893 lines
51 KiB
Plaintext
893 lines
51 KiB
Plaintext
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Computer underground Digest Fri, Feb 21, 1992 Volume 4 : Issue 08
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Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET)
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Associate Editor: Etaion Shrdlu
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CONTENTS, #4.08 ( Feb 21, 1992)
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File 1--"Computer down-underground Digest (CDUGD)
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File 2--CuD articles on Craig Neidorf's legal expenses
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File 3--Update Of Info. In 2/5/92 Newsbytes Article On BBS Phone Rates
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File 4--FULL TEXT: Calif. data-priv/comp.crime bill
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Issues of CuD can be found in the Usenet alt.society.cu-digest news
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group, on CompuServe in DL0 and DL4 of the IBMBBS SIG, DL1 of LAWSIG,
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and DL0 and DL12 of TELECOM, on Genie, on the PC-EXEC BBS at (414)
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789-4210, and by anonymous ftp from ftp.cs.widener.edu (147.31.254.132),
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chsun1.spc.uchicago.edu, and ftp.ee.mu.oz.au. To use the U. of
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Chicago email server, send mail with the subject "help" (without the
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quotes) to archive-server@chsun1.spc.uchicago.edu.
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NOTE: THE WIDENER SITE IS TEMPORARILY RE-ORGANIZING AND IS CURRENTLY
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DIFFICULT TO ACCESS. FTP-ERS SHOULD USE THE ALTERNATE FTP SITES UNTIL
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FURTHER NOTICE.
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COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing
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information among computerists and to the presentation and debate of
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diverse views. CuD material may be reprinted as long as the source
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is cited. Some authors do copyright their material, and they should
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be contacted for reprint permission. It is assumed that non-personal
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mail to the moderators may be reprinted unless otherwise specified.
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Readers are encouraged to submit reasoned articles relating to the
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Computer Underground. Articles are preferred to short responses.
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Please avoid quoting previous posts unless absolutely necessary.
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DISCLAIMER: The views represented herein do not necessarily represent
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the views of the moderators. Digest contributors assume all
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responsibility for ensuring that articles submitted do not
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violate copyright protections.
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----------------------------------------------------------------------
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Date: Sun Feb 16 08:28:41 1992 GMT
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From: aaron@NACJACK.GEN.NZ
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Subject: "Computer down-underground Digest" (CDUGD)
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Hello from New Zealand! A few friends and I are starting up an
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electronic publication similar to CuD to be called 'Computer - Down -
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Under Ground Digest' (CDUGD). Its content will be similar to that of CuD,
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but it will mainly deal with computing issues in New Zealand.
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Since there has been some interest from outside of New Zealand, CDUGD
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will be available for reading on the alt.hackers Usenet newsgroup.
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Please send any suggestions/comments to: aaron@nacjack.gen.nz
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Aaron Schiff
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Editor, CDUGD
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((Moderators' note: Aaron asked if we minded the similarity between
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the title of his project and CuD. We have no objections, and wish him
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well in his endeavor)).
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------------------------------
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Date: Tue, 18 Feb 92 22:13:31 EST
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From: Keith Moore <moore@CS.UTK.EDU>
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Subject: CuD articles on Craig Neidorf's legal expenses
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I have read repeated pleas on various networked discussion groups for
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readers to help defray Craig's legal expenses. While I sympathize
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with his position and am in fact willing to help, I'm sure many of the
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readers would like to know what all of that money was spent for. I
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want to help Craig, but I don't like the idea of giving over money to
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lawyers. The high price of legal help is arguably as much of the
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problem as the reckless disregard for law and due process demonstrated
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by the government.
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Also, why are we asked to send money directly to the law firm that
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defended Craig, and not to Craig himself?
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I'm sure I'm not the only one among your readership with these kinds
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of questions, and would appreciate it if you could address them in a
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future issue of CuD. Perhaps the computer underground, realizing how
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much we are at the mercy of both lawyers and the government, would
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find it in its interest to act to curtail their powers.
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------------------------------
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Date: Wed, 12 Feb 92 11:10:29 PDT
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From: lorbit!walter_s@UCBVAX.BERKELEY.EDU(Walter Scott)
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Subject: Update Of Info. In 2/5/92 Newsbytes Article On BBS Phone Rates
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If you do not recall, or are otherwise unaware, there is a
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complaint (docket #UC-205) filed before the Oregon Public Utility
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Commission intended to prevent US West from reclassifying BBS phone
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lines to business rates. SysOp Tony Wagner filed the complaint back in
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October. On 2/5/92, Dana Blankenhorn of Newsbytes Magazine released a
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story, subsequently published in Newsbytes, that covered the Wagner
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complaint. What follows is my own efforts to update Blankenhorn's
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information. Herein, find corrections of some items reported by
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Blankenhorn or simply left out of his article.
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Over the weekend of 2/8/92, I managed to conduct a short interview
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with Tony Wagner of Portland, Oregon and First Choice Communications
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BBS. I learned that Wagner's BBS is still online. This is contrary to
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my understanding of the 2/5/92 Newsbytes story by Dana Blankenhorn.
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Wagner's BBS is available at:
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503-297-0278
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503-297-0279
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503-297-0343 [RESTRICTED ACCESS]
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Wagner mentions his dispute with US West in bulletin #1 on his
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system. Here is full text of that bulletin.
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======================= TEXT BEGINS ===============================
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Well The U.S. West phone company has decided that ALL
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Phone lines that have modems on them Should be classed
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As Business Lines..
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I have run a FREE Bulletin Board System for years out
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of my own pocket with out ever asking users to help
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pay the Cost of running the system..
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This will have to change if U.S. West has their way
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So please leave me mail as to how you feel about this
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better yet Call the Phone Company and tell them how you
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feel..
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If this happens I will do something like a Pay system
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that will cost around $1.00-3.00 Per hour depending
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on what parts of the BBS you want to use The Advantage
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to you will be unlimited Time on NO Time Limits If it
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get to busy I will add more lines Wildcat can handle
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250 Lines :-)
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I may then even add a bunch of Doors with Games Etc.
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========================== TEXT ENDS ==============================
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Wagner's legal expenses were not dealt with in the manner implied
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by Newsbytes on 2/5/92. Although an investigation of Wagner's
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"Pacific Northwest Phone's" conference (the location on Wagner's system
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of the FidoNet PNWBELL echo) would indicate that the subject of others
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chipping in to pay for legal services was broached, Wagner informed me
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that no group of SysOps or users ever paid for, or attempted to pay
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Richard Samuels (Wagner's original attorney).
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Richard Samuels withdrew from Wagner's complaint filing at the
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Oregon Public Utility Commission shortly before a December 10 hearing
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date. Wagner represented himself at that hearing.
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The "Pacific Northwest Phone's" conference on First Choice
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Communications additionally reveals an important item of interest. It
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is apparent that US West and SouthWestern Bell are sharing information
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about disputes with BBS operators in their respective operating
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jurisdictions. Such is illustrated in the following message pulled from
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the "Pacific Northwest Phone's" conference on First Choice Communications.
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=========================== TEXT BEGINS ==============================
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From : SCOTT LENT Number : 223 of 241
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To : ALL Date : 01/10/92 11:56am
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Subject : a note Reference : NONE
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Read : [N/A] Private : NO
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Conf : 505 - Pacific Northwest Phone's
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That may or may not be of interest to those of you serviced by US West:
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A group of sysops in Missouri met with representatives from Southwestern Bell
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on 01/07/92 in St. Louis for the second in a series of negotiations. At the
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meeting, William Bailey, District Manager-Rate Administration, divulged that
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he had been in contact with "someone from US West," and that their
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conversation included discussion of their respective telephone tariffs.
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Specifically, he made reference to your (Oregon's) tariff wording that
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refers to "domestic use."
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This information is two-fold. First, you now know that your RBOC people are
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in contact with others about tariff wording. Secondly, your RBOC people are
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aware that other RBOCs are negotiating with their consumers over regulations
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that affect the modeming community.
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Scott
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--- DB B1056/004017
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* Origin: GKCSA-the ultimate bal...er...Bell buster (1:280/310)
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=========================== TEXT ENDS =================================
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Wagner has retained attorney Kevin Myles to represent him in his
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complaint case at the Oregon Public Utility Commission. Myles has until
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March 3, 1992 to file a brief. A round of reply briefs, from the
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opposing parties in the complaint, is also possible.
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Walter Scott
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--
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"Lightfinger" Rayek's Friendly Casino: 206/528-0948, Seattle, Washington.
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------------------------------
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Date: Mon, 17 Feb 92 19:19:18 PST
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From: autodesk!megalon!jwarren@FERNWOOD.MPK.CA.US(Jim Warren)
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Subject: FULL TEXT: Calif. data-priv/comp.crime bill
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This includes the full text of legislation that was introduced Feb.
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10th in the California State Senate by a senior member of that body,
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the Chair of the Senate Judiciary Committee, Senator Bill Lockyer of
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Southern Alameda County. This copy of the bill plus staff background
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comments is being uploaded within days of its availability in Senate
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offices.
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SB1447 TOPICS
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Sec.1: "Privacy Act of 1992", Senate Bill 1447 (Lockyer, Privacy)
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Sec.2: Driver's licenses: Use of human-readable and magstripe information
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Sec.3: Privacy: Rights of employees and prospective employees
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Sec.4: Computer crime laws: Modifications
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Sec.5: Automatic vehicle identification [AVI] systems: Control of uses
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CONTENTS OF THIS MESSAGE [words/chars]
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Introductory comments and details of notation conventions [757/5191]
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Reformatted verbatim text of the Feb. 10th bill [3227/21285]
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Background notes prepared by Sen. Lockyer's assistant [2465/15546]
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If printed, this would take approximately 12 pages.
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REPORTEDLY A LEGISLATIVE "FIRST"
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This effort in "electronic democracy" may be the first time that state
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legislation has been distributed online, for access by the general public,
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at the same time it becomes available to legislators and their staff.
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A senior member of the Senate computer system's technical staff reportedly
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said they have never-before down-loaded a machine-readable copy of initial
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legislation onto a personal computer for redistribution on public computer
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networks.
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Furthermore, Sen. Lockyer's Legislative Assistant responsible for the bill
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said he knows of no prior instance where legislative staff have gone online
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on public nets to seek citizen input and discussion about new legislation.
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SOURCES OF ORIGINAL DOCUMENTS & INFORMATION
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Mr. Ben Firschein is the Legislative Assistant to Sen. Lockyer who is
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handling this bill:
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Office of Senator Bill Lockyer
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Room 2032, State Capitol
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Sacramento CA 95814
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Mr. Firschein/916-445-6671, main number/916-445-5957, email/**
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Formatted, binary, machine-readable versions of this text will be
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available on the WELL, the Whole Earth 'Lectronic Link. The WELL is a public
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teleconferencing system located in Sausalito, California, accessible via the
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Internet; voice/415-332-4335, 2400-baud data/7-E-1/415-332-6106. For read-
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only access instructions, SEND A REQUEST TO: jwarren@well.sf.ca.us.
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** -- Mr. Firschein will be online on the WELL within a week or so. You may
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request his email address, also, from jwarren@well.sf.ca.us.
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There will be four read-only files:
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A. The original file that was down-loaded from the Senate's legislative
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computer system in WordPerfect format on a PC-compatible diskette.
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B. The above file, converted to a Word-5.0 Macintosh format, with
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pagination approximating the printed copies of the bill available from the
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legislative offices.
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C. Background information, explanations and mention of some alternatives,
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prepared by Mr. Firschein, in original WordPerfect format for PC-compatibles.
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D. That backgrounder file, converted to Word-5.0 Macintosh format.
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REPRESENTING LEGISLATION-IN-PROGRESS: A NOTATION PROBLEM
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In the California Senate, printed legislation-in-progress uses the
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following conventions:
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When stating new legislation, *plain-text* states PROPOSED law.
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When *amending* current law, *plain-text* states the CURRENT law, and
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*strike-thru text* indicates current law to be deleted while *underscored* or
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*italicized* text represents wording to be added to those current statutes.
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Deletions and additions represented by strike-thru and underlining or italics
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*amend* current law.
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But, the basic ASCII character-set -- and a great many older terminals and
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computer printers -- have no strike-thru, italics or underlining. So, here
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is how that unavailable notation is represented in this document:
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[[ annotation ]] -- explanatory comments by "uploader" Jim Warren
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all capitals -- originally bold-face text; no legislative meaning
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Unless stated as amending current law:
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plain-text -- text of new legislation, proposed to be new law
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When stated as amending current law:
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plain-text -- text of current law to remain unchanged
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<< strikethru >> -- text in current law, proposed for deletion
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%% underscore %% -- text proposed to be added to current law.
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THE BEGINNING ...
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The introduction of this legislation in the Senate is the beginning of
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a lengthy process or review and revision by amendment, prior to its possible
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passage into law.
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Please send your comments and suggestions about the legislation -- and
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about the Senate staff's active cooperation in making it publicly available,
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online -- to Mr. Firschein and Sen. Lockyer.
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--Jim Warren, 345 Swett Rd., Woodside CA 94062; voice/415-851-7075,
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fax/415-851-2814, email/jwarren@well.sf.ca.us -or- jwarren@autodesk.com
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[ for identification purposes, only: contributing editor, MicroTimes;
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Chair, First Conference on Computers, Freedom & Privacy (March, 1991);
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and member, Board of Directors, Autodesk, Inc.; blah blah blah ]
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===================== verbatim text of the legislation =====================
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"THE PRIVACY ACT OF 1992" -- CALIFORNIA STATE SENATE BILL No. 1447
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Introduced by Senator Lockyer
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February 10, 1992
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An act to add Section 1799.4 to the Civil Code, to add Section 2805 to the
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Labor Code, to amend Section 502 of the Penal Code, and to amend Section
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27565 of the Streets and Highways Code, relating to privacy.
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LEGISLATIVE COUNSEL'S DIGEST
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[[**** The Legislative Counsel's Digest is NOT part of the bill. It is
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only a summary prepared by the legislature's legal counsel. ****]]
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SB 1447, as introduced, Lockyer. Privacy.
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(1) Existing law prohibits the disclosure of specified information by
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business entities which perform bookkeeping services and by persons providing
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video cassette sales or rental services.
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This bill would provide that a business entity that obtains information
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from a consumer's driver's license or identification card shall not sell the
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information or use it to advertise goods or services, without consent.
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(2) Existing law prohibits employers from making or enforcing rules or
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policies forbidding or preventing employees from engaging or participating in
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politics, and from controlling the political activities or affiliations of
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employees.
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This bill would provide that any employer shall be liable to an employee
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or prospective employee for damages caused by subjecting the employee to
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discipline or discharge, or denying employment to a prospective employee, on
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account of the exercise by that person of privacy rights guaranteed by the
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California Constitution.
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(3) Existing law sets forth definitions and penalties for specified
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computer-related crimes.
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This bill would require the owner or lessee of any computer, computer
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system, computer network, computer program, or data, as specified, to report
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to a local law enforcement agency any known violations of the provisions
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described above. The bill would also provide that any person who recklessly
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stores or maintains data in a manner which enables a person to commit acts
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leading to a felony conviction under the provisions described above, shall be
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liable to each injured party for a specified civil penalty. The bill would
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make related changes.
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(4) Existing law requires the Department of Transportation to develop and
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adopt functional specifications and standards for an automatic vehicle
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identification system to be used in toll facilities, as specified.
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This bill would provide that a vehicle owner shall have the choice of
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being billed after using the facility, or of prepaying tolls, in which case
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the department or any privately owned entity operating a toll facility shall
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issue an account number to the vehicle owner which is not derived from the
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vehicle owner's name, address, social security number, or specified other
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sources, and would prohibit the keeping of any record of this information.
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Vote: majority. Appropriation: no. Fiscal committee: yes.
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State-mandated local program: no.
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THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
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SECTION 1. This act shall be known and may be cited as the Privacy Act of
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1992.
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SEC. 2. Section 1799.4 is added to the Civil Code, to read:
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1799.4. A business entity that obtains information from a consumer's
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driver's license or identification card for its business records or for other
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purposes shall not sell the information or use it to advertise goods or
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services, without the written consent of the consumer.
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SEC. 3. Section 2805 is added to the Labor Code, to read:
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2805. (a) Any employer, including any state or local governmental entity
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or instrumentality thereof, shall be liable to an employee or prospective
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employee for damages caused by either of the following:
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(1) Subjecting the employee to discipline or discharge on account of the
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exercise by the employee of privacy rights guaranteed by Section 1 of Article
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I of the California Constitution, provided the activity does not
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substantially interfere with the employee's bona fide job performance or
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working relationship with the employer.
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(2) Denying employment to a prospective employee on account of the
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prospective employee's exercise of privacy rights guaranteed by Section 1 of
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Article I of the California Constitution.
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(b) Damages awarded pursuant to this section may include punitive damages,
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and reasonable attorney's fees as part of the costs of the action. If the
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court decides that an action for damages was brought without substantial
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justification, the court may award costs and reasonable attorney's fees to
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the employer.
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SEC. 4. Section 502 of the Penal Code is amended to read:
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[[**** Note that this would AMEND current law. ****]]
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502. (a) It is the intent of the Legislature in enacting this section to
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expand the degree of protection afforded to individuals, businesses, and
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governmental agencies from tampering, interference, damage, and unauthorized
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access to lawfully created computer data and computer systems. The
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Legislature finds and declares that the proliferation of computer technology
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has resulted in a concomitant proliferation of computer crime and other forms
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of unauthorized access to computers, computer systems, and computer data.
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The Legislature further finds and declares that protection of the
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integrity of all types and forms of lawfully created computers, computer
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systems, and computer data is vital to the protection of the privacy of
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individuals as well as to the well-being of financial institutions, business
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concerns, governmental agencies, and others within this state that lawfully
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utilize those computers, computer systems, and data.
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(b) For the purposes of this section, the following terms have the
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following meanings:
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(1) "Access" means to gain entry to, instruct, or communicate with the
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logical, arithmetical, or memory function resources of a computer, computer
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system, or computer network.
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(2) "Computer network" means any system which provides communications
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between one or more computer systems and input/output devices including, but
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not limited to, display terminals and printers connected by telecommunication
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facilities.
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(3) "Computer program or software" means a set of instructions or
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statements, and related data, that when executed in actual or modified form,
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cause a computer, computer system, or computer network to perform specified
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functions.
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(4) "Computer services" includes, but is not limited to, computer time,
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data processing, or storage functions, or other uses of a computer, computer
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system, or computer network.
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(5) "Computer system" means a device or collection of devices, including
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support devices and excluding calculators which are not programmable and
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capable of being used in conjunction with external files, one or more of
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which contain computer programs, electronic instructions, input data, and
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output data, that performs functions including, but not limited to, logic,
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arithmetic, data storage and retrieval, communication, and control.
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(6) "Data" means a representation of information, knowledge, facts,
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concepts, computer software, computer programs or instructions. Data may be
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in any form, in storage media, or as stored in the memory of the computer or
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in transit or presented on a display device.
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(7) "Supporting documentation" includes, but is not limited to, all
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information, in any form, pertaining to the design, construction,
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classification, implementation, use, or modification of a computer, computer
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system, computer network, computer program, or computer software, which
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information is not generally available to the public and is necessary for the
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operation of a computer, computer system, computer network, computer program,
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or computer software.
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(8) "Injury" means any alteration, deletion, damage, or destruction of a
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computer system, computer network, computer program, or data caused by the
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access.
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(9) "Victim expenditure" means any expenditure reasonably and necessarily
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incurred by the owner or lessee to verify that a computer system, computer
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network, computer program, or data was or was not altered, deleted, damaged,
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or destroyed by the access.
|
|
(10) "Computer contaminant" means any set of computer instructions that
|
|
are designed to modify, damage, destroy, record, or transmit information
|
|
within a computer, computer system, or computer network without the intent or
|
|
permission of the owner of the information. They include, but are not
|
|
limited to, a group of computer instructions commonly called viruses or
|
|
worms, which are self-replicating or self-propagating and are designed to
|
|
contaminate other computer programs or computer data, consume computer
|
|
resources, modify, destroy, record, or transmit data, or in some other
|
|
fashion usurp the normal operation of the computer, computer system, or
|
|
computer network.
|
|
(c) Except as provided in subdivision (h), any person who commits any of
|
|
the following acts is guilty of a public offense:
|
|
(1) Knowingly accesses and without permission alters, damages, deletes,
|
|
destroys, or otherwise uses any data, computer, computer system, or computer
|
|
network in order to either (A) devise or execute any scheme or artifice to
|
|
defraud, deceive, or extort, or (B) wrongfully control or obtain money,
|
|
property, or data.
|
|
(2) Knowingly accesses and without permission takes, copies, or makes use
|
|
of any data from a computer, computer system, or computer network, or takes
|
|
or copies any supporting documentation, whether existing or residing internal
|
|
or external to a computer, computer system, or computer network.
|
|
(3) Knowingly and without permission uses or causes to be used computer
|
|
services.
|
|
(4) Knowingly accesses and without permission adds, alters, damages,
|
|
deletes, or destroys any data, computer software, or computer programs which
|
|
reside or exist internal or external to a computer, computer system, or
|
|
computer network.
|
|
(5) Knowingly and without permission disrupts or causes the disruption of
|
|
computer services or denies or causes the denial of computer services to an
|
|
authorized user of a computer, computer system, or computer network.
|
|
(6) Knowingly and without permission provides or assists in providing a
|
|
means of accessing a computer, computer system, or computer network in
|
|
violation of this section.
|
|
(7) Knowingly and without permission accesses or causes to be accessed any
|
|
computer, computer system, or computer network.
|
|
(8) Knowingly introduces any computer contaminant into any computer,
|
|
computer system, or computer network.
|
|
(d) (1) Any person who violates any of the provisions of paragraph (1),
|
|
(2), (4), or (5) of subdivision (c) is punishable by a fine not exceeding ten
|
|
thousand dollars ($10,000), or by imprisonment in the state prison for 16
|
|
months, or two or three years, or by both that fine and imprisonment, or by a
|
|
fine not exceeding five thousand dollars ($5,000), or by imprisonment in the
|
|
county jail not exceeding one year, or by both that fine and imprisonment.
|
|
(2) Any person who violates paragraph (3) of subdivision (c) is punishable
|
|
as follows:
|
|
(A) For the first violation which does not result in injury, and where the
|
|
value of the computer services used does not exceed four hundred dollars
|
|
($400), by a fine not exceeding five thousand dollars ($5,000), or by
|
|
imprisonment in the county jail not exceeding one year, or by both that fine
|
|
and imprisonment.
|
|
(B) For any violation which results in a victim expenditure in an amount
|
|
greater than five thousand dollars ($5,000) or in an injury, or if the value
|
|
of the computer services used exceeds four hundred dollars ($400), or for any
|
|
second or subsequent violation, by a fine not exceeding ten thousand dollars
|
|
($10,000), or by imprisonment in the state prison for 16 months, or two or
|
|
three years, or by both that fine and imprisonment, or by a fine not
|
|
exceeding five thousand dollars ($5,000), or by imprisonment in the county
|
|
jail not exceeding one year, or by both that fine and imprisonment.
|
|
(3) Any person who violates paragraph (6), (7), or (8) of subdivision (c)
|
|
is punishable as follows:
|
|
(A) For a first violation which does not result in injury, an infraction
|
|
punishable by a fine not exceeding two hundred fifty dollars ($250).
|
|
(B) For any violation which results in a victim expenditure in an amount
|
|
not greater than five thousand dollars ($5,000), or for a second or
|
|
subsequent violation, by a fine not exceeding five thousand dollars ($5,000),
|
|
or by imprisonment in the county jail not exceeding one year, or by both that
|
|
fine and imprisonment.
|
|
(C) For any violation which results in a victim expenditure in an amount
|
|
greater than five thousand dollars ($5,000), by a fine not exceeding ten
|
|
thousand dollars ($10,000), or by imprisonment in the state prison for 16
|
|
months, or two or three years, or by both that fine and imprisonment, or by a
|
|
fine not exceeding five thousand dollars ($5,000), or by imprisonment in the
|
|
county jail not exceeding one year, or by both that fine and imprisonment.
|
|
|
|
[[**** Use of << STRIKETHRU >> and %% UNDERSCORE %% begins, hereafter. ****]]
|
|
|
|
(e) (1) In addition to any other civil remedy available, %% any injured
|
|
party, including but not limited to %% the owner or lessee of the
|
|
computer, computer system, computer network, computer program, or data may
|
|
bring a civil action against any person convicted under this section for
|
|
compensatory damages, including %% consequential or incidental damages. In
|
|
the case of the owner or lessee of the computer, computer system, computer
|
|
network, computer program, or data, damages may include, but are not limited
|
|
to,%% any expenditure reasonably and necessarily incurred by the owner or
|
|
lessee to verify that a computer system, computer network, computer program,
|
|
or data was or was not altered, damaged, or deleted by the access. << For >>
|
|
[[**** Yes, that was a struck-thru "For" ending that paragraph. ****]]
|
|
%% (2) Any person who recklessly stores or maintains data in a manner
|
|
which enables a person to commit acts leading to a felony conviction under
|
|
this section shall be liable to each injured party for a civil penalty of ten
|
|
thousand dollars ($10,000), up to a maximum of fifty thousand dollars
|
|
($50,000). Failure to report a previous violation of this section to a local
|
|
law enforcement agency pursuant to subdivision (f) may constitute evidence of
|
|
recklessness %%
|
|
%% (3) For %% the purposes of actions authorized by this subdivision, the
|
|
conduct of an unemancipated minor shall be imputed to the parent or legal
|
|
guardian having control or custody of the minor, pursuant to the provisions
|
|
of Section 1714.1 of the Civil Code.
|
|
<< (2) >>
|
|
%% (4) %% In any action brought pursuant to this subdivision the court may
|
|
award reasonable attorney's fees to a prevailing party.
|
|
<< (3) >>
|
|
%% (5) %% A community college, state university, or academic institution
|
|
accredited in this state is required to include computer-related crimes as a
|
|
specific violation of college or university student conduct policies and
|
|
regulations that may subject a student to disciplinary sanctions up to and
|
|
including dismissal from the academic institution. This paragraph shall not
|
|
apply to the University of California unless the Board of Regents adopts a
|
|
resolution to that effect.
|
|
(f) %% The owner or lessee of any computer, computer system, computer
|
|
network, computer program, or data shall report to a local law enforcement
|
|
agency, including the police, sheriff, or district attorney, any known
|
|
violations of this section involving the owner or lessee's computer, computer
|
|
system, computer network, computer program, or data. The reports shall be
|
|
made within 60 days after the violations become known to the owner or
|
|
lessee. %%
|
|
%% (g) %% This section shall not be construed to preclude the
|
|
applicability of any other provision of the criminal law of this state which
|
|
applies or may apply to any transaction, nor shall it make illegal any
|
|
employee labor relations activities that are within the scope and protection
|
|
of state or federal labor laws.
|
|
<< (g) >>
|
|
%% (h) %% Any computer, computer system, computer network, or any software
|
|
or data, owned by the defendant, which is used during the commission of any
|
|
public offense described in subdivision (c) or any computer, owned by the
|
|
defendant, which is used as a repository for the storage of software or data
|
|
illegally obtained in violation of subdivision (c) shall be subject to
|
|
forfeiture, as specified in Section 502.01.
|
|
<< (h) >>
|
|
%% (i) %% (1) Subdivision (c) does not apply to any person who accesses
|
|
his or her employer's computer system, computer network, computer program, or
|
|
data when acting within the scope of his or her lawful employment.
|
|
(2) Paragraph (3) of subdivision (c) does not apply to any employee who
|
|
accesses or uses his or her employer's computer system, computer network,
|
|
computer program, or data when acting outside the scope of his or her lawful
|
|
employment, so long as the employee's activities do not cause an injury, as
|
|
defined in paragraph (8) of subdivision (b), to the employer or another, or
|
|
so long as the value of supplies and computer services, as defined in
|
|
paragraph (4) of subdivision (b), which are used do not exceed an accumulated
|
|
total of one hundred dollars ($100).
|
|
<< (i) >>
|
|
%% (j) %% No activity exempted from prosecution under paragraph (2) of
|
|
subdivision << (h) >> %% (i) %% which incidentally violates paragraph (2),
|
|
(4), or (7) of subdivision (c) shall be prosecuted under those paragraphs.
|
|
<< (j) >>
|
|
%% (k) %% For purposes of bringing a civil or a criminal action under this
|
|
section, a person who causes, by any means, the access of a computer,
|
|
computer system, or computer network in one jurisdiction from another
|
|
jurisdiction is deemed to have personally accessed the computer, computer
|
|
system, or computer network in each jurisdiction.
|
|
<< (k) >>
|
|
%% (l) %% In determining the terms and conditions applicable to a person
|
|
convicted of a violation of this section the court shall consider the
|
|
following:
|
|
(1) The court shall consider prohibitions on access to and use of
|
|
computers.
|
|
(2) Except as otherwise required by law, the court shall consider
|
|
alternate sentencing, including community service, if the defendant shows
|
|
remorse and recognition of the wrongdoing, and an inclination not to repeat
|
|
the offense.
|
|
|
|
SEC. 5. Section 27565 of the Streets and Highways Code is amended to read:
|
|
[[** NOTE: This is another amendment, with strikethrus and underscores. **]]
|
|
27565. (a) The Department of Transportation, in cooperation with the
|
|
district and all known entities planning to implement a toll facility in this
|
|
state, shall develop and adopt functional specifications and standards for an
|
|
automatic vehicle identification system, in compliance with the following
|
|
objectives:
|
|
(1) In order to be detected, the driver shall not be required to reduce
|
|
speed below the applicable speed for the type of facility being used.
|
|
(2) The vehicle owner shall not be required to purchase or install more
|
|
than one device to use on all toll facilities, but may be required to have a
|
|
separate account or financial arrangement for the use of these facilities.
|
|
(3) The facility operators shall have the ability to select from different
|
|
manufacturers and vendors. The specifications and standards shall encourage
|
|
multiple bidders, and shall not have the effect of limiting the facility
|
|
operators to choosing a system which is able to be supplied by only one
|
|
manufacturer or vendor.
|
|
(b) %% The vehicle owner shall have the choice of prepaying tolls, or
|
|
being billed after using the facility. If the vehicle owner prepays tolls:
|
|
(1) The department or any privately owned entity operating a toll facility
|
|
shall issue an account number to the vehicle owner. The account number shall
|
|
not be derived from the vehicle owner's name, address, social security
|
|
number, or driver's license number, or the vehicle's license number, vehicle
|
|
identification number, or registration.
|
|
(2) Once an account has been established and an account number has been
|
|
given to the vehicle owner, neither the department nor the privately owned
|
|
facility shall keep any record of the vehicle owner's name, address, social
|
|
security number, or driver's license number, or the vehicle's license number,
|
|
vehicle identification number, or registration.
|
|
(3) The vehicle owner may make additional prepayments by specifying the
|
|
account number and furnishing payment. %%
|
|
%% (c) %% Any automatic vehicle identification system purchased or
|
|
installed after January 1, 1991, shall comply with the specifications and
|
|
standards adopted pursuant to subdivision (a).
|
|
%% (d) Any automatic vehicle identification system purchased or installed
|
|
after January 1, 1993, shall comply with the specifications and standards
|
|
adopted pursuant to subdivisions (a) and (b). %%
|
|
|
|
[[**** END OF SB 1447, DATED FEBRUARY 10, 1992 ****]]
|
|
|
|
=============== background comments by legislative assistant ===============
|
|
|
|
|
|
[[**** In this section, since underlining is for emphasis, only, and has no
|
|
legal meaning, I changed Mr. Firschein's underlined text to all-caps. ****]]
|
|
|
|
California State Senate
|
|
Bill Lockyer
|
|
Tenth Senatorial District
|
|
Southern Alameda County
|
|
State Capitol
|
|
Sacramento, California 95814
|
|
(916)445-6671
|
|
|
|
TO: Interested parties
|
|
FROM: Ben Firschein, Senator Lockyer's Office
|
|
DATE: February 14, 1992
|
|
|
|
RE: BACKGROUND INFORMATION ON SB 1447 (LOCKYER, PRIVACY)
|
|
You should have received a copy of SB 1447 (Lockyer, Privacy) in the mail
|
|
recently. Senator Lockyer introduced the bill in an effort to address some
|
|
of the concerns raised at the privacy hearing on December 10, 1991.
|
|
This memorandum is intended to explain the intent of the various sections
|
|
of the bill, but it is not a committee analysis.
|
|
(A committee analysis will be forthcoming at a later date, when the bill
|
|
is set for a hearing). We welcome suggestions as to how to clarify the
|
|
language of the bill, or otherwise improve the bill.
|
|
|
|
|
|
SECTION 1: CITATION
|
|
The bill may be cited as the "Privacy Act of 1992"
|
|
|
|
SECTION 2: INFORMATION OBTAINED FROM DRIVER'S LICENSES
|
|
This section requires the written consent of a consumer for a business
|
|
entity to (1) sell information obtained from the consumer's driver's license
|
|
or (2) use such information to advertise goods or services.
|
|
The section is intended to cover instances where a consumer presents a
|
|
driver's license or identification card for identification purposes during a
|
|
business transaction. The section is not intended to prevent businesses from
|
|
using driver's license information for business record-keeping, or for other
|
|
purposes related to the transaction (i.e. authorizing a transaction).
|
|
The section is not intended to change existing law with respect to the
|
|
ability of businesses to obtain driver's license information from other
|
|
sources (such as DMV records).
|
|
The need for this section is heightened by the new "magstripe" drivers
|
|
license developed by the Department of Motor Vehicles. This license has a
|
|
magnetic stripe on the back which contains much of the information on the
|
|
front of the license. The stripe will enable a business entity to store
|
|
information contained on a driver's license simply by scanning the card
|
|
through a reader.
|
|
A publication by the Department of Motor Vehicles dated May 1991
|
|
("Department of Motor Vehicles Magnetic Stripe Drivers License/Identification
|
|
Card") states that "using point of sale (POS) readers and printers, the
|
|
business community can electronically record the DL [driver's license] /ID
|
|
number on receipts and business records." The publication notes that
|
|
"magnetic stripe readers are readily available, relatively low in cost, and
|
|
are already available in many retail outlets."
|
|
However, a merchant might access much more than the driver's license/ID
|
|
number; the publication notes that "readers have been produced, and market
|
|
available readers can be modified that will read the three tracks of
|
|
information contained on the California card." According to the publication,
|
|
the tracks contain information such as license type, name, address, sex,
|
|
hair-color, eye-color, height, weight, restrictions, issue date.
|
|
|
|
SECTION 3:
|
|
DEPRIVATION OF THE RIGHT TO PRIVACY OF EMPLOYEES OR PROSPECTIVE EMPLOYEES
|
|
This section provides that an employer shall be liable to an employee or
|
|
prospective employee for damages caused by subjecting an employee to
|
|
discipline or discharge or denying employment to a prospective employee, on
|
|
account of the exercise by that person of privacy rights guaranteed by the
|
|
California Constitution.
|
|
This section is modeled after Connecticut Labor Code Section 31-51q. The
|
|
Lockyer bill goes further than the Connecticut statute in that it applies to
|
|
prospective as well as current employees.
|
|
The bill would allow punitive damages and reasonable attorney's fees to be
|
|
awarded pursuant to Section 3 (page 3 lines 10-12).
|
|
The bill would specify that if the court decides that an action for
|
|
damages was brought by an employee or a prospective employee without
|
|
"substantial justification," the court may award costs and reasonable
|
|
attorney's fees to the employer (page 3, lines 12-15).
|
|
As with the Connecticut statute, an employee's cause of action would only
|
|
exist if the activity for which the employee was disciplined or discharged
|
|
did not "substantially interfere with the employee's bona fide job
|
|
performance or working relationship with the employer." (Page 3, lines 4-5).
|
|
POSSIBLE AMENDMENT: The language in the bill covering prospective
|
|
employees (page 3, lines 6-9) omits the "substantial interference" language
|
|
contained in the section covering existing employees. Perhaps the bill
|
|
should specify that a prospective employee lacks a cause of action if the
|
|
prospective employer has a compelling business interest in rejecting someone
|
|
because they engaged in certain acts (even though those acts were protected
|
|
by the constitutional right to privacy).
|
|
Such an amendment would be consistent with cases such SOROKA V. DAYTON
|
|
HUDSON CORPORATION, 91 Daily Journal D.A.R. 13204 (1st Appellate District).
|
|
The court in SOROKA found that a psychological screening test administered to
|
|
Target Store security officer applicants violated the applicants' state
|
|
constitutional right to privacy when it inquired about their religious
|
|
beliefs and sexual orientation, because there was no compelling need for the
|
|
test.
|
|
POSSIBLE AMENDMENT # 2: One of the participants in the privacy hearing
|
|
suggests language making it clear that the rights and remedies set forth in
|
|
the section are not exclusive and do not pre-empt or limit any other
|
|
available remedy.
|
|
POTENTIAL ARGUMENTS AGAINST THIS SECTION: Some may argue that in light of
|
|
cases such as Soroka, this statute is unnecessary, because these rights are
|
|
already set forth in existing case law.
|
|
They may also point out that the California Supreme Court held in WHITE V.
|
|
DAVIS that the right to privacy is self-executing, meaning that every
|
|
Californian has standing to sue directly under Article I, Section I of the
|
|
California Constitution for a privacy violation. WHITE V. DAVIS (1975) 13
|
|
Cal.3d 757, 775. Given that the right to privacy is self-executing, why is a
|
|
statute needed?
|
|
The answer is that case law is in a state of flux, and there is no
|
|
guarantee that future courts will construe Article I in such a liberal
|
|
fashion. Also, the bill is an improvement over existing case law in that it
|
|
specifically lists the types of damages that may be awarded, including
|
|
punitive damages, and reasonable attorney's fees.
|
|
|
|
SECTION 4. COMPUTER CRIMES
|
|
Jim Warren (one of the witnesses at the hearing) posted the Leg Counsel
|
|
draft of the bill on one of the networks and showed me some of the responses.
|
|
This section generated most of the comments, some of which were quite vocal.
|
|
First a word of caution to those uninitiated in the ways of the
|
|
Legislature: MOST OF THE LANGUAGE IN THIS SECTION IS EXISTING LAW. Our
|
|
proposed additions are contained in language that is in italics or
|
|
underlined. IF IT IS NOT IN ITALICS OR UNDERLINES, IT IS EXISTING LAW.
|
|
PROPOSED ADDITION #1 (page 7, line 25): Extend the existing computer crime
|
|
statute [Penal Code Section 502] to allow civil recovery by any injured party
|
|
against someone convicted under Section 502 of breaking into a computer. (The
|
|
existing law just allows recovery by the owner or lessee of a computer
|
|
system). For example, if someone is convicted under Section 502 of breaking
|
|
into TRW's computers and altering credit records, the existing statute would
|
|
allow TRW to recover against the hacker in a civil suit, but the statute
|
|
would not allow someone whose credit history was injured by the hacker to sue
|
|
the hacker under statute.
|
|
PROPOSED ADDITION #2 (page 7, lines 30-33): Extend Penal Code Section 502
|
|
to allow civil recovery against a convicted hacker for more than just the
|
|
cost of expenditures necessary to verify that a computer system was or was
|
|
not altered, damaged, or deleted by the access. The proposed language would
|
|
allow civil recovery for ALL CONSEQUENTIAL OR INCIDENTAL DAMAGES resulting
|
|
from the intrusion.
|
|
PROPOSED ADDITION #3 (page 7, lines 38-40 & page 8, lines 1-6): Create a
|
|
cause of action against those who "recklessly store or maintain data in a
|
|
manner which enables a person to commit acts leading to a felony conviction
|
|
under this section."
|
|
The section is intended to address the situation where someone stores
|
|
information (e.g. credit data) in a manner which easily allows unauthorized
|
|
access, and the person who is able to access the information as a result of
|
|
the lack of safeguards injures a third party (e.g. a creditor, or a person
|
|
whose credit history is altered).
|
|
The source of the section is the case of PEOPLE V. GENTRY 234 Cal.App.3d
|
|
131 (1991). In that case, a hacker figured out that if he queried the credit
|
|
databases of TRW, CBI, or Trans Union, about a nonexistent person, each
|
|
system would create a new file for that non-existent person. The non-
|
|
existent person would have an exemplary credit history, because there was no
|
|
negative credit information in the new file. The hacker in the GENTRY case
|
|
went into the business of rehabilitating people's credit history by having
|
|
them change their name, and then creating credit files on these "new" people.
|
|
The court stated in a footnote "we do not address the potential liability
|
|
to innocent third parties who might be harmed by this feature of the software
|
|
program. Although Gentry found a weakness in the program and exploited it,
|
|
responsibility should not rest solely with the felon. Credit reporting
|
|
companies should recognize that this flaw is needlessly risky and remedy it."
|
|
(GENTRY, page 135, footnote 3).
|
|
POTENTIAL CONCERNS: some people who have seen the bill worry that section
|
|
4 would apply to someone (e.g. a computer bulletin board operator) who stores
|
|
information on a computer about how to commit a crime (e.g. information about
|
|
how to break into a computer, or how to build a bomb)
|
|
The section is intended to be limited to reckless storage of data in a
|
|
manner which enables a person to commit acts LEADING TO A FELONY CONVICTION
|
|
UNDER SECTION 503 (not other types of criminal acts). "Reckless storage" is
|
|
intended to mean maintaining a system that lacks appropriate security
|
|
safeguards; it is not intended to include storing information about how to
|
|
commit crimes. Hopefully any potential ambiguities can be clarified through
|
|
amendments.
|
|
PROPOSED ADDITION #4: The bill requires the reporting to local law
|
|
enforcement of violations of the computer crime statute (Penal Code Section
|
|
503) within 60 days after such violations become known to the owner or lessee
|
|
of a computer system (page 8, lines 26-34). The bill states that "failure to
|
|
report a previous violation of this section to a local law enforcement
|
|
agency...may constitute evidence of [reckless storage of data]."
|
|
This is intended to ensure that people report such crimes to law
|
|
enforcement. There are anecdotal reports that some of these crimes are not
|
|
being reported because people are concerned about bad publicity resulting
|
|
from reports that their systems were broken into.
|
|
POSSIBLE AMENDMENT: it has been suggested that the reporting requirement
|
|
be limited to certain types of systems, or to a certain level of monetary
|
|
loss. Objections have been raised that the bill would apply equally to
|
|
someone who operates a home computer and to a business that operates a large
|
|
mainframe. One could argue that the reporting requirement is more essential
|
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where a computer owner has a fiduciary or quasi-fiduciary duty to the people
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whose records are stored on the system (e.g. accounting or credit records).
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An accountant's or a credit company's failure to report a computer break-in
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is more serious than a computer game bulletin board operator's failure to
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report a break in.
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One possible objection to restricting the reporting requirement to a
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certain level of financial loss is that financial loss is hard to quantify.
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However, Section 503 already uses amount of financial loss to determine
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the type of criminal penalty to apply, so one could argue that amount of
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monetary loss could similarly be used as an indication of the need to
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report.
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SECTION 5. AUTOMATIC VEHICLE IDENTIFICATION SYSTEMS
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Existing law directs Caltrans to develop specifications for automatic
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vehicle tracking systems for toll facilities, such as those on bridges
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(Streets and Highways Code 27565). People will soon be able have a device
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installed in their car which allows them to drive through a toll facility
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without stopping. The device will send a signal to a computer, which will
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keep track of their use of the facility. At the end of the month, they will
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get a bill. Presumably there will continue to be booths that people can drive
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through and pay cash.
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At the December 10 privacy hearing, concern was expressed that the device
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offers potential for abuse. For example, if you know a particular vehicle is
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driving through the facility, why not program the system to:
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1. Stop all people with outstanding warrants
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2. Stop all people who have not paid their vehicle registration
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3. Compile lists of all people who drove through the facility during a
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given month and sell the lists to the private sector.
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One could argue that uses 1 and 2 are legitimate uses of this technology,
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because people who have broken the law should expect to come into contact
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with the police when they drive on public roads and highways. But one could
|
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also argue that people have an expectation of privacy when they drive and are
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not breaking the law at the time they are stopped (e.g. they are not
|
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speeding, driving under the influence, or otherwise doing anything to attract
|
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the attention of the police).
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Use # 3 is harder to justify. Why should people have to reveal their
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personal lives to the private sector in order to use a device that will speed
|
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up their commute?
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WHAT THE BILL DOES: The bill allows people the option of prepaying their
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tolls, and then using the facility anonymously. People would continue to have
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the option of being billed, rather than prepaying tolls.
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Under the bill, people who prepaid their tolls would be given an
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identification number unrelated to the vehicle owner's name, address, social
|
|
security number, or driver's license number, or the vehicle's license number,
|
|
vehicle identification number, or registration (page 10, lines 34-40). When
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they drive through the facility, the facility would look at their account,
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and let them through if there was still money in the account.
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The bill provides that once a numbered account has been established,
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neither Caltrans nor a private facility shall keep any record of the vehicle
|
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owner's name, address, social security number, or driver's license number, or
|
|
the vehicle's license number, vehicle identification number, or registration
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|
(Page 11, lines 1-7).
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The user could make additional prepayments under the bill by specifying
|
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the account number and furnishing payment (Page 11, lines 8-10).
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[[**** END OF MR. FIRSCHEIN'S BACKGROUNDER ON SB 1447 OF FEB. 14, 1992 ****]]
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==================================
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[[**** Both of these documents were edited by word-processor, rather than
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by retyping most of the text. I believe it is faithful to the original.
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Any errors are mine; not those of Mr. Firschein nor Sen. Lockyer.
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--Jim Warren ****]]
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------------------------------
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End of Computer Underground Digest #4.08
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************************************
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