"A Little Perspective, Please"

by Mitchell Kapor
Forbes Magazine
June 21, 1993

(Permission granted for electronic redistribution) 

In Its Dec.21, 1992 cover story, headlined "The playground 
bullies are learning how to type," FORBES perpetuated a 
dangerous myth. This magazine blamed a new generation of 
"hacker hoods" for an epidemic of computer crime. It grates on 
me to see these two words- hacker and hood - used together.

I'll begin by agreeing that computer crime is a real and serious 
problem. But the FORBES cover seemed to blur the distinction 
between theft and free speech, between adventuresome 
teenagers and crooks. Most hackers are just playing around or 
swapping information; only a minority are out to steal it. 
Hackers are not hoods, though a few may be. 

If I sound sensitive on this point, I have good reason. In the 
summer of 1990 John Perry Barlow and I founded the 
Electronic Frontier Foundation to challenge Secret Service 
seizures of computer bulletin board systems. Our goal was 
simple enough. We wanted to establish that the Bill of Rights 
applies in cyberspace as well as on Main Street. We wanted to 
help assure that law enforcement people, while fighting crime, 
do not violate the free speech and privacy rights of computer 
bulletin board users. We made one principle clear from the 
start: "Unauthorized entry into computer systems is wrong and 
should be illegal."

Big high-tech rip-offs these days have to do with the theft of 
cellular and PBX codes. These can run up victims' phone bills 
into the hundreds of thousands of dollars. According to Donald 
Delaney, a New York State Police investigator who specializes in 
this area, major telecom fraud is typically committed by career 
criminals in their 30s, many of whom see it as more lucrative 
and safer than the drug business. Hardly your typical hacker. 

If the typical 17- year old hacker, gets caught stealing small 
amounts of phone service or breaking into a computer system 
where he has no business being, he's scared as hell, and ready 
to confess.. He's highly unlikely to do it again. These first-time 
offenders don't usually end up ever again on the business end 
of one of Dectective Delaney's warrants. There is no reason for 
bringing the full force of the law down on kids like this. 

So I was peeved at a FORBES cover that seemed to lump these 
kid pranksters in with hardened crooks. Such broad bracketing 
leads to excesses like those of the Secret Service in the recently 
decided Steve Jackson Games case. Federal Judge Sam Sparks 
found that the Secret Service illegally seized the private 
electronic mail of users of a customer relations bulletin board 
system operated by the Jackson firm.. At the trial, Judge Sparks 
roasted Secret Service agent Tim Foley for not making a simple 
investigation in advance that would have shown there was no 
cause to snoop on E-mail. The case demonstrates that 
accusations of computer crimes should be limited to cases 
involving seriously harmful behavior and injurious intent, not 
the mere suspicious use of a computer or a network. 

In Massachusetts, efforts to put such a balanced perspective 
into law are now under way. Governor William Weld has 
submitted computer crime legislation based on a report of his 
Commission on Computer Technology & Law, which I chaired. 
Commission members included law enforcement officials, such 
as a bulletin board-system literate district attorney, 
representatives from the computer and telecommunications 
industries and civil libertarians.

The commission determined that much of what is labeled 
"Computer crime" would constitute a crime regardless of the 
particular means of accomplishment. Theft of a lot of money 
funds through manipulation of computer accounts is grand 
theft. Does the computer make it any grander? 

Our commission reported, and Governor Weld agreed, that 
changes to the law, where needed to plug gaps, are best 
accomplished by modifying existing law and building off 
familiar legal principles, not by passing overly broad and 
untested laws specifically covering computer crime. 

We found, for instance, that unauthorized access to a computer 
system is not, by itself, a violation of Massachusetts law. It 
should be. We therefore recommended an addition to the 
criminal law covering electronic trespass with penalties of up 
to $1,000 in fines or 30 days in jail. The proposed statute states 
that the requirement of a password constitutes the equivalent 
of a posted "No Trespassing" sign. 

The Massachusetts experience shows that it's possible for civil 
libertarians, law enforcers and industry experts to find 
common ground; they can address problems created by the 
spread of computers without compromising rights. This is the 
stroy the media ought to pay more attention to. Enough of 
these fantasies about dangerous teenagers stealing big money 
and compromising national security. 
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Mitchell Kapor, Electronic Frontier Foundation Note permanent 
new email address for all correspondence as of 6/1/93 
mkapor@kei.com


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