[tt] Tech Republic: You are probably breaking at least one law with your computer right now

Thu Dec 2 01:40:13 PST 2010

You are probably breaking at least one law with your computer right now
http://blogs.techrepublic.com.com/window-on-windows/?p=3389&tag=nl.e064

* Date: November 24th, 2010
* Author: Deb Shinder

For many years, the Internet was the "final frontier," operating
largely unregulated--in part because of the jurisdictional
nightmare involved in trying to enforce laws when communications
crossed not just state lines but also national boundaries. That was
then; this is now. Legislation that affects the use of
Internet-connected computers is springing up everywhere at the
local, state and federal levels. You might be violating one of them
without even knowing.

In this article, we'll take a look at some of the existing laws and
some of the pending legislation that can influence how we use our
computers and the Internet. Nothing in this article should be
construed as legal advice; this is merely an overview of some of the
legislation that's out there, how it has been interpreted by the
courts (if applicable), and possible implications for computer
users.

Note: This article is also available as a [49]PDF download and was
originally published in the [50]10 Things Blog in March 2010.

1: Digital Millennium Copyright (DMCA) Act

Most computer users have heard of this law, signed in 1998 by
President Clinton, implementing two World Intellectual Property
Organization (WIPO) treaties. The DMCA makes it a criminal offense
to circumvent any kind of technological copy protection--even if
you don't violate anyone's copyright in doing so. In other words,
simply disabling the copy protection is a federal crime.

There are some exemptions, such as circumventing copy protection of
programs that are in an obsolete format for the purpose of archiving
or preservation. But in most cases, using any sort of anti-DRM
program is illegal. This applies to all sorts of copy-protected
files, including music, movies, and software. You can read a summary
of the DMCA [51]here.

If you're a techie who likes the challenge of trying to "crack" DRM,
be aware that doing so--even if you don't make or distribute
illegal copies of the copyrighted material--is against the law.

2: No Electronic Theft (NET) Act

This is another U.S. federal law that was passed during the Clinton
administration. Prior to this act, copyright violations were
generally treated as civil matters and could not be prosecuted
criminally unless it was done for commercial purposes. The NET Act
made copyright infringement itself a federal criminal offense,
regardless of whether you circumvent copy-protection technology and
whether you derive any commercial benefit or monetary gain. Thus,
just making a copy of a copyrighted work for a friend now makes you
subject to up to five years in prison and/or up to $250,000 in
fines. This is the law referred to in the familiar "FBI Warning"
that appears at the beginning of most DVD movies. You can read more
about the NET Act [52]here.

Many people who consider themselves upstanding citizens and who
would never post music and movies to a P2P site think nothing of
burning a copy of a song or TV show for a friend. Unfortunately, by
the letter of the law, the latter is just as illegal as the former.

3: Anti-Counterfeiting Trade Agreement (ACTA)

This treaty is still in negotiation between the United States,
European Commission, Switzerland, Japan, Australia, Canada, Jordan,
Mexico, Morocco, New Zealand, the Republic of Korea, Singapore, and
the United Arab Emirates. The most recent round of negotiations took
place in Mexico in January 2010, and the next is scheduled for April
2010 in New Zealand.

As with the DMCA, many regard the ACTA as a workaround for
governments to impose regulations and penalties through
international treaties that they would not be able to pass into law
through their regular legislative processes. ACTA covers a number of
areas, including counterfeit products and generic medicines, but the
part that affects computer users is the chapter titled "Enforcement
of Intellectual Property Rights."

Although the treaty negotiations are conducted in secret, a leaked
document indicated that one provision in the treaty would force ISPs
to give information about customers suspected of copyright
infringement without requiring a warrant. According to reports,
another provision would allow customs agents to conduct random
searches of laptops, MP3 players, and cell phones for illegally
downloaded or ripped music and movies. Not surprisingly, the
Recording Industry Association of America (RIAA) is a supporter of
the treaty. The Electronic Frontier Foundation (EFF) opposes it, as
does the Free Software Foundation. You can read the EFF's stance on
ACTA [53]here.

4: Court rulings regarding border searches

Most Americans are aware of the protections afforded by the U.S.
Constitution's fourth amendment against unreasonable searches and
seizures. In general, this means that the government cannot search
your person, home, vehicle, or computer without probable cause to
believe that you've engaged in some criminal act.

What many don't know is that there are quite a few circumstances
that the Courts, over the years, have deemed to be exempt from this
requirement. One of those occurs when you enter the United States at
the border. In April 2008, the Ninth Circuit Court of Appeals upheld
the right of Customs officers to search laptops and other digital
devices at the border (the definition of which extends to any
international airport when you are coming into the country) without
probable cause or even the lesser standard of reasonable suspicion.
The Electronic Frontier Foundation (EFF) and other groups strongly
disagree with the ruling. You can [54]read more on the EFF Web site.

Meanwhile, be aware that even though you've done nothing illegal and
are not even suspected of such, the entire contents of your portable
computer, PDA, or smart phone can be accessed by government agents
when you enter the Unites States. So if you have anything on your
hard drive that could be embarrassing, you might want to delete it
before crossing the border.

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5: State and federal laws regarding access to networks

Many states have criminal laws that prohibit accessing any computer
or network without the owner's permission. For example, in Texas,
the statute is Penal Code section 33.02, Breach of Computer
Security. It says, "A person commits an offense if the person
knowingly accesses a computer, computer network or computer system
without the effective consent of the owner." The penalty grade
ranges from misdemeanor to first degree felony (which is the same
grade as murder), depending on whether the person obtains benefit,
harms or defrauds someone, or alters, damages, or deletes files.

The wording of most such laws encompass connecting to a wireless
network without explicit permission, even if the Wi-Fi network is
unsecured. The inclusion of the culpable mental state of "knowing"
as an element of the offense means that if your computer
automatically connects to your neighbor's wireless network instead
of your own and you aren't aware of it, you haven't committed a
crime. But if you decide to hop onto the nearest unencrypted Wi-Fi
network to surf the Internet, knowing full well that it doesn't
belong to you and no one has given you permission, you could be
prosecuted under these laws.

[56]A Michigan man was arrested for using a cafi's Wi-Fi network
(which was reserved for customers) from his car in 2007. Similar
arrests have been made in Florida, Illinois, Washington, and Alaska.

The federal law that covers unauthorized access is Title 18 U.S.C.
Section 1030, which prohibits intentionally accessing a computer
without authorization or exceeding authorized access. But it applies
to "protected computers," which are defined as those used by the
U.S. government, by a financial institution, or used in or affecting
interstate or foreign commerce. In addition to fines and
imprisonment, penalties include forfeiture of any personal property
used to commit the crime or derived from proceeds traceable to any
violation. You can read the text of that section [57]here.

In [58]a recent case regarding unauthorized access, a high profile
lawsuit was filed against a school district in Pennsylvania by
students who alleged that district personnel activated their
school-issued laptops in their homes and spied on them with the
laptops' webcams. The FBI is investigating to determine whether any
criminal laws were broken. Because the school district owned the
computers, there is controversy over whether they had the right to
remotely access them without the permission of the users.

6: "Tools of a crime" laws

Some states have laws that make it a crime to possess a "criminal
instrument" or the "tool of a crime." Depending on the wording of
the law, this can be construed to mean any device that is designed
or adapted for use in the commission of an offense. This means you
could be arrested and prosecuted, for example, for constructing a
high gain wireless antenna for the purpose of tapping into someone
else's Wi-Fi network, even if you never did in fact access a
network. Several years ago, a California sheriff's deputy made the
news when he declared [59]Pringles can antennas illegal under such a
statute.

7: Cyberstalking and Cyberbullying laws

Stalking is a serious crime and certainly all of us are in favor of
laws that punish stalkers. As Internet connectivity has become
ubiquitous, legislatures have recognized that it's possible to stalk
someone from afar using modern technology. Some of the
"cyberstalking" laws enacted by the states, however, contain some
pretty broad language.

For example, the Arkansas law contains a section titled "Unlawful
computerized communications" that makes it a crime to send a message
via email or other computerized communication system (Instant
Messenger, Web chat, IRC, etc.) that uses obscene, lewd, or profane
language, with the intent to frighten, intimidate, threaten, abuse,
or harass another person. Some of the lively discussions on mailing
lists and Web boards that deteriorate into flame wars could easily
fall under that definition. Or how about the furious email letter
you sent to the company that refused to refund your money for the
shoddy product you bought?

Closely related are the [60]laws against cyberbullying. Such laws
have been passed by some states and local governments. In April
2009, the [61]Megan Meier Cyberbullying Prevention Act (H.R. 1966)
was introduced in the U.S. Congress. The act would make it a federal
crime to "intimidate, harass, or cause substantial emotional
distress to another person, using electronic means to support
severe, repeated and hostile behavior." Subcommittee hearings have
been held and the bill is continuing through the legislative
process.

Opponents of the proposed law point out that the language is open to
interpretation, and could be construed to apply to someone who
merely gets into heated discussions on a web board or email list.
The best policy is to watch your language when sending any type of
electronic communications. Not only can a loss of temper when you're
online come back to embarrass you, it could even get you thrown in
jail.

8: Internet gambling laws

Like to play poker online or bet on the horse races from the comfort
of your home? The federal [62]Unlawful Internet Gambling Enforcement
Act of 2006 criminalizes acceptance of funds from bettors--but
what about the bettors themselves? Are they committing a crime?

Under this federal law, the answer is no, but some state laws do
apply to the person placing the bet. For example, a Washington law
passed in 2006 makes gambling on the Internet a felony. The King
County Superior Court just [63]recently upheld that law, although
challengers have vowed to take it to the Supreme Court. Be sure to
check out the state and local laws before you make that friendly
online bet.

9: Child pornography laws

We all want to protect children and keep pedophiles away from them,
but could you be arrested for possession of child pornography or for
exposing children to pornography even though you would never
voluntarily indulge in such a thing? Unfortunately, as the laws are
written and enforced, the answer is "yes." In January 2007, a
substitute teacher in Norwich, CT, was convicted of four felony
pornography charges, although she claimed the offending pictures
were the result of pop-ups and that she did not knowingly access the
Web sites in question. The [64]conviction was set aside after
forensics and security experts examined her hard drive and found the
school's antivirus software was out of date and the computer had no
anti-spyware, firewall, or pop-up blocking technology. The teacher
ended up pleading guilty to a misdemeanor charge.

Pornographic images of children are illegal to possess. This
includes not just photographs of actual children, but also
computer-generated pictures and drawings in which no real people are
involved and photos of models who are of adult age but look like
children. There are many ways such images can get on a computer.
Viruses can infect your system and allow another person to remotely
access your hard drive. Your computer can be taken over to become a
bot, controlled by someone else without your knowledge. Someone can
email you an illegal image. You can click a link on a
non-pornographic Web site that takes you to a site where the illegal
images are displayed, and they're then downloaded into your Web
cache on your hard drive.

In another 2007 case, [65]a 16-year-old was charged with possession
of child pornography and got 18 months probation and over a quarter
of a million dollars in legal fees, even though he passed polygraph
tests in which he denied knowledge of the images and an examination
of the hard drive found more than 200 infected files and no
firewall.

10: Pro IP Act

Returning to the copyright front, the Prioritizing Resources and
Organization for Intellectual Property Act (Pro IP Act), which was
signed into law in 2008, imposes stricter penalties for copyright
infringement. It created a new position of "copyright enforcement
czar" (formally called the Intellectual Property Enforcement
Coordinator) in the federal bureaucracy and gives law enforcement
agents the right to seize property from copyright infringers.

This may all sound fine in theory, but when you look at the way
other seizure and forfeiture laws have been applied (for instance,
the ability of drug enforcement officers to seize houses, computers,
cars, cash, and just about everything else that belongs to someone
tagged as a suspected drug dealer--and in some cases, not
returning the property even when the person is acquitted or not
prosecuted), it makes many people wary. Read more about the bill
[66]here.

Some local jurisdictions have also established [67]seizure authority
for piracy. In September 2009, Victoria Espinel was appointed as the
[68]first copyright czar. She has asked for public input by March
24, 2010.

References

49. http://downloads.techrepublic.com.com/abstract.aspx?docid=1623817
50. http://blogs.techrepublic.com.com/10things/
51. http://www.copyright.gov/legislation/dmca.pdf
52. http://www.gseis.ucla.edu/iclp/hr2265.html
53. http://www.eff.org/issues/acta
54.  
http://www.eff.org/deeplinks/2008/04/no-cause-needed-search-laptops-border
55. http://nl.com.com/MiniFormHandler?brand=techrepublic&list_id=e064
56.  
http://arstechnica.com/news.ars/post/20070522-michigan-man-arrested-for-using-cafes-free-wifi-from-his-car.html
57. http://www.law.cornell.edu/uscode/18/1030.html
58. http://news.cnet.com/8301-17852_3-10457126-71.html
59. http://www.engadget.com/2005/07/25/wifi-cantennas-now-illegal/
60.  
http://www.cio-today.com/news/Teen-Suicide-Spurs-Cyberbullying-Law/story.xhtml
?story_id=12000B111K60
61. http://www.govtrack.us/congress/bill.xpd?bill=h111-1966
62. http://www.gambling-law-us.com/Federal-Laws/internet-gambling-ban.htm
63.  
http://seattletimes.nwsource.com/html/localnews/2004418390_gambling16m.html
64. http://www.wired.com/threatlevel/2008/11/proof-porn-pop/
65. http://www.foxnews.com/story/0,2933,244009,00.html
66.  
http://arstechnica.com/news.ars/post/20080508-house-overwhelmingly-passes-controversial-pro-ip-act.html
67.  
http://arstechnica.com/news.ars/post/20080509-piracy-now-public-nuisance-in-los-angeles-county.html
68.  
http://www.whitehouse.gov/blog/2010/02/23/intellectual-property-and-risks-public

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