From: Greg Broiles <gbroiles@netbox.com>
Date: Tue, 17 Dec 1996 21:36:12 -0800 (PST)
To: Lile Elam <lile@art.net>
Subject: Re: Computer crime prompts new parole restrictions
Message-ID: <3.0.32.19961217213649.00725928@mail.io.com>
MIME-Version: 1.0
Content-Type: text/plain


At 03:58 PM 12/17/96 -0800, Lile Elam wrote:

>I saw this article in the nando.net paper today and was interested in
>your thoughts on it. It looks like people on probation will be limited 
>in there use of encryption and access to the Internet.

One nit to pick - parole and probation are not the same thing. Probation is
a sentence imposed by a judge, and parole is the administrative/executive
modification of a sentence. They function in similar ways (e.g., people who
have been convicted of a crime are not locked up but subjected to extra
rules) but have some legally meaningful differences. 

The press release from the USPC is online at
<http://gopher.usdoj.gov/gopherdata/press_releases/592usp.htm>. 

>To me, it seems like this could be equated to preventing 
>people on probabtion from using something like a phone. I am
>having problems with it because I feel these limitations are too
>severe. I mean, a good way someone on probabtion to make a living
>is to learn how to use the web and prehaps get a job as a html
>coder.

This seems like a pretty fact-specific question; but it's not unusual for
people convicted of crimes to be restricted from using tools similar to the
ones they used to commit crimes, e.g., drivers' licenses are suspended
where people are convicted of driving crimes, professional licenses are
taken away when people have committed professional misconduct, and so
forth. I agree that this can be counterproductive (it doesn't make much
sense to seriously handicap someone and then blame them for not doing very
well) but I don't think that computers and the Internet are meaningfully
different in this way.

>There is a hacker I know of (Kevin Poulsen) who is prevented from 
>using computers during his current probation and it really has limited 
>his options alot. I curated and maintain a website for him at URL:
>
>	http://www.catalog.com/kevin/
>
>where this issue is dicussed.

My hunch is it didn't make a big difference, but his letter to the judge
who accepted his guilty plea and sentenced him seems to suggest that he
turns to computer crime out of curiosity, boredom, and obsession - motives
which are probably still present. Three years without computers may force
him to find some other outlet for his creative and exploratory drives. This
seems like a long-term win for him. (I think denying him access to higher
education is much worse than denying him access to computers.)  

>It also seems to me that preventing people on probation from 
>using encryption would be difficult especially when encryption is used
>in webservers (ie Netscapes Secure Server). One could accidentally 
>access one and not know that he was sending/receiving information
>via an encrypted channel.

This sounds like a fact issue for a probation/parole revocation hearing,
e.g., did the defendant intend to violate the terms of his or her release
agreement? Depending on the situation, an unintentional violation of the
terms of release might not result in revocation. (I'm inclined to think it
never should, but I'm not having much luck finding any relevant caselaw
quickly. I'm also handwaving here because different jurisdictions will
probably apply different rules.)

My impression is that the USPC was bamboozled (by the USDOJ?) into adopting
unnecessary regulations - the press release mentions a "surge of how-to
information" available on the Net re criminal activity; but I'm skeptical
that such a surge has taken place, or that it's especially relevant to
people on parole. 

The action may also have been unnecessary (viz, the restrictions on crypto)
because people subject to parole and probation are already subjected to
incredibly draconian restrictions - e.g., the terms of probation and parole
usually specify that they must allow the supervising officer to search
their home at any time, must report where they live and work, cannot form
social relationships with people deemed undesirable, cannot quit their job
or change residences, must report their income and expenses in considerable
detail, must give blood/urine samples on a surprise basis, etc. People who
are on parole or probation have no privacy and very little autonomy. It's
not much of a stretch to "You must let the probation officer look through
your house" to "You must let the probation officer see what's on your hard
disk" - in fact, I think the first implies the second. 

(Obviously, there are a ton of fact-specific issues here (and I've written
briefs arguing why parolees/prisoners should get more privacy), but at the
"public policy" level, it's pretty clear that probationers and parolees
have sharply curtailed Constitutional rights - which is usually OK with
them, because they like that better than being locked up. In my
perspective, it makes more sense to rethink the goals and methods of the
criminal trial/punishment system, rather than focus on minutiae about
computer crime. Lots of otherwise apparently decent people are subjected to
relatively harsh punishment on a pretty regular basis, and many people
think we aren't already mean enough to convicted people. Most of the people
who think this have never had someone they cared about subjected to the
penal system. But this isn't really C-punks material any more, so I'll stop
here.) 

--
Greg Broiles                | US crypto export control policy in a nutshell:
gbroiles@netbox.com         | 
http://www.io.com/~gbroiles | Export jobs, not crypto.
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