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From: spaf@cs.purdue.EDU (Gene Spafford)
Newsgroups: comp.org.eff.talk
Subject: Re: Musing on Constitutionality
Message-ID: <11503@medusa.cs.purdue.edu>
Date: 31 Aug 90 02:59:00 GMT
References: <36823@ut-emx.UUCP> <20062@well.sf.ca.us> <36649@ut-emx.utexas.edu>
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Reply-To: spaf@cs.purdue.edu (Gene Spafford)
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In article <36649@ut-emx.utexas.edu> mnemonic@walt.cc.utexas.edu (Mike Godwin) writes:
>The point I believe Barlow was making, and the point I want to make
>here, is that Phrack, though admittedly a publication, was considered
>"inferior" in terms of its claims of First Amendment protection, and
>that this attitude was reflected both in the characterization of Neidorf's
>activity as part of a "scheme to defraud" and in the decision to
>indict. I think Terry Gross is correct when he states that if The New
>York Times had taken part in the same activity, its editor would not
>have been indicted.

Okay, let's leave the NY Times out of this -- they have a tradition
and enough money for lawyers so as to get away with almost anything.

Let's suppose I ran a hobbyist newsletter.  I ran it off on a Xerox
machine on an irresgular basis, had a cover page with a title and
issue number, and I mailed it out to anybody who asked for a copy
(fellow hobbyists).  My name is right there on the inside as "editor."

Now, are you claiming that if I published your MasterCard number in my
newsletter and encouraged my readers to use that number to buy things,
I wouldn't be liable for fraud charges because I had a publication
that is in some sense "superior" to an electronic newsletter like
Phrack?  Just because it's published on paper?

I just don't believe it!

The fact that Phrack was electronic doesn't mean it was "inferior" or
given higher priority for action.  I bet the Secret Service would have
done the same thing if it was an occasionally-published paper.  The
problem was the alleged nature of the material published in an
"unofficial" form.  If Phrack had not been sent out electronically --
if it had been printed off, copied & mailed, then I bet they would
have indicted for mail fraud rather than wire fraud.  And would as
many people have taken umbrage at the case if that had happened?

The real problem was that the government didn't have the in-house
expertise to make a proper assessment of the loss or sensitivity of
the material.  They relied on outside sources for that information and
didn't get sufficient confirmation.  That's a problem with procedure,
and a problem with the folks at Southern Bell.  It is not a statement
that the electronic publication was "inferior" to a printed version.

Comparing things to the NY Times or Newsweek or even 2600 magazine is
specious.  We have no comparable electronic publications with open
subscriptions, regular publication schedules, salaried employees, and
so on.  
-- 
Gene Spafford
NSF/Purdue/U of Florida  Software Engineering Research Center,
Dept. of Computer Sciences, Purdue University, W. Lafayette IN 47907-2004
Internet:  spaf@cs.purdue.edu	uucp:	...!{decwrl,gatech,ucbvax}!purdue!spaf