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The Ware House BBS Case Reconsidered, Additional F
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zcat cud5.69.z
Computer underground Digest Sun Sep 5 1993 Volume 5 : Issue 69
ISSN 1004-042X
Editors: Jim Thomas and Gordon Meyer ([email protected])
Archivist: Brendan Kehoe
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Cookie Editor: Etaoin Shrdlu, III
CONTENTS, #5.69 (Sep 5 1993)
File 1--The Ware House BBS Case Reconsidered
File 2--Additional Facts in The Ware House (Hartford) BBS Case
File 3--Plea for money forwarded from the IIRG
File 4--Calif AB 1624 *IMMEDIATE* ACTION NEEDED or 1624 will die!
File 5--Model Letter in Support of Cal E-Access Law (AB 1624)
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----------------------------------------------------------------------
Date: Sun, 5 Sep 1993 14:43:51 CDT
From: Jim thomas <[email protected]>
Subject: File 1--The Ware House BBS Case Reconsidered
Until August 2, Mike Elansky was just another 21 year old student at
the University of Hartford majoring in electronics. He also ran a BBS
affiliated with the IIRG (International Information Retrieval Guild)
called The Ware House, using "Ionizer" as his handle.
Today (Sept 5), he remains in jail unable to post his $500,000 bond.
His crime? Judging from newspaper accounts, his family, and his
attorney, it appears to be for exercising his First Amendment rights.
According to the prosecutor's indictment, Elansky's sin involves
creating risk of injury to a minor and advocating violence against law
enforcement agents. If convicted, he faces up to 10 years in prison.
BACKGROUND
The following file elaborates on the details, and there seems little
substantive disagreement over the essential facts of the case.
Elansky was considered by those who knew him as a typically normal
youth with a passion for computers and electronics. Some have also
noted that he did have an interest in explosives, neither illegal nor
odd, and that he had previous run-ins with the law for relatively
minor, non-violent offenses. This is not unusual in a society in which
up to 25 percent of male colleges students between the ages of 17-22
could say the same thing. However, nothing officially noted in
Elansky's past seems to provide any reasonable justification for the
current reaction to him.
According to media, the indictment, defense attorney Dick Brown, and
others close to the case, two "anarchy files" led to the indictment.
The files, similar to but not identical with, those found in countless
other similar ASCII files or books (especially The Anarchists Cookbook)
described pyrotechnics. The vocabulary used in the files might be
considered by some to be childish posturing or offensive bad taste.
The prosecutor considered them a direct threat to law enforcement
officers by claiming that they actively advocated violence against
police. Apparently using a minor to aid them, Hartford police
allegedly downloaded files from The Ware House's file section, and one
in particular drew their attention. According to those who have read
the file and seen the BBS logs, either the file's author or the
uploader, but *not* Elansky, introduced instructions for making an
explosive device with:
! Note to
Law-enforcement type people: ! ! This file is
intended to promote ! ! general havoc and
*ANARCHY*, and ! ! since your going to be the
first ! ! assholes up against the wall.. there
! ! isnt a damn thing you can do about ! ! it,
pigs! !
Silly? Sure. Immature? You bet. Offensive? Depends on your point of
view. In bad taste? Undoubtedly. But, ILLEGAL? Doubtful. Of sufficient
import, even when coupled with pyrotechnic instructions, to warrant
arrest, indictment, and an insurmountable bond? No way. "Way," says
the prosecutor. According to Elaine Elansky, Mike's mother, the bond
was initially set at $25,000 by the judge, but the prosecutor
intervened and succeeded in raising it. According to some inside
sources, Elansky was also denied legal representation at critical
points in the initial proceedings.
There appears to be no evidence that Elansky himself advocated or
himself was involved in any activities that advocated violence. His
apparent interest in explosives, which, according to one informant,
included a legal demonstration of a harmless pyrotechnic display as
part of a licit highschool project, added to the suspicions and
"evidence" against him. However, judging from the indictment, the only
concrete charges and substantive evidence were the "anarchy files."
WHAT ARE ANARCHY FILES?
"Anarchy" files have been a common feature of many BBSes since the
emergence of the "computer underground" culture. Their common theme
emphasizes destructive "trashing" often perceived as a primitive form
of social rebellion. The files range from silly pranks (such as "How
to fuck-up a MacDonalds," which describes "barfing techniques") to
potentially dangerous instructions for making pyrotechnical and
similar devices. Many of the files, especially those that describe
how to manufacture home-made hallucinogens or how to make "weapons"
out of strange combinations of ingredients (make explosives with soap,
vinegar, and talcum powder??), are totally ineffective. Other
instructions are not. However, even the most destructive instructions
that we have seen are simply plagiarized or slightly edited accounts
taken from licit over-the-counter literature or from other sources,
such as U.S. military manuals or highschool/college chemistry classes.
The difference is that creators of anarchy files alter the vocabulary
and rhetoric for a young audience. The new discourse tends to reflect
the social rebellion of youth rather than any serious prescription for
action. And, one is likely to learn more from watching a MacGyver
episode than from most anarchy files.
There is sufficient academic literature on the rebellious subcultures
of youth to support the claim of excessive posturing, attachment to
symbols perceived to be anti-social and shocking, and social rituals
establishing unity and identity among participants in youthful
"deviant" (a sociological, not a moral label) subcultures. This is a
common part of the maturation process as youths pass from adolescence
to adulthood. Whether in the form of the counter-culture of the
1960s, "punk-rock"/heavy-metal/thrash-metal" of the last 15 years,
"rap" lyrics that extol violence and misogyny, or even Satanism and
other esoteric and, for some, grossly offensive expressions of
rejection of mainstream society, youth find increasingly creative ways
to shock their elders in a cyclical game of generational freak-outs.
There are, of course, misguided youths unable to distinguish fantasy
posturing from reality. The most appropriate responses to troubled
youth include non-punitive intervention or, in extreme cases, law
enforcement intervention *after* they violate laws. Perhaps Mike
Elansky is one for whom intervention is appropriate. Or, perhaps not.
Based on the information released to the public so far, there appears
to exist no substantial evidence supporting the indictment other than
the availability of licit, Constitutionally-protected, youth culture
documents symbolizing "wreaking havoc" on the standards of propriety
of adults and "straights," rather than a literal advocacy of physical
assault on persons or property.
ISSUES IN THE ELANSKY CASE
Perhaps the prosecutor will find sufficient evidence to try Mike
Elansky for something. Perhaps, even if the facts are as they seem and
evidence of wrong-doing weak, he will be found guilty. After all, the
experiences of Len Rose, Craig Neidorf, Steve Jackson Games, Sun Devil
victims, Rich Andrews, and many others remind us that "justice" is not
always served by the justice system in computer-related cases.
However, the Elansky cases raises broader issues. Just a few include:
1. THE FIRST AMENDMENT: If, as the prosecutor contends, the files in
question are illegal and subject to felony prosecution with potential
imprisonment, and if, as the next file indicates, the information in
these files is readily accessible to the public through licit
channels, then what is the basis for targeting a BBS sysop for
prosecution while ignoring public libraries and bookstores? Does this
mean that the prosecutor rejects First Amendment protections for
BBSes? If so, the implications for electronic publishing are
staggeringly frightening: It subjects sysops and users to an arbitrary
standard of acceptability that apparently may be determined at the
discretion of individual prosecutors. Whatever suspicions the
prosecutor may have about Elansky's activities, making the anarchy
files available is the crux of the indictment, and if successful in
his prosecution for making it available, the chilling effect on
electronic publishing will be substantial.
2. ELECTRONIC PUBLISHING: The following IIRG file notes the
availability of numerous anarchy texts and discussions on the nets and
elsewhere. If prosecution of the Elansky case is successful, a
precedent could be established that would stifle both publishing and
public discussion. If Elansky is found guilty as charged in the
indictment, should administrators at the University of Hartford also
be held liable for making such information available to minors through
its computer facilities? Could other BBS sysops be punished? Would a
user who calls a BBS in New York and downloads the file be at risk for
a federal crime by transporting "illegal files" across state lines?
MEDIA: It appears that Mike Elansky may be less than a saintly naif.
It also appears that he is hardly a hardcore villain. Perhaps this is
why the media doesn't find his situation worthy of front page news.
But, Mike Elansky, depressing as his situation is, and unjust as his
situation may seem given the current available facts, IS NOT THE
ISSUE. When The Department of Treasury BBS was criticized for having
virus source code and "underground files" (that included Cu Digest)
available, the story made the front page of the Washington Post, CNN,
the AP Wires, and other media (see CuD 5.51, 5.57, 5.58). When a
poster on The Well, a public access system in California, was using
ASCII to hustle four women, some simultaneously, it made the front
page of the Washington Post, and was given prominent play in Time
Magazine, The Chicago Tribune, The San Francisco Chronicle, and
numerous other papers. On a slow news day, mundane sex and fabricated
scandal sells. Substantive stories that are slow, lack a sexy angle,
or may require thought rather than momentary titillation, are boring.
Yet, the implications of of a kid languishing in jail because he can't
post $500,000 bond for running a BBS with "anarchist" files has
implications of far more import than cyber-sex. Perhaps Mike Elansky
is the next terrorist-from-hell, using his board to plot mayhem, as
his prosecutor suggests. Or, perhaps he is just some young kid who is
being persecuted for exercising First Amendment rights in a form of
persecution that illustrates prosecutorial abuse and trampling of the
Constitution. Either way, it is curious that those who cover
cyberspace for the major media find "cyber-Lotharios" more worthy of
investigation than a story with substance. Something is not right in
Hartford, and therein lies the story.
A FINAL COMMENT
The battle over symbolic boundaries between "good" and "evil" often
reflects conflicts of clashing values and cultures. When laws are used
creatively as weapons to suppress distasteful, but licit, language and
behavior rather than to enforce the law and ensure Constitutionally
protected rights, then the government abuses the law. To recast former
U.S. Supreme Court Justice Louis Brandeis's 1928 comment, if
government abuses law, it breeds contempt for law and invites people
to become a law unto themselves--it invites anarchy. Whatever Mike
Elansky may or may not have done, the implications of the ostensible
indictment for publishing "anarchy files" seem to overstep both the
spirit and the letter of the Constitution. Judging from the facts
currently available, it appears that the handling of the Elansky case
may be another instance of law enforcement excess in attempting to
police cyberspace. If so, continued attempts by law enforcement to
impose moral standards by excessive use of law cannot be ignored.
Dissemination of information, especially information that puts others
at risk, also entails responsibilities. It strikes me as far more
appropriate to discuss the implications of information made
increasingly accessible by expanding information technology rather
than attempt to establish moral boundaries by fear of prosecution.
------------------------------
Date: Sat, 4 Sep 1993 18:02:07 CDT
From: IIRG Reprint <[email protected]>
Subject: File 2--Additional Facts in The Ware House (Hartford) BBS Case
((MODERATORS' NOTE: The following is reprinted from Phantasy #18, the
IIRG Newsletter. It's homebase, Runestone BBS (see CuD header), is
located in Hartford, Conn. CuD editors have edited it slightly)).
+++
Section [1]: "Ionizer" - IIRG Site Sysop Arrested A Report By The
IIRG
Ionizer the sysop of the Ware House was arrested on Monday August 2nd
as he entered a pretrial hearing at the Hartford Superior
Court, Hartford Connecticut, to face charges of his alleged connection
for a break-in at Hall High School on October 11th, 1992.
Ionizer was arrested for "Inciting Injury to Persons or Property", a
felony, and "Risk of Injury to a Minor".
Apparently Ionizer was taken to the West Hartford, CT. police
department and was quickly photographed and fingerprinted and then was
whisked away to the West Hartford Superior Court and was
arraigned, (without his lawyer being present) and was ordered held on a
$500,000 bond.
West Hartford police are attempting to keep the case sealed, but the
charges against Ionizer are for having Anarchist files available for
download on his BBS, The Ware House.
In our discussion with a source close to the events, the police have
apparently used strong-arm "Big-Brother" tactics on a 14 year-old by
the handle of, "Misguided Youth" who had access to the Ware House.
Reportedly police approached him and threatened to drag him into
court if he didn't sign an affidavit that he downloaded the file
"ANARC2.ZIP" from the Ware House.
When Ionizer first heard wind of police hassling users of his system,
he supplied his entire system log (Ionizer kept his system log since
day 1 of the system being up) to an IIRG member for analysis.
We have analyzed the Meg Plus file and have found no record of
Misguided Youth ever downloading the file from Ionizer's BBS. In fact
only 2 users have ever downloaded ANARC2.ZIP that we could find.
1. HITMAN 18:56 05/23/93 LIBRARY FILE DOWNLOAD
User Hitman download ANARCHY\ANARC2.ZIP
2. HOLLYWOOD 14:35 05/24/93 LIBRARY FILE
DOWNLOAD User Hollywood download
ANARCHY\ANARC2.ZIP 14:50 05/24/93 LIBRARY
FILE DOWNLOAD User Hollywood download
ANARCHY\ANARC2.ZIP
Now apparently it seems that the West Hartford police department
feels it can either intimidate anyone it feels like, or fabricate
evidence.
Several other Ware House users have been contacted by phone by police
and questioned, We know "Mastermind" was contacted and was asked "Are
you good friends with Ionizer?' and "Did he ever mention anything
about the making of pipe bombs to you?'.
According to Ionizer, the police are claiming an undercover police
officer with the West Hartford Narcotics division is claiming to also
have downloaded the file.
Hitman has also been contacted by police and asked to supply a copy
of the file in question, and this is events we were told happened,
Quote from Hitman - Date : 08 Aug 93 10:19:14
I'll tell you the whole story, as I told it to Ionizer last
night (he called me from jail). When I was out one day, the
detective Mr. Anielwiski (or something like that) called. I
wasn't home, so, he talked to my dad. My dad thought I was
doing all of this shit too, so, he took it way out of
proportion. I got home, and he made me search for a file
'ANARC.*' on my hard drive. Since it is really his computer
and his phone line, there is nothing that I could have done,
since he could have easily done it himself. Anyways, he said
to delete it, so I wiped it via Norton's WIPE program, so it
couldn't be recovered. Anyways, I guess the detective called
back, and my dad said that I had the file. But, it was
wiped. Anyways, my dad thought we'd just undelete it, but,
he didn't realize that the file would just be a null file
when we did so. The rest of the story is what he told me, as
I was at work the rest of the day. The detective came over,
and I guess my dad copied the null file onto a floppy, but, I
think the floppy was bad anyways. At any rate, to my
knowledge, there is no information at all on the floppy, and,
I've got no other copy of it on my hard drive.
--Hitman
Now the file in question is ANARC2.ZIP, which is ANARCHY FOR FUN AND
PROFIT By: The Deth Vegetable Volume 1, Issue 2.
It seems that this file is being singled out by the police because of
its high bomb making instructions content and this message in the
header of the file,
++++++++++++++++++++++++++++++++++++++++++++++++++++++++
/--------------------------------------\ ! Note to
Law-enforcement type people: ! ! This file is
intended to promote ! ! general havoc and
*ANARCHY*, and ! ! since your going to be the
first ! ! assholes up against the wall.. there
! ! isnt a damn thing you can do about ! ! it,
pigs! !
\--------------------------------------/
--------------------------------------------------------------
----------------
None of the information contained in ANARC2.ZIP could be considered
classified or secret as the information in the file is easily
obtainable in any book store in books like "The Anarchists Cookbook"
or "Ragnar's Guide to The Home and Recreational Use of High
explosives".
We did a little investigating and found "The Anarchists Cookbook", By
William Powell on the shelf at "Barnes and Noble" bookstore in West
Hartford, CT. (Hey Police, better run over and shut them down!!).
We also found "The Anarchists Cookbook" at the Tunxis Community
College Library in Farmington, CT. (HX 844 P68) and at the University
of Connecticut at Storrs Library (SPEC APC BK f33), so it is available
at public libraries for underage children to read and enjoy.
Also after a little searching on the international network of
computers known as "Internet" look what we found available for
download by "ANYONE" with a computer and modem, (Including Under-age
Children).
--------------------------------------------------Host
cs.ubc.ca (137.82.8.5) Last updated 03:33 28 May 1993
Location: /mirror3/EFF/cud/misc FILE rw-r--r-- 7936 Mar
8 1992 anarch.man
Host kragar.eff.org (192.88.144.4) Last updated 00:05 17 Apr 1993
Location: /pub/cud/misc FILE r--r--r-- 7936 Mar 8
1992 anarch.man
Host nic.funet.fi (128.214.6.100) Last updated 06:11 22 Mar 1993
Location: /pub/doc/cud/misc FILE r-xr-xr-x 7936 Mar 8
1992 anarch.man
Host cs.ubc.ca (137.82.8.5) Last updated 03:33 28 May 1993
Location: /mirror3/EFF/academic/books/zzz FILE rw-r--r--
99 Apr 24 17:06 anarchists_handbook.d
Host kragar.eff.org (192.88.144.4) Last updated 00:05 17 Apr 1993
Location: /pub/academic/books/zzz FILE rw-rw-r-- 81
Oct 23 05:29 anarchists_handbook.d
Host cs.ubc.ca (137.82.8.5) Last updated 03:33 28 May 1993
Location: /mirror3/EFF/academic/books FILE rwxrwxrwx
25 Oct 11 1992 anarchists_handbook
->
zzz/anarchists_handbook.d
Host kragar.eff.org (192.88.144.4) Last updated 00:05 17 Apr 1993
Location: /pub/academic/books FILE rwxrwxrwx 25 Dec
2 04:31 anarchists_handbook
->
zzz/anarchists_handbook.d
Host wpi.wpi.edu (130.215.24.1) Last updated 03:31 22 Jul 1993
Location: / DIRECTORY rwxr-xr-x 512 Jul 7 09:20 anarchy
Host unix.hensa.ac.uk (129.12.21.7) Last updated 01:46 26 Jun 1993
Location: /pub/uunet/doc/political/umich-poli/Essays/Anarchy FILE
rw-r--r-- 8613 Jan 8 03:36 anarchism.today.Z
Location: /pub/uunet/doc/political/umich-poli/Essays/Chomsky FILE
rw-r--r-- 22156 Sep 17 1992 notes.on.anarchism.Z FILE
rw-r--r-- 55985 Feb 2 16:09 notes.on.anarchism.ps.Z
Location: /pub/uunet/doc/political/umich-poli/Spunk FILE
rw-r--r-- 861 Mar 1 20:37 README.practical.anarchy.Z
Location: /pub/uunet/usenet/control/alt FILE rw-r--r--
1535 Sep 11 1992 alt.society.anarchy.Z
Host nic.cic.net (192.131.22.2) Last updated 01:14 22 Mar 1993
Location: /pub/nircomm/gopher/e-serials/alphabetic/p DIRECTORY
rwxr-xr-x 512 Mar 19 16:11 practical-anarchy
Location:
/pub/nircomm/gopher/e-serials/alphabetic/p/practical-anarchy
FILE rwxr-xr-x 54325 Mar 18 23:02
practical-anarchy.v1n3
Location: /pub/nircomm/gopher/e-serials/general/politics FILE
rw------- 92 Mar 21 23:38 .practical-anarchy
Host unix.hensa.ac.uk (129.12.21.7) Last updated 01:46 26 Jun 1993
Location: /pub/uunet/doc/political/umich-poli/Essays/Anarchy FILE
rw-r--r-- 3550 Mar 18 21:17 anarchism.and.power.Z FILE
rw-r--r-- 23063 Mar 6 19:45 anarchy-faq-0.1.Z
Host charon.mit.edu (18.70.0.224) Last updated 02:34 26 Jul 1993
Location: /pub/usenet-by-group DIRECTORY rwxrwxr-x 512 Jul
12 02:46 alt.anarchism
Host cs.columbia.edu (128.59.16.20) Last updated 10:24 26 Jul 1993
Location: /archives/mirror2/faq DIRECTORY rwxrwxr-x 512 Jul
12 09:54 alt.anarchism
Host wiretap.spies.com (130.43.43.43) Last updated 03:06 22 Jul 1993
Location: /Library/Article/Socio/.cap FILE rw-r--r--
28 Apr 5 19:08 anarchy.bib
Location: /Library/Article/Socio FILE rw-r--r-- 23565
Dec 24 1992 anarchy.bib
Host unix.hensa.ac.uk (129.12.21.7) Last updated 01:46 26 Jun 1993
Location: /pub/uunet/doc/political/umich-poli/Essays/Anarchy FILE
rw-r--r-- 3196 May 11 17:35 anarchist.revolution.Z FILE
rw-r--r-- 5621 May 11 17:37
macsimin.anarchist.federation.Z
Host wpi.wpi.edu (130.215.24.1) Last updated 03:31 22 Jul 1993
Location: /anarchy FILE rw-r--r-- 44492 Jul 7 09:19
anarchy.tar.Z FILE rw-r--r-- 61332 Jul 7 09:20
anarchy.tar.Z.uu
Host wiretap.spies.com (130.43.43.43) Last updated 03:06 22 Jul 1993
Location: /Library/Article/Socio/.cap FILE rw-r--r--
39 May 28 06:28 anarchy.faq
Location: /Library/Article/Socio FILE rw-r--r-- 45315
May 28 06:28 anarchy.faq
Host charon.mit.edu (18.70.0.224) Last updated 02:34 26 Jul 1993
Location: /pub/usenet-by-hierarchy/alt DIRECTORY rwxrwxr-x
512 Jul 12 02:46 anarchism
Host nctuccca.edu.tw (140.111.3.21) Last updated 01:04 13 Jul 1993
Location: /USENET/Periodic_Postings/alt DIRECTORY rwxr-xr-x
512 Jul 12 1993 anarchism
Host orchid.csv.warwick.ac.uk (137.205.192.5) Last updated 05:41 31
Jul 1993
Location: /pub/cud/misc FILE r--r--r-- 3077 Mar 8
1992 anarch.man.z
Host clover.csv.warwick.ac.uk (137.205.192.6) Last updated 05:04 26
Jul 1993
Location: /pub/cud/misc FILE r--r--r-- 3077 Mar 8
1992 anarch.man.z
-------------------------------------------------
Our point is simple, this material is publicly available almost
everywhere and the last time we checked (Despite Clinton), we still
lived in a FREE country with the constitutional right of free speech.
This is a plain and simple case of Police Harassment against Ionizer.
We are not claiming he is an angel or saint by any means, as he has
had numerous encounters with the West Hartford police including his
arrest in 1988 for illegal use of credit cards, computer crime,
larcency, and the illegal posession of fireworks.
But to arrest an individual for having a file on his computer that is
public domain (Not Copyrighted) and setting a half million dollar bail
is complete bullshit.
The EFF has been contacted and we hope the will come to the aid of
Ionizer, because this may determine what you may have online as a
sysop.
Ionizers preliminary court date is scheduled for August 17th, 1993,
and we will provide you with an update in Phantasy 19.
FREE IONIZER!!! -=The IIRG 1993=-
------------------------------
Date: Mon, 30 Aug 93 7:08:52 CDT
From: Ron <[email protected]>
Subject: File 3--Plea for money forwarded from the IIRG
The International Information Retrieval Guild's
FREE IONIZER FUND
Buy His Freedom, Stop Government Censorship!
As many of you may already be aware, Ionizer - an IIRG Site Sysop
has been arrested by the West Hartford,Connecticut Police
Department.
For Full details of His arrest we would refer you to Phantasy
Magazine #18.
We would ask you to donate whatever you can afford to his legal
defense.
All funds collected will be used for Mike's defense and no other
purpose. Mike's bond has been set at $500,000 Dollars and his legal
fees have already amassed to over $15,000 Dollars.
Since Mike's only crime is having "Anarchy" files online for his
users downloading pleasure. We feel that winning this case is of the
upmost importance to all of us in the telecom community.
If we do not stop the government in its attempts to censor the
public, we have abandoned what it truly means to be a Freedom
Loving American.
Send Whatever you can to:
FREE IONIZER
C/O David Elansky
25 Maiden Lane
West Hartford,Connecticut 06117
Make Checks or Money Orders Payable to Michael Elansky (Ionizer)
This way we are assured all money goes directly to his defense
((The bank's account number for the fund should be placed on the
checks: 02-060-573652))
------------------------------
Date: Sat, 4 Sep 1993 13:25:38 -0700
From: Jim Warren <[email protected]>
Subject: File 4--Calif AB 1624 *IMMEDIATE* ACTION NEEDED or 1624 will die!
((MODERATORS' NOTE: The California "electronic access" Bill could
soon be a reality, but the squabble over fees may kill it.
California readers should contact their representatives and voice
their views in the next few days!))
++++
Sep. 4, 1993
AB1624 HAS PASSED SIX TIMES, UNANIMOUSLY
Before their summer vacation, two Assembly committees and the full
Assembly each passed AB1624, each by unanimous vote.
Aug. 18th, it passed Senate Rules, unanimously. Sep. 2nd, it passed Senate
Appropriations on a Rule 28.8 waiver, classified as unanimous approval. The
next day, Sep.3rd, it passed the full Senate, unanimously.
It only needs Assembly "concurrence in amendments" to pass the Legislature.
(As is usual, it was amended at almost every step of the way. See updates.)
The Assembly can vote with two days to spare, before they recess Sep. 10th.
But ...
JOHN BURTON (Democrat-San Francisco) WILL DEMAND FEES OR KILL IT
Bowen's original bill had no fee requirements for those using electronic
copies of public legislative info, just as there is no fee for using paper
copies (except in bulk, and then fees only partly cover printing costs).
Before Burton would permit his Assembly Committee on Rules to hear AB1624,
he forced Bowen to include amendments requiring any "individual or entity"
who wanted to "republish or otherwise duplicate" *electronic* copies of any
of this public information to first obtain (1) approval from the Joint Rules
Committee, (2) authorization [a contract] from the Legislative Counsel [who
currently peddles the data on magtape for $300,000-$400,000 per year] and
(3) pay whatever "fee or other charge" the Legislative Counsel demanded.
That would include 25-cents-per-hour BBSs, $20-per-month fixed-fee Internet
hosts, libraries that charge a fee for using their computers, schools that
charge a lab-fee for computer courses, the 25-cents cafe terminals in San
Francisco (often used by the homeless for mail and contacts), etc. - none of
which are set up to monitor when users access fee-sucking "public" legislative
data, versus all the rest of their fee-free services.
It would not, however, charge end-using corporations or lobbyists.
Aside from being clearly unenforceable, it would create two outrageous
precedents:
1. Copies of public information that are most timely, cost the least to
make and are in most useful form would cost money, while snailmailed,
landfill/paper more-costly copies arriving too late to be useful remain free.
2. Those who can and will pay for *useful* access to public records can get
modern access, while all other citizens are 2nd-class peons, functionally
prohibited from practically participating in their [our] own governance.
BURTON SAID FEE REQUIREMENT COULD BE AMENDED-OUT IN THE SENATE; IT WAS
After most of these points were brought out in the May 24th hearing of his
Rules Committee, and Bowen said she never wanted use fees in the first place
and would like to delete them, Burton said, "You can amend them out in the
Senate" - which Bowen did (and Burton noted that would force the bill to
return to the Assembly for concurrence in [Senate] amendments).
NOW BURTON WANTS FEE REQUIREMENTS BACK IN
Now - to hell with his public statement in May:
When checking with Bowen's office yesterday evening, I asked if she had
spoken with Burton [the *only* known roadblock to passage]. Bowen's
spokes-creature would only say, on the record, that, "Our understanding is
that Mr. Burton still wants to charge anyone who resells the data ..."
And Bowen won't accept fee-requirements for using public information
(at least *one* legislator *does* understand the principles of "public"
records, regardless of form and ignoring loot-seeking legislators).
Burton is apparently willing to exempt newspapers, but still wants to
screw everyone else that charges *any* fee at all for *any* access that
includes legislative data.
PASS IT NOW, OR BOWEN CAN'T TRY AGAIN UNTIL 1995; NOT EFFECTIVE UNTIL 1996
Legislators are prohibited from introducing a bill on the same subject more
than once in each two-year legislative session. If AB1624 is killed now,
Bowen can't re-introduce it until 1995, not to become effective until 1996.
BEFORE Sep.8th, BURTON NEEDS TO HEAR FROM CITIZENS HE *SUPPOSEDLY* REPRESENTS
If you live in San Francisco, fax or phone Burton and demand equally-free
access, regardless of form or later use - as one of his *constituents*.
If you live outside of San Francisco, phone or fax him as Chair of the
Assembly Rules Committee, telling him public access is more important than
a rake-off to the Legislative Counsel (that's the only real issue).
Ask your friends to do the same - especially those working or living in SF.
BEFORE Sep.8th, WILLIE BROWN NEEDS TO HEAR THE SAME MESSAGE
Speaker Willie Brown is one of the few people who can [usually] persuade
Burton. He's known to be [passively] supportive of electronic public-access.
He needs to know that we care about free, equal access, regardless of use.
BEFORE Sep.8th, ASK YOUR REPRESENTATIVE TO SUPPORT AB1624 WITHOUT CHANGES
Burton may [will?] try to amend AB1624 on the Assembly floor - probably to
charge every vile fee-charger except, of course, powerful newspapers.
Or, in order for Burton to control the bill, he must get the full Assembly
to assign it to his personal barony, the Assembly Committee on Rules.
Ask your representative in the Assembly to refuse any motions to amend
AB1624, or to again assign it to Burton's Rules Committee - given the late
date, six unanimous votes in its favor, almost 70 organizations and close to
a 1,000 individuals supporting it, and not a single formal opponent to it.
[ILLUSTRATING WHY ONLINE ACCESS IS NEEDED] CALL OR FAX; SNAILMAIL IS TOO LATE
Hundreds of bills are being rammed through - or killed - in this final
week before our full-time legislators recess for the rest of the year. Most
are going through on rule waivers.
The Assembly can consider Burton's [expected] request probably as early as
Monday, Sep.6th. It could pass it as early as Sep.8th. It recesses Sep.10th.
ASSEMBLY COMMITTEE ON RULES CHAIR JOHN BURTON: CONTACT VECTORS
Hon. John Burton, fax/916-324-4899
voice/916-445-8253 (plead with / talk to Sr.Asst. Cathy Gardella if possible)
To send him too-late snailmail: Room 3152, State Capitol, Sacramento CA 95814
NEW INFO: SPEAKER WILLIE BROWN'S FAX NUMBER
A "better-connected" e-writer sent in Willie Brown's fax #: 916-445-4189
voice/916-445-8077 (talk to Chief-of-Staff Michael Galizio if possible)
Essentially-useless snailmail: Room 219, State Capitol, Sacramento CA 95814
FOR YOUR LEGISLATOR'S PHONE & FAX NUMBERS, CALL BOWEN'S OFFICE (OR CALL ME)
You can get your Assembly Member's phone number, and maybe fax number,
from Bowen's office, 916-445-8528 (often there evenings and weekends!).
------------------------------
Date: Sun, 5 Sep 1993 12:31:00 -0700
From: Jim Warren <[email protected]>
Subject: File 5--Model Letter in Support of Cal E-Access Law (AB 1624)
Sep. 5, 1993
Hon. John Burton, Chair
c/o Cathy Gardella, Senior Assistant
Assembly Committee on Rules
State Capitol, Room 3152
Sacramento CA 95814
by fax, only: 916-324-4899, because snailmail will be too late
Dear Mr. Burton,
I write to plead with you to reconsider your position on AB1624. As I
understand it, you want to require Rules Committee approval, Legislative
Counsel contract, and fees or other charges as required by Legislative Counsel
of every entity that charges a fee for publishing or otherwise circulating
public legislative records that they receive electronically from the
Legislative Counsel's computer via the nonprofit, nonproprietary public
computer networks.
I ask that you reconsider your demand for fees, for at least ten reasons:
1. BAD PRECEDENT -- FREE FOR OLD-FASHIONED PAPER VS. FEES FOR MODERN ACCESS
Demanding fees -- in excess of the state's incremental cost of duplication
and distribution, which is nil in the case of electronic access -- for copies
of public information based only on its physical form (electrons vs. paper)
sets dangerous precedent. It is equivalent to charging for more-economical
printing-press copies of public records in the 15th Century when it was
customary to have scribes tediously hand-copy public information.
2. CREATES TWO CLASSES OF PUBLIC ACCESS BASED ON WEALTH AND POSITION
You can demand permission, contracts and fees of everyone who charges
something for distributing information, incidentally including public
information -- except, of course, the politically-powerful newspapers. But
then, you will limit modern access only to those "First-Class" citizens who
(1) work in positions where they have free access to the public computer
networks or (2) those who are willing and able to pay unnecessarily-high
access charges to the few for-fee services that would tolerate the bureaucracy
and fees prerequisite to including electronic public records in the
information they make available.
All other citizens will be limited to "Peon-Class" access to paper public
records that often arrive too late to allow anything other than anger and
frustration over being shut out of the Legislature's decision-processes by the
delay of what most of us call "U.S. Snail Mail."
3. YOU WOULD EXCLUDE SCHOOLS, COLLEGES, STUDENTS, LIBRARIES, HOMELESS, ETC.
In 1989, the U.S. Census Bureau reported that 46% of all students "had
regular daily contact with computers." Many K-12 schools, teachers and
students use computers that charge some nominal fee for their systems to
access electronic-mail, global discussion groups, U.S. Supreme Court
decisions, the Library of Congress, the Congressional Record, etc. Many are
nonprofit or low-profit systems.
Many colleges and universities charge lab-fees for computer-lab courses.
Many public and institutional libraries charge some nominal fee for using
their computers to access otherwise-free global information databases and huge
public-records files.
Many of San Francisco's homeless are now using public computer terminals in
cafes and other public locations to send and receive mail, exchange
information on food and shelter sources, etc. But, the terminals are coin-
operated, and thus could not be used for accessing legislative information
unless each cafe or terminal-owner contracted with and paid fees to your
Legislative Counsel.
There are endless additional examples and variations.
4. BUREAUCRACY AND FEES WOULD DETER MOST LOW-COST PUBLIC ACCESS
There are no Andrew Carnegies to pay for today's modern electronic
libraries. Those who are building them must somehow fund them. Most charge
as little as possible -- directly or indirectly -- but many do, somehow,
charge.
Most people currently using the public networks do so at work or school.
Many pay nothing, although the company or school system may charge some fee to
the department using their services.
Others users pay a small student or researcher's lab-fee or small library of
coin-operated fee.
Many people gain toll-free global information access via electronic
bulletin-board systems (BBSs) run out of peoples' homes or incidental to small
businesses. They may charge, perhaps, 25-cents per hour, if they charge
anything.
Other folks who don't have free access at work or school or library or
community network may pay $15 to $20 per month, fixed-fee, for unlimited use
of low-cost public Internet host-computers -- for electronic-mail, global
discussions, worldwide public-file access . . . and for access to federal and
state public records.
Unless you structured a baroque labyrinth of bureaucratic regulations, your
fee-for-fee mandate would snare most or all of these public-access systems.
Your fee-for-fee requirement would cause most low-cost public-access
information services to necessarily refuse to carry your fee-laden electronic
public records. And most would almost-certainly broadcast an outraged,
furious outcry to all of their users -- that would be quickly echoed to you
and other legislators.
5. IMPOSSIBLE TO ENFORCE; WOULD INCITE WIDESPREAD VIOLATION OF YOUR LAW
About 15- to 20-million people are now using networked computers -- at work,
in schools, colleges, libraries, nonprofit organizations, homes, corporations
and some are also in lawyers' and lobbyists' offices. They use one or several
of the 1.8-million host-computers in the public Internet, or one of more than
24,000 BBSs in the free Fidonet, or any of the thousands of other computers
that are "gatewayed" to those and other public networks.
Most folks think of public records as, in fact, being public -- and will
copy them freely. Even if they are doing so directly or indirectly via a
computer system that charges some fee for use.
Any fee requirement for public information accessed directly or indirectly
via a fee-based
6. A TECHNICAL NIGHTMARE -- WHO PAYS? HOW MUCH SURVEILLANCE OF USERS?
Almost any fee-for-fee requirement would create monumental contortions -- or
gross disregard -- due exclusively to how the networks operate. Example:
I receive free copies of free electronic public legislative data via one of
the computers in my high-profit private-sector corporation (it produces
computer-aided-design software; has nothing to do with legislative
information, other than as an end-using "citizen").
I see a legislative item that I think would be of interest to readers of
several public news-groups -- electronic "newsletters" in which anyone may
publish and distribute anything. So I "post" the item in those news-groups,
that include numerous of items from numerous individuals.
News-groups typically have automatic regional-to-global circulation --
including distribution to fee-charging (job-producing) information systems,
that may or may not be for-profit operations.
Must each of them scan and censor what they receive, if their users pay some
fee for accessing news-groups? Note: There are already several of us who
were/are planning to automatically post ALL public legislative information to
some news-groups that focus on legislation -- as is a common information-
sharing practice across the public networks.
7. SUPPORT -- DON'T SUPPRESS -- DEVELOPMENT OF HIGH-TECH SMALL BUSINESS
There are "only" 700,000 to a million Californians who currently use access
to the public computer networks -- this year. But that is an increase of
perhaps 80% over last year. Like the first television on the block, or the
first telephone in town, public electronic information access is exploding.
There are "freenets" and community networks currently being organized in
almost every urban area of the state, with many reaching the suburban and even
rural areas.
Those who can't find capital and operating grants are planning on charging
fees -- but the lowest possible fees. These include networks operated by
public agencies, libraries, schools, etc.
Almost all of these public-access systems -- fee or free -- are small,
innovative, job-producing systems providing valuable information and
communications access to an exploding population of users.
Please do not suppress or deter their access to your public information.
8. FREE LAND-FILL PAPER VS. FEES FOR RECYCLABLE ELECTRONS
Do you really want to set the precedent that distributing public records in
the form of speed-of-light, essentially-free, recyclable electrons should
require permission, contracts and fees, while the same identical information
in the form of delay-ridden, pre-landfill paper made from former trees remains
available for free?
9. PRECEDENTS FOR ELECTRONIC SPEECH, ELECTRONIC ASSEMBLY, ELECTRONIC PRESS
I understand you plan to exclude subscription newspapers from your fee-for-
fee mandate. Will the newspapers that have both paper and electronic copies,
such as the San Jose Mercury News, be permitted to publish legislative
information electronically, without cost, while other electronic publishers
must obtain permission, sign contracts and pay fees only because they do not
also publish paper copies?
Must my speech that might include legislative information be censored, when
I communicate via computer network to anyone who is paying some fee to the
computer system on which they receive my comments? Or must their system
censor public legislative information that I include in my comments?
Must those citizens who assemble electronically exclude participants who use
for-fee systems for their participation, whenever California legislation is
discussed, verbatim?
10. YOUR PRECEDENT FOR THE PEOPLE'S RIGHT TO PETITION THEIR GOVERNMENT
Must the People's right to petition the government for a redress of
grievances be limited to paper, verbal and face-to-face petition, but censor
publication and distribution of public legislative records, IF and only if
they are in electronic form?
Mr. Burton -- please!
Do not hamper modern public access to modern public records by demanding
fees and bureaucracy to benefit your Legislative Counsel. His current
computer and his current public-network connection costs him the same, whether
he uses it only to benefit his staff and the legislators, or whether he also
uses it to provide great benefit and open government to the public.
Honor the award you received from the Society of Professional Journalists
for your work to assure open access to our government and our governance.
Support maximum public access to public records, even when they are
distributed at less cost and with greater speed in electronic form.
John -- please! -- let me report that you are a part of the future.
I remain,
Sincerely,
/s/ Jim Warren
Jim Warren,
futures columnist, MicroTimes (220,000 California circulation),
government-access columnist, BoardWatch (60,000 national and global circ.) &
public-access writer, Government Technology (60,000 to state & local agencies)
[My comments are not official statements of the publications for which I
write, but they most-certainly do reflect the content of my columns.]
Note: I have NO business or financial interest in the outcome of this
legislation. I do, however, have a great civic interest in the opening of the
process of our governance that it can facilitate -- if it is not suppressed.
------------------------------
End of Computer Underground Digest #5.69
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