Bernie S. 1/26 hearing, Default gateway to .fidone
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Computer underground Digest Tue Jan 30, 1996 Volume 8 : Issue 09
Editors: Jim Thomas and Gordon Meyer (TK0JUT2@MVS.CSO.NIU.EDU
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Field Agent Extraordinaire: David Smith
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #8.09 (Tue, Jan 30, 1996)
File 1--Bernie S. 1/26 hearing
File 2--Default gateway to .fidonet.org going down (fwd)
File 3--The "Space" of Cyberspace (fwd)
File 4--Privacy in the Workplace
File 5--Cu Digest Header Info (unchanged since 16 Dec, 1995)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
Date: Tue, 30 Jan 1996 05:50:36 -0500 (EST)
From: Emmanuel Goldstein <emmanuel@2600.COM>
Subject: File 1--Bernie S. 1/26 hearing
The events of 1/26/96 were about as unbelievable as the events that
have transpired throughout this case. The only positive development
is that more people are slowly starting to realize what's happening.
Two and a half hours after the sentencing was to be held, the judge
arrived in the courtroom. His demeanor seemed significantly more
upbeat and open than his previous appearances. Perhaps this had to
do with the fact that Ed's lawyer and members of the press were in
attendance. The judge allowed everyone involved in the case to speak:
Probation Officer Scott Hoak, Haverford Township Detective John K.
Morris, Secret Service Agent Thomas L. Varney, Ed's attorney (Ken
Trujillo), and Ed himself.
Throughout the hearing, the main issue was whether or not Cummings
was a threat to the community. Varney was adament in his assessment
of Cummings as a danger but when pressed by Trujillo could come
up with nothing more substantive than the books found in Cummings'
home. These books came from publishers like Loompanix and dealt
with such things as making bombs and establishing false identities.
The other damning evidence was a list of Secret Service frequencies
(from an issue of Monitoring Times), a copy of a magazine article
that listed Secret Service codenames for President Reagan (dated 1983),
and a material that the Secret Service had suspected was C4 but which
later turned out not to be. For some reason they feel compelled to
mention this at each hearing as if C4 had actually been found when in
fact the substance was something dentists use to mold dentures (the
owner of the house was a dentist).
Trujillo successfully managed to get Varney to admit that no guns or
explosives of any sort were found. No evidence was presented to indicate
that Cummings was ever a threat of any sort to anybody. What's more,
Cummings proved his responsibility by immediately getting a job after
the Secret Service locked him up for most of last year and also by
dutifully showing up for each hearing that was scheduled in Easton,
even though the threat of more prison time loomed.
Cummings apologized to the court for his "odd curiosity" of the past,
insisting that he merely collected books and information and never
caused harm to anyone. His lawyer pleaded with the judge to allow
Cummings to pick up the pieces of his life and not be subjected to
any more inhumane treatment.
In the end, the judge was not interested in whether or not Cummings
posed a threat. He saw a probation violation and therefore withdrew
the probation. Sentencing was postponed to March 5th. But the judge
showed some compassion. He lowered the $250,000 bail to $100,000.
Currently Cummings is imprisoned in the maximum wing of the prison
where people with the highest bail are kept. He's with murderers and
rapists. Conditions are appalling. One of the prisoners is on death
row - his name is Joseph Henry and he bit off a woman's nipples and
clitoris before strangling her with a slinky. These are the kinds of
people the Secret Service has condemned Cummings to be with.
When Cummings was originally put on probation years ago, the probation
officer told him he thought the whole thing was a big waste of time.
The only thing he was accused of, after all, was taking batteries out
of a tone dialer that a cop was questioning him about. And the really
ironic part was that Cummings wasn't even the person who took the
batteries out - it was one of his friends. But he was not about to
turn a friend in for something so absurd. After all, this was a very
minor thing - he paid a fine of nearly $3,000 and was put on probation
and that was it.
When the Secret Service threw Cummings in prison for possession of
a red box in early 1995, they knew he could be screwed again when he
finally got out since being arrested is a probation violation. And
Special Agent Thomas Varney spent a great deal of effort to see that
this is exactly what happened. He made multiple trips to Easton and
convinced the local authorities to lock Cummings up as if he were the
most sadistic of killers.
On Friday, Cummings' probation officer did an aboutface and told the
court that he thought Cummings represented a very great danger to the
community. Outside the courtroom, he and the other local law enforcement
people crowded around Varney like kids surrounding a rock star. He was
their hero and maybe one day they would be just like him.
It would be good to say that the press showed up and the rest of the
world finally got to see one of the greatest injustices perpetrated
by the Secret Service. But the only headlines to come out of this
charade said things like "Judge Hangs Up On Phone Hacker - Bail
Revoked After He Continues To Commit Telecom Fraud". Not only has
Cummings never been convicted of any kind of fraud - he's never
even been accused of it. This is a case based entirely on perceptions
and a sick vendetta by a government agency that has turned into a
genuine threat against free thinking people everywhere.
When Cummings is sentenced on March 5th, he could be put into prison
for years. This is what the Secret Service will attempt to ensure.
They have to be stopped and they have to be held accountable for what
they've already done. We need to be able to protect individual rights
against this kind of abuse and so far we have all failed miserably.
We have little more than a month to get it right.
From: "David Gersic" <A02DAG1@NOC.NIU.EDU>
Date: Sat, 27 Jan 1996 22:45:21 CDT
Subject: File 2--Default gateway to .fidonet.org going down (fwd)
--- (fwd) ---
*** The Free Ride is Over! ***
Effective March 1, 1996, the Internet Gateway at 1:1/31 will
be *shutting down*. At that point, there will be NO MORE "default"
gateway for E-Mail coming INbound from the Internet for Zone-1.
The reasons for this termination of service are numerous ...
o Most recently, an excommunicated SysOp has gone on a rampage of
forging subscription messages to subscribe numerous FidoNet addresses
to numerous unwanted Internet mailing-lists in a deliberate attempt
to "break" the FidoNet routing structure and the gateway structure.
Many of the other gateways have already shut down operations.
o Many of the *C routing systems have taken it upon themselves to
either "bounce" (many doing it improperly addressed) or to
deliberately "bit-bucket" NetMail coming from the gateway.
I can no longer deal with the voluminous NetMail being received
from End-Nodes querying what has happened to their inbound E-Mail
coming thru the gateway.
o The gateways systems and the "f###.n###.z#.fidonet.org" address
syntax was designed for "casual mail", not for subscribing to
massive mailing-lists and such. Many people have found ways to
deliberately by-pass the controls at the gateways and subscribe
to mailing-lists, forcing the inbound traffic to route in thru
the gateways and clogging up the FidoNet routing structures.
These days, it is fairly easy and inexpensive to get an account
with any of the many Internet Service Providers thoughout the
country. Those that really need to subscribe to mailing-lists
should go that route.
o The original intent of setting up the .fidonet.org domain was to
have gateways situated geographically close to the Nodes they
serve so that the load would be distributed and routing problems
on the FidoNet side would be reduced.
As of this writing, there are only 34 Nets out of the 431 Nets
in Zone-1 which have their INbound E-Mail coming in via gateways
other than the "default" gateway. The existing gateway operators
and gateway software authors have always been willing to help
a new gateway with their setup. The *Cs at the Net level just
haven't done their part to strive for getting local gateways in
place in their Nets. It just doesn't seem fair to me to keep
relying on ONE gateway and the Backbone routing structure to handle
over 90% of the Zone's traffic, does it?
o People have been writing software which does NOT conform to
proper addressing specs which have severly impacted operations
of the gateway without even consulting me or even letting me
know that their programs exist.
o I find that I no longer have the time nor inclination to keep
supporting a gateway where folks continue to break the rules
of its use and bypass the controls.
FidoNet in general has taken this service for granted for far too
long. People seem to feel that Free use of Internet E-Mail is
something they get automatically when they are granted a Node Number
o The I.E.E.E., the organization who has been providing the resources
and bandwidth for the flow of all this traffic can no longer
support the endeavor.
Some services *will* CONTINUE to be provided ...
o The Domain-Name-Service, which tells the Internet world where to
send traffic for destinations within the .fidonet.org domain
(and which defines which addresses are 'valid') will continue
to be operated. However, the "default MX-record" which sent
all undefined traffic for those Nets which did not otherwise have
another gateway declared, will be DELETED!
o We will continue to operate the DNS until such time as the InterNIC
removes the .fidonet.org domain.
Since the InterNIC will expect and annual service fee of $50.00 for
the domain in March, it is possible that the .fidonet.org domain
may dissappear. I do not plan on paying this fee out of my own
o We will continue to operate the gateway at 1:13/10 (our other
gateway address) on a REGISTERED-ONLY basis. This means that
there will be a process whereby INDIVIDUAL Zone-1 Nodes will be
able to Register to use the gateway and have an Internet address
assigned. Incoming E-Mail for all REGISTERED systems will be
packed on HOLD and must be picked up by direct Poll.
NOTHING will be routed via the Backbone (except Bounces back
to UNregistered Nodes).
(Please see instructions below for Registering to use 1:13/10)
How to Register to use the Gateway at 1:13/10
To register your system to use the gateway services at 1:13/10,
simply send a File-Request for REGISTER to 1:13/10.
This will pass your Primary address into a function process that will
dynamically re-configure the related configuration files and routing
during the next hourly update process. After that, you should be able
to use the gateway and any E-Mail coming INbound from the Internet will
be packed on *HOLD* at 1:13/10 for your system to pickup.
Note that your system is assigned a special address, which is NOT
in the old 'f###.n###.z#.fidonet.org' syntax. Do NOT advertise
that address as it will NOT be valid.
Point systems may NOT register and may NOT use this gateway.
(Feel free to distribute this as widely as possible)
Date: Sat, 02 Dec 95 15:32:15
From: Jim Thomas <email@example.com>
Subject: File 3--The "Space" of Cyberspace (fwd)
--- fwd message ---
Date--Tue, 28 Nov 1995 21:21:00 -0600
From--lemaitre monique j <firstname.lastname@example.org>
Subject--The "Space" of Cyberspace
This is a very long text, so you may want to press the "D" button (the
author's name and address appear at the end.) I thought it was
relevant to several themes which appeared briefly on the list such as
the "gender-lessness" of the NET...It also brought back echoes of
Gilles Deleuze whose untimely death a few weeks ago was never
mentioned on this list...Saludos!ML.
THE "SPACE" OF CYBERSPACE: Body Politics, Frontiers and Enclosures
The following comments were prompted by the reading of Laura Miller
"Women and Children First: Gender and the Settling of the Electronic
Frontier", one of the essays in James Brook and Iain A. Boal,
RESISTING THE VIRTUAL LIFE: The Culture and Politics of Information,
San Franciso: City Lights, 1995. Miller's essay is the first and only
one I have read after buying the book. I was drawn to it by the
circumstance that I have been revising an essay of my own on the
terrain of electronic communication in the Zapatista struggle for
autonomy and democracy. In my own writing I had used the metaphor of
the "frontier" and for that reason was curious about Miller's essay.
Miller's essay critiques the metaphor of "frontier" as part of a
discussion of how the assumption that traditional gender roles are
simply reproduced in cyberspace might help provide a rationale for
state regulation. Her point of departure is the word "frontier" in
the name of the "Electronic Frontier Foundation", a well-known
institution that argues for self-regulation and fights against
government interference in cyberspace. She makes two
arguments which interest me. First, she argues that the adoption of
the metaphor of "frontier" is a problematic extension of the
traditional American spacial concept to what is actually a non-spacial
phenomena: The Net. Second, she warns that applying traditional
American notions of the "frontier" --such as those embodied in
classical Western narratives-- risks an unconscious reproduction of
the social roles (gender) characteristic of those notions.
With respect to the first of these arguments, she writes: "The Net on
the other hand, occupies precisely no physical space (although the
computers and phone lines that make it possible do). It is a
completely bodiless, symbolic thing with no discernable boundaries or
location. . . . Unlike land, the Net was created by its pioneers." (p.
51) She also refers to the Net as "an artifact" (p. 51) and as
"incorporeal" (p. 57). While this concept of the Net fits in nicely
with the title of the book in which the essay appears (Resisting the
Virtual Life), the rest of her essay demonstrates how its formulation
The problem with the characterization is that it treats the Net as if
it were a system of machines (computers and phone lines) whereas it
has only existed and only continues to exist in the communicative
actions of the humans who created and continue to recreate it. This
particular system of machines is just like any other system of
machines: a moment of human social relationships. While the machine
system is truly an "artifact so humanly constructed", the machine
system is not "the Net"; it is only the sinew or perhaps the nervous
system of a Net constituted by human interactions. As an evolving
series of human interactions the Net occupies precisely the space of
those participating human beings. Humans as corporeal beings always
occupy space and their personal and collective interactions structure
and restructure that space. One of the things that discussion of
cyberspace requires is a recognition of its "body politics"
--something Miller clearly understands in the later part of her essay
although she doesn't bring it to bear in this characterization of the
While arguing against the overstatement of women's vulnerability to
aggression on line, she points to important differences between
"cyber-rapists" and real rapists. "I see my body", she writes, "as the
site of my heightened vulnerability as a woman. But on line --where I
have no body and neither does anyone else-- I consider rape to be
impossible." But of course, she does have a body and when she is on
line her body is seated in front of a computer terminal, alone or in
company, comfortably or uncomfortably, with her fingers punching a
mouse button or banging on a keyboard, her eyes more or less glued to
the screen and her mind flickering back and forth from the images on
the screen to the rest of her physical existence. The very real
"corporality" not only of the Net but of all computer work has been
pointed out by all those concerned with the various ways in which the
use of computers has involved very real bodily harm. (This issue is
apparently treated in the same book in a separate essay by Dennis
Hayes on "Digital Palsy".) The most immediately salient aspect of
Miller's body's situation, however, is that it cannot be touched
physically by any would-be cyber-rapists --except through the
mediation of typed words and her reception of them, which she
considers ought to be and are in fact under her control. In her
vigorous argument that a great many women are quite able to hold their
own in "the rough and tumble of public discourse" --and that women who
can't should learn to-- she suggests ways in which women's activities
on the Net are actually "blurring" and thus overcoming crippling
gender divisions rather than reproducing them. Thus in the very midst
of her central argument about gender, Miller's argument implicitly
recognizes that the Net constitutes a set of interrelationships among
bodies, a mediated and relatively "safe" set, but a set of
relationships among bodies nevertheless.
Herein can be found one obvious source of the appeal of spacial
concepts such as cyber"space" or "frontier". In as much as the Net
only exists as active human interactions, humans necessarily
experience their activity on the Net in terms of their own sensual
activity (which only exists in space) interacting in a mediated way
with that of others. The immediate "space" of the Net is not even all
that hard to define. It consists of the local spaces of participation
in the Net and everything that connects them, not just the
telecommunications technologies but the interactions themselves. The
form of the interaction matters in understanding its character, its
advantages and limitations, but that is true in ALL forms of human
interaction as those who study them are well aware. Those local
spaces and even those connections can quite definitely be "locatable"
in time and space. The problem of "boundaries" appears only when we
begin to study the "space" of the Net as including not only those who
participate directly but those who participate indirectly: those
working in the computer and telecommunications industry, those
influencing or influenced by the participants of the Net, those
standing "outside" of it but worrying about it, commenting on it,
trying to ignore it, and so on. The treatment of the Net as
"incorporeal" just won't do. The complexity of the space which it
constitutes calls for analysis as well as body and social politics.
Miller knows this even if she doesn't like the spacial metaphors; her
essay is a form of participation in those social politics. I would
just argue that such metaphors ARE helpful. Like any metaphor they
have their limitations --which is why we use so many different ones.
But, by focusing our attention on many of the very real, quite
material aspects of the Net, they help us think about this new
fluctuating set of human activities, their interactions, dangers and
The second aspect of her argument, in which she critiques the
treatment of historical, geographical frontiers in American popular
culture, I read as essentially an argument about ideology. She wants
us to think about how the old Western frontier was perceived and
conceptualized in order to get us to think more deeply about the use
of the concept "frontier" vis a vis the Net. While I find her
critique a rich and useful one, I also think that beyond the issue of
ideological representations there is the question of other,
non-ideological, historical parallels between the Western frontier and
current "frontiers" in cyberspace.
Her first concern is the image of the frontier as space of freedom.
She writes "The frontier, as a realm of limitless possibilities and
few social controls, hovers, grail-like, in the American psyche, the
dream our national identity is based on, but a dream that's always,
somehow, just vanishing away. . . . For central to the idea of the
frontier is that it contains no (or very few) other people --fewer
than two per square mile according to the nineteeth-century historian
Frederick Turner. The freedom the frontier promises is a liberation
from the demands of society . . ." (pp. 50-51) She then goes on to
argue that the Net is so full of people that it "has nothing but
society to offer" (p. 51) and therefore the use of the concept of
frontier to talk about the Net is inappropriate.
The problem with this conceptualization is that it is a very
culturally biased misrepresentation of the Western frontier. It's not
that Turner was wrong about population density but that the
characterization ignores the social dynamics of the frontier. In the
first place, as Miller mentions, the frontier was a "frontier" only
for the European invaders; it was already inhabited by the indigenous
peoples of the Americas. Moreover, as historical works on their
cultures have made clear, the frontier was densely inhabited --given
the character of their ways of life. With hunting and gathering and
shifting agriculture much larger physical space is required on a per
capita basis than in human societies based on sedentary agriculture
and urbanized trade and industry. The view of the frontier as "empty"
space was definitely that of the invaders moving West out of an
increasingly urbanized capitalist society and was a view that either
failed to understand the indigenous culture or dismissed it as
invalid. If the indigenous would "sell" the land and move out quietly
the market would serve. More frequently, the armed might of the state
was used to drive them out.
Beyond this question of perspective (European versus indigenous), the
material underpinnings of the view of the frontier as an "empty" space
into which one can escape "from the demands of society" requires more
analysis than Miller gives it. It was more than an ideological
construct. It might be seen as expressing the views of individuals,
either anti-social or just adventurous, who did "go West" to escape
various "demands of society". For the individual trapper or hunter,
for instance, the land might well have appeared "empty". However, it
seems more likely that such lone wanderers frequently met and
interacted with the existing indigenous peoples and one of the
reccurrent themes of both history and myth is how they often crossed
over to participate in these very different cultures. This was
apparently as true of gauchos in the Argentine pampas as it was of
mountain men in North America. In colonial language, they "went
native". Even Hollywood has repeately woven this theme into its
cinemagraphic treatments of the frontier; a film like Dances with
Wolves being a recent example.
Setting aside this source of the view of the frontier as "emptiness",
we should recognize that the colonization of the frontier by invaders
from the East was very much a social process. The vast majority of
people who "went West" did so in groups --in families, in wagon
trains, by the boatload, or trainfull--with the object not only of
getting land, but of building and participating in new communities.
The totally isolated trapper or homesteading family was the exception,
not the rule. Even when farms or ranches were large, the local
neighbors and town formed a social context for family activity. After
the very first "settlers", the vast majority of those who colonized
"the frontier" took land immediately adjacent to that which was
already taken, not in the midst of some lost, pristine wilderness.
The classic Western narratives that Miller refers us to have often
portrayed just such sociality. The usual experience of the pioneer
colonizer of the West was not of "emptiness" but of collective
activity, of people working together to found new communities. When
Miller writes "Unlike real space, cyberspace must be shared.", she is
misrepresenting the reality of the frontier in which much of the
social dynamics of the Westward movement involved the sharing of
space, not with the indigenous for the most part, but among the
More to the point, perhaps, with respect to the Western frontier as
with the electronic frontier, is the notion of "escaping" from the
"demands of society". When taken at a social rather than individual
level, the history of the European colonization of the West can be
seen to have involved a great deal of movement "away from" the
hardships, repression and exploitation of capitalism which emerged in
the Atlantic basin. American ideology celebrates escape from
religious persecution, but that was interwoven with other
A great many of those who "went West", whether across the ocean or
across the American continents, did so because their lands had been
stolen by others. That theft was accomlished to a considerable degree
through processes of "enclosure" of the land in which its one-time
inhabitants were driven out. This was part of what Marxists call
"primitive accumulation", i.e., the genesis of new class relations
based on excluding the possibility of self-determination for most
people so that they would be forced to prostitute themselves in the
emerging capitalist labor market. Others emmigrated because the new
conditions of both economic and political life in industrializing
European (and then American) cities were so hard. Low wages and awful
living conditions could drive families West for land. So too could
political repression, such as that which followed the 1848 revolutions
in Europe, lead people to seek elsewhere for better opportunities.
The "demands of society" which such immigrants were escaping were not
simply those of living together, but were the demands of an untamed
capitalism for their life energies under oppressive conditions which
often killed. This was part of the actual history of the "Western"
frontier, not just an ideologically constructed myth. The dream of
"limitless possibilities and few social controls" is certainly part of
the enduring myths of the "American psyche". But the myth endures
precisely because realization of the dream has demanded an open-ended
social situation for which generations have fought and struggled.
Although I have made no systematic study of the "classic Western
narratives" to which Millar alludes, it seems to me rather rare that
"the frontier is [portrayed as] a lawless society of men . . . [a]
romance of individualistic masculinity". With the affirmation that
Hollywood films and Western novels pay homage to "individualistic
masculinity", I would agree. On the other hand, I find it difficult
to think of films that deal purely with a "lawless society of men"
--with the possible exception of Sergio Leone's spagetti Westerns.
Even films like the Wild Bunch --in which the central group is both
lawless and masculine-- such activity is situated within a larger
social setting so that the Wild Bunch appear as pathological misfits.
Miller juxtaposes the "frontier" and "civilization", associating the
later with the arrival of women and children. But as indicated above,
for the most part men and women and children arrived together. The
"frontier" was the frontier OF civilization, its cutting edge, its
invading intrusion into other people's life spaces. I also find her
analysis of the portrayal of the gender dynamics of many Western
narratives quite accurate: the presentation of women and children as
victims or potential victims, needing to be protected (and dominated)
by men. But in describing and analysing these relationships, Miller
passes over to the analysis of social dynamics --especially between
men and women-- and leaves the whole issue of the "emptiness" of the
In terms of thinking about the process of pushing out the "frontiers"
of cyberspacial civilization, I think the most important thing about
the parallel with the Western frontier is the central process of
creation. Miller notes that "Unlike land, the Net was created by its
pioneers." Yet, one of the appeals of the metaphor of the frontier is
just this myth --and reality-- of creation. In the case of the
Western frontier, no new piece of the earth was created whole cloth.
Those who went West because their own lands had been "enclosed" in the
East, imposed a new set of enclosures on the land of Native Americans.
Nevertheless, it was certainly true that from the point of view of the
colonizers, they created a "new land". They did this by transforming
the land from a state that supported hunting and gathering cultures to
one that supported sedentary agriculture and urbanization. The "land"
of capitalist civilization was not the same "land" as that of the
indigneous people. A plowed and fertilized field is not a prairie. A
town organized physically by fixed buildings is not a "camp" set up
for a season by a geographically mobile tribe. The social and
political life of fields and towns is clearly not the same as that of
indigenous cultures. For good or bad, not only a new kind of land was
created but also a new kind of society. The fact that this "creation"
amounted to a "destruction" from the point of view of the indigenous
doesn't wipe out the process of creation, it only critiques it.
"The frontier", Miller writes, "exists beyond the edge of settled or
owned land. As the land that doesn't belong to anybody (or to people
who 'don't count' like Native Americans), it is on the verge of being
acquired; currently unowned, but still ownable." This view of the
frontier, which I take to be an aspect of "frontier" ideology to which
Miller points (rather than her own point of view), clearly embodies a
capitalist perspective not only on land but on society. Not only is
it well known that many indigenous peoples had no notion of "owning"
land, but the assertion of "ownership" by colonizers was one of those
aspects of the frontier that made it the cutting edge of capitalist
civilization. In the few cases where the new arrivals accepted the
indigenous culture's value systems and merely exercised usufruct of
the land, they were examples of "going native" and could hardly be
considered part of the advancing Western capitalist civilization.
There were also utopian communities created quite intentionally as
something different, hopefully better, than the repressive capitalism
from which their founders had fled. But these were exceptions,
precisely because "going West" was a social process in which people
brought the acquired habits and institutions of their past with them.
However much they may have been fleeing adverse material conditions,
those same conditions tended to catch up with them all too quickly
--precisely because they carried the germs of those conditions with
them, especially "ownership". The early pioneers of the Western
frontier sought their own freedom in land enclosed from the
indigenous. But when they took and then claimed ownership rights they
instituted a property system in the frontier that would eventually
overwhelm them. In a few years, or a few generations at most, their
ownership would be lost to other owners. Powerful railroad or mining
interests would drive them out or buy them out and usurp their
property in land, or bankers and suppliers would take advantage of
their debts during economic downturns, foreclose, evict them and seize
their lands. Close on the heels of the pioneers of the frontier was
the same class of lords of property from whom they had fled.
The same was true of the frontier artisans and merchants who helped to
build the towns and set up businesses there. Libertarians often
celebrate such "entrepreneurs" just as they sometimes lament the
arrival of monopolistic corporations that absorb or drive such
entrepreneurs out of business. But as with the farmers who staked
property claims in land, such independent businessmen and women
carried with them the seeds of their own downfall. For the
"entrepreneur", whether on the Western frontier or the electronic
frontier is caught in a double bind. On the one hand, they may be
dedicated and inventive workers plying their skills to create
something new, whether a 19th Century blacksmithy or a late 20th
Century software operation. But if they seek their independence
within the framework of the rules of "private property", they are
forced to work within the logic of the market. While a few may
survive to become powerful capitalists in their own right, most have
been and will continue to fall before the workings of those rules and
that logic --according to which the stronger capitalist drives out or
takes over the weaker. The thoroughly modern version of enclosure is
the expropriation of businesses by businesses. Moreover, whether they
succeed or fail, all who play by the rules lose their autonomy as each
"frontier" is reduced to just another integrated section of the
invading capitalist economy.
This fundamental dynamic of the old West demonstrates one reason why
the metaphor of the "frontier" is useful, even indispensible, for
thinking about the socio-political dynamics of the Net and the rest of
the informational society. The metaphor has been widely used vis a
vis the Net not only because people, working sometimes alone but
always within a social fabric of interconnections, have created and
settled new electronic spaces but also because hard on their heels
have come the lords of capital using all means possible to takeover,
incorporate and valorize those spaces. The subordination of the Net
to commercial and industrial profit has become the name of the game.
The "dream" of "limitless possibilities and few social controls"
doesn't just "somehow", "vanish away"; it has been repeatedly
destroyed through corporate enclosure and complementary state
But just as pioneers on the Western frontier resisted the enclosure of
their lands or the takeover of their small businesses by corporate
interests, so too do the pioneers of cyberspace resist the
commercialization of the Net. Like other free spirits (e.g., some
musicians and artists) the pioneers of cyberspace can create new
spaces for their own (very social) purposes (pleasure, politics, etc)
as part of a process of self-valorization that at least initially
threatens or transcends existing norms of capitalist society.
Corporate capital then tries either to enclose their spaces by
commercializing them if they look profitable, or to crush them with
the state if they look dangerous. (If it just ignores them we can
conclude either that their space is not profitable or that it is not
dangerous to the capitalist game. Indeed, it may be playing a useful
role --such as keeping workers off the streets and the market
growing-- in ways compatible with the social logic of capitalist
One increasingly important zone on the electronic frontier has been
that of the circulation of political struggles of various groups and
movements fighting against exploitation and for new ways of being.
These sub-spaces provide opportunities not only for the
experimentation with alternatives to current institutions but also for
attacking the larger capitalist system.
One such group is the Zapatista Army of National Liberation whose
uprising began in the mountains of Chiapas, the southernmost state of
Mexico, but whose political message has spread around the globe
through the electronic circulation of information. E-mail, soon
complemented by gopher and web sites, both produced and then linked a
highly effective international mobilization in support of the
Zapatistas and against the Mexican government's attempts to belittle
and attack them.
When, in the wake of the peso crisis in December 1994, the Zapatistas
were seen as threatening the interests of international investors in
Mexico, some (e.g., Chase Manhattan Bank) called for their
"elimination". The Mexican government, in point of fact, ordered an
army force of 50,000 to invade Zapatista territory in Chiapas and wipe
out the uprising. (It failed.) Others in the circuit of investment
capital sought to tap the flow of information among the networks of
solidarity for their own purposes. They sought out individuals within
the Net who were involved in producing and circulating that
information and offered them lots of money to redirect those flows to
corporate investors who would pay for the "inside scoop" about the
investment climate in Mexico and points South. The offers were
refused so this autonomous "frontier" of resistance and discussion of
the Zapatista alternative continues. Had those approached sold out,
the autonomy of the activity would have become illusory as little by
little the information being circulated became more geared to what
investors need to know and less to what is needed to struggle against
The metaphor of the frontier allows us to understand this dynamic in a
way that appreciates both the energy and imagination of the pioneers
and the dangers which beset them. Criticizing the comparison of the
clipper chip (which would give government the ability to eavesdrop on
all encrypted computer communications) with the imposition of barbed
wire on the prairie, Miller suggests that the metaphor implies a
necessary surrender to fate. But the metaphor survives such critique
because it evokes not surrender but resistance. No matter how many
frontiers have been taken over and subordinated, no matter how many
pioneers have been forced or induced to surrendering their freedom,
the metaphor lives on. It survives not just because ideology
preserves the myth but because the dream lives and the struggle lives.
Each time some new space and time of human endeavor is colonized and
taken over by the work/profit logic of capital, there are always
people who break away and create new spaces and new times where they
can be freer to elaborate their own lives in the manner they see fit.
The ability of capital to enclose (commercialize) or crush those new
spaces is never assured. The consequences of each such confrontation
remain open. And in a period in which there are an extraordinarily
large number of breakaways and a multiplicity of acts of creation, the
threat to the survival of the system grows and the potential to
realize an array of alternatives is great. That is the excitment of
any frontier and that is the reason the metaphor survives.
Date: Thu, 28 Dec 1995 11:10:58 -0500
Subject: File 4--Privacy in the Workplace
THE COMPUTER LAW REPORT
December 28, 1995 [#15]
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Copyright 1995 by William S. Galkin.
ABOUT THE AUTHOR: Mr. Galkin is an attorney in private practice in Owings
Mills, Maryland (which is a suburb of Baltimore). He has been an adjunct
professor of Computer Law at the University of Maryland School of Law and has
concentrated his private practice in the Computer Law area since 1986. He
represents small startup, midsized and large companies, across the U.S. and
internationally, dealing with a wide range of legal issues associated with
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operating a variety of online business ventures. He also enjoys writing about
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ELECTRONIC PRIVACY RIGHTS: THE WORKPLACE
[This is the second of a series of articles discussing privacy rights in the
With the rise of technology there arose a fear of surveillance. However,
George Orwell's 1984 passed us by without noticeable big brother control, and
the national concern over espionage diminished with the demise of the
These past threats were concerns over the use of technology by governments
that had sufficient resources to use the technology for sinister purposes.
The new threat is not technology in the hands of government, it is technology
alone. What once required massive manpower, now requires merely a personal
computer. Technology has made the power to monitor others widely available,
whether to governments, private enterprise or individuals. This article
discusses some of the laws applicable to the monitoring of employees in the
An employee, by the very nature of the employment relationship, must be
subject to some level of monitoring by the employer. However, this monitoring
has limits. Courts have held that it is a tortuous invasion of privacy for
an employer to monitor employee telephone conversions. Similarly, mail
carried through the U.S. postal service is granted a high level of
However, much employee communication now takes place over private and public
networks via e-mail, or voice mail. These forms of communication are very
different from telephone calls and letters. For example, after transmission
and receipt, these communications are stored for an indefinite period of time
on equipment under the exclusive control of the employer. Additionally, these
communications can be examined without the knowledge of the communicators. As
is often the case, the law has difficulty keeping pace with the issues raised
by fast changing technology.
Electronic Communications Privacy Act -
In the federal sphere, only the Electronic Communications Privacy Act of 1986
(ECPA) directly prohibits the interception of e-mail transmissions. The ECPA
prohibits the interception by (1) unauthorized individuals or (2) individuals
working for a government entity, acting without a proper warrant. The ECPA is
mostly concerned with the unauthorized access by employees or corporate
competitors trying to find out valuable information. However, while there is
no specific prohibition in the ECPA for an employer to monitor the e-mail of
employees, the ECPA does not specifically exempt employers.
The ECPA has several exceptions to the application of the prohibition of
interception of electronic communications. The three most relevant to the
workplace are (1) where one party consents, (2) where the provider of the
communication service can monitor communications, and (3) where the
monitoring is done in the ordinary course of business.
The first exception, consent, can be implied or actual. Several courts have
placed a fairly high standard for establishing implied consent. For example
one court held that "knowledge of the capability of monitoring alone cannot
be considered implied consent." Accordingly, for an employer to ensure the
presence of actual consent, it should prepare, with advice of counsel, a
carefully worded e-mail Policy Statement which explains the scope of employer
monitoring. This Policy Statement should be signed by the employees. One
example of how this Policy Statement needs to be carefully written is that if
it states that personal communications will be monitored only to determine
whether there is business content in the communications, then this would
probably not amount to consent to review the full text of personal
communications. Additionally, notice that communications might be monitored
may have a significantly different legal affect than a notice stating that
communications will be monitored.
The second exemption is that the ECPA exempts from liability the person or
entity providing the communication service. Where this service is provided by
the employer, the ECPA has been interpreted as permitting the employers broad
discretion to read and disclose the contents of e-mail communications,
without the employee's consent. However, employers should not rely on this
exception, because it might not apply in all cases, such as to incoming (as
opposed to internal e-mail) if the e-mail service is provided by a common
carrier (e.g., America Online or MCI mail, which are not provided by the
Under the third exception, courts will analyze whether the content of the
interception was business or personal and allow the interception of only
State laws -
State tort laws are often viewed as the primary sources of protection for
privacy of electronic communications. The most common tort that would apply
is the tort of invasion of privacy. This tort occurs where "one who
intentionally intrudes, physically or otherwise, upon the solitude or
seclusion of another or his private affairs or concerns, is subject to
liability to the other for invasion of his privacy, if the intrusion would be
highly offensive to a reasonable person."
This tort does not require that personal information be actually acquired,
disclosed or used. However, the intrusion must be intentional and highly
offensive to a reasonable person. Additionally, there must be a reasonable
expectation of privacy by the employee.
Employees often believe that their communications are private because they
have a password which they can select and change independently or because
they are communicating through outside common carriers. Cases have often
turned upon whether this belief was reasonable given the fact that the
employer had the ability all along to access the files, though the employees
were not aware of this. In determining the outcome, courts will weigh the
reasonableness of the employee's expectation of privacy against the business
interest of the employer in monitoring the communication. However, it is
important to emphasize that in the final analysis courts have traditionally
held that legitimate business interests permit employers to intercept
Additionally, state constitutions might provide some protection. A number of
state constitutions provide a specific right of privacy. But, only California
has specifically determined that its constitution provides a cause of action
against nongovernmental entities. However, even in California, the courts
will give significant weight to the business interests of the employer.
As discussed, much of the law of privacy in the workplace turns on the
reasonable expectation of privacy. When evaluating different situations, it
is important to keep in mind that the law in this area is a moving target, as
recently expressed by Professor David Post of Georgetown University Law
Center (in The American Lawyer, October 1995) "until we have all spent more
time in this new electronic environment, who can say what our expectations
really are --let alone whether they are reasonable?"
In the workplace, federal and state laws provide some protection to employee
communications. However, this protection is quite limited. Until the law
develops further, employers should prepare carefully drafted Policy
Statements that explain how the employer intends to monitor employee
communications. And employees, even in the absence of such Policy Statements,
would be well advised to consider their communications available and
accessible to the employer. Also, where privacy is an issue, employees and
employers can create a more productive work environment if they work together
to jointly develop a Policy Statement that balances the legitimate interests
of both the employer and the employees.
Date: Sun, 16 Dec 1995 22:51:01 CDT
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