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Computer underground Digest    Sun Apr 5, 1992   Volume 4 : Issue .16

       Editors: Jim Thomas and Gordon Meyer ([e-mail])
       Associate Editor: Etaion Shrdlu
       Arcmeisters: Brendan Kehoe and Bob Kusumoto

CONTENTS, #4.16 (Apr 5, 1992)
File 1--Article on Software Patents
File 2--Why form is as important as content
File 3--The FBI Needs Industry's Help--OpEd in NYT
File 4--ACLU's Janlori Goldman's Reply to FBI Proposal (Risks Reprint)

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----------------------------------------------------------------------

Date: Sat, 28 Mar 92 17:35:31 CST
From: Net Wrider <[e-mail]>
Subject: File 1--Article on Software Patents

The following is available by anonymous FTP from prep.ai.mit.edu
in the pub/lpf directory.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

This article by Brian Kahin appears in the April 1990 issue of
Technology Review (Building W59, MIT, Cambridge MA 02139,
[phone]).  It may be copied for noncommercial purposes
provided that it is copied, along with this statement and the bio
at the end of the article, without any modification whatsoever.
(Copyright (C) 1990 by Brian Kahin)

                   The Software Patent Crisis

     An explosion of patents on software processes may radically
     change the programming industry--and our concept of human
     expression in the computer age.


Last August, Refac International, Ltd., sued six major spreadsheet
publishers, including Lotus, Microsoft, and Ashton-Tate, claiming they
had infringed on U.S. Patent No. 4,398,249.  The patent deals with a
technique called "natural order recalc," a common feature of
spreadsheet programs that allows a change in one calculation to
reverberate throughout a document.  Refac itself does not have a
spreadsheet program and is not even in the software industry.  Its
business is acquiring, licensing, and litigating patents.

Within the last few years, software developers have been surprised to
learn that hundreds, even thousands, of patents have been awarded for
programming processes ranging from sequences of machine instructions
to features of the user interface.  Many of the patents cover
processes that seem conventional or obvious, and developers now fear
that any of the thousands of individual processes in their programs
may be subject to patent-infringement claims.

The Refac suit demonstrates the vulnerability of the industry to such
claims.  Patent no. 4,398,249 was applied for in 1970, granted in
1983, and only recently acquired by Refac.  In the meantime, software
developers have been busily creating spreadsheets and other new
products unmindful of patents.  The industry accepted copyright and
trade secret as adequate protection for its products, and most
programmers assumed that patents were not generally available for
software.

Never before has an industry in which copyright was widely established
suddenly been subjected to patenting.  As it is, only a few companies
that create microcomputer software have the resources to try to defend
against patent infringement claims.  Most small firms will be forced
to pay license fees rather than contest the claims, even though many
software patents may not stand up in court.

In the long run, the costs of doing business in a patent environment
will radically restructure the industry.  Many small companies will
fold under the costs of licensing, avoiding patent infringement, and
pursuing patents defensively.  The individual software entrepreneur
and inventor may all but disappear.  There will be fewer publishers
and fewer products, and the price of software will rise to reflect the
costs.

Especially disturbing is that the broad claims of many recent software
patents appear to establish monopolies on the automation of such
common functions as generating footnotes and comparing documents.
Some claims even cover processes for presenting and communicating
information, raising troubling questions about the effect of patents
on the future of computer-mediated expression.


Patent vs. Copyright

Software patents, like all patents, give an inventor the right to
exclude all others from making, selling, or using an invention for 17
years.  In return, the patentee discloses his or her "best method" of
implementing the invention, thereby relinquishing trade secrets that
might otherwise be enforced forever (like the formula for Coca-Cola).

To obtain a patent, an applicant must convince Patent Office examiners
that the invention would not be obvious to a "person of ordinary skill
in the art" who is familiar with all the "prior art," which includes
previous patents and publications.  In contrast, copyright inheres in
books, poems, music, and other works of authorship, including computer
programs, from the moment they are created.  Registering one's work
with the Copyright Office is a simple, inexpensive procedure that has
important benefits (it is a precondition for filing suit, for
example), but the copyright itself is automatic when the work is fixed
on paper or on disk.

Copyright and patent protect different things.  Copyright
protects expression but not underlying ideas.  Patents protect
useful processes, machines, and compositions of matter.
Traditionally "processes" have included methods of physically
transforming materials but not business methods or mental steps.
Thus, computer programs fall somewhere between the traditional
territories of copyright and patent.

>From the 1960s to the early 1980s, the Patent Office and the
courts grappled with the question of whether algorithms--the
elemental processes on which computer programs are built--are
patentable as either processes or machines.  Early on, the
Patent Office granted some patents for processes built into
computer hardware that today would be contained in software, but
it was reluctant to grant patents for programs per se.  As the
1966 Report of the President's Commission on the Patent System
pointed out, the Patent Office had no system for classifying
programs.  The report also noted that even if this were remedied,
the volume of programs being created was so enormous that
reliable searches of "prior art" would not be feasible or
economical.

However, the Court of Customs and Patent Appeals (CCPA)
maintained that computer programs were patentable and overturned
numerous Patent Office decisions denying patentability.  The
Supreme Court vindicated the Patent Office in two decisions,
Gottschalk v. Benson (1972) and Parker v. Flook (1978), holding
that mathematical algorithms were not patentable subject matter.
Still, the CCPA continued to uphold patentability in other cases.
Finally, in Diamond v. Diehr (1981), a sharply divided Supreme
Court upheld the patentability of a process for curing rubber
that included a computer program.  The majority concluded that
programs that did not preempt all uses of a computer algorithm
could be patented--at least when used in a traditional process
for physically transforming materials.

That case has been the Supreme Court's last word on the subject.
But despite the narrowness of the ruling, the Patent Office
underwent a radical change of heart.  Until very recently, there
were no reported appeals of adverse Patent Office decisions,
leading observers to conclude that the office was eventually
granting almost all applications for software patents.  Although
articles began appearing in legal periodicals a few years ago
noting that patents were being routinely granted for many
software processes, not until 1988 did the industry realize that
the rulBY':.   +)c{asp|3oz5&%bhqXG=Rz86JAUWdVR*`3Irdle of
the game.  By the spring of 1989, the patents that entered the
pipeline after Diamond v. Diehr were starting to flow out in
significant numbers--by one count, nearly 200 in the first four
months of that year.


Processing Problems

Unfortunately, the Patent Office classification system remains
unchanged, and the volume of software being created has grown
exponentially.  This makes searching for prior art--processes
already in public use--time-consuming and expensive.

The search is extraordinarily difficult because the field's
printed literature is thin and unorganized.  Software documents
its own design, in contrast to physical processes, which require
written documentation.  Also, software is usually distributed
without source code under licenses that forbid reverse
engineering.  This may amount to suppressing or concealing the
invention and therefore prevent the program from qualifying as
prior art.  The search for prior art may require securing oral
testimony from people who developed software at universities many
years ago, an expensive proposition.

Many programmers suspect that patent examiners lack knowledge of
the field, especially since the Patent Office does not accept
computer science as a qualifying degree for patent practice (it
accepts degrees in electrical engineering).  Moreover, attracting
and holding individuals with expertise in a field like software,
where industry demand is high, is not easy for a government
agency.  Less qualified examiners create problems because they
naturally have a lower standard in determining the hypothetical
"person having ordinary skill in the art," and are thus more apt
to grant patents for obvious processes.  Since the examination
process is conducted ex parte (as a private matter between the
Patent Office and the applicant), less qualified personnel are
also more likely to be influenced by sophisticated patent
attorneys and the apparent expertise of the applicant.

The quality of software patents being awarded has aroused
concern even among patent lawyers and other advocates of the new
regime.  But it will be left to firms being sued for infringement
to prove that a process should not have been patented because it
was obvious in view of the prior art.  Meanwhile, software
patents stand as intimidating weapons for those who hold them.


Restructuring the Industry

Perhaps because of some of these problems, applications for
software patents take an average of 32 months to be approved and
published.  That's significantly longer than the overall average
of 20 months, and a very long time given the short product cycles
of the software business.

Unlike copyright, independent creation is irrelevant to patent
infringement.  Every developer is charged with knowledge of all
patents.  Even if someone is not aware of a patent, he or she can
still infringe against it.  Furthermore, patent applications and
the examination process are confidential, so there are ordinarily
several years of patents in the pipeline that no search will
reveal.  Although no infringement occurs until the patent issues,
an inventor may find that a newly awarded patent covers a feature
he or she has already incorporated and marketed in a finished
product.  While this is a problem for the patent system as a
whole, it is intolerable for software developers because of the
industry's rapid pace of innovation and long patent-processing
period.

The problem is compounded by the fact that a modern software
package may contain thousands of separately patentable processes,
each of which adds to the risk of infringing patents that are
already in the pipeline.  Since software functions are
interdependent and must be carefully integrated, developers can
find it difficult to excise a process built into the original
program.

The patent system exacts a high penalty in an industry as
decentralized as software.  Programming requires no special
materials, facilities, or tools: to design software is to build
it.  Because barriers to entry are low, the industry attracts
many small players, including hundreds of thousands of
individuals who work as consultants or short-term employees.
Rather than a handful of competitors working on the same problem,
there are likely to be dozens, hundreds, even thousands.  Since
under the patent system one winner takes all, many
others--including developers without lawyers--are deprived of
the fruits of their independent labor and investments.

Patent proponents argue that this uninhibited duplication of
effort wastes resources.  But the "waste" could be cut only by
reducing the number of players and slowing the pace of
development to fit the cycles of the patent system.  The result
would be a handful of giants competing on a global scale, bidding
for the ideas and loyalty of inventive individuals.

However, many programmers believe that there are diseconomies of
scale in software development--that the best programs are
authored rather than assembled.  The success of Visicalc, Lotus
1-2-3, WordPerfect, and other classic programs testifies to the
genius of individuals and small teams.  Certainly there has been
no evidence that they need more incentives.  Quite the contrary,
the freewheeling U.S. software industry has been a model of
creative enterprise.


A Costly System

Even software developers and publishers who do not wish to patent
their products must bear the costs of operating under a patent
system.  While these costs may initially come out of the software
industry's operating margins, in the long run, they will be borne
by users.

At the first level is the expense of analyzing prior art to avoid
patent infringement.  A precautionary search and report by
outside patent counsel can run about $2,000--that's per process,
not per program.

Next are the direct costs of the patent monopoly--the license
fees that must be paid to patent holders.  If the patent holder
refuses to license at a reasonable fee, developers must design
around the patent, if that is possible.  Otherwise, they must
reconceive or even abandon the product.

The third set of costs are those incurred in filing for patents.
Searching for prior art, plus preparing, filing, negotiating, and
maintaining a patent, can total $10,000 to $25,000, not including
internal staff time.  Seeking foreign patents can make the bill
substantially higher.

The notoriously high costs of patent litigation must be borne by
both sides.  Just the discovery phase of a lawsuit is likely to
cost each side a minimum of $150,000, and a full trial can cost
each from $250,000 to millions.  Again, these figures do not
include internal staff time, which could easily double the real
cost.  While a small patent holder may be able to secure a law
firm on a contingency basis or sell an interest in the patent to
speculators, the defendant has no such options.

Litigation also involves the possibility and further expense of
an appeal.  All appealed patent cases now go directly to the
Court of Appeals for the Federal Circuit (CAFC, successor to the
CCPA), where panels in patent cases are usually led by patent
lawyers turned judges.  Whereas patents once fared poorly on
appeal, the CAFC has found patents to be both valid and infringed
in over 60 percent of the cases that have come before it.  The
CAFC has greatly strengthened the presumption of patent validity
and upheld royalties ranging from 5 to 33 percent.

While a large software company may be able to absorb these costs,
they will disproportionately burden smaller companies.  The first
to suffer will be independent developers who cannot afford to
market their own products.  These developers typically receive
royalties of 10 to 15 percent from publishers who serve as their
distributors.  Such modest margins, out of which developers must
recoup their own costs, would be wiped out by the need to pay
royalties to a few patent holders.

The high costs of a patent environment give patentees
considerable leverage over small firms who will, as a practical
necessity, pay a license fee rather than contest a dubious claim.
To establish credibility, the patentee will settle for small fees
from the initial licensees.  The patent holder can then move on
to confront other small firms, pointing to such licensings as
acknowledgments of the patent's validity and power.  This tactic
has a snowballing effect that can give the patent holder the
momentum and resources to take on larger companies.

Cross-licensing--where firms secure patents to trade for the
right to other patents--seems to work reasonably well in many
industries and has been touted as the answer to these problems.
However, cross-licensing is of little value to smaller companies,
which have little to bring to the table.  And cross-licensing may
prove of limited value even to large companies, since it does not
protect against companies like Refac that have no interest in
producing software and therefore no need to cross-license.

Of course, the power that software patents afford may induce some
venture capitalists to invest in them.  But investing in software
patents is one thing; investing in robust, complex products for a
mass market is another.

In fact, software publishers hold very few patents.  The vast
majority are held by large hardware companies, computer
manufacturers that have in-house patent counsel and considerable
experience in patenting and cross-licensing.  Nearly 40 percent
of the software patents that the U.S. Patent and Trademark Office
now issues go to Japanese hardware companies.  It is quite
possible that the separate software publishing industry may cease
to exist as companies find that they need the patent portfolios
and legal resources that the hardware giants can provide.  The
result will be a loss of diversity in software products, reduced
competition, and, many believe, a less productive software
industry.


Protecting Ideas and Information

A deeper, more disturbing problem in patenting programs was
barely evident before computers became ubiquitous personal tools
and software became infinitely versatile.  More than a
"universal machine," the computer has developed into a medium for
human expression and a mediator of human experience.  Software is
designed to satisfy specific needs for shaping and delivering
information.  Thus, what is increasingly at stake in software
patents is the generation and flow of information.  This becomes
more threatening when the claims in a patent extend far beyond
the disclosed means of implementation to cover general ideas.

Broad patent claims covering abstract processes are not limited
to software, or even to computer hardware.  Consider patent no.
4,170,832, granted in 1979 for an "interactive teaching machine."
The patent discloses a clumsy-looking combined videotape deck and
television with a set of push buttons.

The patent includes a process claim for a procedure commonly used
in interactive video: showing an introductory video segment,
presenting the viewer with a limited number of choices,
registering the viewer's decision, and then revealing the likely
outcome of that decision.  The disclosed machine, which was never
marketed, contributes nothing to the public domain: it simply
reveals one person's way of implementing a basic instructional
technique.

In a notorious 1983 case, a federal district court upheld the
patentability of Merrill Lynch's Cash Management Account system,
a procedure for moving investment funds among different types of
accounts.  Acknowledging that the system--essentially a method of
doing business--would not be patentable if executed with pencil
and paper, the court nevertheless upheld the patent because it
made use of a computer.

The Patent Office has taken this principle one step further.
Besides granting monopolies on new procedures such as the Cash
Management Account system, the office is also awarding patents
merely for automating familiar processes such as generating
footnotes (patent no. 4,648,067) and comparing documents (patent
no. 4,807,182).  But software developers have been routinely
automating such common office functions, bookkeeping procedures,
learning strategies, and modes of human interaction for years.
The principle that patents are granted to induce inventors to
disclose trade secrets has no relevance here.  These processes
are part of everyday life, and can and should be computerized in
a number of ways.

What's more, information per se is traditionally the substance
and territory of copyright.  The intelligent ordering of
information is the very heart of grammar, rhetoric, and graphic
design.

Why should information be subject to the pervasive restraints of
patent simply because it is interactive rather than linear?
Should human expression that is assembled, communicated, or
assimilated with the aid of a computer be restrained by patents?
If the computer is seen as an extension of the human mind rather
than vice versa, the answer is no.


Changing Patent Policy

Software developers who understand the impact of patents are
demoralized.  Lawyers assure them that patents are here to stay,
and that programmers must seek new patents to protect against
other patents.  These lawyers point to the growing torrent of
software patents, the presumption of patent validity, and the
fervidly pro-patent record of the Court of Appeals for the
Federal Circuit.  Smaller companies that cannot afford this
advice can only hope that companies with deeper pockets will
afford more visible and attractive targets for patent holders
bringing suit.

But the narrowness of the Supreme Court decision in Diamond v.
Diehr remains.  The Court never explicitly rejected the
traditional doctrines against the patentability of mental steps
and business methods, doctrines that may yet defeat many of the
patents that have issued.  If the hue and cry grows, Congress
could amend the Patent Act to make it clear that the scope of
patenting is still limited to physical processes.

The software industry was not broke, but it is in the process of
being "fixed."  The question is whether the fixing will be done
by the gush of awards from private proceedings in the Patent
Office--or by a public decision about whether software patents
serve "to promote the Progress of Science and useful Arts," as
the Constitution requires.

+++++++++++++++

Brian Kahin is an attorney specializing in information technology
and policy.  An adjunct research fellow in the Science,
Technology and Public Policy Program at Harvard University's
Kennedy School of Government, he was formerly affiliated with the
MIT Research Program on Communications Policy and the MIT
Communications Forum.  He is a graduate of Harvard College and
Harvard Law School.

------------------------------

Date: Thu, 26 Mar 92 11:20:08 EST
From: ulowell!p30.f30.n231.z1.fidonet.org![e-mail]
Subject: File 2--Why form is as important as content

 I'd like to pass a message on to authors who write for electronic
 newsletters: If you make your article easy to read, you will get
 more people to read it.

 I've been reading electronic news in the form of computer
 bulletin boards and electronic newsletters since 1986.  At first
 I mainly saw technical and hobbyist communication, but BBS and
 Usenet readership has changed.  Your communications can no longer
 be directed solely to tech-weenies and computer-nerds. You must
 include a wide cross section of non-technical society as well.

 Your audience is wider than you think.  For example, I get CUD
 from a BBS with a Usenet feed, and then distribute it to 4 other
 bulletin boards in town.  When I see something very important,
 I'll post a message in the city-wide echo conference (25 BBSs)
 referring people to an article in CUD###.ZIP on such-an-such BBS.
 And, I know other folks in other cities do this too.

                            QUESTION:
    What can you do to get more people to read what you write?

                             ANSWER:
          ****---->  MAKE IT EASIER TO READ  <----****

                            QUESTION:
                How do you make it easier to read?

                             ANSWER:
      Form, format (pretty-printing and line length), good
     sentence structure, short well-constructed paragraphs,
    correct grammar, correct spelling, syntax ... all those
      things that made you hate your high school sophomore
                        English teacher.

 Yes, this stuff does make an article easier to read.  And, an
 article that is easy to read has a better chance of being read.

 One key segment of your audience consists of people, such as
 executives or other non-technicals, who won't read "news" on a
 monitor or VDT.  (Believe it or not, there are a lot of people
 who don't work in front of a computer screen.)  These people need
 to see a hard copy.

 Therefore, your article not only has to look good on the screen,
 it also has to look good on *PAPER* without reformatting.  (You
 might come back and say "research has shown that X percent
 of readers read it online."  But 100 minus X percent don't.  And
 VIPs, the ones you want to convince and motivate the most, don't.
 To those people hard copy is not only easier but carries more
 impact than the ethereal electronic version.)

 Additionally, those who read the hardcopy version probably don't
 have access to e-mail to easily respond to surveys about how and
 where they read it.  There is a vast silent readership out there.
 And the better your article looks on paper, the larger that
 readership will be.

 Here we go.

 LINE LENGTH:

 Long lines are harder to read than short lines.  Just because you
 have 80 columns on the screen doesn't mean that line length has
 to extend that far.  Printed magazines usually have three columns
 per page, sometimes more, always at least two.

 I suggest a maximum of 65 characters for line length.  It's
 easier to read on the screen, and will give a print-out big 1"
 margins when printed on standard 8.5" x 11" paper in a standard
 pica (10 pitch, 12 point) font.  BIG margins make it easier to
 read.

 Magazine editors have a formula for determining the optimum line
 length:
              O = lca x 1.5
              Mn = O - 25%
              Mx = O + 50%
 Where O= optimum line length and lca = lower case alphabet length.

 In essence, this formula says that a the best length for a line
 is one and one half times the length of all of the lower case
 letters printed next to each other, give 50% or take 25%.

 Example:
 I see your article online.  I like it, believe it, and want to
 act on it.  You've convinced me.  But I'm staff, not management.
 I have to make a hard copy of your article, or the whole
 newsletter, and present it to management.  Anyone who has
 presented reports to management knows that looks count.

 But I can't just shoot it out to the printer in a nice 11 or 12
 point font and maintain decent margins.  I have to remove the
 hard carriage returns, but not all of them, to reformat
 paragraphs.  Headers, quotes, tables, outlines, and indented
 paragraphs need the hard returns left in.  So neither standard
 search-and-replace nor conversion programs will work 100%.  It's
 a hand job.  Now it's going to take me 15 to 20 minutes in a
 word-processor before I can print it out and hand it to my boss.
 Multiply that by the 100 or 1000 people around the world who
 might want to show your important article to their boss.

 SENTENCE LENGTH:

 Sentence length needs to be varied similar to how a story-teller
 or a comedian varies the pace.  This keeps the audience or reader
 from getting bored.  If all the sentences are of equal length it
 gets rhythmic and monotonous.  Very long sentences are hard to
 understand.

 PARAGRAPH LENGTH:

 Long paragraphs make a page look gray, and make it harder to
 read.  Long paragraphs are visually unpleasant.  White space is
 needed to break it up.

 A paragraph should contain just one thought and be small enough
 to be easily understood.  If your thought takes too long to
 explain, break it up into smaller pieces.  More complex material
 needs shorter elements to be easily understood.  Paragraph length
 affects the eye-strain, attention span and fatigue level of your
 reader, which in turn affects whether he will finish reading it.

 ORGANIZATION:

 Good organization can be summarized in three easy steps:
      1) Thesis
      2) Body
      3) Conclusion

 Tell the reader what you're going to tell him.  Expound upon it
 and make your points.  Then recap what you said.  The reader
 should not have to read three or four paragraphs down to find out
 what you are writing about.  Most people just read the first
 paragraph to find out if they want to read the rest of article.
 If you don't hook them in the first paragraph, you've lost them.

 SPELLING, GRAMMAR, ETC:

 Just between us, I don't care if you make typos.  You don't care
 if I make typos.  However, errors stick out like a sore thumb to
 scholars, businessmen and management types.

 Spelling and obvious grammar or usage errors give the
 impression that you aren't serious about what you are writing.
 Such errors indicate that you didn't take the time to give your
 piece a professional appearance.  These errors give people who
 don't know you the impression that you aren't as intelligent as
 you really are.

 Besides, a four star restaurant does not serve haute cuisine on
 paper plates.  You don't package a diamond ring in an old cigar
 box.  If your piece is important, you need to make it look
 important.

 HOW TO DO IT:

 First, check your work yourself, keeping in mind the above
 suggested guidelines.  Proof it two or three times, then run it
 through spelling and grammar checkers if possible.

 If your piece is very important, ask a friend to look it over.
 If your piece is of the utmost importance, ask someone with
 professional editing or proofreading experience to look it over.
 Even professional writers admit that proofing and final editing
 one's work is best done by someone else.  Other people can point
 out things in your writing that you don't see.

 Most spelling and grammar checkers don't point out such usage
 errors as "there" instead of "their" or "they're."  It takes
 careful proofreading two or three times.

 An occasional comma splice or run-on sentence will not bother
 most readers.  But complicated, poorly constructed, or hard to
 understand sentences will have the reader shaking his head
 wondering what you meant.

 If you don't have friends or associates who are good at
 proofreading and editing, you can try professional services.
 Many editors, proofreaders, typesetters, etc. have started their
 own desktop publishing businesses.  Even if all you need is
 electronic editing, not hardcopy output, those people can help
 you polish your work.  This will help you get your points across,
 and even increase the number of people who read your article.

 One such business in Indianapolis is The Electronic Editor BBS at
 [phone], 293-1863 voice.  They allow you to upload your raw
 copy in practically any format and from any word processor.
 Making files "sysop only" insures privacy.  Encryption with
 PKZIP's password facility prior to upload can guarantee privacy.
 Their editors make the edited version of your file available in
 encrypted format for download or mail the file back to you on
 diskette.  Hardcopy laser printer output is optional.

 CONCLUSION:

 I think that many of the issues discussed in electronic
 newsletters such as CUD are important.  I'd like to see those
 issues taken to the power holders, the movers and shakers, the
 corporate executives and the middle managers who run the
 institutions in our society.

 I see many articles that might be described as diamonds in the
 rough.  Polishing your articles and formatting them nicely will
 go a long way towards:

 -  increasing your readership
 -  reaching the important people
 -  assisting your current readership in re-distributing your
    work beyond the electronic community.

 You may send comments, questions, flames, to:
  Fidonet:   Dave Appel @ 1:231/30
  RIME:      Dave Appel -> IBMNET
  Internet:  [e-mail]

------------------------------

Date: Fri, 27 Mar 92 8:01:39 EST
From: Lance J. Hoffman <[e-mail]>
Subject: File 3--FBI OpEd in NYT (Risks Digest Reprint, #3.31)

The debate on (son of) S. 266 and on whether and how to "dumb down"
computer technology to satisfy law enforcement needs is joined in The
New York Times of Friday, March 27, 1992 with articles by William
Sessions, FBI director, and Janlori Goldman, director of the privacy
and technology project of the American

Civil Liberties Union. RISKS readers with an interest (or stake)
should read these articles carefully, and consider responding with
letters to the editor of the New York Times of their own if they have
anything to add.  If the technical community wishes to be heard, it
should speak up now.  (Letters to their congressional representatives
may not hurt either ;-) ).
                                                    Pance Hoffman

Department of Electrical Engineering and Computer Science, The George
Washington University, Washington, D. C. 20052  [phone]

++++++++++++++++++++++++++++++

>Date: Fri, 27 Mar 92 07:54:31 CST
>From: [e-mail] (Kurt F. Sauer)
>Subject: The FBI Needs Industry's Help--OpEd in NYT

FBI Director William Sessions wrote an interesting op-ed piece in
today's New York Times (Vol. CXLI, No. 48,918, Fri., Mar. 27, 1992, p.
A15) dealing with the problems which federal law enforcement expects
to encounter when placing court-ordered wiretaps on data circuits.
When I read between the lines, it sounds as if Mr. Sessions doesn't
want us to use data security which employs end-to-end encryption;
perhaps other RISKS-DIGEST readers will draw different conclusions.

[Under the rubric "Dialogue/High-Tech Wiretaps"]

             Keeping an Ear on Crime:           The F.B.I. Needs Industry's Help

By William S. Sessions

     Advances in telecommunications technology promise to deprive
Federal, state and local law enforcement officers and the public of
the incalculable benefits that can be obtained only by
court-authorized wire-tapping.

     Wiretapping is one of the most effective means of combating drug
trafficking, organized crime, kidnapping and corruption in government.
The Federal Bureau of Investigation does not want the new digital
technology that is spreading across America to impair this crucial
law-enforcement technique.  Thus, after consulting with the
telecommunications industry, members of Congress and executive branch
agencies, the Justice Department has proposed legislation that is
intended to preserve the ability of law enforcement officers to
intercept conversations of people engaged in serious crimes.

     This bill is consistent with legislation passed in 1968 after
Congress debated the constitutional problem posed by the Government's
need to address both serious criminal conduct and the individual's
right to privacy.  Congress struck a balance by passing the Omnibus
Crime Control and Safe Streets Act.

     That law and later amendments created the meticulous procedure by
which law enforcement officers obtain judicial authorization for
electronic surveillance.  Wiretaps can be used to address only the
most serious criminal, sometimes violent, threats facing society.
Only when a judge is satisfied that all statutory safeguards have been
met and all other reasonable investigative steps have failed or will
likely fail, are taps permitted.

     Digital technology makes possible the simultaneous transmission
of multiple conversations and other data over the same lines.  The
problem is that voice transmission will soon be replaced by an
endless, inseparable stream of electronic emissions, making it
virtually impossible to capture criminal conversations.

     The Federal Bureau of Investigation is not complaining.  As the
telecommunications industry develops digital technology, new services
such as Caller ID are becoming available to business and private
customers.  The new technology already has provided benefits for the
F.B.I.--for example, it helped solve the bombing of Pan Am Flight 103.

     But if digital technology is fully introduced with insufficient
attention to public safety, the effectiveness of law enforcement
officers will be greatly impaired.

     As society and technology evolve, so do government's needs and
responsibilities.  And, yes, the burden of helping to safeguard the
public often falls on those who make profits from regulated goods and
services.  It is reasonable for the telecommunications industry to
come to the aid of law enforcement.  The proposed legislation relies
on it to find technical solutions that are cost effective while
permitting the development of its technology.  Surely it can do both
in a way that insures its competitiveness.

     Indisputably, there will be financial costs associated with
whatever technical solutions the private sector might develop.  These
costs cannot be measured only in dollars; consider the price society
would pay if the ability to solve complex crimes were thwarted by an
end to wiretapping.  In a recent large-scale military-procurement
fraud case-- which was successful because of wiretaps--the fines,
restitutions, forfeitures and savings to taxpayers exceeded $500
million.

     The cost to telecommunications companies would not be so
substantial as to outweigh the consequences of an inability of law
enforcement to act.  But if nothing is done soon, as technology
advances and the digital systems become more widespread, the cost of
addressing the issue down the road will undoubtedly increase
dramatically.
     The proposed legislation does not expand the authority of the
F.B.I.  or any other criminal justice agency.  It simply preserves
what Congress authorized in 1968--nothing more.

     In recent years, Congress has expanded the Federal criminal
activities for which wiretapping may be obtained.  As in 1968, it must
decide if law enforcement should have this invaluable tool available.
I am confident that congress will again support law enforcement by
approving the necessary legislation.

------------------------------

Date: Tue, 31 Mar 92 18:23:41 PST
From: central office <[e-mail]
Subject: File 4--ACLU's Janlori Goldman's Reply to FBI Proposal (Risks Reprint)

>Date: Mon, 30 Mar 92 20:40:26 EST
>From: "Daniel B. Dobkin" <[e-mail]>
>Subject: Dumbing down the FBI

Lance Hoffman's posting on Friday mentioned the New York Times Op-Ed
dialogue between FBI Director William Sessions and Janlori Goldman,
director of the ACLU Privacy and Technology Project.  Kurt Sauer
posted Director Session's article; at the risk of preaching to the
choir, herewith is Ms. Goldman's reply.

Keeping an Ear on Crime: Why Cater To Luddites?

By Janlori Goldman

The Federal Bureau of Investigation says advances in the
telecommunications industry are likely to make it difficult to use its
old-fashioned wiretapping techniques to listen in on telephone
conversations.  The F.B.I.'s solution, in legislation the Justice
Department is asking Congress to pass, is to force the
telecommunications and computer industries to redesign their
modernized systems to accommodate the bureau's needs.  Unfairly, the
F.B.I. wants consumers to pay for it through rate increases and higher
equipment costs. The telecommunications and computer industries both
oppose a bill that would mandate such sweeping regulations.

The proposal makes the bureau look like Luddites, the 19th century
English weavers who smashed new machines that they claimed put them
out of work.  Instead of keeping up with new developments, the F.B.I.
wants to freeze progress.

It is wrongheaded and dangerous to require the industry to put
surveillance first by slowing innovation and retarding efficiency. How
can the F.B.I. justify this policy at home while the White House is
wringing its hands over U.S. competitiveness in the international
market?

The F.B.I. fears that new digital technology will make it difficult,
even impossible, to listen in on conversations by using traditional
wiretapping equipment. The new technology converts voices and data
into electronic blips and reconverts the blips into voices and data
near the receiving end on high-speed fiberoptic lines.

The bureau overstates its concern. The telecommunications industry
says it is not aware of a single instance in which the F.B.I. has been
unable to tap a line because of the widespread new technology. Even
the Director, William S.  Sessions, admitted in a Congressional
hearing last week that no warrant has been issued that could not be
executed.

At issue is the F.B.I.'s ability to wiretap in the future. But the
answer is not a legislative fix that freezes technology. The F.B.I. is
not only asking the industry to dumb down existing software, it wants
to prohibit it from developing new technologies that might interfere
with the Government's ability to intercept various oral and electronic
communications. The proposed restrictions not only cover phone
companies but also on-line computer services (such as as Prodigy and
Compuserve), electronic mail systems and bulletin boards, and
switchboards.

The F.B.I. says its proposal only seeks to preserve its legal
authority to wiretap. Actually, it wants to expand the power of the
Federal Communications Commission, which regulates the
telecommunications industry, to make the F.B.I.'s needs a priority in
designing new technologies. In its legislation, the Government
threatens to impose a $10,000-a-day fine on companies that develop
technologies that exceed the F.B.I.'s technical competence.  The
F.B.I. has it backward.  If the Government wants to engage in
surveillance, it must bear the burden of keeping pace with new
developments.  Last year, Congress appropriated $80 million for a
five-year F.B.I. research effort focused on telecommunications
advances.

There is a serious risk that rollbacks in advances may make
telecommunications networks more vulnerable to unauthorized intrusion.
One of the industry's main goals is to design secure systems that
thwart illegal interception of electronic funds transfers, proprietary
information and other sensitive data.

The F.B.I. is not the only agency trying to block progress. The
National Security Agency has tried to put a cap on the private
development of technology in encryption, the electronic encoding of
data to guard against unauthorized use.

As the private sector develops more effective encryption codes to
protect information in its data bases, the N.S.A. worries that it may
have trouble breaking such codes in its intelligence gathering
overseas. The agency is denying export licenses for certain encryption
codes, thus inhibiting the private sector's development and use of the
technology.  Congress should defeat the proposal. Otherwise, we may be
prohibited from erecting sturdy buildings if the thick walls prevent
an F.B.I. agent from eavesdropping on a conversation through a cup
pressed to a wall.

------------------------------

End of Computer Underground Digest #4.16
************************************