believe, however, that the focus we ought to take in groups like this is to try to figure out how we can create a more diverse environment for the industry. Diversity is going solve many of the problems, I believe, that we foresee. I may be an aardvark or a Tyrannosaurus Rex in this regard, but I feel very strongly that ultimately the market's going to tell you what's right and what's wrong, if you'll let it _ speak. And the only way you can let it speak is to have a diverse environment in which people do have a lot of choices. I believe _ all of us ought to work very hard for that kind of diversity.
ROSE: I'd like to take my minute to add one of my legal conflicts that I didn't [get to earlier]. I'm not going to get into it with whether we should have laws or not or where they should be made. But this is a very interesting point _ among the many interesting points that I've had to think about since coming here, which is that privacy rights _ - or part of the ability to have privacy - are not affected just by what you see when you look narrowly at the issue of privacy.
If you look at the service provider, the bulletin-board operator and their world and what they have to respond to, that has a very strong effect on the privacy of the users of the system.
At dinner two nights ago with various of the prosecutors that are here, I heard one very strongly advocate a duty-to-report of bulletin-board operators. OK? Now, we weren't specifically referring to whether the ECPA lets you do this or not, and of course whether it does can be put into play for many months in litigation, or years.
But there was a very strong emphasis on this "duty-to-report." Now this, among other things, is a good way to supply the intent necessary to prosecute a service provider, or bulletin-board operator. If they know something's going on and they don't report it, you can have intent. I'm not a criminal lawyer_ [or] expert, but it looks that way to me. The service provider need not commit the crime himself. He need only witness it and not do anything about it.
It's also a classic slippery slope. Do you witness it in plain view? Do you just stumble upon it? At what point do you have to, knowing that crimes might be committed on your system, look around and see what might be there? Again, the ECPA may very clearly say, "Oh, no, you don't have to do that." But tell that to the person who's wondering if the government agents are knocking on his door.
It can be seen essentially as making the service provider a law- enforcement agent. And it's a way for the law-enforcement agents to have their own agents running the systems. And even if you don't view the ECPA as allowing this to happen, and I think that's seriously a question, the pressure on the system right now created by this type of attention to what a service provider should be doing about the materials on his system inevitably results in greater pressures on the privacy rights of the users of the system. Thank you.
LIEBERMAN: Jim Warren is going to make a statement.
RESPONSE REGARDING PRODIGY PROTESTOR
JIM WARREN [Conference Chair]: _ I was out of the room when the [Prodigy] outburst occurred and have had a discussion with several of the people involved [as well as] the Program Committee, as to how to deal with the issue of discussion of Prodigy.
We had someone scheduled for this panel [representing the other side of the Prodigy issues]. She was unable to attend due to illness. We diligently tried to find a replacement for her and were not able to do so in a timely manner.
This panel met together this morning, carefully planned how they were going to allocate their time and how they were going to deal with their differences. It is inappropriate to have an anti-Prodigy, if you will, representative move onto the panel at this time. We're not going to do that.
In the interests of those who wish to discuss Prodigy, we have made special arrangements with the hotel _ to allow those who wish to discuss Prodigy [have] a room _ along with [rooms for] several other ad hoc groups that are going to be starting today. So that's how we are going to deal with it.
From the beginning, [we] did not intend and do not want this discussion to be a pro-Prodigy/anti-Prodigy discussion. There are far more important issues than simply the singular [applause] issue of Prodigy in particular. And I hope that the audience will pursue that goal. Thank you. [applause]
RETURNING TO DISCUSSION
McMULLEN: In fairness to the prosecutors [referred to in] Lance's comment, I was at [the] dinner the other night. It was a conversation with Dave Farber, Lance Hoffman and myself and one of the prosecutors. And his point was that organizations using the government _ NSFNet should have the responsibility to report - because they're dealing with government funds supporting them - anyone trying to break into the backbone. He did not say they should be prosecuted if they don't. He just said they shouldn't be allowed government funds to do this.
ROSE: As a lawyer the standard question is, "What's a right or a duty without a remedy?"
QUESTION & ANSWER PERIOD
PHIL SALIN [American Information Exchange]: A comment and a question.
The comment is that, because of the extreme relative lack of laws and regulations in the area of electronics and software, we've seen the most rapid and greatest evolution in experimentation of tools that empower people, the whole computer industry and personal-computer industry. [This is] the exact opposite of the fears we had that there would be a few big computer companies that could force everyone to have to do things certain ways.
I'm extremely worried about the argument that because Prodigy's doing things that many of us thoroughly detest that therefore we should have more laws to restrict them. Those laws will then get applied to smaller or competing services that otherwise will come up with better ways of doing things.
LIEBERMAN: Is there a question at the end of this?
SALIN: Yes, the question is, "What do any of the panelists believe is a valid argument for any kind of restrictions on the experimentation of any large on-line service? Shouldn't we _ have an extreme bias against any regulation or laws that restrict experimentation on the new frontier?"
ROSE: OK, as a partial answer: There are people out there in cyberspace. I believe fully in experimentation. At the same time there are many ways that people can be hurt or injured. Again, we talk about First Amendment: there are also defamation laws, and I don't think the First Amendment has entirely invalidated them at this point. There are, and as people move_.
LIEBERMAN: We're working on it. _
ROSE: Yes. As cyberspace gets civilized, as they say, people will have to respect other people's rights. The degree to which that may interact with experimentation by service providers I don't think is well known at this point. But there will have to be some regulation unless people are on their best manners at all times in cyberspace, as opposed to the rest of the world.
HUGHES: Which isn't a bad way for society to function.
LIEBERMAN: Middle mike?
EVELYN PINE [Community Memory Project]: I have a comment and a question.
First, about Prodigy's history of the development of cyberspace so far. I just want to say that since 1973 the Community Memory Project has been putting computer tools and telecommunication tools in the hands of a diverse audience and have been developing that market, and I think that it's very important that we see the electronic frontier as open to a wider audience than simply, quote, "consumers," unquote. I hope that their Tom Paines, as well, are encouraged.
My question is for Jack [Rickard] and Dave Hughes, which is responding to the idea that bulletin-board operators should be reporting to law enforcement about what's going on on their systems.
RICKARD: My position on that - I don't even know how to go into any detail - [is] I think the concept is ridiculous [and] that anyone that advocates BBS sysops [system operators] should act as deputy marshalls in Dodge City is preposterous. And I really don't have any further thoughts on it.
HUGHES: _ Again, I extend it into the other area. But the Electronic Privacy Act of 1986 did, I think, a rather sensible thing. It gave permission to a system operator to report a violation of law that they observed. It did not compel them. And they could only report it to law-enforcement agencies. It was not coercive. It said, "You can." But no way would I stand still to say that I should basically be the one _ - as they do in Communist China under some penalty - to simply report on it.
However, there are limits. That is, if somebody is committing a crime in my back yard or writing on my barn door and I consent, _ obviously and clearly and by any standard I am basically not acting as a good citizen. I basically think that there should be some ultimate limits.
When the Tim Tcimpidis case came up in Los Angeles, obviously he let those stolen credit cards be up there for a great length of time, then at some point he is basically permitting or abetting the commission of a crime.
So my point is, no way should the law [tell] me - and I'll be damned if any attorney who's taken the position that I'm going to be compelled to, if that's the route - that I'm basically an extension of law enforcement. _ I am not!
PERRY: Can I _ just respond very quickly to the comment, really, rather than the question, and that is that I really did not intend in any way to denigrate the efforts of other services and other organizations that are trying to bring this electronic medium to broad audiences. I'm simply saying that I believe that - with now, after 2 1/2 years, over 900,000 individual members on the Prodigy service, roughly 30 percent of whom are on the service daily - we probably are making a larger inroad today than any other service of its kind.
HUGHES: Just don't lobby too hard in Congress for your point of view, as law! As long as you keep the diversity, and I have a right to run it my way, I'll give you the right to run it your way. That's fair. PERRY: Believe me, I will.
MIKE GODWIN [Electronic Frontier Foundation]: Like everyone else I have a comment and a question. [laughter]
My comment is directed to George Perry of Prodigy, and it's really not a critical comment. I actually agree _ with you entirely that Prodigy is probably alone in really reaching out to non-sophisticated computer users and showing them the potential of the new media.
My comment is that I think it's fair to say that many people, both off-Prodigy and on-Prodigy, would like to encourage Prodigy to consider something other than the very top-down publication metaphor that you've chosen, where it's very editor-oriented and very content-editing oriented.
I think people want to see free forums on Prodigy. There are some Prodigy users who believe that they have a free forum there regardless of the fact that they perhaps should have read their contract agreement a little more closely. So, in the spirit of a positive comment, I'd say, "Please reconsider. Please look at the prospect of funding and supporting an open forum." That's the comment.
The question is a two-parter, and it's sort of unrelated. [some laughter] The first, _ I've heard from several people that Prodigy automatically updates software on user systems during their on-line time. _ I've heard it from a number of users and I'm not sure if it's true, so I'm asking whether this is true. And if it is true, the second part of the question is, "Do you think most signatories to the Prodigy contract are aware of this automatic changing of programs and files on their system?"
PERRY: Let me first respond to your comment and then I'll try to respond to your question, although I'm the farthest thing from a technologist that you will find in the Prodigy service. Let me just say, I am reminded of the bulletin-board ad that somebody put up down in Los Angeles _ - [on a] big, blank [bill]board - and it said, "Watch this space."
Let me tell you, we have more ideas, we have more suggestions, we have more comments from our members about ways to enhance the service than we [are] even close to having the money to put into it. But we are working as hard as we can at it. We are going to improve the service. As time goes on I think that many of the things that people are in effect clamoring for will come about in one form or another. So I just say, "Watch this space."
As far as updating files, there is in the Prodigy software something called, "STAGE.DAT." And one of the keys to the Prodigy service is it is the only service to my knowledge that actually uses the computing power of your personal computer. It doesn't treat your computer as a reception device. It actually uses the processing power of the computer.
One of the ways that it does that is that it stores in the STAGE.DAT items that you may have called down. If you call down the "Highlights" page_, well, you get the Highlights page when you go onto the service for the first time. That Highlights page is now stored in the STAGE.DAT. And if you want to go back to the Highlights page, you don't have to go back to the host computer or even back to the local node; you go back to your computer. And it has stored [the page in]_ the STAGE.DAT. _ To that extent it is true that we do use the software, the Prodigy software, the software we've provided. We have nothing to do with any software that's residing outside of the Prodigy software.
GODWIN: OK. Thank you.
RUSSELL JACKMAN [McGeorge School of Law, law student]: This question has nothing to do with Prodigy. It's directed to Lance Rose, and basically I wanted to ask what your thoughts would be on the establishment of a high-tech sort of fast-track "technology court" that would listen to these issues [faster] than the civil or criminal-justice system can right now.
ROSE: _ Although I stated these ringing themes at the end of my talk, I think it's a little premature to consider defining the scope of such a court. It's only about five years ago that a court of appeals for the federal circuit was created as the conduit for all patent claims, and that's after a couple of hundred years of experience, I suppose, with patent litigation. So that's something that sounds like it makes sense, but I think there's a little bit more working out that we're looking at first.
LIEBERMAN: OK. Middle mike.
JILLAINE SMITH [Institute for Global Communications, PeaceNet and EcoNet]: I also have a question wrapped around a comment.
Given the technical ignorance of the Congress and the _ high visibility of something like Prodigy due to the commercial dollars behind it, my concern is that Congress is _ - if it does make laws about electronic communication and regulations - _ going to look at something like Prodigy and use that as sort of the basis by which it makes laws that are going to affect all of the bulletin boards, our own included. And so my question to any of the attorneys is, "What can be done, if anything, to prevent that from happening?"
HUGHES: Lance Rose. Or don't rush to judgment. The biggest operations seem to be making the biggest mistakes. Readers Digest owned The Source. They blew it. AT&T and Knight-Ridder ran [into trouble]. Even the Times Mirror couldn't do it. The bigger they are, the bigger the mistakes they are making because they are extending into this future.
That's why I'm in no hurry to have it done, because I think you've got to wait until this percolates up, even over time. Youngsters who will then move into corporate positions and so on will know the technology. Even the WELL is a step behind some of us. The point is, because _ we're only 12 or 13 years in[to] this, [that is an] awfully short time to make a transition to an Age. _ I think that's why I'm not in [a] hurry even though I agree, you know, that things may have to be done.
But you are dead right that the danger is that if the IBMs and the big boys sit in front of Congress and they listen to them more than [to] the rest they may create the precedents. That's the danger I see.
But they're never gonna catch up, I'll tell you this. Because I have already changed my will [to say] that when I die my sons are to bury me with this laptop in a cavity above the crypt; go down to Radio Shack [and] get a solar panel to charge it forever (the legal agreement is keep the damn leaves off the glass); [turn] a packet radio on - and on the screens in Southern California will appear the words, in heuristic software, "This is Dave Hughes. Want to chat?" Now I defy the lawyers to figure out who's accountable. [laughter, whoops, applause] Ghost writers in the sky. [laughter] OK.
LIEBERMAN: OK. Front mike.
STEVE JACKSON: I have a comment for Dave Hughes and will probably find a question in it.
LIEBERMAN: I hope so. [laughter]
JACKSON: Dave, you're very leery of federal involvement and I agree. So am I. But I'm here to tell you the federal government is already involved. I don't want to have to depend on my city council to try and keep the Secret Service away from my door. _ You say you want to wait until _ everyone in Congress really understands the technology [and] is using the technology. No, I want protection in my lifetime! [laughter and applause]
HUGHES: Well, all right, yes, and that's fair enough. But I am socially liberal, economically conservative, a management pragmatist, a technology futurist - but I am a communication lateralist. And I think if all the city councils _ [and] all the mayors in this country at this level stood up to that Congress, it's called lobbying laterally, not simply from Washington.
So I agree that they're in it, and I agree the FBI's in it, but they're all answerable at the polls, not only nationally but locally. And the greatest threat to them is not a gun; it's the media by which they can be brought to their knees, if it is done right. And don't forget, the FCC [Federal Communications Commission] received the largest number of complaints on any issue when they uttered that they were going to do a $5 surcharge [for modem connections] and they had - what was it? - 26,000 communications, entirely mobilized on-line.
So I don't need to go to Washington to join an organization. Just put the word out on-line, and there will be a rebellion out in the tulles. I think that's the answer to preventing excessive use of power and law and regulation in Washington - from the grass roots.
JACKSON: Can you agree that maybe we don't need regulation from Washington but we do need protection now from Washington?
RICKARD: Yeah. I think we do. And I'd like to add something to what Dave's saying. If we allow ourselves to be drawn into a legislative, "Let's pass a law on what æMenu Item 1' means," we've already lost the battle. [applause] We have protections under the Constitution of the United States and I want to see them applied on-line! [applause]
LIEBERMAN: Well, that's precisely the point that I was trying to make before. When I was suggesting that the time to act is now I certainly did not mean that I thought it was time for Congress to enact some comprehensive regulatory scheme for computer users.
Rather, it is time to insist that both _ the literal text of the Constitution and the values inherent in the First and Fourth Amendments be applied.
But that is going to take a lot of work. It's going to take a lot of organizing and it's going to take a lot of resources. And it can't be ignored and left to percolate by itself.
Where are we? Back, I guess.
CHARLES WOOD: _ I'm frankly a bit disappointed that nobody's talking about persecution and repression with the new technology. We have a number of technologies, for instance, that can allow us to read what's on the screen from a quarter mile away. We have technologies that allow us to screen a telephone conversation for certain words and automatically turn on a wiretap at a certain point. I could go on and on with these new technologies, but I wondered, on the panel, is there anybody who's concerned about Big Brother constraining free speech here in America with the new technology?
RICKARD: I'd like to address that a little bit. If you're going to look at constraining Big Brother and the technology he uses, you are always playing a catch-up game. Whatever you've just outlawed him using, there's something else coming down the pike.
The approach to personal liberty should be the empowerment of the individual through their technology to be able to play the game as well. I don't think that simply constraining our government based on what happened last year is the most effective way to ensure our personal freedoms. The new technologies offer you as individuals survival mechanisms to ensure your own liberty in the future.
HUGHES: [On] the question of obscenity on-line, Prodigy could and others could - I mentioned it to The Source years ago - _ give me the software by which I can decide what words I do not want me or my children to see, or in a classroom. I am protecting myself with mechanisms that are an extension of that. In other words, self-censorship is possible technologically, and it is, so it doesn't necessarily mean that we just have to put rules out for it.
A technological solution to self-protection is what Jack said. There is some possibility in that. But I go back to individual responsibility, not the external. _ Society has had to put [on] these external rules because we didn't have means to protect. I think the microcomputer owner can literally put software in there that protects himself, in his own value system and no one else's in the world. [applause]
McMULLEN: I think we're all interested in these problems presented. As a matter of fact, I think that's the key to the whole conference. What can we do to ensure liberty and freedom and privacy? I think that's why we're all here.
ROSE: Can I just add something? I think that maybe in a slightly veiled way some of the comments are directed at some of the things I said. I just want to emphasize that I'm a full participant in electronic networks and so forth. I also do a lot of legal work for people who work in the area in various capacities. And I believe in the privacy and the First Amendment and all those other things.
I don't see those battles as being essentially different in principle, and I think everybody here agrees, with those battles in the material world and also to the extent that laws are necessary in the material world - and we can debate that endlessly. Certainly when you go to law school and learn to be a lawyer you see how the genesis of laws (and _ obviously in other walks of life you do, too) _ comes up within society as a natural result of people interacting.
LIEBERMAN: Lance, I'm afraid I've been given the "cut" signal. Thank you all. [applause]
HUGHES: Put your comment on-line.[applause]
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