6260 lines
320 KiB
Groff
6260 lines
320 KiB
Groff
Weltanschauung Magazine (The WorldView)
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% %
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% Editor: The Desert Fox D E R %
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% Co-Editor: Rev. Scott Free %
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% %
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% W E L T A N S C H A U U N G %
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% %
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%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
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April 4, 1991 Vol. 1, Issue 1.
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(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)(*)
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Material Written By Computer And Telecommunications Hobbyists World Wide
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Promoting the publication of Features, Editorials, and Anything Else....
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To submit material, or to subscribe to the magazine in hardcopy, send a
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SASE to: WorldView
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11504 Hughes #124 ø Weltanschauu¤g Distribution Site:
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Houston, Texas U.S.A. 77089 Rivendell BBS
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******************************************* (713)333-XXXX
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* Please submit articles and comments to: * 3/12/2400 Bps
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* INTERNET - Fox@nuchat.sccsi.com * (The New BBS will be
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******************************************* up May 1, 1991)
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If Possible...Otherwise, Mail Or Call!
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******************************************************************
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*IN THE NEXT ISSUE *** Unix features, More On Robert Morris, Info*
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*On The New Rivendell BBS Including The New Phone Number, An *
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*Editorial By The Reverand Scott Free, Plus Much More... *
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******************************************************************
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Table Of Contents:
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I. The Shockwave Rider: A mini-biography on Robert T. Morris,
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the creator of the Internet Worm.
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II. Wordless: An editorial by Homer Mandril
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III. The State Of National Security: An editorial by The
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Desert Fox and Lord Macduff
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IV. The complete explination of BEER*NET
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V. Torts: Some handy information on laws governing the world of
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communications, by James J. Spinelli
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VI. HR 4070 [The story behind Homer Mandrill's Editorial]
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VII. Editor's Comments
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Title: The Shockwave Rider. (background on Robert T. Morris Jr., author
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of the Internet 'worm')
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Author: Unknown
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Summary: A profile of Robert T. Morris Jr, author of the 'worm' program
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which caused major system crashes on the Internet network in Nov 1988, is
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presented. Morris is the son of Robert Tappan Morris Sr, the chief computer
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scientist of the National Security Agency's Computer Security center and a
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master cryptographer. Morris junior ('RTM') identified with the protagonist
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of John Brunner's science fiction novel 'The Shockwave Rider,' a social rebel
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who outsmarts computer security measures and is forced to make a
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controversial decision. Some hackers view RTM as a 'freedom fighter,' but
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some say he is placing freedom of information at risk. The younger Morris was
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known for computer pranks while an undergraduate at Harvard and worked on
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graphics problems as a Cornell University graduate student. He was allegedly
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bored and created the Internet worm as an experiment; it was designed to
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replicate itself throughout the umbrella Internet network and exploited
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well-known bugs in the Unix operating system. It struck academic, military
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and commercial scientific research sites, consuming memory and causing
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machines to grind to a halt. Many computer security experts argue that RTM
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should not be punished, but many worry about the social implications of
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computer security: more and more systems will require cumbersome 'locks'
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which will make it difficult for legitimate users to access information.
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The Shockwave Rider "ONCE YOU RELEASED this worm, did you have any ability to
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control it?" the defense attorney asked the defendant.
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"No. Once I released it, I had essentially no contact with it at all. I
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couldn't control it," said the young man, facing the jury in the Syracuse,
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New York, courtroom. "After it started, it was pretty much doing its own
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thing."
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Robert Tappan Morris, the creator of the Internet computer worm, patiently
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told the courtroom packed with TV and newspaper reporters how his secret
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experiment had gone terribly awry.
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In the front row of the courtroom sat a slender man holding a copy of Livy's
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History of Rome. The man's suit was worn, his shoes untied, his gray beard
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unkempt. But he just happened to be an internationally known computer
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security expert, master cryptographer, and the National Security Agency's top
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computer scientist. His name: Robert Morris, Sr.
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"It was a mistake, and I am sorry for it," said the younger Morris, his
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large, watery eyes focused on the jury. Minutes later, at the lunch break,
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the prosecutor walked past the defendant, and the young hacker couldn't
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suppress a smile. His soft, pale checks seemed to rise into a smirk. Was he
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giggling?
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"The work of a bored graduate student," was Morris senior's explanation to
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The New York Times after his son released the most virulent worm the world
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had ever seen. Indeed, the younger Morris did seem bored at Cornell, where
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he was only a few weeks into his graduate studies. Two weeks before the
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worm's release, Peter McIlroy, a childhood friend, had visited Morris. "He
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liked some classes and not others," McIlroy remembers. "Some he seemed to be
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blowing off."
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But Morris seemed to be getting along in Ithaca. He had taken to
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rock-climbing and was playing intramural hockey. "There was no inkling he
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was about to write a computer worm," recalls his friend. Except, perhaps,
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for one clue. McIlroy, also a techie, had casually mentioned to his friend
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that he believed the Unix operating system was pretty secure.
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"No! It's unbelievably insecure!" Morris snapped. "It's unbelievable how
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many holes there are!"
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McIlroy was caught off-guard by Morris's fervor. "It bothered and surprised
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him that the holes would never get fixed."
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Was it as simple as that? Bored by his courses, had the son of the nation's
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leading computer security expert taken things into his own hands? Had the
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"attack" merely been a well-intended but bungled attempt to shore up computer
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security and teach the world a valuable, relatively safe lesson?
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Theories on the worm and its author's motivations consume several chapters of
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popular books and countless articles. Some have hypothesized that the worm
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was a high-tech, father-son spat played out on a global scale, while one book
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blithely concluded that father and son had jointly launched the attack under
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the auspices of the National Security Agency.
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Hackers saw a broader political motivation. The trial of Robert Morris
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became the trial of an entire generation and philosophy of computers and
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information. To many hackers, Morris became a freedom fighter, a symbol of
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electronic free speech, a voice against the power that centralized computers
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wield over individuals.
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But more than a few hackers wondered if the coup was misguided, if Morris was
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not placing at risk the very freedom of information that his supporters
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angrily demanded.
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At the center of the debate stood two elite hackers, the very sort of wizards
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we have come to expect to guard us against computer saboteurs. But that was
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before Morris stepped over the line and plunged into a digital no-man's land.
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Under provisions of the untested 1986 Computer Fraud and Abuse Act, Robert
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Tappan Morris, Jr., was indicted for trespass. His offense? Unauthorized
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computer access.
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THE STORY OF ROBERT TAPPAN MORRIS begins with his father and the hauntingly
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powerful electronic world he helped to create. In the early 1970s, when Bell
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Laboratories began designing the universal operating system called Unix, it
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was Morris senior who imbued the virgin software with security.
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"The scheme for encrypting passwords was very heavily influenced by him, the
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interest in low-grade cryptography--the things we think of as absolutely
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routine," says Douglas McIlroy, Peter's father and one of the designers of
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Unix at Bell Labs' Murray Hill, New Jersey, facility. The elder Morris
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helped bar snoopers by making it difficult for anyone to become a "super
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user"--a person with the power to use or abuse a system.
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"There was this constant game of trying to figure out how to circumvent the
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best security measures we had," McIlroy recalls. "You had to be able to
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out-think the most devious minds."
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That was the dilemma Morris senior faced: to protect, he had to know how to
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destroy.
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Morris senior often seemed locked in an elusive battle with the equally
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brilliant and eccentric Ken Thompson, a legend in the computer industry and
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widely respected as one of the inventors of Unix. "Each would try to outdo
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the other in a friendly, but mean-spirited, way," McIlroy says.
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Morris thrived in the daily skirmishes. One of the cryptic scientist's most
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revealing feats occurred during tests on the first working copy of the Multix
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operating system. He walked into the laboratory and typed two
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characters--two specific characters he had a hunch the system could not
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compute. The machine crashed. "It was dramatic," says McIlroy. "He always
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liked to put on an air of mystery."
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First Bell and then other companies invited Morris to break into their
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computer centers to test their defenses. Hired by one defense contractor to
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discover its computer system's Achilles' heel, Morris dressed himself as a
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security guard, walked in, and watched someone type a password. While this
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tactic was an exception (Morris usually broke systems with his encyclopedic
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knowledge of encryption, cryptography, and computer security), it
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demonstrated his dramatic side. "Bob had a certain amount of flair," recalls
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McIlroy. "He definitely enjoyed his prowess."
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By the 1980s, the chain-smoking, shabbily dressed scientist had developed
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into a master cryptographer and a world expert in protecting electronic
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information. He designed a Navy computer that tracked enemy submarines by
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spotting anomalies in the masses of data gleaned by ocean sensors. At the
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time it was the world's largest computer.
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Morris senior's stage broadened in 1986, when he became the chief scientist
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at the National Computer Security Center of the National Security Agency and
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assumed responsibility for protecting sensitive computer-based data
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worldwide. Friends reported that he dove into the mysterious intelligence
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underworld with a passion. His office was outfitted with a "Tempest"
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computer, encased in lead to prevent the interception of radio emissions, and
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visitors say his blackboard was covered with Russian words.
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Years later, in the tumultuous days following the Internet attack, Morris
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senior's sense of mystery and drama had not waned. Newspaper and TV
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reporters camped in front of his new home in Arnold, Maryland. Inside, his
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son was quiet, talking little even to his Harvard buddies who had driven
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through the night to support their friend.
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It was his father who spoke to the press, telling The New York Times, "I know
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a few dozen people in the country who could have [created the worm]. I could
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have done it, but I'm a darned good programmer." Perhaps it was not
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surprising that after the press left, Morris senior placed the puzzling deed
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in historical focus. "Let's find out where this all started," he said to his
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son's friends, pulling down a book by John Brunner titled The Shockwave
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Rider.
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In a scholarly tone, Morris senior explained that the 1976 science fiction
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classic, one of his son's favorites, popularized the idea of computer worms.
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What he didn't explain was that the book's protagonis was remarkably similar
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to himself. And to his son. Like both Morrises, the Shockwave Rider
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outsmarted computer security measures with the cunning of a secret agent and,
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like Robert Morris, Jr., the Shockwave Rider was forced by his genius to make
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a difficult, controversial decision. Having spent his youth expanding his
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computer powers, the Shockwave Rider pondered the true test of wisdom:
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"What a wise man can do, that can't be done by someone who's merely clever,
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is make a right judgment in an unprecedented situation."
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YOUNG MORRIS MAY HAVE BEEN CHARGED with the crime of the future, but he grew
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up in a world closer to the last century than the next. The Morris family
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lived in a 250-year-old farmhouse on nine rambling acres of spruce, pine, and
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swamp alongside the Passaic River near the quaint town of Millington, New
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Jersey. The children cared for the farm animals and Robert tended the
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family's sheep.
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"They wanted to keep the old ways," recalls the current owner of the house.
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"They lived very simply. They didn't have material things." The family grew
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vegetables in a 50-by-100-foot garden, and if they needed something more than
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the earth and animals could supply, Morris senior would bring home a cast-off
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to salvage, like the giant-size freezer he repaired to store their freshly
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slaughtered meat. The family cut firewood for themselves and in winter
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dragged it by sleds over the ice-bound river.
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There was something untamed about the Morris clan. "I don't think the
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Morrises even knew how many cats they had," recalls a friend, who says 20 or
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more cats roamed the property while three or four big furry black dogs ruled
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the hearth.
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Inside the old farmhouse, unnecessary elements were eliminated. A mantle
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considered "too ornamental" was hacked out, a closet was torn out to squeeze
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in yet another bookcase, and a bathroom was ripped out to create another
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bedroom. The ceiling sagged and the plaster was cracked, but the
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"unbelievable mess," as a friend calls it, held an unusual collection of
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quirky wartime coding devices, including the mysterious Nazi Enigma machine.
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Named from the Greek word for puzzle, the Enigma was a mesh of gears and
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rotors that controlled an electronic drum rimmed by the letters of the
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alphabet and fed by a typewriter. Considered a foolproof scrambler, the
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battery-powered Enigma served as the Third Reich's top coder in World War II.
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But in 1939, an elite British team of cryptanalysts and mathematicians
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cracked the coder and gained a tremendous edge over Hitler's forces
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throughout the war. With the Enigma's secrets unlocked, the Allied
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commanders could read the Fuhrer's orders often before his own generals
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received them.
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Almost everything at the Morris house had a story behind it, no matter how
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obscure it might appear. The house was overflowing with puzzle sculpture
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pieces, magazines, and more books than you'd find in most small libraries.
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And not just any books. Morris senior had been a brilliant mathematician at
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Harvard, but he also loved the classics and learned to read Greek and Latin.
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His wife, Anne Morris, counted the vast family collection one day and, after
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tossing out duplicates, logged 7,000 volumes.
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Morris junior began reading at the age of four. The curious toddler created
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working scale models out of paper, file folders, and paper clips--cars with
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wheels that turned when you moved the steering wheel and revolvers with
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bullets and chambers that turned. At nine he read stacks of Scientific
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American. His father had a ham radio license, and before long the boy began
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assembling and disassembling radios and a variety of other electronic
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equipment. By the time he reached his early teens, his reading list had
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expanded to include the classics, history, economics, political science, and
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science fiction.
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But downstairs, in the old kitchen, in front of an unused Dutch oven, was a
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machine like no other. From a distance, it looked like a huge mechanical
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typewriter stretched over a desk, but what were those protruding rods and
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cables? The strange-looking device, which had been in the house since the
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mid-1960s, when Morris junior was born, was a computer terminal.
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As a top scientist at Bell Labs, Morris senior was one of a few employees
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with a home computer terminal during an era when electric typewriters were
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still rare. "Everybody lined up behind one another to get their computer
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time," recalls Anne Morris of the Digital Equipment terminal. But her
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children were not all alike. Soon her daughter lost interest, and the
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younger boy rebelled. (He now works as a tree surgeon.)
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Only Robert, the older boy, remained captivated by the clanking, screenless
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terminal. Each time he struck a key on the machine, mechanical rods shifted
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like the trackers of a pipe organ, forming the eight bits that made their way
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over the terminal's modem to Bell's central computer. Frequent lubrication
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was needed to keep the machine's rods from sticking, and after a long
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session, Robert would often emerge with oily knees.
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When Peter McIlroy visited the Morris farmhouse, he noticed his friend wasn't
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merely playing the computer's math and guessing games. "By the sixth grade,
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he was finding holes [in the operating system]," recalls McIlroy. "But he
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wasn't a snoop. It was much more of an intellectual game."
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Not yet in his teens, Morris junior already knew his way around the huge,
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complex Unix operating system. He created multiuser games to chat with his
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friends simultaneously and a surprisingly sophisticated Unix interface shell.
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The Unix code was online, and nearly every day after school Robert studied it
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the way other boys studied girls. His girlfriend, the daughter of another
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Bell employee, was online, and the budding hacker zapped love notes to her.
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By his mid-teens, the young Morris showed Peter McIlroy how, by logging on to
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one terminal, he could masquerade as a legitimate user on any computer in
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Bell's network. "He found it, played with it, and fixed it," says McIlroy.
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"I think they [Bell officials] were impressed." Bell officials say that
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while Morris did modify some files, no serious damage was done. "He was told
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to stop and that was that," says Bell's Fred Grampp.
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But Morris was allowed to visit his father's office and continue his poking,
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and in December 1982, Grampp invited him to give a talk about tightening
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security on a Unix communications program. Soon Morris was working part-time
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at the lab after school and full-time for the next two summers, writing his
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first scientific paper, "A Security Flaw in Berkeley . . . Unix," in January
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1983.
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His initiation into the rites of super-hacking couldn't have been more pure.
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In the elite, challenging research environment of Bell Labs, the teenager
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learned "to spot and repair security holes" at the feet of the very people
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who had created Unix.
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But Morris was far from a one-dimensional, stereotypical hacker. At nearby
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Delbarton, a preparatory school run by Benedictine monks, he excelled in a
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broad range of courses, swam the breaststroke on the school swim team, sang
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with the abbey's chorus, and was, according to the Delbarton credo,
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"encouraged to become an independent seeker of information and take
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responsibility for gaining both knowledge and judgment."
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Yet years later, his parents proudly announced that it was he who was
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featured in a 1982 Smithsonian magazine article as a "quiet, polite young
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man" who "has broken into password files" and read "supposedly private"
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computer mail. "I never told myself that there was nothing wrong with what I
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was doing," the boy was quoted as saying, adding that he was driven by the
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challenge of testing computer security. It was a family preoccupation that
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Morris shared with his fictional double, the shockwave Rider:
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"I guess my daddy was a 'phone phreak' and I inherited the gene."
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The following year, Morris senior wrote in his 25th anniversary Harvard
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report: "I promised myself that I would learn to read Greek, learn in some
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detail how the planets move in their orbits, and learn how to decipher secret
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codes. I have gone a long way toward keeping all three promises." But it
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was secret codes--not Greek or the heavens--that captivated his teenage son,
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and he was soon fast at work on his first paid computer security project at
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Bell.
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The security crusade didn't end at the laboratory. At the farmhouse, father
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and son often discussed Unix and computer security. "I'm very sure he got
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hints from his father," says Douglas McUlroy, "but I doubt he got much
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detailed help. I think his father wanted to generate self-reliance." The
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young Morris told a friend that his father created games to develop his
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programming skills, once even making him program without GOTO
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commands--something like playing basketball with only your left hand. "His
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father was always challenging him," recalls Roy Horton, Morris junior's music
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teacher and a close family friend. "They were of similar minds."
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The next year Morris senior and Grampp wrote and, with some trepidation,
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published the definitive paper on Unix security. In the footnotes was a
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reference to Morris junior's paper, and in the introduction, a warning:
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"There is a fine line between helping administrators protect their systems
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and providing a cookbook for bad guys."
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Morris junior seemed to understand the dangers. In his second published
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scientific paper, he sounded every bit the seasoned computer security expert.
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"The old uucp [Unix to Unix copy procedure] was designed on small machines
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with light traffic and little concern for security," wrote the confident
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18-year-old. "Times have changed. With many hundreds of machines running
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uucp, one cannot assume that no uucp requests will be malicious."
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"AREN'T YOU THIS FAMOUS, GREAT HACKER?" asked an impressionable fellow
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Harvard student. "No," said Morris, his boyish face betraying embarrassment
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and a slight smile. "That's my roommate."
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Morris continued the playful deception for several minutes. The Shockwave
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Rider, too, had many identities, many lives woven through the electronic net:
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"An individual could rewrite him or herself via any terminal connected to the
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federal data banks . . . this was the most precious of all freedoms . . .
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freedom to become the person you chose to be instead of the person remembered
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by the computers . . . it was the enchanted sword, the invulnerable shield,
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the winged boots, the cloak of invisibility. It was the ultimate defense."
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Morris had several identities at Harvard. The story goes that as a freshman
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he walked in, brought down the system, and hacked his first identity, an
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unauthorized Harvard account. Whether that initial act of mastery be myth or
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fact, in a matter of months Morris had hacked and cultivated a fistful of
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computer credit accounts. His log-on name became his identity, both online
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and among his friends: RTM.
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As a freshman, RTM began hanging around Harvard's graduate computer science
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department, Aiken Lab, an ugly slab of concrete built in the 1940s and named
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after one of the inventors of the modern computer. It was here, behind a
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glass wall, opposite the antiquated vacuum-tube computer, that RTM spent most
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of his waking hours.
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"He'd fix things for free," recalls Paul Graham, a computer science graduate
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student and close friend. "There was no question that he was the most
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technical person."
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RTM's breadth of knowledge was exceptional: Unix, networking, hardware,
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graphics, and several other languages. Andrew Sudduth, Aiken's system
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|
manager, hired RTM, and like many who employed him on campus, Sudduth found
|
|
that RTM was too busy chasing the latest computer problem to punch a time
|
|
clock or do his class work. "A professor would say, 'Wouldn't it be nice if
|
|
we had this?'" he recalls. "And Robert would go and do it."
|
|
|
|
He began by pacing the halls. There was no evidence he was working on the
|
|
problem. After sufficient gestation, he settled in at a terminal, preferably
|
|
"a lousy one," with a black and white display, a throwback, says Graham, to
|
|
his days on his father's mechanical, screenless terminal. There were no
|
|
distractions, no interruptions, and once he began, the pace was fierce, for
|
|
TRM could program as fast as he could type.
|
|
|
|
Rail-thin, RTM ate little, and when classmates invited him to lunch, two
|
|
hours later he would still be hunched over his keyboard, typing furiously.
|
|
Friends would stand over him, calling out his name, but the transfixed
|
|
programmer seemed to hear nothing. When a few nights of intense programming
|
|
finally gelled, RTM would snap out of his spell. "He would jump up and rub
|
|
his hands when he figured something out," says Sudduth.
|
|
|
|
Not all of his achievements were altruistic. RTM could do "anything he
|
|
wanted" when friends were logged on to a Sun workstation, according to Graham
|
|
and others. One of his most playful pranks was creating a subliminal message
|
|
that would flash for less than half a second on the screen of an unsuspecting
|
|
user. Graham said he saw the fleeting message, "Help, I'm being held
|
|
prisoner within a VAX 750!" and then wondered if he'd imagined it all.
|
|
|
|
Occasionally RTM took the game further, demanding a response to his whimsical
|
|
intrusions. Classmates sometimes found their work interrupted by a sage
|
|
called The ORacle. "Ask me a question and I will answer you," asked RTM, The
|
|
Oracle. "But first you must answer me."
|
|
|
|
Some of his pranks tested a user's technical knowledge. On a lark, RM
|
|
reverse-engineered the Harvard network into an older, defunct interface.
|
|
Everything worked, but the commands were different, and "true" hackers seemed
|
|
to enjoy the challenge. Roommate Greg Kuperberg, a nationally ranked college
|
|
mathemaician (also prone to feverish pacing) who befriended RTM and
|
|
collaborated with him on an elaborate graphics program, says his friend's
|
|
forays into Harvard's computers were exagerrated and misunderstood. RTM was
|
|
simply inquisitive, says Kuperberg, and his experiments were not much
|
|
different from those of a young chemist who occasionally mixed the wrong
|
|
chemicals.
|
|
|
|
But RTM's experiments were not without side effects, and there were some who
|
|
didn't consider it good, clean fun. One night, Robert Ziff, a Harvard
|
|
engineering student, watched the program he was working on slow to a snail's
|
|
pace. He complained to the deparmtent's system manager, who checked to see
|
|
who was tying up the computer's resources and exclaimed, "Oh God! It's
|
|
Robert Morris."
|
|
|
|
RTM had programs simultaneously running off his accounts on the engineering
|
|
and robotics computers--in addition to Aiken's. It wasn't the first time he
|
|
had "hogged" computer time. Ziff was instructed to warn RTM that "if it
|
|
happens again, they'll take you off the account."
|
|
|
|
Ziff was by no means the only one at Harvard who was unhappy with RTM and his
|
|
experiments. A few were "mistrustful of Robert because he was smarter and
|
|
better," says a friend. To those individuals, RTM sometimes sent commands
|
|
that mysteriously crept onto their computer screens. There was never any
|
|
doubt who had sent the ominous commands. Only RTM knew the secret security
|
|
holes. And there was never any doubt that he would keep his dark knowledge
|
|
secret. "He wouldn't tell them how he did it," says the friend. "He didn't
|
|
trust them." Instead, RTM left his enemies hanging, wondering whether he
|
|
might just decide to execute the REMOVE FILE commands he dangled on their
|
|
screens. "I did in fact break into other people's computers [at Harvard],"
|
|
Morris later admitted in court, "but I ... knew that they wouldn't mind."
|
|
|
|
In one sense, RTM was no different from other hackers. The first commandment
|
|
of hacking is to not waste computer time, to push and pull every electron's
|
|
worth of processing might. It is a boy's pursuit, a masculine display of
|
|
virtuosity. Test pilots call it "pushing the envelope." No longer protected
|
|
by his father or the understanding researchers at Bell Labs, RTM began
|
|
testing his wings, and, like the Shockwave Rider, he thrived in his new
|
|
environment:
|
|
|
|
"Meantime, taking advantage of the corporation's status, he could gain access
|
|
to data nets that were ordinarily secure. That was the whole point of coming
|
|
to KC. He wanted--more, he needed--data..."
|
|
|
|
RTM never did carry out the ominous threats, and at the same time he was
|
|
building professional credentials as a dedicated computer security expert.
|
|
|
|
"The Unix software is very flexible and convenient, but it places too much
|
|
trust in a protocol that provides very little security," he warned in a 1985
|
|
Bell Labs paper that described how to attack "trusting" host on the vast
|
|
national computer network known as Internet.
|
|
|
|
Two years later, while still at Harvard, RTM delivered several long talks on
|
|
his extensive knowledge of computer security at the National Computer Science
|
|
Security Center and the Naval Research Lab. During his summers he hacked for
|
|
computer companies on both coasts.
|
|
|
|
As he became more technically accomplished, his two personas--the mischievous
|
|
RTM and the dedicated computer security expert, Robert Morris, Jr.--struck an
|
|
uneasy balance. The same friends who detail how RTM inspired fear in his
|
|
enemies remember him as a person who believed in the importance of
|
|
"character" and who hacked out favors at a moment's notice.
|
|
|
|
But in his professional role, Morris increasingly found that the real world
|
|
was not nearly as responsive to security concerns as the Bell Laboratories of
|
|
his childhood. he discovered that if he reported a security bug, companies
|
|
often did nothing, or they waited for months before issuing patches. He
|
|
worried that unscrupulous hackers would take advantage of his discoveries.
|
|
He began to keep the secret openings to himself.
|
|
|
|
When RTM was taking graduate mathematics and computer science courses in
|
|
1985, the combination of his freelance projects, his generosity, and the
|
|
"difficulty and the boredom" of graduate work became too much for him. RTM
|
|
did not excel in every course, as his father had. So he dropped out and went
|
|
to work at the Convex Computer Corporation, in Richardson, Texas.
|
|
|
|
The young hacker's education began to have more in common with that of the
|
|
Shockwave Rider:
|
|
|
|
"Shortly thereafter, he began to concentrate on data processing techniques at
|
|
the expense of his other study subjects."
|
|
|
|
The following year, Morris junior returned to his Harvard studies eager to
|
|
learn. Friends remember his pacing about their homes or apartments, picking
|
|
up things to see how they worked. Often his excitement bubbled over. "He
|
|
was always breaking things," says Graham. "And he was insatiably curious."
|
|
|
|
The love of the classics his father had inspired had not diminished. "He
|
|
might be interested in medieval art, English history (a poster of English
|
|
kings adorned his dorm room), Homer, the Renaissance, or Greek art," recalls
|
|
a Harvard classics professor RTM helped with some computing problems. "His
|
|
knowledge was pretty encyclopedic." But the serious topics didn't keep the
|
|
Harvard student from classic adventure stories like the Norse sagas and one
|
|
of his favorites, The Three Musketeers.
|
|
|
|
Something of an adventurer himself, RTM and a classmate spent a week buying
|
|
copies of The Racing Form at six in the morning and entering "tons of data
|
|
about correlations of past performances." Then the budding computer bookies
|
|
took in their first horse race at nearby Suffolk Downs. "It was so
|
|
depressing," says RTM's friend about the crowd of retired, alcoholic
|
|
pensioners. Deciding it "criminal" to beat such sorry bettors, the two
|
|
abandoned their get-rich-quick scheme.
|
|
|
|
Computer graphics became a new infatuation. With Kuperberg, RTM created an
|
|
advanced ray-tracing graphics program. When he found that higher mathematics
|
|
were not enough to create beautiful forms, he turned to the ancients,
|
|
studying the works of Vitruvius, the inventor of proportion standards for
|
|
classical columns. One of RTM's finest creations was of a temple standing in
|
|
the middle of a blue sea.
|
|
|
|
Excited by their success, the talented duo entertained the idea of launching
|
|
a computer graphics firm. "We had this picture of a kid running a lemonade
|
|
stand who one day turned into Donald Trump," says Kuperberg, who, like his
|
|
friend, had a "default plan" of graduate school.
|
|
|
|
BACK AND FORTH, BACK AND FORTH. It was the way RTM entertained an idea, as
|
|
if by the movement of his light steps he might nudge the completed thought
|
|
from his brain. But this time he seemed more driven than usual.
|
|
|
|
He had come the nearly 300 miles from his graduate computer science studies
|
|
at Cornell to pore over the Unix source code at Harvard's Aiken Lab and visit
|
|
his friend, Paul Graham. "He had discovered a big hole and he had to tell
|
|
someone," recalls Graham. Excitedly, RTM paced the small office, telling
|
|
Graham how he had isolated holes in Unix that could enable him to be a super
|
|
user--not at Cornell or Harvard, but across the country and around the world.
|
|
Both of the bugs were communications holes, but RTM explained how the FTP
|
|
(File Transfer Protocol) bug could conceivably grant an invader root
|
|
privileges--the ability to read or delete anything on a compromised machine.
|
|
|
|
"It was an experiment," Morris later testified. "I had never heard of
|
|
anything like it before ... to see if I could write a program that would
|
|
spread as widely as possible in Internet." His friend was similarly
|
|
entranced. "I thought it was the greatest idea," says Graham, "All over the
|
|
world. A big living organism. No one had ever done it before." Of course,
|
|
it had been done before by the Shockwave Rider:
|
|
|
|
"This is indeed the father and mother of a tapeworm. You'll have noticed how
|
|
much use it makes of terminology derived from the study of living animals.
|
|
And with reason. Not for nothing is a tapeworm called a tapeworm. It can be
|
|
made to breed ... my newest--my masterpiece--breeds by itself."
|
|
|
|
To Graham, the worm was not only an incredible creation, it was a bold strike
|
|
for freedom, and later in court he would compare RTM to Mathias Rust, the
|
|
West German pilot who landed in Moscow's Red Square in May 1987. Encouraged
|
|
by his starry-eyed friend, RTM paced, describing how he wanted every computer
|
|
on the Internet to receive one innocuous probe, one worm that would wriggle
|
|
its way into each computer's memory.
|
|
|
|
Finally, the excitement grew too great for Morris.
|
|
|
|
"RTM, you're on his desk," said Graham, as he watched RTM's feet pad by on
|
|
top of their colleague's desk.
|
|
|
|
"Oh," said RTM, for the first time aware of his rise in elevation. This
|
|
behavior was typical of Morris when he was absorbed in thought.
|
|
|
|
Later, on that cool October night in 1988, RTM and Graham continued talking
|
|
about the probe as they stood in front of a Boston seafood restaurant waiting
|
|
for Sudduth, a champion rower, whom they would toast as a winner of the
|
|
annual Head of the Charles regatta. As they waited, Graham suggested that
|
|
the worm write something to the computers it wriggled its way into.
|
|
|
|
"No, no, we can't do writes," his friend said, explaining that any writes, no
|
|
matter how well-intended, might be dangerous.
|
|
|
|
What the two couldn't figure out was how to protect a single worm on each
|
|
machine. "It would have been very simple for someone to write a program that
|
|
just acted as if it was a worm [an antiworm]," tricking new worms into
|
|
believing a computer had already been penetrated and stopping "my worm from
|
|
growing at all," Morris testified. And so, he decided it might be all right
|
|
to have two, or maybe three, worms per machine.
|
|
|
|
But neither knew much about population growth, and if RTM had any technical
|
|
shortcoming, it was his ambivalence toward higher mathematics. There on the
|
|
sidewalk, the two decided that the second worm to invade a machine should
|
|
have a one-in-seven rate of survival.
|
|
|
|
No particular formula was used, Morris later told a jury. "It was based on
|
|
the intuition I had on how rapidly it would spread." He figured a new worm
|
|
might appear once every few hours. As the Shockwave Rider explained,
|
|
everything was under control:
|
|
|
|
"And, no, it can't be killed. It's indefinitely self-perpetuating so long as
|
|
the net exists ... incidentally, though, it won't expand to indefinite size
|
|
and clog the net for other use. It has built-in limits."
|
|
|
|
When Sudduth arrived at the restaurant, the two collaborators abruptly
|
|
changed the subject. "When we were on a project," says Graham, "it was
|
|
understood that it was secret." But RTM couldn't keep everything under his
|
|
hat. Without hinting that he planned an attack, he excitedly told Sudduth
|
|
about the bugs he had uncovered.
|
|
|
|
And at first, in the ensuing days, it seemed that RTM's wild idea might go
|
|
the way of his racetrack betting and computer graphics schemes. For several
|
|
days after RTM had returned to Cornell, Graham heard nothing from his friend.
|
|
|
|
The two had an old practice of sending elliptical messages over Internet--for
|
|
security's sake. "Any news on the brilliant project?" Graham asked in his
|
|
electronic message.
|
|
|
|
There was no response.
|
|
|
|
RTM HAD BEEN BUSY. More than a week before his visit to Harvard, he had
|
|
created a wish list for his worm on his university computer. It was
|
|
strangely appropriate that he began the work at Cornell. Officials would
|
|
later say it was his reputation as a hacker that gained him admittance to the
|
|
university's prestigious graduate school in computer science.
|
|
|
|
RTM's list was divided into the two main goals he had for his worm: attack
|
|
and defense. The target was Internet, an umbrella of three national
|
|
communication networks, including ARPAnet, run by the Department of Defense
|
|
to link research computers at military sites and universities; MILnet, used
|
|
by military and civilian researchers to send routine, unclassified
|
|
communications; and NSFnet, a National Science Foundation network.
|
|
|
|
In the beginning, RTM and Graham used the popular term virus to describe the
|
|
worm, but as the creation took shape it came to resemble the prehistoric
|
|
worm. Viruses exist by invading and altering their host cells, and their
|
|
computer counterparts are similar. They cannot "live" or run without
|
|
attaching themselves to other programs. But a computer worm is independent.
|
|
Self-propagating and self-running, worms can exist without directly
|
|
endangering a network or its users. Some early computer worms were actually
|
|
loosed to perform network management tasks. The Shockwave Rider's worm had a
|
|
higher social and moral goal:
|
|
|
|
"The primary my worm is designed to invade is that privacy under whose cover
|
|
justice is not done and injustice is not seen."
|
|
|
|
RTM designed his worm to clone itself, spreading throughout the net.
|
|
Searching out new nesting locations, the worm scanned address lists of
|
|
computers, selecting the most directly linked machines, such as gateways, and
|
|
then began cycling through its attacks. If one method failed, the tireless
|
|
invader quickly picked another from its arsenal. The attacks fell into three
|
|
categories: nooking a foothold through a security hole, taking advantage of
|
|
"trusting" computers, and cracking passwords. RTM playfully named his worm's
|
|
attack engine the "cracksome" routine.
|
|
|
|
Footholds could be gained through either of two techniques. One involved a
|
|
utility designed to elicit such information as a user's full name, office,
|
|
and phone number. It was fittingly named Fingered. The worm overflowed the
|
|
program's small buffer and tricked unsuspecting machines into downloading,
|
|
compiling, and running a tiny source code "grappling hook"--the worm's scout.
|
|
|
|
Once ensconced within the target computer, the hook called the original worm
|
|
and "pulled" back sections of a new version of the original worm compiled to
|
|
run on either a VAX or a Sun workstation, the two most common computers on
|
|
the network (if the hook guessed wrong, it pulled over the other version).
|
|
Finally, the hook linked the sections together and the new worm began
|
|
running.
|
|
|
|
By compiling his worm for the two machines in advance, RTM avoided the risk
|
|
of sending an easily decipherable source code copy of the program. Only the
|
|
tiny "grappling hook" was written in source code, to ensure that the first
|
|
cast would draw a bite. The drawback, of course, was that the worm could
|
|
successfully invade only VAX or Sun workstations.
|
|
|
|
A similar attack was launched on an electronic mail program called Sendmail.
|
|
RTM had discovered that the program's seldom-used debugging utility allowed
|
|
users to send a set of commands instead of a user's address. Through the
|
|
gaping security hole went the worm's grappling hook, and, as in the Fingerd
|
|
attack, in less than a minute a new, fully functioning copy of the worm was
|
|
running on the target machine.
|
|
|
|
The worm made another attack, not so much on a security hole but on the
|
|
network's community of trust. Once a machine was invaded, the worm attempted
|
|
to connect with remote machines that "trusted" the invaded machine and didn't
|
|
require a password. The techniques were similar to what RTM had described as
|
|
a teenager in a Bell Labs paper he wrote about a "weakness" in security that
|
|
allows "users on untrusted and possibly very distant hosts to masquerade as
|
|
users on trusted hosts."
|
|
|
|
These were the cracked windows, loose hinges, and open doors upon which the
|
|
worm directed its principal attacks. But the worm also tried to find keys
|
|
lying around, checking to see if an account had no password, and then
|
|
attempting simple heuristics using a combination of words from a user's
|
|
account, including names, nicknames, and names spelled backward.
|
|
|
|
If these attacks failed, the worm would try its internal dictionary of 432
|
|
passwords. But the task of cracking new passwords was a time-consuming
|
|
process. The only passwords publicly available were encrypted. To figure
|
|
out the true password behind its encrypted double, the worm had to encrypt
|
|
its own internal list of probable passwords against those it attempted to
|
|
crack.
|
|
|
|
If two encrypted passwords matched, the worm knew that its original password
|
|
(before the worm encrypted it) was identical to the password it was trying to
|
|
crack. Since virtually every target password was encrypted under a different
|
|
key, each target password forced the worm to re-encrypt its list of possible
|
|
passwords. After trying this strategy for a few seconds, the worm tried
|
|
words from Unix's online dictionary, using the same tedious encryption
|
|
method. Cycling through its arsenal of attacks, the worm continually
|
|
camouflaged and transformed itself. Immediately upon arriving in a new
|
|
computer, the worm deleted the disk copy of itself and ran only in memory
|
|
under the alias of an innocuous command interpreter, the kind often used in
|
|
shell scripts or automatic commands.
|
|
|
|
Every three minutes, the worm forked, splitting into a dead parent and a
|
|
child. The child started off "fresh," using to apparent resources such as
|
|
processing time or memory usage. The short dashes made the worm more
|
|
difficult to seize, even if it happened to be spotted.
|
|
|
|
THE WORM LEFT FEW CLUES. It read all its support files into memory, deleting
|
|
file system copies that might be noticed. And by turning off the generation
|
|
of core files, if the worm made a mistake and accidentally died, it left no
|
|
corpse behind. Once every 15 infections, the worm attempted to connect to a
|
|
Berkeley computer. RTM had hoped the "red herring," as he called it, might
|
|
by itself shift suspicion onto the computer center, but it never actually
|
|
made the connection.
|
|
|
|
Finally, if the worm, or parts of it, were somehow captured, the binary (near
|
|
machine-level) program would require many hours of complex decompilation
|
|
before its nuts and bolts could be understood.
|
|
|
|
For nearly three weeks RTM worked sporadically on the worm, increasing the
|
|
number and complexity of its potential assaults. Its diverse collection of
|
|
attack strategies gave it a character more like that of a bulky battleship
|
|
than a sleek submarine, and one friend and security expert later called it
|
|
"everything but the kitchen sink."
|
|
|
|
RTM collected password files form computers at Stanford, Harvard, Berkeley,
|
|
and other universities around the country; he found the fast encryption
|
|
routine he needed in a program written at Bell Labs; he incorporated
|
|
password-breaking techniques his father had discussed in his classic paper on
|
|
Unix security. RTM didn't want to omit anything, and he feverishly threw a
|
|
decade of security training into the worm. There was little time to check
|
|
for errors; besides, the Shockwave Rider didn't make mistakes:
|
|
|
|
"'How the hell were you able to build a tapeworm this complicated"' It's a
|
|
talent, like a musician's or a poet's. I can play a computer read-in
|
|
literally for hours at a time and never hit a wrong note."
|
|
|
|
Everything seemed to be going exactly as planned. On Wednesday, November 2,
|
|
1988, RTM logged on to his terminal at Cornell's Upson Hall at a little after
|
|
10 a.m. and worked until lunch. In the afternoon, the trouble began.
|
|
|
|
RTM noticed a posting from Keith Bostic, of Berkeley: a patch to the FTP bug
|
|
he had discovered on his fateful visit to Harvard. RTM quickly typed out an
|
|
electronic mail message to Sudduth, asking whether he had been the source of
|
|
the leak.
|
|
|
|
"I didn't think it was a good idea to spread information about random
|
|
security holes," Morris later testified.
|
|
|
|
Sudduth sensed panic in his friend. "Maybe he worried that the [other] bugs
|
|
would be patched before he sent his worm."
|
|
|
|
At 8 p.m. EST, sitting at his Upson Hall terminal, RTM copied the worm to an
|
|
account at MIT known to be frequented by hackers. "I wanted to start it out
|
|
so it wouldn't be obvious that I had started the worm myself," Morris
|
|
testified. (The final version of the worm did not include attacks on the now
|
|
patched FTP bug.) For the next 20 minutes, RTM tried to track the worm's
|
|
path, but as far as he could tell, "it wasn't working right. It seemed to
|
|
have been getting bogged down, not really doing very much."
|
|
|
|
And so, having begun his experiment, RTM left his terminal and walked home.
|
|
|
|
ON INTERNET, THE WORM WAS AWAKENING. One hour and 24 minutes after its
|
|
release, the worm squirmed its way across the country and into the computers
|
|
of a Santa Monica defense contractor, the Rand Corporation.
|
|
|
|
In two hours it hit the major gateway at the University of California,
|
|
Berkeley; the Lawrence Livermore Laboratories, in Berkeley and Livermore; and
|
|
the Los Alamos National Laboratory, in New Mexico. Very quickly it became
|
|
apparent that something had gone terribly wrong. Individual machines became
|
|
infected by not one or two but several worms. Then, the infection erupted.
|
|
|
|
Since university and military computers are rarely used so late at night,
|
|
they generally register only a 1 or 2 load average of a possible 100. But by
|
|
9:21 p.m. PST, computers at the University of Utah had already documented a
|
|
load of 5. Twenty minutes later, the load reached 7; in another 20 minutes,
|
|
16; and incredibly, in just another five minutes, the system topped out at
|
|
100, choking to a standstill.
|
|
|
|
Of course, as his lawyer later argued, RTM had been careful to ensure that
|
|
his worm not read, delete, or in any way damage targeted computers. But he
|
|
hadn't counted on a more insidious risk. Simply by reproducing, the worm was
|
|
sucking the oxygen out of Internet the way algae strangle a dying sea.
|
|
|
|
RTM's birth control wasn't working quite the way he had planned. Only the
|
|
first virus on a machine listened for others. Subsequent worms didn't hear
|
|
each other and didn't submit to the killer dice roll. And those few worms
|
|
that lost the roll were allowed to continue their efforts to propagate new
|
|
copies of themselves on other machines, even after they'd received death
|
|
sentences.
|
|
|
|
Emergency teams at Berkeley, MIT, and other computer centers worked
|
|
frantically to stop the invader. Though the worm didn't appear to be
|
|
directly damaging files, the rescue workers desperately searched for hidden
|
|
trap doors, Trojan horses, or time bombs. By midnight EST, NASA's Ames
|
|
Research Center, in Silicon Valley, had shut off all communications with
|
|
outside researchers, stranding 52,000 computer users. Minutes earlier, one
|
|
of the Berkeley scientists on the front line had sent out an electronic
|
|
S.O.S. over the net: "We are under attack from an Internet virus..."
|
|
|
|
"No. We can't stop it! There's never been a worm with that tough a head or
|
|
that long a tail. It's building itself, don't you understand? Already it's
|
|
passed a billion bits and it's still growing ... and now it's so goddamn
|
|
comprehensive that it can't be killed. Not short of demolishing the net!"
|
|
|
|
While computer experts across the country raced to salvage what they could of
|
|
the worm's wreckage, RTM sat dazed. When he telephoned Sudduth, his voice
|
|
was deathly quiet. Sudduth passed the receiver to Graham, who listened to
|
|
the barely audible voice and wondered whether Morris had broken up with his
|
|
girlfriend.
|
|
|
|
"I really F_____ed up," said Morris as he quietly described how his worm was
|
|
reproducing like a virulent cancer, jamming Internet with resource-sapping
|
|
copies of itself. Graham was stunned. He had thought the project was far
|
|
off in the future.
|
|
|
|
"RTM, you idiot!" he yelled, angry at his friend for "blowing" such a great
|
|
idea. Then he asked, "How did this happen?"
|
|
|
|
"Well, you remember the number I picked?"
|
|
|
|
The two worked on possible cures. It was nearly midnight, and the worm had
|
|
been racing through Internet for four hours. Graham suggested that they
|
|
create a Pac-Man cannibal worm to gobble up the worms. "I didn't do that,
|
|
because I had messed up with the first one," Morris later testified.
|
|
|
|
The two couldn't agree on a strategy, and the conversation ended. Graham
|
|
went to Sudduth's office practically bursting with his secret. "Something
|
|
really big is up. I can't tell you."
|
|
|
|
"F_____k you, Paul!" shot back the Olympic rower.
|
|
|
|
"Well ... Robert wrote this virus," Graham said, "and it's taking over every
|
|
computer in the country!"
|
|
|
|
Sudduth punched out an e-mail message. Though surprised that Morris wasn't
|
|
doing more to stop the worm, he guessed his friend was finding it hard to
|
|
admit that "something he created was out of control!" Morris phoned back and
|
|
told Sudduth how to stop the worm from spreading on Harvard's computers.
|
|
|
|
Later, at about 1:30 a.m., Morris called Sudduth from his home phone. The
|
|
two decided that Sudduth should publish the worm antidotes on
|
|
Internet--anonymously.
|
|
|
|
"I was scared," Morris later testified. "I knew people would be annoyed
|
|
about this because it was causing problems, and I wasn't particularly eager
|
|
to catch the blame for this at that time."
|
|
|
|
Why didn't Morris send the warning?
|
|
|
|
"Well, I was at home," testified the driven programmer, who had been known to
|
|
work till dawn. "I don't have computer access at home. I suppose I could
|
|
have walked back to Cornell at 2 in the morning ... but even then I wasn't
|
|
sure I could get access to the network." Critics later questioned why Morris
|
|
didn't simply telephone computer experts at Berkeley or MIT, but somehow,
|
|
after having grown up online, in the electronic net, that direct,
|
|
non-computer solution seemed to have escaped him.
|
|
|
|
Friends have a simpler explanation. Morris, quite unlike his hero, the
|
|
Shockwave Rider, was simply "frightened out of his wits."
|
|
|
|
"'Precipice is going to be attacked with nukes at 0130!' [The Shockwave
|
|
Rider] launched into a burst of furious activity, punching his board with
|
|
fingers that flew faster than a pianist's. '... Run like hell--because this
|
|
may not work'"
|
|
|
|
SUDDUTH WORKED TO GET THE WORD OUT. By now, the system was clogged. the
|
|
only connection he could find was to a bulletin board at Brown University,
|
|
hardly a center for Unix or Internet. The tired system manager typed out the
|
|
antidote, describing how to close the holes and protect against new attacks,
|
|
ending with the odd phrase, "I hope this helps, but even more, I hope it's a
|
|
hoax."
|
|
|
|
At about 4 a.m., Sudduth finally dragged himself to bed. Computer centers
|
|
around the nation were in the process of shutting down the relay centers that
|
|
might pass the worm--and its antidote. His friend had already been fast
|
|
asleep for two hours.
|
|
|
|
The next morning, Morris worked on some school-work he had neglected and
|
|
"just generally tried to relax." In the evening he went to choir practice.
|
|
|
|
Almost 24 hours had passed since he'd released the worm. When he returned to
|
|
Upson Hall, he logged on to read his mail. The system seemed to be working
|
|
fine. Morris read several Cornell notices about a "loose virus" that seemed
|
|
under control, although users were warned to "be careful"; some notices from
|
|
Keith Bostic about patching security holes that the worm had used; and a
|
|
message from Paul Graham asking him to call. There was something else Morris
|
|
did at Upson Hall on November 3:
|
|
|
|
"Yes, I believe I cleaned up some of my files."
|
|
|
|
"By 'cleaned up,' you mean you deleted some of the files?" probed the
|
|
prosecution.
|
|
|
|
"I deleted some of my files, yes."
|
|
|
|
"And that copy of the virus you left on your account, that was encrypted,
|
|
that was in an encrypted form, wasn't it?
|
|
|
|
"It was. Yes."
|
|
|
|
Once again, Morris left Upson Hall and returned home to make a phone call.
|
|
Graham excitedly informed him that the worm and disclosure of its staggering
|
|
impact "was about to get into newspapers, and that it might be a big sort of
|
|
media event."
|
|
|
|
Morris "screwed up" his courage and called his father, the computer security
|
|
expert, because he "felt that he ought to know." Morris senior was not
|
|
amused. He told his son to go home and not to talk to anybody. "So then I
|
|
went to bed and I left Cornell the next day," Morris testified.
|
|
|
|
But the true Shockwave Rider never abandoned the front line. With a nuclear
|
|
bomber zeroing in, he bravely hacked out the commands to avert the attack:
|
|
|
|
"And you did it in less than ten minutes?"
|
|
|
|
"Looking back on it, I feel I had all the time in the world."
|
|
|
|
MEANWHILE, MORRIS WAS RETREATING, though not as smoothly as planned. One of
|
|
his friends had inadvertently let RTM's log-on and nickname slip to John
|
|
Markoff, a reporter from The New York Times who happened to have written
|
|
extensively on computer security and who counted among his friends one of the
|
|
nation's leading computer security experts, Robert Morris, Sr.
|
|
|
|
The reporter used an Internet account to "Fingerd" RTM, and the program
|
|
faithfully flashed the name Robert T. Morris. When the reporter called
|
|
Morris senior and noted the similarity of their names, the elaborate
|
|
"experiment" unraveled. Morris junior's secret trail of anonymous accounts,
|
|
red herrings, and encrypted files suddenly became the machinations of an
|
|
adolescent playing war games.
|
|
|
|
Officials at MIT estimated that 6,000 of the nation's 60,000 Internet
|
|
computers had been invaded. The country's top computer experts spent several
|
|
sleepless days and nights battling and cleaning up after the attack, while
|
|
tens of thousands of military and university researchers went without
|
|
computer power. (Blocked at the relay point, Sudduth's antidote had not been
|
|
delivered for two days.) The tab for the wasted time and resources was
|
|
estimated at $15 million.
|
|
|
|
Three days after the attack, The New York Times began a series of front-page
|
|
stories about the missing Internet attacker, Robert Tappan Morris. While
|
|
Morris maintained a public silence ordered first by his father and then by
|
|
his Washington, D.C., attorney, the FBI began an investigation, and
|
|
government and university officials harshly criticized the hacker.
|
|
|
|
Old Bell Labs colleagues like Douglas McIlroy were puzzled by their progeny's
|
|
slip. "What I don't understand is the secrecy part of it. All of the
|
|
juvenile tricks, encrypting source files to launch from some other machine,
|
|
encrypting the program," says the scientist. "That's not consonant with a
|
|
fun-loving kid."
|
|
|
|
Yet many computer security experts--some of them friends and former
|
|
associates of Morris senior--rose to Morris junior's defense. They said his
|
|
experiment was a harmless, overdue warning of gross gaps in computer
|
|
security, and argued that Morris should be cheered, not convicted.
|
|
|
|
"When all is said and done, this kid is going to come down as a folk hero,"
|
|
Peter Neuman, a computer security expert at SRI international (one of Morris
|
|
junior's former employers) told The New York Times.
|
|
|
|
Of course, the hacker is the hero--in fiction. The Shockwave Rider liberates
|
|
the masses from a corrupt, computer-controlled government with a
|
|
freedom-fighting worm, risks his life to foil a nuclear attack, wins his
|
|
girl's heart, and is praised by the world. But Morris had no such righteous
|
|
intentions. He had no social or moral agenda, and never intended to expose
|
|
Internet's well-known security limitations. His worm had no other purpose
|
|
than to spread as far and wide as possible, and if it had spread as planned,
|
|
slowly, innocuously, most say the response would have been even greater
|
|
panic.
|
|
|
|
The world that Morris's worm entered was far removed from his boyhood
|
|
computer security training in the hallowed research halls of Bell Labs. In
|
|
the decade since his code-cracking childhood, computers leapt into the
|
|
mainstream to become the foundation of business and commerce. Assaults on
|
|
computers became assaults on industry, and by the mid-1980s terrorist
|
|
computer attacks and malicious break-ins revealed the dark side of hacking,
|
|
forever ending the playful era of his father, when hacking was a rite of
|
|
passage.
|
|
|
|
Therein lay the irony and tragedy of the trial of Robert Morris. He was
|
|
being tried for what he was taught by his father, his institutions, and his
|
|
generation: access, unauthorized. The trouble was, as the would-be security
|
|
expert wrote in one of his early papers, "Times have changed."
|
|
|
|
Some were not prepared for the change. On the day before the verdict, a
|
|
Harvard professor warned that "if Robert had wanted to do damage, there would
|
|
have been nothing left! All the computers would have gone up in smoke!"
|
|
Another Harvard friend suggested that if Morris were "unjustly punished," it
|
|
might inspire a less restrained, less idealistic hacker to "do it right."
|
|
The reasoning was similar to Morris's main line of defense.
|
|
|
|
"Was it your intention to have the worm program destroy or damage any files?"
|
|
asked the defense attorney.
|
|
|
|
"No, it was not."
|
|
|
|
"Was it possible for you to do that?"
|
|
|
|
"It would have been easy to do that."
|
|
|
|
The implication was ominous, and at least one close friend of Morris's was
|
|
not convinced that everything was OK just because his bored buddy hadn't
|
|
pulled the trigger. "On some level I know why he did this, and on some level
|
|
I don't," says Kuperberg, glancing away and pacing like the old roommate he
|
|
struggle to defend. "On some level [Morris senior's explanation of boredom]
|
|
is not satisfactory."
|
|
|
|
No answer seemed likely to come from the one person who might know. After
|
|
the guilty verdict was issued in his trial, Morris and his attorney walked
|
|
past the jostling TV crews and newspaper reporters and into the winter night.
|
|
|
|
His father held back. The press surrounded him and the TV lights shone
|
|
eerily on his face. "What do you feel, Mr. Morris? What do you feel?"
|
|
|
|
He chose his words carefully, stiffly stating that the trial had been fair,
|
|
though he was not happy with the verdict. The question came again, and this
|
|
time he spoke with conviction: "It's perfectly obvious that there is not a
|
|
fraudulent or dishonest bone in his body."
|
|
|
|
IN THE WORM'S WAKE, there has been no great improvement in security, but
|
|
fresh concern that future computer communication tools used by the average
|
|
citizen may have to be weighed down by cumbersome locks and chains. For, as
|
|
Morris senior wrote in his treatise on Unix security, "It is easy to run a
|
|
secure computer system. You merely have to disconnect all dial-up
|
|
connections and permit only direct-wired terminals, put the machine and its
|
|
terminals in a shielded room, and post a guard at the door."
|
|
|
|
Such is the bleak reality of total computer security, and if history is any
|
|
lesson, computers, too, will move through cycles, bringing periods of cold
|
|
war as well as openness. In the end, security is trust, which must be
|
|
nurtured and cultivated like any other human quality. Morris wanted to be a
|
|
hero, yet he lacked the patience and vision to forge a new direction.
|
|
|
|
"What would have been great is if he had shut the holes after himself. That
|
|
would have been a coup," says Peter McIlroy. "If he had thought of that, I
|
|
think he would have done it."
|
|
|
|
But RTM wanted nothing of the sort. In the private war he waged it was his
|
|
duty to hold on to the holes, to wield them in the way he "knew they wouldn't
|
|
mind."
|
|
|
|
And Robert Tappan Morris? He was just a kid.
|
|
|
|
"He might have been trained to display such powers of judgment; he might have
|
|
been specially bred to possess them. One thing was sure: he hadn't lived
|
|
long enough to grow into them."
|
|
|
|
Jonathan Littman is the author of Once Upon a Time in ComputerLand (Simon &
|
|
Schuster, 1990). A journalist who covers Silicon Valley and the
|
|
high-technology industry, he lives in Sonoma, California.
|
|
|
|
|
|
*************************************************************************
|
|
|
|
WORDLESS
|
|
By Homer Mandrill
|
|
|
|
The new era is rapidly upon us, folks, just like it
|
|
always has been since the beginning of time. With every
|
|
passing moment, with every exhalation, with every beat of our
|
|
hearts the potential for this new era is conceived,
|
|
disregarded, and thrown away.
|
|
The new era of which I write will not be heralded by a
|
|
great battle. Neither will it be heralded by rapture,
|
|
discernment, the rise of the Anti-Christ, bill HR 4079 (which
|
|
EVERYONE needs to learn about REAL quick), or the arrival of
|
|
aliens from Planet X.
|
|
It will be ushered in by some random but seemingly
|
|
'composed' event. Neither I nor anyone else know what it will
|
|
be, and there in lies its power. It will not have been
|
|
manufactured by any ego, collective or individual. Neither
|
|
will it be 'perceived' as a prophecy, 'as it is written'.
|
|
In this way, it will catch us unawares; we will stand as
|
|
a world, jaws lowered, gasping, trying to conceive of words
|
|
that apply to the situation.
|
|
Each individual on the planet will be caught in that
|
|
breathless Moment of confusion; a tugging on the compassion
|
|
of every human alive, simultaneously. A hole in our
|
|
collective chest cavity where once beat our hearts, we will
|
|
all, simultaneously be forced to come to terms with something
|
|
none of us had counted on. We will all be out of our depth.
|
|
|
|
This Gasp will be felt by everyone, everywhere. This
|
|
event will transcend religion, politics, race; no one will be
|
|
immune to its effects/affects. It will be universal. And
|
|
words won't do it justice.
|
|
|
|
A billion trillion dollars/yen/deutchmarks/pounds/gold/
|
|
frankenscence/myrhh, the cold right hand of fundamentalism
|
|
made into a fist, the hopes and prayers of trillions of
|
|
people of all races, the actions of every amassed army,
|
|
ever, the commercial exploitation of every nation ever to
|
|
have existed and which will ever exist, the shaping and
|
|
moulding of justice and liberty, the simultaneous reduction
|
|
and expansion of freedom around the planet; these things are
|
|
not the ends to which civilization aspires, but rather the
|
|
tools of our collective psyche, simultaneously raising our
|
|
standard of living and raining on our parade.
|
|
All these things are representative of our greatest
|
|
accomplishments and our greatest folly, and they are the raw
|
|
materials of the Moment of the Gasp. Just as the artist forms
|
|
the clay into something of sublime beauty, so that Moment
|
|
will form our perceptions of ourselves into something we are
|
|
not ready to understand. We will stand in the gallery and
|
|
look at the work of art that is the culmination of all
|
|
humanity throughout the ages encapsulated in that Moment, and
|
|
we will find ourselves unable to judge that which is before
|
|
us.
|
|
The Moment of the Gasp has no analog, no metaphor, no
|
|
preconception, no 'safe zone'. The white man will not be able
|
|
to blame the black man. The black man will not be able to
|
|
blame the white man. The Christians will not be able to blame
|
|
the Jews, the Atheists will not be able to blame the
|
|
Believers, the Right will not be able to blame the Left, I
|
|
will not be able to blame you and you will not be able to
|
|
blame me. The very concept of blame will become obsolete, our
|
|
internal systems of judgement, already built of flimsy
|
|
material, will be dashed to bits on the hard edge of the
|
|
Moment.
|
|
The cynic will be unable to discount the facts before
|
|
him. The idealist will see the cold face of reality. The
|
|
ascetic will be filled with compassion for those around him.
|
|
Every step we will take to run away from the truth will be
|
|
met with more evidence, every word we say will crawl out of
|
|
our mouth like a salted slug.
|
|
|
|
"Q: When will this Moment come? Is it upon us?"
|
|
My answer can only be that no one knows. As I mentioned
|
|
earlier, it can not be anticipated. And to do so would ruin
|
|
its effect/affect. Being practical for a moment, it seems to
|
|
be rapidly approaching. But again, we cannot anticipate the
|
|
Moment. It will fall down like a bird dropping from a bright
|
|
blue cloudless birdless sky. Who's to say?
|
|
|
|
"Q: What will come after the Moment of the Gasp?"
|
|
This is the crucial question, because the answer lies
|
|
within the it. Since we can't determine what the event will
|
|
be, we can't predict what will come afterward.
|
|
"A: It all depends."
|
|
This is the frightening realization that has been at the
|
|
back of our collective minds for thousands of years. We
|
|
really DON'T know what the future holds, and whatever it is,
|
|
we in fact are totally unprepared for it. So we listen to
|
|
Nostradamus, we re-read Revelations, we consult the Tarot and
|
|
I Ching... to what end? We wish to control the future...
|
|
When these temporal Holders-Of-The-Power wax poetic of
|
|
the New World Order, they are not speaking of what is to come
|
|
after the Moment of the Gasp. They are just covering their
|
|
tracks. This war in Iraq made some among us humans gasp, but
|
|
it was not THE Gasp. I certainly felt cheated by the system
|
|
I'd been brought up to 'love and obey, or else'. But once
|
|
more, The Gasp will be total, universal, and undeniable. Even
|
|
George Bush will feel it.
|
|
When that Moment comes and we have floundered and
|
|
wallowed and died to our sanity, hopefully we will pick
|
|
ourselves up and learn the lesson of that Moment. Q:What is the
|
|
lesson? A: What kind of bird dropped that turd on us from the
|
|
cloudless birdless sky?
|
|
|
|
When we find ourselves in the Moment, and all we can do
|
|
is Gasp, the time for change is at hand. Hope springs
|
|
eternal, but then again, the circumstances of the Moment may
|
|
kill us one and all.
|
|
|
|
Who's to say?
|
|
|
|
*************************************************************************
|
|
|
|
|
|
THE STATE OF NATIONAL SECURITY -- HOW MUCH WE (DON'T) KNOW
|
|
|
|
November 11, 1990
|
|
Re-Release April 3, 1991
|
|
|
|
By The Desert Fox
|
|
Transcribed and Edited by Lord Macduff
|
|
|
|
|
|
I have been a member of the modem community for about seven years.
|
|
During that time period, I have watched literally hundreds of bulletin boards
|
|
go up and go down. A great majority of these systems were based on a public
|
|
message and file exchange. But a few of these systems were dedicated to the
|
|
exchange and distribution of information... Information that was not usually
|
|
available on a regular basis. In my day, I have seen files on VAX/VMS, phone
|
|
switching systems, hacking, phreaking, and anything else that one could dream
|
|
of. But one thing that constantly has me pondering at all hours of the night
|
|
is the state of our national defense.
|
|
How close and how often do we come to pressing the button? Defined as
|
|
DEFCON-1, the state of panic which is actually sub-defined as World War III,
|
|
is something that has not been reached... yet.
|
|
There are five levels of International Status. DEFCON-5 is what we'd
|
|
all like to be at... unless you're a real nut case and have absolutely no hope
|
|
for the future of mankind. DEFCON(s) 4-1 are lesser states of "panic". A dumb
|
|
reference, yet a valid one, is the movie "Wargames". Although a liberal dose
|
|
of fiction was mixed in as far as the actual methods of hacking and such, it
|
|
makes one think "Just how often DO hackers break into systems like that and
|
|
cause problems possibly leading to the destruction of the world?" [Editor's
|
|
Note -- Not as often as certain federal agencies would like to think. Go
|
|
catch some REAL criminals instead of picking on us modem users...]
|
|
Another question that comes to mind is "How often do Soviet troop
|
|
movements or something of that nature cause a defcon decrease to bring us to
|
|
the brink of global extermination... and the public never knows about it?"
|
|
During the Kennedy Administration, this country was brought to what is the
|
|
equivalent of DEFCON-2 when the Soviets brought their missiles into Cuba in
|
|
the early 1960's. From what transcripts say about the incident, we were
|
|
seconds away from DEFCON-1... what a pisser, huh? Although that happened seven
|
|
years before I was born, my generation would have taken it with a grain of
|
|
salt and looked at it as a chance to get a tan. (A real good one, I might
|
|
add...) Our country goes seconds from World War III and we never found out
|
|
until years later. How often does this happen? Personally, I'd like to know
|
|
when Vodka is going to replace Coca-Cola as the national beverage. I'd also
|
|
like to know when fish eggs are going to be put on the menu at fast food
|
|
joints.
|
|
At this very moment [4:27 AM on Sunday, November 11, 1990 if anyone
|
|
is curious... -Ed.] United States and Allied troops are in the Middle East
|
|
preparing for war. The media reports that all the troops are over there just
|
|
sitting around bored to death. [Yet another Editor's Note -- Due to a time
|
|
control problem, I will finish this essay instead of Sir Lawrence...
|
|
Apologies for the interruption.] It's very possible we could have another
|
|
Vietnam on our hands. Hell, Saddam Hussain is not going to stop with the
|
|
invasion of Kuwait... There's a very interesting parallel between Hussain and
|
|
a short German guy who started World War II... I'm not so sure why everyone's
|
|
worried about German Reunification -- It's the Iraqis we SHOULD be worrying
|
|
about! Hussain insists that the American citizens that he is holding hostage
|
|
in various hotels in Baghdad are "Guests". We might do well to round up every
|
|
last Iraqi citizen in this country who has a visa or green card and stick 'em
|
|
all in ONE Motel 6 somewhere in the midwest. Let Tom Bodett deal with them for
|
|
a while... Perhaps the CIA could go blow up some of their planes or important
|
|
buildings... Goodness knows they've done the same to us enough times to make
|
|
the average citizen want to puke. If we hurry up and storm the place NOW,
|
|
before Saddam figures out how to put together that mail-order nuclear bomb,
|
|
we could take the whole place over in a matter of days. We could use that oil.
|
|
The weapons manufacturers would make a fortune, perhaps even create new jobs.
|
|
Our economy could USE a boost, with the gas prices what they are. [Sidenote:
|
|
Who's to say that Exxon isn't financing Saddam Hussain?] Sell the entire
|
|
country to Russia for them to use as parking, for that matter.
|
|
The projected costs for Operation Desert Shield are in the billions,
|
|
while it has accomplished virtually nothing. Truly another case of YOUR TAX
|
|
DOLLARS AT WORK.
|
|
But who's to say if this is for real? This may be a conspiracy by the
|
|
oil companies (who secretly own the government) to make more money. The
|
|
government controls the media, which is our only source if information from
|
|
over there. Small wonder they want to supress publications like PHRACK...
|
|
They aren't from the government-controlled media.
|
|
|
|
SUPRESSION BREEDS REVOLUTION
|
|
|
|
|
|
*************************************************************************
|
|
|
|
|
|
|
|
:======================================================:
|
|
| A Brief Explanation of Beer*Net |
|
|
| 10/16/90 |
|
|
| |
|
|
| Written by Toxic Sock @beernet01 |
|
|
| |
|
|
| Further information availible on the |
|
|
| |
|
|
| +-------------------------------------------------------------+
|
|
| following | |
|
|
| Beer*Net | |
|
|
| systems: | Apocalyptic Funhouse (713) 531 -*- 1139 |
|
|
| | Sysop: Nuclear Gerbil/Chris 40 megs/2400/1200 |
|
|
| | |
|
|
| | The Magic Window (713) 356 -*- 7150 |
|
|
| | Sysop: Zen Master/Mark 30 megs/2400/1200 |
|
|
| | |
|
|
| | Malacology Unlimited (713) 356 -*- 6004 |
|
|
:===============| Sysop: Dr. Goodnight/Craig 80 megs/2400/1200 |
|
|
| |
|
|
| Split Infinity (713) FEW -*- BUGS |
|
|
| Sysop: Strider Arcadian/Will 40 megs/2400/1200 |
|
|
| |
|
|
| Rawhide Palace (713) 383 -*- 3961 |
|
|
| Sysop: Gurn Blanston/Ron 80 megs/2400/1200 |
|
|
+-------------------------------------------------------------+
|
|
|
|
|
|
Why Beer*Net?
|
|
-------------
|
|
Houston is famed for its intolerance of basic rights and
|
|
the opinions of others on its bulletin board systems. This is not
|
|
surprising in a city where the most common activity is the proverbial
|
|
leechline activity, but is distressing nonetheless to intelligent users
|
|
who want to make their opinions known without living in fear of
|
|
mysterious account modifications, deletions or message removal. At
|
|
times the oppression has been so blatant that users have made the
|
|
transition from user to sysop and have run "free speech" systems that
|
|
broke all of the established (and stupid) rules and allowed the open
|
|
expression of intelligence. They have always met with opposition from
|
|
the petty tyrants who run their own digital kingdoms for the
|
|
gratification of having power, no matter how unconnected to reality it
|
|
is. And, since these types generally invest a good deal of money in
|
|
their systems, they are the ones who have what the common user covets -
|
|
file transfers - and use this as the basis of their power. When
|
|
something threatening such as a board with free speech allowed or a no
|
|
ratio file transfer system appears, they often band together and assault
|
|
the sysop, especially if he is a minor, where they know they can
|
|
sufficiently confuse his parents into forcing them to remove the
|
|
offending bulletin board system. This has happened to more than one
|
|
reputable user-turned-sysop, and with the emergence of Beer*Net, will
|
|
hopefully be eradicated.
|
|
|
|
Free Speech
|
|
-----------
|
|
Simply put, "free speech" is the right to say whatever the user
|
|
pleases without any immediate repercussions other than the responses of
|
|
fellow users. On a free speech BBS, a user may say whatever he wishes
|
|
without trepidation, because the sysop is honor bound not to take action
|
|
against the user. This is not easy for a sysop, especially when said
|
|
user espouses neanderthal beliefs such as racism or bigotry. However,
|
|
the overall outlook is much better for a BBS that allows intellectual
|
|
development and interesting posts through free speech than for a
|
|
squeaky-clean and silent BBS. This is a basic right we hold to be
|
|
necessary, and we, the Beer*Net sysops, are committed to defend it.
|
|
We agree that by allowing free speech we are exempting the users
|
|
from action taken by the sysop against them for what they say publicly
|
|
or privately on a BBS, with the exception of illegal activity such as
|
|
passing long distance codes or passwords. We also agree that we will
|
|
not read private mail, nor will we ever use a user's account for our own
|
|
purposes. Any change in access level, change in user information or
|
|
deletion of a part or the whole of the user's account in response to
|
|
user posting is considering a violation, as are passing on to any other
|
|
sysop, user or official all or part of a user's information and
|
|
confronting anyone but the user himself with details of a supposed
|
|
infraction.
|
|
In addition, we are committed to helping others interested in
|
|
maintaining free speech on bulletin board systems. If we hear of a case
|
|
where unwarranted harrassment is being delivered by other sysops, we are
|
|
pledged to combat it by whatever means necessary. Rights must be
|
|
preserved above all.
|
|
|
|
The Systems
|
|
-----------
|
|
The systems listed on the file header are all committed to the
|
|
Beer*Net ideals and have implemented them. They do not support
|
|
blacklisting, and do not pass on user information between systems or to
|
|
other users. Moreover, the sysops will NOT call up parents or deal with
|
|
anyone besides the user himself regarding the user's conduct. The
|
|
sysops do reserve the right to preserve in copy buffer form all or part
|
|
of any chats, posts, or e-mail directed to the sysop or in a public
|
|
area. These policies are implemented at the verification of this file
|
|
by all of the sysops involved.
|
|
|
|
History
|
|
-------
|
|
Beer*Net was an idea developed in part by the sysops of TURD
|
|
(the "original" true free speech system), namely Royal Flush, Vile Scent
|
|
(Toxic Waste, Yeast Infection) and Captain Crapp (Vehicular Slaughter,
|
|
Nuclear Gerbil) and in part by Zen Master, an original user on TURD and
|
|
now sysop of the Magic Window.
|
|
TURD had its origins in the Apple II community, where the sysops
|
|
observed that more than the normal amount of petty didactic types
|
|
reigned, and committed themselves to do something about it. Today, the
|
|
remnants of TURD are to be found in Apocalyptic Funhouse (713-531-1139),
|
|
as are parts of the Metal Hell and Dead Animal Pickup.
|
|
Malacology Unlimited and Magic Window are later additions to the
|
|
free speaking world, but are viable systems worthy of investigation by
|
|
any user. They are running Hermes on the Macintosh and TAG on a clone,
|
|
respectively. All are open systems.
|
|
|
|
Attribution
|
|
-----------
|
|
The credit for the impetus and ideas behind Beer*Net go to the
|
|
following people:
|
|
|
|
Yeast Infection: part of original brainstorm project
|
|
Myself: Captain Crapp had to be involved...
|
|
Zen Master: stimulated us to further develop the idea
|
|
Dr. Goodnight: for helping to break the power of didactic
|
|
sysops in Houston
|
|
Jesse Helms: For proving that pro-rights people are
|
|
smarter...
|
|
|
|
*************************************************************************
|
|
|
|
THE LAW OF TORTS
|
|
|
|
James J. Spinelli
|
|
The Activity Bulletin Board Service - ABBS - (914) 779-4273
|
|
|
|
=====================================================================
|
|
|
|
This paper is NOT intended as a substitute for a lawyer NOR as a
|
|
do-it-yourself kit. It provides basic information to help you under-
|
|
stand certain legal principles. In any serious situation or when you
|
|
are in doubt, there is no substitute for competent professional legal
|
|
advice. Trying to act as your own lawyer can be costly and, in some in-
|
|
stances, dangerous. The author assumes no responsibility, accountabil-
|
|
ity or liability whatsoever in the use or misuse of any information
|
|
presented herein. The information herein is of a general nature.
|
|
|
|
=====================================================================
|
|
|
|
Most of us are generally aware of what crimes are (murder, arson,
|
|
theft, for example) but are vague about what the law refers to as
|
|
torts. There's a good reason: leading legal writers agree that no one
|
|
has satisfactorily defined a tort. This is partly because torts are so
|
|
common, so widespread and so varied. You are far more likely to be the
|
|
victim of a tort than a crime, and you are also far more likely to com-
|
|
mit a tort than a crime.
|
|
|
|
The purposes of this paper are sevenfold:
|
|
|
|
1. To explain torts;
|
|
2. To show how they differ from crimes;
|
|
3. To stress the importance, in the law of torts, of
|
|
negligence, intent and liability;
|
|
4. To indicate what relief is available to you when a
|
|
tort has been committed against you or your property;
|
|
5. To show you how to seek that relief by starting a
|
|
lawsuit;
|
|
6. To explain how such a suit is tried;
|
|
7. To relate all of the above purposes to a specific
|
|
classification of circumstances, i.e., how they relate
|
|
to the role and responsibilities of a systems operator
|
|
(Sysop) of an electronic bulletin board service (BBS).
|
|
|
|
TORTS VERSUS CRIMES - A tort is a civil wrong against an individual. A
|
|
crime, on the other hand, is an offense against the public at large, or
|
|
the state. For example, an automobile driver who carelessly bumps into
|
|
your car in a parking lot and crumples the fender has committed a tort
|
|
|
|
against your property. Because the law recognizes your legal right to
|
|
freedom from injury to your property caused by other people's careless-
|
|
ness, you are entitled to sue the driver and be awarded damages for his
|
|
breach of your tight. But, he has committed no crime.
|
|
|
|
Once again, a tort is an act that violates your private or personal
|
|
rights. Unless the act that is a tort is also a crime, the state will
|
|
do nothing about it. If you believe someone has violated your personal
|
|
rights -- but has not acted against the interests of the public as a
|
|
whole -- it is entirely up to you to seek relief by suing the person in
|
|
the civil courts. If the person who you believe has legally aggrieved
|
|
you is found liable -- that is, the judge or jury finds that the person
|
|
did in fact injure you or your property -- the person may be required
|
|
to:
|
|
|
|
1. give you relief by paying you "damages" for the injury or
|
|
property loss you suffered,
|
|
2. discontinue the wrongful acts, or
|
|
3. restore to you what was taken from you.
|
|
|
|
In some cases the person may be imprisoned.
|
|
|
|
If the tort is also a crime, two separate legal actions confront the
|
|
wrongdoer: your's and the state's.
|
|
|
|
A tort is usually committed when someone injures you physically, dam-
|
|
ages or misuses your property, attacks your reputation arbitrarily or
|
|
takes away your liberty and freedom of action without just cause. To
|
|
recover damages for a tort you must prove either that the act was com-
|
|
mitted with deliberate intent (as when someone spreads false accusa-
|
|
tions about you) or that it was the result of negligence.
|
|
|
|
In most cases you must prove that the act inflicted actual damage or
|
|
injuries. A malicious act that does you no harm is not sufficient cause
|
|
for legal action.
|
|
|
|
A person who is proved to have committed a tort will be held respon-
|
|
sible for all the damages proved to have resulted from the act, includ-
|
|
ing damages to "third parties."
|
|
|
|
WHO IS RESPONSIBLE FOR COMMITTING A TORT - Generally speaking, any per-
|
|
son, young or old, mentally competent or not, is responsible for
|
|
his/her torts, i.e., for the consequences of the actions to others in-
|
|
jured by those actions. Here is an interesting distinction between
|
|
torts and crimes. Children below a certain age not usually liable for
|
|
crimes they commit, on the ground that children of their age really do
|
|
not understand the significance of their actions. For basically the
|
|
same reason, persons who have been adjudged mentally incompetent are
|
|
not liable for their crimes. BUT, these SAME persons may be liable for
|
|
their torts, whether they are deliberate or the result of carelessness.
|
|
|
|
|
|
Intent is an essential element in such torts as libel and trespass. Al-
|
|
most all employers are liable for the torts of their employees if the
|
|
employee committed the harmful act during the course of employment.
|
|
(This also applies to "agent" and "principal" relationships.) The point
|
|
to keep in mind is that the law usually holds an employer liable for
|
|
what happens when his employee is carrying out instructions and/or
|
|
working on behalf on the employer. But, not all employers -- especially
|
|
not governmental ones. The doctrine of sovereign immunity -- that the
|
|
state cannot be sued except by its own consent -- severely limits your
|
|
right to sue governments and governmental bodies for the torts of their
|
|
employees. However, the US government and the government of many states
|
|
have in recent years passed laws that do permit such suits to be
|
|
brought against them. In some instances separate courts, usually called
|
|
courts of claims, have been established to handle these actions.
|
|
|
|
Some people may not be held liable in tort actions. Among them are hus-
|
|
bands and wives, who are not considered responsible for each other's
|
|
torts, and parents, who are not usually liable for the torts of their
|
|
children. The situation changes, however, if the parent knows that the
|
|
child has developed what lawyers call a vicious propensity to commit
|
|
acts that injure other people or their property. In addition, some
|
|
states have passed laws that do make the parents responsible for will-
|
|
ful damage caused by their minor children.
|
|
|
|
Of course, if it can be established that the husband or wife or parent
|
|
or other adult actually thought up the tortious action, planned it and
|
|
coerced or persuaded the spouse or child into committing it, than that
|
|
adult or spouse WILL be held responsible for the act and liable for the
|
|
damage it caused.
|
|
|
|
Except for so-called acts of God, any interference with your personal
|
|
or property rights, whether intentional or through negligence, is a
|
|
tort.
|
|
|
|
When it comes to personal rights, torts typically deal with one or more
|
|
of the following intentional violations: (negligence comes later)
|
|
|
|
1. Interference with your freedom of movement
|
|
2. Misuse of the legal process
|
|
3. Interference with your person
|
|
4. Interference with your peace of mind
|
|
5. Interference with your privacy
|
|
6. Interference with your reputation
|
|
|
|
For our purposes, we shall examine only items 4, 5 and 6 -- interfer-
|
|
ence with your peace of mind, your privacy and your reputation.
|
|
|
|
|
|
INTERFERENCE WITH YOUR PEACE OF MIND - The growth in the sciences of
|
|
medicine and psychology has brought about an expansion of the idea of
|
|
freedom from fear or apprehension. You may have an action against some-
|
|
one who intentionally inflicts mental suffering on you. You have a
|
|
right to freedom from the consequences of mentally abusing malicious
|
|
acts, and the courts protect that right by awarding damages -- nominal,
|
|
or small, if the harm is slight; punitive, or large, if the damage is
|
|
great or the act particularly outrageous. Consider the mental anguish
|
|
if you are worried that someone will come into your home and cause dam-
|
|
age, or that someone will "attack" your computer system while you are
|
|
not around to protect it. The more expensive the equipment (your prop-
|
|
erty), the more punitive the damages. At times, the intent alone, par-
|
|
ticularly if shown to be an act of vengeance or malice, can be suffi-
|
|
cient to award punitive damages that are considerably greater than the
|
|
cost or value of property, depending on the mental anguish suffered. If
|
|
such an act disrupts a business, the mental anguish can be quite se-
|
|
vere, and the tort may be punishable by stiff fines and/or a jail term.
|
|
In some cases, such torts can be classified as a crime, which then ne-
|
|
cessitates the state to step in, since some states view the mental an-
|
|
guish to be associated with acts of violence that concern the public at
|
|
large. This applies since other businesses may be subjected to similar
|
|
malfeasance.
|
|
|
|
INTERFERENCE WITH YOUR PRIVACY - This is another right protected by the
|
|
courts -- your right to be let alone. Such interference can take many
|
|
forms, some obvious, others not so obvious. One of the not-so-obvious,
|
|
or less direct violations to privacy, is the objectionable publicity to
|
|
private information about you.
|
|
|
|
INTERFERENCE WITH YOUR REPUTATION - As important as any freedom to
|
|
which you are entitled is freedom from unwarranted, untruthful attacks
|
|
on your character. This kind of attack, if made in the presence of
|
|
other people, constitutes defamation, for which you are entitled to
|
|
nominal or punitive damages, as the case may be. If you are defamed
|
|
orally, you have been slandered. If the defamation is in writing and
|
|
shown to or seen by someone else, you have been libeled. Slander is the
|
|
less serious of the two torts because it is fleeting. The spoken words
|
|
of defamation exist only as they are uttered and then disappear for-
|
|
ever. Libel is permanent, and the damages awarded are therefore usually
|
|
larger. Generally speaking, defamatory statements made over radio and
|
|
television, and via computer are now considered libelous rather than
|
|
slanderous.
|
|
|
|
You can recover damages for slander or libel without proving actual fi-
|
|
nancial loss if you are accused of something considered serious. The
|
|
reason is that, since the good reputation of a professional person is
|
|
essential to his/her ability to make a living, the law assumes that
|
|
such accusations will diminish that ability and will therefore damage
|
|
the individual. This kind of attack slander or libel is called slander
|
|
or libel per se. Spreading lies about others, especially when the lies
|
|
affect their ability to make a living or may hurt them in their family
|
|
or public relationships, constitutes slander if spoken to others and
|
|
libel if written or transmitted to others.
|
|
|
|
With property rights, torts are generally concerned with the following
|
|
intentional violations: (negligence comes later)
|
|
|
|
1. Nuisances
|
|
2. Keeping others off your property
|
|
3. Misuse of your personal property
|
|
4. Interference with your contractual and business
|
|
relationships
|
|
5. Fraud, deceit and misrepresentation
|
|
|
|
|
|
For our purposes, we shall examine items 3, 4 and 5 above, i.e., misuse
|
|
of your personal property, interference with contractual/business rela-
|
|
tionships, and fraud, etc.
|
|
|
|
MISUSE OF YOUR PERSONAL PROPERTY - You have the right to the unre-
|
|
stricted and uninterrupted enjoyment of your personal property. The law
|
|
provides remedies for the intentional interruption of your right or in-
|
|
terference with it. Interference with your personal property is called
|
|
the tort of conversion. It can be conduct intended to affect your per-
|
|
sonal property or conduct that, even though not intentionally wrong, is
|
|
inconsistent with your right of ownership.
|
|
|
|
Examples of conversion are:
|
|
|
|
1. Someone intentionally alters the property
|
|
2. Someone uses your property in a manner inconsistent
|
|
with your wishes or requirements
|
|
|
|
In both of these cases, your control of your property has been inter-
|
|
fered with, and you are entitled to sue for the tort of conversion.
|
|
|
|
INTERFERENCE WITH YOUR CONTRACTUAL AND BUSINESS RELATIONSHIPS - You
|
|
have a right to freedom from interference by others with the contrac-
|
|
tual relationships you have entered into. This applies even when, after
|
|
the contractual or business relationship, admission of errors are ac-
|
|
knowledged by the offending party. (Remember, contracts occur into com-
|
|
mon forms: oral and written. NOTE: The law of contracts is beyond the
|
|
scope of this paper, and will only be referred to as sufficient to re-
|
|
late to torts as defined herein.) Damages can be punitive if you can
|
|
convince the court that the defendant specifically set out to interfere
|
|
with the relationship or set out to ruin your reputation within the
|
|
confines of your relationship. Proof need only be beyond a reasonable
|
|
doubt and not necessarily overwhelmingly convincing. Potential disrup-
|
|
tion also is considered, since business relationships can be both
|
|
short- and long-term.
|
|
|
|
FRAUD, DECEIT AND MISREPRESENTATION - You have a right to freedom from
|
|
being improperly induced or persuaded to do something, or not to do
|
|
something, by someone's trickery. What is involved in this tort is:
|
|
|
|
1. A conscious or knowing false statement made to you,
|
|
2. by someone who knew the statement was false,
|
|
3. with the intention that you would rely on it,
|
|
4. followed by your actual reliance on it, and
|
|
5. your "suffering" as a result.
|
|
|
|
The main thing here is for the person suing to establish that he/she
|
|
was consciously tricked and that if the correct information had been
|
|
given, the suing person would not have acted as he/she did.
|
|
|
|
|
|
We now move onto the Law of Torts as it applies to the accidental in-
|
|
terference with your personal or property rights. This is typically
|
|
classified under the general heading of NEGLIGENCE.
|
|
|
|
Earlier, we were concerned with the intentional interferences with your
|
|
various rights as a member of society. In each of the torts presented
|
|
the harm was intended or the result of an intended act. But, there is a
|
|
large area of the law of torts that is basically different -- the area
|
|
of civil wrongs or torts that are the result of negligence, or mere
|
|
carelessness.
|
|
|
|
In our increasingly complex society, wrongs resulting from carelessness
|
|
are becoming more numerous than intentional torts. In any case, there
|
|
is a major difference between the two kinds of wrong: to recover from
|
|
someone's negligent conduct toward you, you must prove actual damages
|
|
-- you must establish that the person really did injure your person or
|
|
your property. By contrast with intentional torts, such as trespass,
|
|
you are entitled to some damages just by proving the tort was commit-
|
|
ted.
|
|
|
|
Unintentional interference can result either from negligence or from
|
|
accident.
|
|
|
|
WHAT IS NEGLIGENCE - Legal actionable negligence exists when:
|
|
|
|
1. You have a legal duty or obligation to conform to a
|
|
certain standard of conduct to protect others against
|
|
unreasonable risk;
|
|
2. You fail to conform to that standard;
|
|
3. Your conduct is so closely related to the resulting
|
|
injury that it can be said to have caused it --
|
|
to have been its proximate cause, and
|
|
4. Actual damages results from your conduct.
|
|
|
|
If these four elements are present in a situation in which you are in-
|
|
volved, you may be sued and you will find it hard to defend yourself.
|
|
|
|
These elements of negligence are reasonably clear. But, you should rec-
|
|
ognize that the existence of "a legal duty or obligation" to others may
|
|
depend on the circumstances of the case in which you are being sued.
|
|
You have a legal duty to others only if the court or a statute says you
|
|
do. You have no obligation if the court finds none.
|
|
|
|
When a tort suit is tried, the standard of care expected of the defen-
|
|
dant is defined by the judge (or the jury). The judge (or the jury, if
|
|
there is one) determines the facts of the case and applies them in
|
|
light of his/her (or their) definition.
|
|
|
|
|
|
In groping around for guidelines as to whether you do or do not have a
|
|
duty to act a certain way, and in deciding whether your conduct meets
|
|
the required standard, the courts compare your conduct with the pre-
|
|
sumed conduct of a reasonable or prudent man. If this imaginary reason-
|
|
able or prudent man would have acted a certain way, the person who does
|
|
is liable. You are supposed to do what the prudent man would do, and
|
|
you are not supposed to do what the prudent man would not do.
|
|
|
|
As A.P. Herbert, the English legal humorist, put it:
|
|
|
|
He is an ideal, a standard, the embodiment of all
|
|
those qualities which we demand of the good citizen...
|
|
He is one who invariably looks where he is going,
|
|
and is careful to examine the immediate foreground
|
|
before he executes a leap or a bound...who never swears,
|
|
gambles or loses his temper; who uses nothing except
|
|
in moderation....In all that mass of authorities which
|
|
bears upon this branch of the law there is no single
|
|
mention of a reasonable woman.
|
|
|
|
A key element in a successful negligence suit is the connection between
|
|
what was done and the injury that supposedly resulted from the act. The
|
|
person suing must prove that the defendant caused injury to his/her
|
|
person or property. Some courts in trying to decide whether an act was
|
|
the proximate cause of subsequent damage have applied what is called
|
|
the "foreseeability test." They hold that the negligence is not the
|
|
proximate cause unless the consequence was one that, in the light of
|
|
all circumstances, our reasonably prudent man could have foreseen as a
|
|
probably result of his actions or his failure to act.
|
|
|
|
(NOTE: There is modification to the prudent man rule when professionals
|
|
or experts in given fields are involved. Here, the court views the
|
|
facts in light of the nature of the knowledge of the expert. For ex-
|
|
ample, a computer programmer is not viewed the same way as a casual
|
|
computer user. Actions attributable to an expert are viewed in terms of
|
|
how the typical expert in that field would have acted or would not have
|
|
acted. If a casual computer user unintentionally damaged your computer
|
|
system, it would not be given the same consideration as if an "expert"
|
|
did the same thing. Remember, we are dealing with reasonableness, and
|
|
expertise or skills above the "ordinary person" can weigh heavily in
|
|
determining the final outcome of a tort-based lawsuit.
|
|
|
|
Other circumstances can apply, particularly if a business transaction
|
|
occurs and/or a contract is in force.)
|
|
|
|
|
|
YOUR DUTY TO OTHERS WHO COME ONTO YOUR PROPERTY - If you own property
|
|
(any kind of property, not just real estate, e.g., computer bulletin
|
|
board systems), you have definite responsibilities to persons coming
|
|
onto that property legally or otherwise. Even to a trespasser, someone
|
|
entering your property illegally, you have an obligation to give warn-
|
|
ing of any genuinely dangerous (or injurious/harmful) condition known
|
|
only to you. If you hobby is a computer bulletin board, you'd be wise
|
|
to post a warning sign (or disclaimer) so that casual trespassers real-
|
|
ize that there may be a danger in wandering around your property.
|
|
|
|
(NOTE: You must be able to prove that the warning was in fact in such a
|
|
place, state or condition that it could not have been bypassed or mis-
|
|
interpreted. A warning (or disclaimer) that people cannot easily view
|
|
or is not reasonably obvious is no warning at all. For example, a
|
|
typical news item that can be bypassed on a bulletin board log-on is
|
|
not considered a reasonable posting of a warning because it can be by-
|
|
passed -- is not necessarily obvious to all.)
|
|
|
|
You owe a stricter responsibility to trespassing children (minors) be-
|
|
cause they are children and unlikely to realize or care about the fine
|
|
points of the law of trespass. To protect young trespassers and to com-
|
|
pensate them for injuries they may suffer in behaving like children,
|
|
the courts have thrown over them a mantle called the attractive nui-
|
|
sance doctrine. This doctrine requires the property owner who maintains
|
|
on his property anything attractive to young children, and dangerous to
|
|
them because of their immaturity and unawareness of possible risks, to
|
|
exercise reasonable care in protecting them against the dangers of the
|
|
attraction.
|
|
|
|
(Think about this should you be carrying pornographic material on your
|
|
bulletin board, or other such attractions that children can be harmed
|
|
from. Computer games may become a potential source of difficulty given
|
|
the current lawsuit against the manufacturers and distributors of Dun-
|
|
geons & Dragons -- the "game" being blamed as a teenager's cause for
|
|
committing a crime. As "ludicrous" as it may sound, the case is going
|
|
to court.)
|
|
|
|
There is a group of people called licensees who may come onto your
|
|
property with your implied permission. They are different from tres-
|
|
passers who have no permission, and you have a somewhat stronger obli-
|
|
gation to protect them. You have a duty to warn them of dangerous or
|
|
hazardous or harmful conditions they may not anticipate or easily see.
|
|
(The law regarding your obligation to casual guests in your computer
|
|
system is specialized and evolving.)
|
|
|
|
Invitees are the people coming onto your property to whom you owe the
|
|
maximum duty of protection, not only against risks you actually do know
|
|
about, but also against dangers that you should know about if you exer-
|
|
cised reasonable care. Invitees are persons who enter your property
|
|
upon your business and upon your express or implied invitation.
|
|
|
|
|
|
As in most tort cases, the court and the jury will carefully consider
|
|
the facts in each situation before coming to a decision about whether
|
|
or not the defendant was negligent. One rule commonly applied is that
|
|
the standard of care required of the property owner is greater to the
|
|
degree that the presence of people on his property is helpful or prof-
|
|
itable to the property owner. In other words, a bulletin board sysop,
|
|
who gains a benefit from your visiting his/her system, has a greater
|
|
duty to you than does a friend who invites you to his/her home as a so-
|
|
cial guest. (Note: the benefit need NOT be monetary.). The application
|
|
of general rules is up to the court. The liability to trespassers,
|
|
invitees and licensees is the owner's or that of the person in legal
|
|
possession. (For example, if you lend your computer system to someone,
|
|
and harm is done, the liability belongs to the person in legal posses-
|
|
sion, which may or may not be your's., depending on the nature of the
|
|
possession and of the restrictions thereof.)
|
|
|
|
Torts frequently occur under circumstances in which, although it is im-
|
|
possible to prove negligence on anyone's part, what happens is so ex-
|
|
traordinary that negligence is presumed. As the courts say, the thing
|
|
speaks for itself: res ipsa loquitur.
|
|
|
|
The doctrine of res ipsa loquitur may also be invoked where damage is
|
|
caused by the breakdown of a device that is under the complete owner-
|
|
ship and control of the defendant.
|
|
|
|
|
|
THE IMPORTANCE OF LIABILITY - Underlying all of this is your right to
|
|
recover for injuries you suffer from interference with your right to be
|
|
free from a variety of wrongs, some well established and others just
|
|
becoming established. If you feel that you have been wronged, you
|
|
should carefully consider still another factor that will influence your
|
|
decision whether or not to sue.
|
|
|
|
This is the question, which only your lawyer should decide, of whether
|
|
there is any liability on the part of the person who has wronged you.
|
|
He will be liable, and your legal action against him will succeed, only
|
|
if he/she has actually violated a legal duty which is owed to you as an
|
|
individual. Forgetting momentarily the question of your responsibility
|
|
for what happened, you can recover only where what was done or failed
|
|
to be done violated the course of conduct that the reasonably prudent
|
|
man would have done.
|
|
|
|
If the conduct of the person you want to sue has not, judged by the
|
|
presumed conduct of the reasonably prudent man, violated a duty to you,
|
|
the chances are you have no action. Liability is essential: you can win
|
|
your suit only if the person you are suing acted or failed to act in
|
|
such a way as to make the person liable. Liability results from conduct
|
|
that violates or interfers with one of your rights that the law recog-
|
|
nizes. If there is no such conduct there is no liability, no matteer
|
|
how aggrieved you may feel.
|
|
|
|
|
|
However, remember that the "prudent man" standard can also vary. Pro-
|
|
fessionals, i.e., doctors, lawyers, computer specialists, and the like,
|
|
are not your "ordinary" layperson. As such, the standards that govern
|
|
their conduct are viewed as a prudent practioner within the area of
|
|
speciality. These standards are gauged at a higher level than the ordi-
|
|
nary citizen's.
|
|
|
|
RIGHTING THE WRONG - Let's say that your lawyer has decided that, on
|
|
the basis of the facts you have given, the person who has wronged you
|
|
had a duty not to do so and that a court can therefore find the person
|
|
liable for violation of that duty. The question of which remedy you
|
|
should seek becomes all-important. Underlying the answer to this ques-
|
|
tion is the subject of damages. Also, keep in mind that many inten-
|
|
tional torts are or can be crimes.
|
|
|
|
Someone, for example, breaks into your computer system and destroys all
|
|
of the information you had stored there. It would take you weeks, if
|
|
not months, if at all, to be able to restore that information. However,
|
|
in the process you are severely compromised for work that you were per-
|
|
forming for someone for a fee. What is the "cost" of the damage? You
|
|
need to decide whether what you've lost is worth the expense of suing.
|
|
Also, is the person you are suing "judgment-proof?" That is, is the
|
|
person being sued broke or without assets? Sure you can sue, but if you
|
|
can't recover anything, you've gained nothing. You've lost the expense
|
|
of the legal action. You may, therefore, decide to sue on principle.
|
|
Provided you have the funds to take legal action, and do not care very
|
|
much about recovering money damages, you may continue your efforts. In
|
|
this example, some states would view the action as a crime. If so,
|
|
"punishment" may no longer be simply "monetary" in nature.
|
|
|
|
You are not limited to asking for money damages when you have been de-
|
|
prived of your property. You may try to get back the property itself,
|
|
or a reasonable facsimile. Let's say that someone causes damage to your
|
|
equipment. You may sue to get back equipment of equal value.
|
|
|
|
There are certain other torts for which money damages are not the re-
|
|
lief you want. If you are bothered by the neighbor who persists in
|
|
walking across your property despite all your requests that he stop,
|
|
money damages don't help you much. What you want in such a case is a
|
|
court order that he stop. Such an order is called an "injunction."
|
|
|
|
Now, let's apply all of this to the BBS environment.
|
|
|
|
|
|
ABBS wishes to thank Frank Levine, Attorney at Law and Co-Sysop
|
|
at ABBS, for the following. We are uncertain as to its origin,
|
|
but know that it has come from another bulletin board system.
|
|
|
|
This and our paper on the Law of Torts, represent our efforts
|
|
to provide information to fellow Sysops/BBS operators in hopes
|
|
to enlighten and contribute toward the growth and success of
|
|
the services we all provide and the communities we all serve.
|
|
|
|
James J. Spinelli
|
|
Sysop, ABBS
|
|
(914) 779-4273
|
|
|
|
|
|
|
|
ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986
|
|
H.R. 4952
|
|
|
|
Some of its provisions are important to BBS sysops and users.
|
|
The following is an excerpt from the House Report (
|
|
99-647).
|
|
|
|
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS
|
|
AND TRANSACTION RECORDS ACCESS
|
|
|
|
Section 2701. Unlawful access to stored communications
|
|
|
|
(a) Offense.--Except as provided in subsection 9c) of
|
|
this section whoever--
|
|
(1) intentionally accesses without authorization a
|
|
facility through which an electronic
|
|
communiation service is provided; or
|
|
|
|
(2) intentionally exceeds an authorization to ac-
|
|
cess that facility and thereby obtains, alters,
|
|
or prevents authorized access to a
|
|
wire or electronic communication while it is
|
|
in electronic storage in such system shall be
|
|
punished as provided in subsection (b) of this
|
|
section.
|
|
|
|
|
|
(b) Punishment.-- The punishment for an offense under
|
|
sub section (a) of this section is--
|
|
(1) if the offense is committed for purposes of
|
|
commercial advantage, malicious destruction or
|
|
damages, or private commercial gain--
|
|
(A) a fine of not more than $250,000 or
|
|
imprisonment for not more than one
|
|
year, or both, in the case of a first
|
|
offense under this subparagraph; and
|
|
(B) a fine under this title or imprison-
|
|
ment for not more than two years or
|
|
both for an subsequent offense under
|
|
this subparagraph; and
|
|
(2) a fine of not more than $5,000 or imprisonment
|
|
for not more than six months, or both in any
|
|
other case.
|
|
|
|
Section 2702. Disclosure of Contents
|
|
|
|
(a) Prohibitions.--Except as provided in subsection
|
|
(b)--
|
|
(1) a person or entitle providing an electronic
|
|
communication service to the public shall not
|
|
knowingly divulge to any person or entity the
|
|
contents of a communication while in
|
|
electronic storage by that service; and
|
|
(2) a person or entity providing remote computing
|
|
service to the public shall not knowingly di-
|
|
vulge to any person or entity the contents of
|
|
any communication which is carried or main-
|
|
tained on that service--
|
|
(A) on behalf of, and received by means
|
|
of electronic transmission from (or
|
|
created by means of computer
|
|
processing of communications received
|
|
by means of electronic transmission
|
|
from), a subscriber or customer of
|
|
such service; and
|
|
(B) solely for the purpose of providing
|
|
storage or computer processing ser-
|
|
vices to such subscriber or customer,
|
|
if the provider is not authorized to
|
|
access the contents of any such
|
|
communications for purposes of pro-
|
|
viding any services other than
|
|
storage or computer processing.
|
|
|
|
|
|
(b) Exceptions.--A person or entity may divulge the con-
|
|
tents of a communication ---
|
|
(1) to an addressee or intended recipient of such
|
|
communication or an agent of such addressee or
|
|
intended recipient;
|
|
(2) as otherwise authorized in section 2516,
|
|
2511(2)(a) or 2703 of this title;
|
|
(3) with the lawful consent of the originator or an
|
|
addressee or intended recipient of such
|
|
communication, or the subscriber in the case of
|
|
remote computing service;
|
|
(4) to a person employed or authorized or whose fa-
|
|
cilities are suited to forward such communication
|
|
to its destination;
|
|
(5) as may be necessarily incident to the rendition
|
|
of the service or to the protection of the
|
|
rights or property of the provider of that ser-
|
|
vice; or
|
|
(6)to a law enforcement agency, if such contents--
|
|
(A) were inadvertently obtained by ser-
|
|
vice provider; and
|
|
(B) appear to pertain to the commission
|
|
of a crime.
|
|
|
|
REPORT LANGUAGE
|
|
|
|
Proposed section 2701 provides a new criminal offense. The
|
|
offense consists of either: (1) intentionally accessing,
|
|
without authorization, a facility through which an electronic
|
|
communication service is provided or (2) intentionally exceeding
|
|
the authorization of such facility.
|
|
|
|
In addition, the offense requires that the offender must, as
|
|
a result of such conduct, obtain, alter, or prevent
|
|
unauthorized access to a wire or electronic communication
|
|
while it is in electronic storage in such a system. The
|
|
term electronic storage is defined in section 2510(17) of
|
|
Title 18. Electronic storage means any temporary,
|
|
intermediate storage of a wire or electronic communication
|
|
incidental to the electronic transmission thereof and the
|
|
storage of such communication by an electronic communications
|
|
service for the purpose of back-up protection of such
|
|
communication.
|
|
|
|
Section 2701(a) makes it an offense intentionally to access
|
|
without authorization, or to exceed an authorization to ac-
|
|
cess, an electronic communication service and thereby obtain,
|
|
or prevent authorized access to a wire or electronic
|
|
communication while it is in electronic storage in such sys-
|
|
tem. This provision addresses the growing problem of unautho-
|
|
rized persons deliberately gaining access to, and sometimes
|
|
tampering with, electronic or wire communication that are not
|
|
intended to be available to the public.
|
|
|
|
The Committee recognizes however that some electronic com-
|
|
munication services offer specific features, sometimes known
|
|
as computer "electronic bulletin boards," through which
|
|
interested person may communicate openly with the public to
|
|
exchange computer programs in the public domain and other
|
|
types of information that may be distributed without legal
|
|
constraint.
|
|
|
|
It is not the intent to hinder the development or use of
|
|
"electronic bulletin boards" or other comparable services.
|
|
The Committee believes that where communciations are
|
|
readily accessible to the general public, the sender has,
|
|
for purposes of Section 2701(a), extended an "authorization"
|
|
to the public to access those communications. A person may
|
|
reasonably conclude that a communication is readily acces-
|
|
sible to the general public if the telephone number of the
|
|
system and other means of access are widely known, and if a
|
|
person does not, in the course of gaining access, encounter
|
|
any warnings, encryptions, password requests or other indicia
|
|
of intended privacy. To access a communication on such a
|
|
system should not be a violation of the law.
|
|
|
|
Some communcation systems offer a mixture of services, some,
|
|
such as bulletin boards, which may be readily accessible to
|
|
the general public, while others--such as electronic
|
|
mail--may be intended to be confidential. Such a system
|
|
typically has two or more distinct levels of security. A
|
|
user may be able to access electronic bulletin boards and
|
|
the like merely with a password he assigns to himself,
|
|
while access to such features as electronic mail ordinarily
|
|
entails a higher level of security (i.e., the mail must be
|
|
addressed to the user to be accessible specifically).
|
|
|
|
Section 2701 would apply differently to the different
|
|
services. These wire or electronic communications which the
|
|
service provider attempts to keep confidential would be
|
|
protected, while the statute would impose no liability for
|
|
access to feature configured to be readily accessible to the
|
|
general public.
|
|
|
|
Section 2702 specifies that a person or entity providing wire
|
|
or electronic communication service to the public may
|
|
divulge the contents of a communication while in electronic
|
|
storage by that service with the lawful consent of the
|
|
originator or any addressee or intended addressee or
|
|
intended recipient of such communication. The committee
|
|
emphasizes that "lawful consent" in this context, need not
|
|
take the form of a formal written document of consent. A
|
|
grant of consent electronically would protect the service
|
|
provider from liability for disclosure under section 2702.
|
|
|
|
|
|
Under various circumstances, consent might be inferred to
|
|
have arisen from a course of dealing between the service
|
|
provider and the customer or subscriber--e.g. where a
|
|
history of transactions between the parties offers a basis
|
|
for a reasonable understanding that a consent to disclosure
|
|
attaches to a particular class of communications. Consent
|
|
may also flow from a user having had a reasonable basis for
|
|
knowing that disclosure or use may be made with respect to a
|
|
communications, and having taken action that evidences
|
|
acquiescence to such disclosure or use--e.g., continued use
|
|
of such an electronic communication system. Another type of
|
|
implied consent might be inferred from the very nature of
|
|
the electronic transaction. For example, a subscriber who
|
|
places a communication on a computer "electronic bulletin
|
|
board," with a reasonable basis for knowing that such
|
|
communications are freely made available to the public,
|
|
should be considered to have given consent to the disclosure
|
|
or use of the communication. If conditions governing
|
|
disclosure or use are spelled out in the rules of an
|
|
electronic communication service, and those rules are
|
|
available to users or in contracts for the provision of such
|
|
services, it would be appropriate to imply consent on the
|
|
part of a user to disclosures or uses consistent with those
|
|
rules.
|
|
|
|
Section 2702(a) specifies that a person or entity providing
|
|
a wire or electronic communication service or remote
|
|
computer services to the public shall not knowingly divulge
|
|
the contents of any communication while in electronic
|
|
storage by that service to any person or entity other than
|
|
the addressee or intended recipient of such communication or
|
|
an agent of such addressee or intended recipient of the
|
|
communications. Under some circumstances, however, a
|
|
customer or subscriber to a wire or electronic communication
|
|
service may place a communication on the service without
|
|
specifying an addressee.
|
|
|
|
The Committee intends, in that situation, that the communica-
|
|
tion at a minimum be deemed addressed to the service provider
|
|
for purposes of Section 2702(b). Because an addressee may
|
|
consent to the disclosure of a communication to any other
|
|
person, a service provider or system operator, as implied
|
|
addressee, may disclose the contents of an unaddressed
|
|
communcation.
|
|
|
|
|
|
A person may be an "intended recipient" of a
|
|
communication, for purpose of section 2702, even if he is
|
|
not individually identified by name or otherwise. A
|
|
communication may be addressed to the members of a group,
|
|
for example. In the case of an electronic bulletin board,
|
|
for instance, a communication might be directed to all
|
|
members of a previously formed "special interest group" or,
|
|
alternatively, to all members of the public who are
|
|
interested in a particular topic of discussion. In such an
|
|
instance, the service provider would not be liable for
|
|
disclosure to any person who might reasonably be considered
|
|
to fall in the class of intended recipients.
|
|
|
|
COMMENTS
|
|
|
|
The entire document has to be read and studied to draw final
|
|
conclusions on a number of important issues. However, the
|
|
following observations can be made:
|
|
|
|
1. SYSOPS are to be considered providers of an electronic
|
|
communications service. In other words, whenever a BBS
|
|
goes up, it becomes an electronic communication service
|
|
subject to the requirements of the law.
|
|
|
|
2. Users of the BBS are protected and may have grounds to take
|
|
action against or ask that criminal charges be brought if
|
|
their communications are improperly disclosed.
|
|
|
|
3. SYSOPs do have added protection against hackers, and
|
|
federal law enforcement is available.
|
|
|
|
4. Any "general" messages addressed to all members of the
|
|
board, provided the board is open to the general public, may
|
|
be disclosed and are not protected.
|
|
|
|
5. However:
|
|
|
|
a. It is unclear whether a sysop may legally read pri-
|
|
vate mail on his board addressed to another user, un-
|
|
less sysop discloses in a warning message that
|
|
he/she may read such messages.
|
|
|
|
b. Conferences that are not generally open to the pub-
|
|
lic may create an expectation of privacy and there
|
|
will be limited rights to disclose information.
|
|
|
|
c. Major changes in security procedures may require
|
|
user consent, or their messages may have to be re-
|
|
moved.
|
|
|
|
|
|
6. It would be prudent to have a major disclaimer in the in-
|
|
troduction of each BBS session, stating that there is no ex-
|
|
pectation of privacy and that anything left on the board
|
|
may be read or disclosed by the sysop.
|
|
|
|
Next, we present the "LEGAL" view.
|
|
|
|
We wish to thank our friend, Ruel Hernandez, for the information in
|
|
this section of our report.
|
|
|
|
COMPUTER_ELECTRONIC_MAIL_AND_PRIVACY
|
|
|
|
INTRODUCTION
|
|
|
|
Four years ago, Congress introduced legislation which sought to
|
|
provide federal statutory guidelines for the privacy protection of
|
|
electronic communications, including electronic mail (e-mail) found on
|
|
commercial computer-based services and on other remote computer systems such
|
|
as electronic bulletin board systems (BBS). The old federal wiretap law
|
|
only gave protection to normal audio telephone communications. Before the
|
|
legislation culminated into the Electronic Communications Privacy Act of
|
|
1986 (ECPA), which went into effect on January 20, 1987, there was no
|
|
contemplation of computer-based electronic communications being transmitted
|
|
across telephone lines and then being stored on disk for later retrieval by
|
|
or forwarding to its intended recipient. Federal law did not provide
|
|
guidelines for protecting the transmitted electronic messages once they were
|
|
stored on these computer-based communications services and systems.
|
|
|
|
QUESTIONS
|
|
|
|
(1) Whether electronic mail and other intended private material stored
|
|
on an electronic computer communications service or system have Fourth
|
|
Amendment privacy protection?
|
|
|
|
(2) Should private electronic mail and other such material be accorded
|
|
federal statutory protection guidelines such as those enjoyed by the U.S.
|
|
Mail?
|
|
|
|
PROBLEM
|
|
|
|
Law enforcement seeks criminal evidence stored as e-mail either on a
|
|
commercial computer service, such as CompuServe, GEnie or The Source, or on
|
|
a hobbyist-supported BBS. (Note, this situation is equally applicable to
|
|
personal, private data stored on a remote system for later retrieval, such
|
|
as with CompuServe's "personal file" online storage capabilities.)
|
|
|
|
|
|
For example, a computer user calls up a computer communication system.
|
|
Using the electronic mail function, he leaves a private message that can
|
|
only be read by an intended recipient. The message is to inform the
|
|
recipient of a conspiracy plan to violate a federal or state criminal
|
|
statute. Law enforcement gets a tip about the criminal activity and learn
|
|
that incriminating evidence may be found on the computer system.
|
|
|
|
In 1982, such a situation occurred. (Meeks, Life_at_300_Baud:_Crime_on
|
|
the_BBS_Network, Profiles, Aug. 1986, 12-13.) A Detroit federal grand jury,
|
|
investigating a million-dollar cocaine ring, issued a subpoena ordering a
|
|
commercial service, The Source, to hand over private subscriber data files.
|
|
The files were routinely backed up to guard against system crashes. The
|
|
grand jury was looking for evidence to show that the cocaine ring was using
|
|
The Source as a communications base to send messages to members of the ring.
|
|
With such evidence, the grand jury could implicate and indict those
|
|
suspected of being part of the cocaine ring. The Source refused to obey the
|
|
subpoena on the basis of privacy. The prosecution argued The Source could
|
|
not vicariously assert a subscriber's privacy rights. Constitutional rights
|
|
are personal and could only be asserted by the person whose rights are
|
|
invaded. Additionally, since the files containing messages were duplicated
|
|
by the service, any user expectation of privacy would be extinguished. A
|
|
court battle ensued. However, before a ruling could be made, the kingpin of
|
|
the cocaine ring entered a surprise preemptive guilty plea to federal drug
|
|
trafficking charges. The case against The Source was discontinued.
|
|
|
|
Publicly posted messages and other public material may be easily
|
|
retrieved by law enforcement. It is the private material, such as e-mail,
|
|
which posed the problem.
|
|
|
|
Law enforcement's task was then to gather enough evidence to
|
|
substantiate a criminal case. Specifically, they would want the e-mail, or
|
|
other private files, transmitted by suspected criminals. In opposition, the
|
|
provider or systems operator of a computer communications service or system,
|
|
in his assumed role as keeper of transmitted private electronic messages,
|
|
would not want to turn over the private data.
|
|
|
|
INADEQUACY OF OLD LAW
|
|
|
|
Meeks noted that as of August, 1986, "no ... protection exist[ed] for
|
|
electronic communications. Any law enforcement agency can, for example,
|
|
confiscate a local BBS and examine all the message traffic," including all
|
|
private files and e-mail. (Id.)
|
|
|
|
CASE LAW
|
|
|
|
There is little case law available on computer communications and
|
|
Fourth Amendment constitutional problems. (See_generally M.D. Scott,
|
|
Computer Law, 9-9 (1984 & Special Update, Aug. 1, 1984).) If not for the
|
|
preemptive guilty plea, the above described Detroit case may have provided
|
|
some guidance on computer-based communications and privacy issues.
|
|
|
|
|
|
Of the available cases, there are those which primarily dealt with
|
|
financial information found in bank and consumer credit organization
|
|
computers. In U.S._v._Davey, 426 F.2d 842, 845 (2 Cir. 1970), the
|
|
government had the right to require the production of relevant information
|
|
wherever it may be lodged and regardless of the form in which it is kept and
|
|
the manner in which it may be retrieved, so long as it pays the reasonable
|
|
costs of retrieval. In a California case, Burrows_v._Superior_Court, 13
|
|
Cal. 3d 238, 243, 118 Cal. Rptr. 166, 169 (1974), a depositor was found to
|
|
have a reasonable expectation that a bank would maintain the confidentiality
|
|
of both his papers in check form originating from the depositor and the
|
|
depositor's bank statements and records of those checks. However, in
|
|
U.S._v. Miller, 425 U.S. 435, 96 S.Ct. 1619 (1976), customer account
|
|
records on a bank's computer were held to not be private papers of the bank
|
|
customer, and, hence, there was no Fourth Amendment problem when they are
|
|
subpoenaed directly from the bank.
|
|
|
|
Although these cases have more of a business character in contrast to
|
|
personal e-mail found on computer systems such as CompuServe or a hobbyist-
|
|
supported BBS, they would hold that there would be very little to legally
|
|
stop unauthorized access to computer data and information.
|
|
|
|
Under the old law, a prosecutor, as in the Detroit case, may try to
|
|
analogize duplicated and backed up e-mail to business situations where data
|
|
on business computer databases are also backed up. Both types of computer
|
|
data are stored on a system and then later retrieved. The provider or
|
|
systems operator of a computer electronic communications system would
|
|
counterargue that the nature of computers always require the duplication and
|
|
backup of any computer data, whether the data files be e-mail or centrally-
|
|
based financial or credit data. Data stored on magnetic media are prone to
|
|
possible destruction. Duplication does not necessarily make e-mail the same
|
|
as financial or credit data stored in business computers. Centrally-based
|
|
business information is more concerned with the data processing. That
|
|
information is generally stored and retrieved by the same operator. E-mail
|
|
is more concerned with personal communications between individuals where the
|
|
sender transmits a private message to be retrieved only by an intended
|
|
recipient. The sender and the recipient have subjective expectations of
|
|
privacy that when viewed objectively are reasonable. Therefore, there would
|
|
be a constitutionally protected expectation of privacy under Katz_v._U.S.,
|
|
389 U.S. 347, 88 S.Ct. 507 (1967).
|
|
|
|
However, the prosecution would note under California_v._Ciraolo, --
|
|
U.S. --, 106 S.Ct. 1809 (1984), users would have to protect their electronic
|
|
mail from any privacy intrusion. The provider or operator of the service or
|
|
system has ultimate control over it. He has complete access to all areas of
|
|
the system. He could easily examine the material. The prosecution would
|
|
note the user could not reasonably protect his private data from provider or
|
|
operator invasion. This "knot-hole," where an observer can make an
|
|
observation from a lawful position, would exclude any reasonable expectation
|
|
of privacy. If there is no privacy, there can be no search and therefore no
|
|
Fourth Amendment constitutional violation. Law enforcement can retrieve the
|
|
material.
|
|
|
|
|
|
The Justice Department noted the ambiguity of the knothole in a
|
|
response to Senator Leahy's question whether the then existing wiretap law
|
|
was adequate to cover computer communications. (S. Rep. No. 541, 99th
|
|
Cong., 2d Sess. 4 reprinted_in 1986 U.S. Code Cong. & Ad. News 3558.) It
|
|
was "not always clear or obvious" whether a reasonable expectation of
|
|
privacy existed. (Id.)
|
|
|
|
FEDERAL WIRETAP STATUTES
|
|
|
|
The old federal wiretap statutes protected oral telephone
|
|
communications from police interceptions. This protection was made during
|
|
1968 in response to electronic eavesdropping conducted by government.
|
|
(Cohodas, Congress_Races_to_stay_Ahead_of_Technology, Congressional
|
|
Quarterly Weekly Report, May 31, 1986, 1235.) Although e-mail appears to
|
|
come under the old 18 U.S.C. sec. 2510(1) definition of "wire
|
|
communication," it was limited to audio transmissions by wire or cable. The
|
|
old 18 U.S.C. sec. 2510(4) required that an interception of a wire
|
|
communication be an oral acquisition of the communication. By being
|
|
"oral," the communication must be "heard." There would be a problem as to
|
|
whether an electronic communication could be "heard." Data transmissions
|
|
over telephone lines generally sound like unintelligible noisy static or
|
|
high pitched tones. There would certainly be no protection after a
|
|
communication has completed its transmission and been stored on a computer.
|
|
The communication's conversion into computer stored data, thus no longer in
|
|
transmission until later retrieved or forwarded as transmission to another
|
|
computer system, would clearly take the communication out of the old
|
|
statutory protected coverage.
|
|
|
|
"Eighteen years ago ... Congress could not appreciate - or in some
|
|
cases even contemplate - [today's] telecommunications and computer
|
|
technology...." (132 Cong. Rec. S7992 (daily ed. June 19, 1986) (statement
|
|
of Sen. Leahy).)
|
|
|
|
COMPARISON WITH U.S. MAIL PROTECTION
|
|
|
|
A letter sent by first class mail is given a high level of protection
|
|
against unauthorized intrusion by a combination of federal and U.S. Postal
|
|
Service statutes and regulations. For instance, the unauthorized taking out
|
|
of and examining of the contents of mail held in a "depository for mail
|
|
matter" before it is delivered to the mail's intended recipient is
|
|
punishable by fine, imprisonment, or both. (18 U.S.C. sec. 1702.) In
|
|
comparison, under the old law, electronic communications had no protection.
|
|
Federal protection for U.S. Mail provided a suggested direction as to how
|
|
electronic communications should be protected when it was no longer in
|
|
transmission.
|
|
|
|
SOLUTION - THE NEW LAW
|
|
|
|
There are two methods towards a solution: (1) court decisions; or (2)
|
|
new legislated privacy protection.
|
|
|
|
|
|
COURT DECISIONS
|
|
|
|
Courts may have chosen to read computer communications protection into
|
|
the old federal wiretap statute or into existing state law. However, they
|
|
were reluctant to do so. Courts "are in no hurry to [revise or make new law
|
|
in this area] and some judges are openly asking Congress for help....
|
|
[F]ederal Appeals Court Judge Richard Posner in Chicago said Congress needed
|
|
to revise current law, adding that 'judges are not authorized to amend
|
|
statutes even to bring them up-to-date.'" (Cohodas, 1233.)
|
|
|
|
NEW STATUTE
|
|
|
|
On October 21, 1986, President Reagan signed the new Electronic
|
|
Communications Privacy Act of 1986 amending the federal wiretap law. ECPA
|
|
went into effect during the beginning of 1987. (P.L. 99-508,
|
|
Title I, sec. 111, 100 Stat. 1859; P.L. 99-508, Title II, sec. 202, 100
|
|
Stat. 1868.) ECPA created parallel privacy protection against both
|
|
interception of electronic communications while in transmission and
|
|
unauthorized access to electronic communications stored on a system.
|
|
|
|
The new ECPA first provides privacy protection for any
|
|
|
|
'electronic communication' ... [by] any transfer of signs,
|
|
signals, writing, images, sounds, data or intelligence of any
|
|
nature transmitted in whole or in part by a wire, radio,
|
|
electromagnetic, photoelectronic or photooptical system that
|
|
affects interstate or foreign commerce...."
|
|
|
|
(18 U.S.C. secs. 2510(12), 2511.) The Senate Report noted examples of
|
|
electronic communications to include non-voice communications such as
|
|
"electronic mail, digitized transmissions, and video teleconferences." (S.
|
|
Rep. No. 541, 99th Cong., 2d Sess. 14 reprinted_in 1986 U.S. Code Cong. &
|
|
Ad. News 3568.) Electronic communication is defined in terms of how it is
|
|
transmitted. So long as the means by which a communication is transmitted
|
|
affects interstate or foreign commerce, the communication is covered ECPA.
|
|
(18 U.S.C. sec. 2510(12).) Generally, that would include all telephonic
|
|
means including private networks and intra-company communications. (S.
|
|
Rep. No. 541, 99th Cong., 2d Sess. 12 reprinted_in 1986 U.S. Code Cong. &
|
|
Ad. News 3566.)
|
|
|
|
Second, ECPA protects the electronic communication when it has been
|
|
stored after transmission, such as e-mail left on an electronic computer
|
|
communication system for later pickup by its intended recipient. (18 U.S.C.
|
|
sec. 2510(17).) The legislation makes it a federal criminal offense to
|
|
break into any electronic system holding private communications or to exceed
|
|
authorized access to alter or obtain the stored communications. (18 U.S.C.
|
|
sec. 2701(a).)
|
|
|
|
|
|
The legislation would protect electronic computer communication systems
|
|
from law enforcement invasion of user e-mail without a court order. (18
|
|
U.S.C. secs. 2517, 2518, 2703.) Although the burden of preventing
|
|
disclosure of the e-mail is placed on the subscriber or user of the system,
|
|
the government must give him fourteen days notice to allow him to file a
|
|
motion to quash a subpoena or to vacate a court order seeking disclosure of
|
|
his computer material. (18 U.S.C. sec. 2704(b).) However, the government
|
|
may give delayed notice where there are exigent circumstances as listed by
|
|
the Act (18 U.S.C. sec. 2705.) Recognizing the easy user destruction of
|
|
computer data, ECPA allows the government to include in its subpoena or
|
|
court order the requirement that the provider or operator retain a backup
|
|
copy of electronic communications when there is risk of user destruction.
|
|
(18 U.S.C. sec. 2704(a).)
|
|
|
|
The legislation gives a civil cause of action to the provider or
|
|
operator, subscriber, customer or user of the system aggrieved by an
|
|
invasion of an electronic communication in the system in violation of the
|
|
ECPA. (18 U.S.C. secs. 2520, 2707.) If the provider or operator has to
|
|
disclose information stored on his system due to a court order, warrant,
|
|
subpoena, or certification under ECPA, no cause of action can be brought
|
|
against him by the person aggrieved by such disclosure. (18 U.S.C. sec.
|
|
2703(e); see_also 18 U.S.C. secs. 2701(c), 2702(b), 2511(2)(a)(i),
|
|
2511(3)(b)(iii) where the systems operator or provider is not held
|
|
criminally liable, may observe a private communication while performing
|
|
employment duties or according to authorization, etc., may intercept private
|
|
communication while making quality control checks or during the course of
|
|
forwarding communications to another system.)
|
|
|
|
SYSTEMS COVERED
|
|
|
|
Clearly, the national commercial services in the United States,
|
|
including CompuServe, MCI Mail or a company using a contracted e-mail
|
|
service, such as GE QUIK-COM (See S. Rep. No. 99-541, 99th Cong., 2d Sess.
|
|
8 reprinted_in 1986 U.S. Code Cong. & Ad. News 3562) are covered by ECPA.
|
|
|
|
However, there may be some confusion as to whether ECPA would protect
|
|
electronic communications found on a mere user-supported BBS. For
|
|
instance, language in ECPA does not expressly state the term "bulletin
|
|
board." Nonetheless, ECPA would indeed cover electronic bulletin boards.
|
|
|
|
What are electronic bulletin boards? Generally, they are personal
|
|
computers provided for and maintained by computer users out of their own
|
|
personal resources. These systems traditionally allow free access to
|
|
computer/modem-equipped members of local communities and provide for both
|
|
public and private electronic mail exchange. Some sophisticated systems,
|
|
such as the ProLine system written for Apple II computers, provide callers
|
|
with personal user areas where they may keep private files much like the
|
|
CompuServe personal file areas.
|
|
|
|
|
|
Augmenting the single stand-alone BBS, there are networks of bulletin
|
|
boards linked together, often with the assistance of university mainframes,
|
|
with other bulletin boards or mainframe computers by sophisticated "mail
|
|
routing" systems (such as ARPAnet and FIDOnet). These networks use
|
|
sophisticated message addressing instructions and computer automation where
|
|
networked computers make calls to other networked computers to exchange
|
|
"net-news" or private mail between users of the different bulletin boards.
|
|
Given the proper address routing instructions, a user may communicate with
|
|
another user on a cross-town BBS or on a BBS in another part of the country.
|
|
Although there is some delay with messages being routed through a network,
|
|
these networks help to reduce or eliminate the computer user's need to
|
|
make direct toll or long distance calls to faraway systems. (Note, there
|
|
are also network exchange systems and "gateways" between commercial
|
|
services.)
|
|
|
|
Businesses have been turning to the use of BBS's and BBS mailing
|
|
networks for increased productivity, paperwork reduction, improved client
|
|
contact and the elimination of "telephone tag." (See Keaveney,
|
|
Custom-Built_Bulletin_Boards, Personal Computing, Aug. 1987, 91.)
|
|
A number of these corporate BBS's are open to the public with
|
|
restricted access to business and client system areas. Examples of
|
|
such systems include (a) two Washington D.C. area boards run by Gannet
|
|
Company Inc. ("[f]or all Gannet/USA Today employees and other computer
|
|
users"), Issue Dynamics Inc. (catering to the consulting company's clients),
|
|
and (b) A Westchester County (NY) area board run by VITRON Management
|
|
Consulting, Inc. (catering to the general business community).
|
|
|
|
ECPA language would show protection for bulletin boards. 18 U.S.C.
|
|
sec. 2510(15) provides that "'electronic communication service' means any
|
|
service which provides to users thereof the ability to send or receive wire
|
|
or electronic communications". A "remote computing service" was defined in
|
|
the Act as an electronic communications system that provides computer storage
|
|
or processing services to the public. (18 U.S.C. sec. 2710(2).)
|
|
|
|
Intra-company communications systems, corporate BBSes, would also be
|
|
protected. (S. Rep. No. 541, 99th Cong., 2d Sess. 12 reprinted_in 1986 U.S.
|
|
Code Cong. & Ad. News 3566.) Language in ECPA refers to "the person or entity
|
|
providing the wire or electronic communication service," such as in 18 U.S.
|
|
secs. 2701(c)(1) and 2702(a)(1). Such language would indicate the inclusion
|
|
of individuals and businesses who operate bulletin board systems.
|
|
|
|
The Senate report, in addition to defining "electronic mail," gave a
|
|
separate definition of "electronic bulletin boards":
|
|
|
|
Electronic "bulletin boards" are communications networks created
|
|
by computer users for the transfer of information among computers.
|
|
These may take the form of proprietary systems or they may be commercial,
|
|
or noncommercial systems operating among computer users sharing special
|
|
interests. These systems may [or may not] involve fees covering
|
|
operating costs and may require special "passwords" which restrict
|
|
entry to the system. These bulletin boards may be public or
|
|
semi-public in nature, depending on the degree of privacy sought by
|
|
users, operators or organizers of such systems.
|
|
|
|
(S. Rep. No. 541, 99th Cong., 2d Sess. 8-9 reprinted_in 1986 U.S. Code
|
|
Cong. & Ad. News 3562-3563.)
|
|
|
|
ECPA, as enacted, takes note of the different levels of security found
|
|
on user-supported BBS's, i.e. the difference between configured system
|
|
areas containing private electronic mail and other areas configured to
|
|
contain public material. (18 U.S.C. sec. 2511(2)(g)(i).) The electronic
|
|
communications which a user seeks to keep private, through methods provided
|
|
by the system, would be protected by ECPA. In contrast, there would be no
|
|
liability for access to features configured by the system to be readily
|
|
accessible by the general public. An indicia of privacy on the system, with
|
|
no notice to show otherwise, would trigger ECPA coverage. An indicia of
|
|
privacy may include passwords and prompts asking if a message is to be kept
|
|
private.
|
|
|
|
House Representative Kastenmeier noted that there was an unusual
|
|
coalition of groups, businesses and organizations interested in ECPA.
|
|
(Kastenmeier, Communications_Privacy, Communications Lawyer, Winter 1987,
|
|
1, 24.) Among those interested included the BBS community. Reporters in
|
|
the BBS community noted how Senator Leahy and others were receptive to their
|
|
concerns. They report Leahy to have been "soliciting [users and BBS
|
|
operators'] comments and encourag[ing] sensitivity to the needs of BBS's in
|
|
the legislation.... [Senators and congressional members] are ... willing to
|
|
listen to our side of things." (BBSLAW02.MSG, dated 07/24/85, information
|
|
from Chip Berlet, Secretary, National Lawyers Guild Civil Liberties
|
|
Committee, transmitted by Paul Bernstein, SYSOP, LAW MUG, Chicago, Illinois
|
|
regarding Federal Legislation Affecting Computer Bulletin Boards, deposited
|
|
on The Legacy Network in Los Angeles, California.)
|
|
|
|
ESCAPING COVERAGE
|
|
|
|
There are at least two possible ways to escape ECPA coverage. The
|
|
first is to provide adequate notice that all material on a service or system
|
|
may be publicly accessible even though methods of providing privacy remain.
|
|
The bulletin board system maintained by DePaul University College of Law
|
|
Chicago, Illinois, provides an example of an electronic notice (displayed
|
|
upon user access):
|
|
|
|
PURSUANT TO THE ELECTRONIC AND COMMUNICATIONS PRIVACY ACT OF 1986, 18
|
|
USC 2510 et. seq., NOTICE IS HEREBY GIVEN THAT THERE ARE NO FACILITIES
|
|
PROVIDED BY THIS SYSTEM FOR SENDING OR RECEIVING PRIVATE OR
|
|
CONFIDENTIAL ELECTRONIC COMMUNICATIONS. ALL MESSAGES SHALL BE DEEMED
|
|
TO BE READILY ACCESSIBLE TO THE GENERAL PUBLIC.
|
|
|
|
Do NOT use this system for any communication for which the sender
|
|
intends only the sender and the intended recipient or recipients to
|
|
read.
|
|
|
|
Note, although the DePaul notice states otherwise, user-operated message
|
|
privacy toggles remain on the board. The second possible method to escape
|
|
ECPA coverage would be to merely not provide any means of privacy.
|
|
|
|
|
|
One way of foiling the intent of a government subpoena or court order
|
|
requirement to keep duplicate copies of private electronic communications
|
|
would be the use of passworded private e-mail. For instance, the private
|
|
e-mail capabilities of GEnie Mail and GE QUIK-COM include user-toggled
|
|
passwording which utilizes an encryption technique that no one, not even the
|
|
provider, knows how to decipher. Bill Louden, General Manager of GEnie
|
|
(General Electric Network for Information Exchange), noted how GEnie Mail
|
|
and GE QUIK-COM passworded e-mail cannot be read by anyone who did not know
|
|
the password. "[N]ot even our 'god' number could ever read the [passworded]
|
|
mail." (Message from Bill Louden, GEnie, Legacy RoundTable (LAW), category
|
|
1, topic 7, message 6 (May 15, 1987).) The writer of the encryption
|
|
software has since left General Electric and no one has had success in
|
|
breaking the code. (Message from Bill Louden, GEnie, Legacy RoundTable
|
|
(LAW), category 1, topic 7, message 10 (May 17, 1987).)
|
|
|
|
CONCLUSION
|
|
|
|
With ECPA, e-mail and other private electronic communications stored on
|
|
computer communication systems have privacy protection. Unfortunately,
|
|
before ECPA, federal statutory guidelines for such protection were not
|
|
articulated. Case law also did not provide any helpful guidance. The
|
|
peculiarities of computers and computer storage were not addressed by the
|
|
old wiretap laws. Electronic communications privacy could not stand up
|
|
against constitutional privacy law as defined by the United States Supreme
|
|
Court. The then existing law was "hopelessly out of date." (S. Rep. No.
|
|
541, 99th Cong., 2d Sess. 2 reprinted_in 1986 U.S. Code Cong. & Ad. News
|
|
3556 (statement of Sen. Leahy).) Fortunately, a legislative solution to
|
|
bring privacy law up to date with the advancing computer communication and
|
|
information technology was provided for in ECPA.
|
|
|
|
|
|
OBSERVATIONS
|
|
|
|
One should note that ECPA was designed as a statutory solution to fill a
|
|
loop-hole in federal constitutional law where computer-communication
|
|
messages (e.g., email) are not protected. Under traditional Fourth
|
|
Amendment Search and Seizure law, email and similar computer-communication
|
|
material are not considered to have any constitutional privacy protection
|
|
against government intrusion. ECPA provides statutory privacy protection
|
|
where there is no constitutional protection.
|
|
|
|
Generally, a BBS may fall under the coverage of ECPA if there is some
|
|
indicia of privacy found on the BBS. There are various degrees of privacy
|
|
found on a BBS ranging from the opening login password to the sending of a
|
|
private message via UUCP. Under ECPA, a sysop or online service employee
|
|
may not be found civilly liable for intercepting (i.e., reading/viewing)
|
|
private information or private messages between users who call in to a BBS
|
|
so long as he is performing "quality control checks" or other similar
|
|
duties. This may include passive maintenance activity and intermail or
|
|
echomail forwarding. ECPA thus provides some protection for a sysop from
|
|
civil liability if his system is found to fall under ECPA coverage.
|
|
|
|
To escape coverage from ECPA, a BBS sysop may place a disclaimer at the
|
|
"front door" or throughout his system (such as an automatic notice whenever
|
|
if the caller wishes to send private email) giving the caller adequate
|
|
notice that the system has no privacy privileges. (Note: what I mean by
|
|
privileges, in the legal sense, is much broader than mere privacy toggle
|
|
commands found on a BBS.) Giving such notice would work to negate any
|
|
indicia of privacy that may be found on the system. For instance, the sysop
|
|
may say that he has access to all private email, he will read all private
|
|
email, and he will disclose all improper or criminal information left on his
|
|
system to the appropriate authorities even if there are privacy toggle
|
|
commands found on the system -- and suggest the caller try another system if
|
|
he/she wishes to send secure private messages. The sysop may then stand a
|
|
better chance of not being found liable under ECPA.
|
|
|
|
The DePaul University College of Law BBS Disclaimer:
|
|
----------------------------------------------------
|
|
|
|
This type of disclaimer, dealing with communications, should not be found to
|
|
be applicable to private login passwords -- in other words, passwords should
|
|
maintain their privileged private status. (Note, some attorney may try to
|
|
argue that passwords are messages and therefore are excluded from ECPA by
|
|
the disclaimer and may be disclosed.)
|
|
|
|
Note, ECPA is primarily first a statutory solution to providing
|
|
statutory protection against government intrusion into private computer
|
|
communications in order to be more in tune with traditional Fourth Amendment
|
|
Search and Seizure law. Generally, in order for police or other government
|
|
authorities to intrude into private computer communications, a court order,
|
|
subpeona, or warrant must be obtained. A sysop may be ordered to provide
|
|
copies of particular information -- the warrant should particularly describe
|
|
what is sought, such as the author of the message, subject matter, etc. The
|
|
author of the private information may also be given 14 days notice of the
|
|
search unless there are exigent circumstances, e.g., the author has the
|
|
ability to destroy the information. Note, although there may be the
|
|
possibility that a sysop may be held in contempt of court for not providing
|
|
copies, this does not necessarily mean the sysop has the affirmative duty to
|
|
make and keep copies of all information kept on his system if it is not
|
|
reasonable for him to do so, e.g., the system program does not keep backups,
|
|
old messages are automatically destroyed after a certain period of time such
|
|
as on an HBBS system, etc. -- he may only have to provide copies when
|
|
ordered to do so and if reasonable (my interpretation).
|
|
|
|
Although a sysop may not be found liable under the federal ECPA statute,
|
|
there may be alternative liability found under state law. Generally, at the
|
|
state level, there is either state statutory or common law protection
|
|
against INVASION OF PRIVACY. In particular, this would include (1) public
|
|
disclosure of private facts and (2) intrusion upon seclusion. A possible
|
|
situation would include not only public disclosure of private email, but
|
|
also public discussion or private system passwords. A good attorney may be
|
|
able to make good arguments to find liability under either one of the two
|
|
tort law causes of action -- particularly when a sysop holds himself or
|
|
herself out as a provider of private or semi-private information exchange.
|
|
|
|
Note, under either the federal ECPA or state invasion of privacy laws, a
|
|
sysop or caller to a system may be able to sue users who break into the
|
|
closed or private areas of the system. Of course, evidence would have to be
|
|
obtained to prove causation and liability and evidence is a completely
|
|
different issue problem....
|
|
|
|
|
|
Finally, there are several issues that are currently being reviewed for
|
|
possible statute inclusion. Such issues involve, but are not limited to:
|
|
|
|
1. The dissemination and distribution of elements contributing to
|
|
the delinquency or corruption of minors:
|
|
- pornography
|
|
- advocacy of games of chance (gambling)
|
|
|
|
2. The maintenance of the integrity of electronically stored data
|
|
and information within communication systems, including electronic
|
|
bulletin boards.
|
|
|
|
These issues are the subject of a subsequent paper. In addition, they are
|
|
topics that represent areas of discussion within the potential PCBRelay
|
|
Legal conference.
|
|
|
|
We at VITRON (and ABBS) would greatly appreciate your feedback and input
|
|
regarding this paper. If you have any questions, comments, observations or
|
|
suggestions, please leave us a message. Your message will receive as prompt
|
|
a reply as is feasible (usually within 24 to 48 hours).
|
|
|
|
*************************************************************************
|
|
|
|
Subject: HR 4079 is for REAL!
|
|
Date: 29 Jun 90 20:04:36 GMT
|
|
|
|
(Thant Tessman) writes:
|
|
>A new bill, HR 4079 [...]
|
|
|
|
This posting bothered me enough even after dismissing the alarming rhetoric
|
|
that I placed a call to my Representative's local office. Two days later I
|
|
received a copy of HR 4079 in the mail. (I recommend others do the same - it
|
|
is too long for a lousy typist such as me to enter).
|
|
|
|
I found some errors in the claims made about it - but it is pretty bad stuff
|
|
anyway! Some notes follow:
|
|
|
|
>[...] would open the way for American concentaration camps to be built,
|
|
|
|
It does. It calls for housing prisoners in "tent housing or other shelters
|
|
placed on available military bases and at other suitable locations." [P10L3-5]
|
|
It does not restrict the prisoners to those convicted of drug crimes.
|
|
|
|
In case that is insufficient, it calls for "any property that is determined
|
|
to be excess to the needs of a Federal agency that may be suitable for use as
|
|
a correctional facility shall be made available for such use..." [P15L5-7]
|
|
|
|
Oh, yes, it also says, "a Federal court shall not hold prison or jail
|
|
crowding unconstitutional under the eighth amendment except to the extent
|
|
that an individual plaintiff proves that the crowding causes the infliction
|
|
of cruel and unusual punishment of that inmate." [P8L14-18] The remedy?
|
|
"(2) The relief in a case described in paragraph (1) shall extend no
|
|
further than necessary to remove the conditions that are causing the cruel
|
|
and unusual punishment of the plaintiff inmate." [P8L19-22]
|
|
|
|
>and thereafter permit the state to round up suspected drug users
|
|
|
|
This one is a little difficult. Maybe I missed it, but it still requires
|
|
conviction. However, it does say, "Evidence which is obtained as a result of
|
|
a search or seizure shall not be excluded in a proceeding in a court of the
|
|
United States on the ground that the search or seizure was in violation of
|
|
the fourth amendment to the Constitution of the United States, if the search
|
|
or seizure was carried out in circumstances justifying a reasonably objective
|
|
belief that is was in conformity with the fourth amendment." [P35L25-P36L7]
|
|
|
|
This is followed by (and this has been mentioned before): "The fact that
|
|
evidence was obtained pursuant to and within the scope of a warrant
|
|
constitutes prima facie evidence of the existence of such circumstances."
|
|
[P36L7-9]
|
|
|
|
>so they can be forced to work without compensation for the state.
|
|
|
|
This is wrong. On Page 27, "Subtitle C - Mandatory Work Requirements for
|
|
Prisoners, Withholding Federal Benefits, and Drug Testing of Prisoners", it
|
|
does say "It is the policy of the Federal Government that convicted prisoners
|
|
confined in Federal prisons, jails, and other detention facilities shall
|
|
work." [P27L7-9]
|
|
|
|
However, it also says, "(2) Prisoners shall be paid a share of funds
|
|
generated by their labor conducted pursuant to this section." [P28L10-11]
|
|
|
|
|
|
>"The Drug Crime Emergency Act" drips with patriotism as Gingrich tries to
|
|
>vaguely connect the freedom movement in eastern Europe with America falling
|
|
>deeper and deeper into "the slavery of drug addiction."
|
|
|
|
I didn't find anything even remotely resembling this.
|
|
|
|
|
|
>The bill proposes suspending the Constitution for five years so millions of
|
|
>illegal drug users can be held by the state in concentration camps. All
|
|
>internees will be forced to work and if anyone is caught with drugs in the
|
|
>camps they will have one year added to their sentence each time - with no
|
|
>right to appeal.
|
|
|
|
One small nit, there are exceptions listed to "All internees".
|
|
|
|
|
|
>HR 4079 calls for the declaration of a five year national state of
|
|
>emergency - in essence, martial law. It proposes reopening the
|
|
>concentration camps of WWII, using active and inactive military bases as
|
|
>prisons, and a new privately owned prison system as well. To aid in
|
|
>accomplishing this, the 4th Amendment, the 8th Amendment, and habeas corpus
|
|
>are either superseded, redefined, or disallowed.
|
|
|
|
The 4th and 8th have been mentioned. There is a lengthy section called the
|
|
"Strom Thurmond Habeus Corpus Reform Initiative" [P37-43] which I cannot
|
|
reasonably comment on.
|
|
|
|
>A provision has been built in to allow the government to purchase goods
|
|
>manufactured by prison slave labor. To insure the duration of this labor
|
|
>force, all previous maximum sentences would be changed to minimum sentences.
|
|
|
|
Just to clarify: This is a sentencing change - those already sentenced would
|
|
not be affected by this section.
|
|
|
|
>New mandatory sentences would be established, and probation, parole, and
|
|
>suspension of sentences revoked.
|
|
|
|
True.
|
|
|
|
|
|
>To provide an even greater pool to draw from, mandatory drug testing of
|
|
>just about everyone above junior high school level has been included. The
|
|
>resolution carefully avoids addressing the funding necessary.
|
|
|
|
It says "no institution of higher education shall be eligible to receive
|
|
funds or any other form of financial assistance under any Federal program,
|
|
including participation in any federally funded or guaranteed student loan
|
|
program, unless it certifies to the Secretary that it has adopted and has
|
|
implemented a program to prevent the use of illicit drugs and the abuse of
|
|
alcohol by students and employees that, at a minimum, includes -
|
|
(1) the annual distribution to each student and employee of -
|
|
(A-E) [...information...]
|
|
(2) provisions for drug testing; and
|
|
(3) a biennial review by the institution of its program to -
|
|
[...]"
|
|
[P57L19-P59L5]
|
|
|
|
It repeats essentially the same as above for "local educational agency".
|
|
[P60L13-P63L20]
|
|
|
|
>Even after 30 press releases were sent to all the national and local news
|
|
>outlets by Maryland LP members, there has been practically no mention of
|
|
>the bill in the media. The state evidently is hoping to sweep this bill
|
|
>into law right under our noses while we are all preoccupied with other
|
|
>events taking place around the world. Surprisingly, the response from
|
|
>libertarians as well as mainstream folks has been one of complacency.
|
|
|
|
There is even more in this bill than the authors of the quoted newsletter
|
|
mentioned. For example, it calls for:
|
|
-revoking the driver's license of those convicted of drug crimes,
|
|
-expansion of the "war on drugs" to include alcohol abuse,
|
|
-the RICO-like seizure of property alleged to be used in or obtained through
|
|
profits from drug crimes (with the burden upon victim/defendant to *prove*
|
|
that it was not - could you *prove* you didn't buy your car with profits
|
|
from illicit transactions?)
|
|
-division of "profits" from such seizures, upon conviction, to be shared
|
|
between the state and individuals who provided information leading to the
|
|
conviction...
|
|
|
|
>Everyone needs to make phone calls and write letters. Direct your
|
|
>correspondence to the media and your representatives, as well as Gingrich
|
|
>and Gramm. If they don't think you care about this bill becoming law - it
|
|
>will! Act now or cry behind the barbwire later.
|
|
|
|
--
|
|
~~
|
|
From: bill@flash.UUCP (bill)
|
|
Newsgroups: alt.conspiracy
|
|
Subject: Bye, bye, 6th
|
|
Summary: another "right" going down the drain
|
|
Keywords: public defenders, 6th Amendment, Bill of Rights, War on Drugs, Sh*t
|
|
Date: 13 Jul 90 15:42:04 GMT
|
|
Organization: Prodisestablishmentarianism, Inc. :-)
|
|
|
|
(Andrew Duane):
|
|
> DRUG SUSPECTS BARRED FROM PUBLIC DEFENDERS
|
|
>Danbury, CT. - A judge has said he will not appoint free legal aid
|
|
>lawyers for people arrested on drug charges who say they cannot
|
|
>afford lawyers.
|
|
> "I don't appoint public defenders to people in drug cases,"
|
|
>Judge Joseph Sylvester of Superior Court told a defendant on Tuesday
|
|
>at his arrignment. [...] Lawyers at the courthouse said 60 suspects
|
|
>had been denied public defenders.
|
|
>[...]
|
|
>The judge has also denied public defenders in drunken-driving cases.
|
|
>[ End of Article ]
|
|
>
|
|
>Well, there goes the sixth amendment. [...]
|
|
>Does anyone else find this as scary as me?
|
|
|
|
Yes! (and thank you, Andrew, for posting this!)
|
|
|
|
|
|
>What is his rationale disallowing use of public defenders in drug cases?
|
|
|
|
What else can it be but that "this problem has become so serious we must
|
|
take special measures!"?
|
|
|
|
Sooo... if you're *accused* of drug offences, you no longer have a Sixth
|
|
Amendment right to the assistance of counsel. What issue of easy political
|
|
popularity will be next, I wonder: child abuse cases? Crimes against women
|
|
or the elderly? Flag desecration?
|
|
|
|
|
|
[And people wonder at my concern that we have passed the point where the
|
|
Bill of Rights is used to enumerate specifically the rights of the people,
|
|
as opposed to the idea expressed in the Tenth that: "The powers not
|
|
delegated to the United States by the Constitution, nor prohibited by it
|
|
to the States, are reserved to the States, respectively, or to the people."]
|
|
--
|
|
~~
|
|
|
|
Subject: Re: stoke up the ovens
|
|
Date: 13 Jul 90 16:08:59 GMT
|
|
Organization: Prodisestablishmentarianism, Inc. :-)
|
|
|
|
(Michael Carr) writes:
|
|
>>The Senate proposes the death penalty for the following crimes:
|
|
>>Destruction of aircraft (better not crash that plane )
|
|
>>Destruction of motor vehicle (this surely warrants the death penalty)
|
|
|
|
I'd be pretty sure that "destruction" means "as with a bomb", not your
|
|
typical highway accident or plane crash.
|
|
|
|
>>Espionage
|
|
>>Arson of federal property (watch those campfires in the Natl. forests)
|
|
>>Arson of property in interstate commerce
|
|
|
|
Arson is most likely deliberate arson, again not accidents (but I'd sure
|
|
like to see the actual text of the bill, whatever it is).
|
|
|
|
>>Wrecking a train
|
|
>>Mailing of injurious articles (better not mail a pack of cigarettes)
|
|
|
|
Probably letter bombs and the like.
|
|
|
|
>>Bank robbery
|
|
>>Treason (don't talk bad about the good old USA)
|
|
|
|
Treason: The offence of *attempting* by overt act to overthrow the
|
|
government, or (Art. III section 3 US Constitution), "only
|
|
in levying war against them [the States], or in adhering
|
|
to their enemies, giving aid and comfort to them."
|
|
Well, maybe you got a point.
|
|
|
|
>>Kidnapping
|
|
>>Hostage taking
|
|
>>Major crime by drug kingpin (what major crimes aren't covered in this list
|
|
>>already??)
|
|
>>Attempted homicide by drug kingpin while seeking to obstruct justice
|
|
>>Unintentional killing by drug felon involving aggravated recklessness
|
|
>>(does this include drunk drivers??)
|
|
>>Use of a firearm in violent crime or drug trafficking
|
|
>>Murder of family member of federal official
|
|
>>Murder of member of congress, cabinet, or Supreme court
|
|
>>Murder of nuclear regulatory inspector,federal official,federal witness,
|
|
>>horse inspector,meat inspector, poultry inspector, egg products inspector,
|
|
>>foreign official, Agriculture dept. official
|
|
|
|
Hmmm... note how the Ruling Class now gets special "privileges" under the
|
|
law... Oligarchy, here we come.
|
|
|
|
|
|
> This is serious??!!! How much of this was in that bullshit crime bill
|
|
>that just passed in the Senate? Is this it? This is way out of hand.
|
|
|
|
I also would a pointer to the source of that posting...
|
|
|
|
|
|
> I've only listed what I thought were some of the more outrageous ones
|
|
>( I'm against the death penalty in general, but don't want to start that war
|
|
>again ). BTW, what the hell constitutes "treason" ??? This country is getting
|
|
>scarier every day.
|
|
> Does anyone know how close this is to being law? All the congress-
|
|
>critters are wetting their pants trying to look tough on crime for the
|
|
>upcoming elections so this kind of dangerous stuff is probably going to
|
|
>pass.
|
|
> Argghh, you just ruined my day! :-( See you on death row!
|
|
> Mike Carr carr@cs.unc.edu
|
|
>
|
|
>OK, so maybe I'm a little alarmist, but if we don't fight back we'll wake up
|
|
>some morning with the FBI/CIA in our face, it seems sometimes.
|
|
|
|
I'm a big alarmist (I outmass most of my friends :-), but you are correct.
|
|
This stuff doesn't go away by wishful thinking, nor when you close your eyes.
|
|
Recommended reading:
|
|
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_They thought they were free; the Germans, 1933-45_
|
|
by Milton Mayer. (1955, U. of Chicago Press).
|
|
|
|
(excerpts from an earlier posting)
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|
|
|
"What no one seemed to notice, ... was the ever widening gap
|
|
... between the government and the people. ... And it became
|
|
always wider. ...
|
|
|
|
"... the whole process of its coming into being, was above all
|
|
*diverting*. It provided an excuse not to think for people who
|
|
did not want to think anyway. ... Nazism gave us some dreadful,
|
|
fundamental things to think about ... and kept us so busy with
|
|
continuous changes and 'crises' and so fascinated ... by the
|
|
machinations of the 'national enemies,' without and within,
|
|
that we had no time to think about these dreadful things that
|
|
were growing, little by little, all around us. ...
|
|
|
|
"Each step was so small, so inconsequential, so well explained
|
|
or, on occasion, 'regretted,' that ... unless one understood
|
|
what the whole thing was in principle, what all these 'little
|
|
measures' ... must some day lead to, one no more saw it developing
|
|
from day to day than a farmer in his field sees the corn growing. ...
|
|
|
|
"... Each act ... is worse than the last, but only a little worse.
|
|
You wait for the next and the next. You wait for one great
|
|
shocking occasion, thinking that others, when such a shock
|
|
comes, will join with you in resisting somehow. You don't want
|
|
to act, or even talk, alone; you don't want to 'go out of your
|
|
way to make trouble.' ... And it is not just fear ... that
|
|
restrains you; it is also genuine uncertainty.
|
|
|
|
"... And you *are* an alarmist. You are saying that *this* must
|
|
lead to *this*, and you can't prove it. ...
|
|
|
|
"But the one great shocking occasion, when tens or hundreds or
|
|
thousands will join with you, never comes. *That's* the
|
|
difficulty. ...
|
|
|
|
"... The forms are all there, all untouched, all reassuring, the
|
|
houses, the shops, the jobs, the mealtimes, the visits, the
|
|
concerts, the cinema, the holidays. But the spirit, which you
|
|
never noticed because you made the lifelong mistake of identifying
|
|
it with the forms, is changed. Now you live in a world of hate
|
|
and fear, and the people who hate and fear do not even know it
|
|
themselves; when everyone is transformed, no one is transformed. ...
|
|
|
|
"... You have accepted things you would not have accepted five years
|
|
ago, a year ago, things that your father ... could not have imagined.
|
|
|
|
|
|
Cheers.
|
|
|
|
--
|
|
~~
|
|
Subject: Full text of H.R. 4079, very long (3,122 lines)
|
|
Date: 7 Aug 90 15:22:43 GMT
|
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Here again is the full text of House Resolution 4079. To answer some questions
|
|
I have seen since I posted it the first time: You can get copies of bills by
|
|
asking your Congressional representatives for them. You can locate your
|
|
representatives by looking in local phone books under "United States" or by
|
|
calling Washington, D.C., information at 1-202-555-1212. And, yes, this was
|
|
typed by hand, not scanned in.
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|
-- edp (Eric Postpischil)
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|
"Always mount a scratch monkey."
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|
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101st Congress
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|
2d Session
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|
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H.R. 4079
|
|
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To provide swift and certain punishment for criminals in order to deter
|
|
violent crime and rid America of illegal drug use.
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|
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|
------------------------------------------------
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|
IN THE HOUSE OF REPRESENTATIVES
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|
|
February 22, 1990
|
|
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|
Mr. Gingrich (for himself, Mr. Armey, Mr. Hunter, Mr. Smith of New
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|
Hampshire, Mr. Hansen, Mr. Hiler, Mr. Ireland, Mr. Kyl, Mr. Barton of
|
|
Texas, Mr. McEwen, Mr. Bliley, Mr. Condit, Mr. Weldon, Mr. Fields, Mr.
|
|
Stearns, Mr. Schuette, Mr. Douglas, Mr. Livingston, Mr. Oxley, Ms.
|
|
Ros-Lehtinen, Mr. Hancock, Mr. Schaefer, Mr. Bartlett, Mr. Shumway, Mr.
|
|
Inhofe, Mr. Nielson of Utah, Mr. Donald Lukens, Mr. Paxon, Mr. Herger,
|
|
Mr. Robinson, Mr. Lagomarsino, Mr. Sensenbrenner, Mr. James, Mr. Upton,
|
|
Mr. Bilirakis, Mr. Ritter, Mr. Dornan of California, Mr. Baker, Mr.
|
|
DeLay, Mr. Hyde, Mr. Grandy, Mr. Hefley, Mr. Coughlin, Mr. Craig, Mr.
|
|
Shaw, Mr. Dreier of California, Mr. Solomon, and Mr. McCollum)
|
|
introduce the following bill; which was referred jointly to the
|
|
Committees on the Judiciary, Energy and Commerce, Public Works and
|
|
Transportation, Education and Labor, and Armed Services
|
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|
------------------------------------------------
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|
A BILL
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|
To provide swift and certain punishment for criminals in order to deter
|
|
violent crime and rid America of illegal drug use.
|
|
|
|
_Be it enacted by the Senate and the House of Representatives of the
|
|
United States of America in Congress assembled,_
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|
|
SECTION 1. SHORT TITLE.
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|
|
This Act may be cited as the "National Drug and Crime Emergency Act".
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|
|
SEC. 2. TABLE OF CONTENTS.
|
|
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|
Sec. 1. Short title.
|
|
Sec. 2. Table of contents.
|
|
Sec. 3. Findings and declaration of a national drug and crime
|
|
emergency.
|
|
Sec. 4. Definitions.
|
|
|
|
TITLE I--ELIMINATION OF CRIME WITHOUT PUNISHMENT
|
|
|
|
Subtitle A--National Drug and Crime Emergency Policies
|
|
|
|
Sec. 101. Judicial remedies for prison crowding.
|
|
Sec. 102. Temporary prison facilities and expanded capacity.
|
|
Sec. 103. Elimination of early release from prison.
|
|
|
|
Subtitle B--Imposition of Mandatory Minimum Sentences Without Release
|
|
|
|
Sec. 111. Increased mandatory minimum sentences without release for
|
|
criminals using firearms and other violent criminals.
|
|
Sec. 112. Life imprisonment without release for criminals convicted a
|
|
third time.
|
|
Sec. 113. Longer prison sentences for those who sell illegal drugs to
|
|
minors or for use of minors in drug trafficking activities.
|
|
Sec. 114. Longer prison sentences for drug trafficking.
|
|
Sec. 115. Mandatory penalties for illegal drug use in Federal prisons.
|
|
Sec. 116. Deportation of criminal aliens.
|
|
Sec. 117. Encouragement to States to adopt mandatory minimum prison
|
|
sentences.
|
|
|
|
Subtitle C--Mandatory Work Requirements for Prisoners, Withholding
|
|
Federal Benefits, and Drug Testing of Prisoners
|
|
|
|
Sec. 131. Mandatory work requirement for all prisoners.
|
|
Sec. 132. Repeal of constraints on prison industries.
|
|
Sec. 133. Employment of prisoners.
|
|
Sec. 134. Withholding prisoners' Federal benefits to offset
|
|
incarceration costs.
|
|
Sec. 135. Drug testing of Federal prisoners.
|
|
Sec. 136. Drug testing of State prisoners.
|
|
|
|
Subtitle D--Judicial Reform To Protect the Innocent and Punish the
|
|
Guilty
|
|
|
|
Sec. 151. Good faith standards for gathering evidence.
|
|
Sec. 152. Strom Thurmond habeas corpus reform initiative.
|
|
Sec. 153. Proscription of use of drug profits.
|
|
Sec. 154. Jurisdiction of special masters.
|
|
Sec. 155. Sentencing patterns of Federal judges.
|
|
|
|
TITLE II--ACHIEVING A DRUG-FREE AMERICA BY 1995
|
|
|
|
Sec. 201. Findings.
|
|
Sec. 202. Payment of trial costs and mandatory minimum fines.
|
|
Sec. 203. Withholding of unearned Federal benefits from drug
|
|
traffickers and users who are not in prison.
|
|
Sec. 204. Revocation of drug users' driver's licenses.
|
|
Sec. 205. Accountability and performance of drug treatment facilities.
|
|
Sec. 206. Drug-free schools.
|
|
Sec. 207. Drug-free transportation.
|
|
Sec. 208. Financial incentives and citizen involvement in the war
|
|
against drugs.
|
|
|
|
TITLE III--MISCELLANEOUS
|
|
|
|
Sec. 301. Authorization of appropriations.
|
|
Sec. 302. Severability.
|
|
|
|
SEC. 3. FINDINGS AND DECLARATION OF NATIONAL DRUG AND CRIME EMERGENCY.
|
|
|
|
(a) FINDINGS.--The Congress makes the following findings:
|
|
|
|
(1) Next to preserving the national security, protecting the
|
|
personal security of individual Americans, especially
|
|
children, by enacting and enforcing laws against criminal
|
|
behavior is the most important single function of government.
|
|
|
|
(2) The criminal justice system in America is failing to
|
|
achieve this basic objective of protecting the innocent and
|
|
punishing the guilty.
|
|
|
|
(3) Reform is needed to ensure that criminals are held
|
|
accountable for their actions, that they receive swift and
|
|
certain punishment commensurate with their crimes, and that
|
|
the protection of innocent citizens takes priority over other
|
|
objectives.
|
|
|
|
(4) The principle of individual accountability should also
|
|
dictate policies with respect to drug users. Users should
|
|
face a high probability of apprehension and prosecution, and
|
|
those found guilty should face absolutely certain measured
|
|
response penalties.
|
|
|
|
(5) According to the Uniform Crime Reports issued in 1989 by
|
|
the Federal Bureau of Investigation (FBI), violent crime
|
|
known to law enforcement reached an unprecedented high in
|
|
1988. A violent crime occurred ever 20 seconds.
|
|
|
|
(6) The Department of Justice estimates that 83 percent of
|
|
Americans will be victimized by violent crime during their
|
|
lifetime.
|
|
|
|
(7) The Federal Bureau of Investigation reports that violent
|
|
crime in America rose by 23 percent during the period
|
|
1984-1988.
|
|
|
|
(8) The National Drug Control Strategy reports that in
|
|
certain large cities more than 80 percent of the men arrested
|
|
have tested positive for illegal drug use.
|
|
|
|
(9) According to the Department of Justice, the total number
|
|
of Federal and State prisoners grew by 90 percent from 1980
|
|
to 1988. The growth rate of the total prison population
|
|
during the first 6 months of 1989 exceeded the largest annual
|
|
increase ever recorded in 64 years of recordkeeping. The
|
|
6-month growth rate translates to a need of almost 1,800
|
|
additional prison beds per week.
|
|
|
|
(10) In 1985, 19 States reported the early release of nearly
|
|
19,000 prisoners in an effort to control prison populations,
|
|
according to the Bureau of Justice Statistics.
|
|
|
|
(11) According to the United States Bureau of Justice
|
|
Statistics, 63 percent of State inmates were rearrested for a
|
|
serious crime within 3 years of their discharge from prison.
|
|
|
|
(12) The criminal justice system is overloaded and does not
|
|
deliver swift and certain penalties for violating the law.
|
|
In America today, there exists crime without punishment.
|
|
Such conditions imperil the public safety, jeopardize the
|
|
rule of law and undermine the preservation of order in the
|
|
community.
|
|
|
|
(b) DECLARATION OF NATIONAL DRUG AND CRIME EMERGENCY.--(1) Guided by
|
|
the principles that energized and sustained the mobilization
|
|
for World War II, and in order to remove violent criminals
|
|
from the streets and meet the extraordinary threat that is
|
|
posed to the Nation by the use and trafficking of illegal
|
|
drugs, the Congress declares the existence of a National Drug
|
|
and Crime Emergency beginning on the date of enactment of
|
|
this Act and ending on the date that is 5 years after the
|
|
date of enactment of this Act.
|
|
|
|
(2) During the National Drug and Crime Emergency declared in
|
|
paragraph (1), it shall be the policy of the United States
|
|
that--
|
|
|
|
(A) every person who is convicted in a Federal
|
|
court of a crime of violence against a person or a
|
|
drug trafficking felony (other than simple
|
|
possession) shall be sentenced to and shall serve a
|
|
full term of no less than 5 years' imprisonment
|
|
without release;
|
|
|
|
(B) prisoners may be housed in tents, and other
|
|
temporary facilities may be utilized, consistent
|
|
with security requirements; and
|
|
|
|
(C) the Federal courts may limit or place a "cap"
|
|
on the inmate population level of a Federal or
|
|
State prison or jail only when an inmate proves
|
|
that crowding has resulted in cruel and unusual
|
|
punishment of the plaintiff inmate and no other
|
|
remedy exists.
|
|
|
|
SEC. 4. DEFINITIONS.
|
|
|
|
For the purposes of this Act--
|
|
|
|
(1) the term "crime of violence against a person" means a
|
|
Federal offense that is a felony and--
|
|
|
|
(A) has as an element the use, attempted use, or
|
|
threatened use of physical force against the person
|
|
or property of another; or
|
|
|
|
(B) that by its nature, involves a substantial risk
|
|
that physical force against the person or property
|
|
of another may be used in the course of committing
|
|
the offense; and
|
|
|
|
(C) for which a maximum term of imprisonment of 10
|
|
years or more is prescribed by law; and
|
|
|
|
(2) the term "drug trafficking crime," (other than simple
|
|
possession) means any felony punishable under the Controlled
|
|
Substances Act (21 U.S.C. 801 et seq.), the Controlled
|
|
Substances Import and Export Act (21 U.S.C. 951 et seq.) or
|
|
the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et
|
|
seq.), other than a felony constituting a simple possession
|
|
of a controlled substance for which the maximum term of
|
|
imprisonment of 10 years or more is prescribed by law.
|
|
|
|
TITLE I--ELIMINATION OF CRIME WITHOUT PUNISHMENT
|
|
|
|
Subtitle A--National Drug and Crime Emergency Policies
|
|
|
|
SEC. 101. JUDICIAL REMEDIES FOR PRISON CROWDING.
|
|
|
|
(a) PURPOSE.--The purpose of this section is to provide for reasonable
|
|
and proper enforcement of the eighth amendment.
|
|
|
|
(b) FINDINGS.--The Congress finds that--
|
|
|
|
(1) the Federal courts are unreasonably endangering the
|
|
community by sweeping prison and jail cap orders as a remedy
|
|
for detention conditions that they hold are in conflict with
|
|
the eighth amendment; and
|
|
|
|
(2) eighth amendment holdings frequently are unjustified
|
|
because of the absence of a plaintiff inmate who has proven
|
|
that detention conditions inflict cruel and unusual
|
|
punishment of that inmate.
|
|
|
|
(c) AMENDMENT OF TITLE 18, UNITED STATES CODE.--(1) Subchapter C of
|
|
chapter 229 of part 2 of title 18, United States Code, is
|
|
amended by adding at the end thereof the following new
|
|
section:
|
|
|
|
"Section 3626. Appropriate remedies with respect
|
|
to prison crowding.
|
|
|
|
"(a)(1) During the period of the National Drug and
|
|
Crime Emergency, a Federal court shall not hold
|
|
prison or jail crowding unconstitutional under the
|
|
eighth amendment except to the extent that an
|
|
individual plaintiff proves that the crowding
|
|
causes the infliction of cruel and unusual
|
|
punishment of that inmate.
|
|
|
|
"(2) The relief in a case described in paragraph
|
|
(1) shall extend no further than necessary to
|
|
remove the conditions that are causing the cruel
|
|
and unusual punishment of the plaintiff inmate.
|
|
|
|
"(b)(1) A Federal court shall not place an inmate
|
|
ceiling on any Federal, State, or local detention
|
|
facility as an equitable remedial measure for
|
|
conditions that violate the eighth amendment unless
|
|
crowding itself is inflicting cruel and unusual
|
|
punishment on individual prisoners.
|
|
|
|
"(2) Federal judicial power to issue equitable
|
|
relief other than that described in paragraph (1),
|
|
including the requirement of improved medical or
|
|
health care and the imposition of civil contempt
|
|
fines or damages, where appropriate, shall not be
|
|
affected by paragraph (1).
|
|
|
|
"(c) Each Federal court order seeking to remedy an
|
|
eighth amendment violation shall be reopened at the
|
|
behest of a defendant for recommended alteration at
|
|
a minimum of two-year intervals.".
|
|
|
|
(2) Section 3626 of title 18, United States Code, as added by
|
|
paragraph (1), shall apply to all outstanding court orders on
|
|
the date of enactment of this section. Any State or
|
|
municipality shall be entitled to seek modification of any
|
|
outstanding eighth amendment decree pursuant to that section.
|
|
|
|
(3) The table of sections for subchapter C of chapter 229 of
|
|
title 18, United States Code, is amended by adding at the end
|
|
thereof the following new item:
|
|
|
|
"3626. Appropriate remedies with respect to prison
|
|
overcrowding.".
|
|
|
|
SEC. 102. TEMPORARY PRISON FACILITIES AND EXPANDED CAPACITY.
|
|
|
|
(a) IN GENERAL.--In order to remove violent criminals from the streets
|
|
and protect the public safety, the Attorney General shall take such
|
|
action as may be necessary, subject to appropriate security
|
|
considerations, to ensure that sufficient facilities exist to house
|
|
individuals whom the courts have ordered incarcerated. During the
|
|
period of the National Drug and Crime Emergency, these facilities may
|
|
include tent housing or other shelters placed on available military
|
|
bases and at other suitable locations. The President may direct the
|
|
National Guard and the Army Corps of Engineers to design and construct
|
|
such temporary detention facilities.
|
|
|
|
(b) USE OF MILITARY INSTALLATIONS.--(1)In order to provide facilities
|
|
for incarceration authorized by subsection (a), the Secretary
|
|
of Defense, the Commission on Alternative Utilization of
|
|
Military Facilities, and the Director of the Bureau of
|
|
Prisons shall--
|
|
|
|
(A) identify military installations that could be
|
|
used as confinement facilities for Federal or State
|
|
prisoners; and
|
|
|
|
(B) examine the feasibility of using temporary
|
|
facilities for housing prisoners with a specific
|
|
examination of the successful use of tent housing
|
|
during the mobilization for World War II.
|
|
|
|
(2) Not later than 90 days after the date of enactment of
|
|
this Act, the Director of the Bureau of Prisoners shall
|
|
submit to the Congress a description and summary of the
|
|
results of the examination conducted pursuant to paragraph
|
|
(1).
|
|
|
|
(c) PRIORITY FOR DISPOSAL OF CLOSED MILITARY INSTALLATIONS.--Section
|
|
204(b)(3) of the Defense Authorization Amendments and Base Closure and
|
|
Realignment Act (10 U.S.C. 2687 note) is amended to read as follows:
|
|
|
|
"(3)(A) Notwithstanding any provision of this title and any
|
|
other law, before any action is taken with respect to the
|
|
disposal or transfer of any real property or facility located
|
|
at a military installation to be closed or realigned under
|
|
this title the Secretary shall--
|
|
|
|
"(i) notify the Attorney General and the Governor
|
|
of each of the territories and possessions of the
|
|
United States of the availability of such real
|
|
property or facility, or portion thereof; and
|
|
|
|
"(ii) transfer such real property of facility or
|
|
portion thereof, as provided in subparagraph (B).
|
|
|
|
"(B) Subject to subparagraph (C), the Secretary shall
|
|
transfer real property or a facility, or portion thereof,
|
|
referred to in subparagraph (A) in accordance with the
|
|
following priorities:
|
|
|
|
"(i) If the Attorney General certifies to the
|
|
Secretary that the property or facility, or portion
|
|
thereof, will be used as a prison or other
|
|
correctional institution, to the Department of
|
|
Justice for such use.
|
|
|
|
"(ii) If the Governor of a State, the Mayor of the
|
|
District of Columbia, or the Governor of a
|
|
territory or possession of the United States
|
|
certifies to the Secretary that the property or
|
|
facility, or portion thereof, will be used as a
|
|
prison or other correctional institution, to that
|
|
State, the District of Columbia, or that territory
|
|
or possession for such use.
|
|
|
|
"(iii) To any other transferee pursuant to the
|
|
Federal Property and Administrative Services Act of
|
|
1949 (40 U.S.C. 471 et seq.).
|
|
|
|
"(C) Within each priority specified in clauses (i) and (ii)
|
|
of subparagraph (B), the Secretary shall give a priority for
|
|
the transfer of any real property or facility referred to in
|
|
that subparagraph, or any portion thereof, to any department,
|
|
agency, or other instrumentality referred to in such clauses
|
|
that agrees to pay the Department of Defense the fair market
|
|
value of the real property, facility, or portion thereof.
|
|
|
|
"(D) In this paragraph, the term 'fair market value' means,
|
|
with respect to any real property or facility, or any portion
|
|
thereof, the fair market value determined on the basis of the
|
|
use of the real property or facility on December 31, 1988.".
|
|
|
|
(d) REVIEW OF CURRENT STANDARDS OF PRISON CONSTRUCTION.--(1) The
|
|
Director of the Bureau of Prisons (referred to as the
|
|
"Director") shall--
|
|
|
|
(A) review current construction standards and
|
|
methods used in building Federal prisons; and
|
|
|
|
(B) examine and recommend any cost cutting measures
|
|
that could be employed in prison construction
|
|
(consistent with security requirements), especially
|
|
expenditures for air conditioning, recreational
|
|
activities, color television, social services, and
|
|
similar amenities.
|
|
|
|
(2) Not later than 90 days after the date of enactment of
|
|
this Act, the Director shall submit to Congress a description
|
|
and summary of the results of the review conducted pursuant
|
|
to paragraph (1).
|
|
|
|
(e)(1) Chapter 301 of title 18, United States Code, is amended by
|
|
adding at the end thereof the following new section:
|
|
|
|
"Section 4014. Private construct and operation of
|
|
Federal prisons
|
|
|
|
"(a) IN GENERAL.--The Attorney General may contract
|
|
with private persons to--
|
|
|
|
"(1) construct, own, and operate Federal
|
|
prison facilities; or
|
|
|
|
"(2) construct or operate Federal prison
|
|
facilities owned by the United States,
|
|
|
|
including the provision of subsistence, care, and
|
|
proper employment of United States prisoners.
|
|
|
|
"(b) COOPERATION WITH STATES.--The Attorney General
|
|
shall consult and cooperate with State and local
|
|
governments in exercising the authority provided by
|
|
subsection (a).
|
|
|
|
"(c) FINANCING OPTIONS FOR PRISON CONSTRUCTION AND
|
|
OPERATION.--(1) To the greatest extent possible,
|
|
the Attorney General shall utilize
|
|
creative and cost-effective private
|
|
financing alternatives and private
|
|
construction and operation of prisons.
|
|
|
|
"(2) Operating cots of privately-operated
|
|
prisons shall be covered through rent
|
|
charged to participating units of
|
|
Government placing inmates in a prison.
|
|
|
|
"(3) The Attorney General may finance the
|
|
construction of facilities through lease
|
|
or lease-purchase agreements.
|
|
|
|
"(4) In order to gain full costs
|
|
advantages from economies of scale and
|
|
specialized knowledge from private
|
|
innovation, the Attorney General may
|
|
contract with consortia or teams of
|
|
private firms to design, construct, and
|
|
manage, as well as finance, prison
|
|
facilities.".
|
|
|
|
(2) The table of sections for chapter 301 of title 18, United
|
|
States Code, is amended by adding at the end thereof the
|
|
following new item:
|
|
|
|
"4014. Private construct and operation of Federal
|
|
prisons.".
|
|
|
|
(f) SURPLUS FEDERAL PROPERTY.--(1) For the purpose of expanding the
|
|
number of correctional facilities, the Administrator of the
|
|
General Services Administration, in consultation with the
|
|
Attorney General, shall, not later than 1 year after the date
|
|
of enactment of this Act, identify and make available a list
|
|
of not less than 20 parcels of surplus Federal property,
|
|
which the Attorney General has certified are not needed for
|
|
Federal correctional facilities but which may be suitable for
|
|
State or local correctional facilities.
|
|
|
|
(2) During the National Drug and Crime Emergency declared in
|
|
section 3(b)(1), notwithstanding any other law, any property
|
|
that is determined to be excess to the needs of a Federal
|
|
agency that may be suitable for use as a correctional
|
|
facility shall be made available for such use, in order of
|
|
priority, first, to the Attorney General, and second, to a
|
|
State, the District of Columbia, or a local government.
|
|
|
|
(g) STATE AND LOCAL GOVERNMENT USE OF FACILITIES.--State and local
|
|
governments shall be permitted to use Federal temporary incarceration
|
|
facilities, when they are not needed to accommodate Federal prisoners,
|
|
for the purpose of incarcerating prisoners at a per diem fee to be paid
|
|
to the Bureau of Prisons.
|
|
|
|
SEC. 103. ELIMINATION OF EARLY RELEASE FROM PRISON.
|
|
|
|
During the National Drug and Crime Emergency declared in section
|
|
3(b)(1), notwithstanding any other law, every person who is convicted
|
|
in a Federal court of committing a crime of violence against a person
|
|
or a drug trafficking crime (other than simple possession), shall be
|
|
sentenced to and shall serve a full term of no less than 5 years'
|
|
imprisonment, and no such person shall be released from custody for any
|
|
reason or for any period of time prior to completion of the sentence
|
|
imposed by the court unless the sentence imposed is greater than 5
|
|
years and is not a mandatory minimum sentence without release.
|
|
|
|
Subtitle B--Imposition of Mandatory Minimum Sentences Without Release
|
|
|
|
SEC. 111. INCREASED MANDATORY MINIMUM SENTENCES WITHOUT RELEASE FOR
|
|
CRIMINALS USING FIREARMS AND OTHER VIOLENT CRIMINALS.
|
|
|
|
(a) USE OF FIREARMS.--Section 924(c)(1) of title 18, United States
|
|
Code, is amended to read as follows:
|
|
|
|
"(c)(1) Whoever, during and in relation to any crime of
|
|
violence or drug trafficking crime (including a crime of
|
|
violence or drug trafficking crime which provides for an
|
|
enhanced punishment if committed by the use of a deadly or
|
|
dangerous weapon or device) for which the person may be
|
|
prosecuted in a court of the United States--
|
|
|
|
"(A) possesses a firearm, shall, in addition to the
|
|
punishment provided for such crime of violence or
|
|
drug trafficking crime, be sentenced to
|
|
imprisonment for 10 years without release;
|
|
|
|
"(B) discharges a firearm with intent to injure
|
|
another person, shall, in addition to the
|
|
punishment provided for such crime of violence or
|
|
drug trafficking crime, be sentenced to
|
|
imprisonment for 20 years without release; or
|
|
|
|
"(C) possesses a firearm that is a machinegun, or
|
|
is equipped with a firearm silencer or firearm
|
|
muffler shall, in addition to the punishment
|
|
provided for such crime of violence or drug
|
|
trafficking crime, be sentenced to imprisonment for
|
|
30 years without release.
|
|
|
|
In the case of a second conviction under this subsection, a
|
|
person shall be sentenced to imprisonment for 20 years
|
|
without release for possession or 30 years without release
|
|
for discharge of a firearm, and if the firearm is a
|
|
machinegun, or is equipped with a firearm silence or firearm
|
|
muffler, to life imprisonment without release. In the case of
|
|
a third or subsequent conviction under this subsection, a
|
|
person shall be sentenced to life imprisonment without
|
|
release. If the death of a person results from the discharge
|
|
of a firearm, with intent to kill another person, by a person
|
|
during the commission of such a crime, the person who
|
|
discharged the firearm shall be sentenced to death or life
|
|
imprisonment without release. A person shall be subjected to
|
|
the penalty of death under this subsection only if a hearing
|
|
is held in accordance with section 408 of the Controlled
|
|
Substances Act (21 U.S.C. 848). Notwithstanding any other
|
|
law, a court shall not place on probation or suspend the
|
|
sentence of any person convicted of a violation of this
|
|
subsection, nor shall the term of imprisonment under this
|
|
subsection run concurrently with any other term of
|
|
imprisonment including that imposed for the crime of violence
|
|
or drug trafficking crime in which the firearm was used. No
|
|
person sentenced under this subsection shall be eligible for
|
|
parole, nor shall such person be released for any reason
|
|
whatsoever, during a term of imprisonment imposed under this
|
|
paragraph.".
|
|
|
|
SEC. 112. LIFE IMPRISONMENT WITHOUT RELEASE FOR CRIMINALS CONVICTED A
|
|
THIRD TIME.
|
|
|
|
Section 401(b) of the Controlled Substances Act is amended by striking
|
|
"If any person commits a violation of this subparagraph or of section
|
|
405, 405A, or 405B after two or more prior convictions for a felony
|
|
drug offense have become final, such person shall be sentenced to a
|
|
mandatory term of life imprisonment without release" and inserting "If
|
|
any person commits a violation of this subparagraph or of section 405,
|
|
405A, or 405B or a crime of violence as defined in section 924(c)(3) of
|
|
title 18, United States Code, after two or more prior convictions for a
|
|
felony drug offense or for a crime of violence as defined in section
|
|
924(c)(3) of that title or for any combination thereof have become
|
|
final, such person shall be sentenced to a mandatory term of life
|
|
imprisonment without release.".
|
|
|
|
SEC. 113. LONGER PRISON SENTENCES FOR THOSE WHO SELL ILLEGAL DRUGS TO
|
|
MINORS OR FOR USE OF MINORS IN DRUG TRAFFICKING ACTIVITIES.
|
|
|
|
(a) DISTRIBUTION TO PERSONS UNDER AGE 21.--Section 405 of the
|
|
Controlled Substances Act (21 U.S.C. 845) is amended--
|
|
|
|
(1) in subsection (a) by striking "Except to the extent a
|
|
greater minimum sentence is otherwise provided by section
|
|
401(b), a term of imprisonment under this subsection shall be
|
|
not less than one year." and inserting "Except to the extent
|
|
a greater minimum sentence is otherwise provided by section
|
|
401(b), a term of imprisonment under this subsection shall be
|
|
not less than 10 years without release. Notwithstanding any
|
|
other provision of law, the court shall not place on
|
|
probation or suspend the sentence of any person sentenced
|
|
under the preceding sentence and such person shall not be
|
|
released during the term of such sentence."; and
|
|
|
|
(2) in subsection (b) by striking "Except to the extent a
|
|
greater minimum sentence is otherwise provided by section
|
|
401(b), a term of imprisonment under this subsection shall be
|
|
not less than one year." and inserting "Except to the extent
|
|
a greater minimum sentence is otherwise provided by section
|
|
401(b), a term of imprisonment under this subsection shall be
|
|
not less than 20 years without release. Notwithstanding any
|
|
other provision of law, the court shall not place on
|
|
probation or suspend the sentence of any person sentenced
|
|
under the preceding sentence and such person shall not be
|
|
released during the term of such sentence.".
|
|
|
|
(b) EMPLOYMENT OF PERSONS UNDER 18 YEARS OF AGE.--Section 405B of the
|
|
Controlled Substances Act (21 U.S.C. 845b) is amended--
|
|
|
|
(1) in subsection (a) by striking "Except to the extent a
|
|
greater minimum sentence is otherwise provided, a term of
|
|
imprisonment under this subsection shall be not less than one
|
|
year." and inserting "Except to the extent a greater minimum
|
|
sentence is otherwise provided by section 401(b), a term of
|
|
imprisonment under this subsection shall be not less than 10
|
|
years without release. Notwithstanding any other provision
|
|
of law, the court shall not place on probation or suspend the
|
|
sentence of any person sentenced under the preceding sentence
|
|
and such person shall not be released during the term of such
|
|
sentence"; and
|
|
|
|
(2) in subsection (c) by striking "Except to the extent a
|
|
greater minimum sentence is otherwise provided, a term of
|
|
imprisonment under this subsection shall be not less than one
|
|
year." and inserting "Except to the extent a greater minimum
|
|
sentence is otherwise provided by section 401(b), a term of
|
|
imprisonment under this subsection shall be not less than 20
|
|
years without release. Notwithstanding any other provision
|
|
of law, the court shall not place on probation or suspend the
|
|
sentence of any person sentenced under the preceding sentence
|
|
and such person shall not be released during the term of such
|
|
sentence.".
|
|
|
|
SEC. 114. LONGER PRISON SENTENCES FOR DRUG TRAFFICKING.
|
|
|
|
(a) SCHEDULE I AND II SUBSTANCES.--Section 401(b)(1)(C) of the
|
|
Controlled Substances Act (21 U.S.C. 841(b)(1)(C)) is amended--
|
|
|
|
(1) in the first sentence by striking "of not more than 20
|
|
years" and inserting "which shall be not less than 5 years
|
|
without release nor more than 20 years"; and
|
|
|
|
(2) in the second sentence by striking "of not more than 30
|
|
years" and inserting "which shall be not less than 10 years
|
|
without release nor more than 30 years".
|
|
|
|
(b) MARIHUANA.--Section 401(b)(1)(D) of the Controlled Substances Act
|
|
(21 U.S.C. 841(b)(1)(D)) is amended--
|
|
|
|
(1) in the first sentence by striking "of not more than 5
|
|
years" and inserting "not less than 5 years without release";
|
|
|
|
(2) in the second sentence by striking "of not more than 10
|
|
years" and inserting "which shall be not less than 10 years
|
|
without release"; and
|
|
|
|
(3) by adding the following new sentence at the end thereof:
|
|
"Not withstanding any other provision of law, the court shall
|
|
not place on probation or suspend the sentence of any person
|
|
sentenced under this subparagraph, nor shall a person so
|
|
sentenced be eligible for parole during the term of such a
|
|
sentence.".
|
|
|
|
(c) SCHEDULE IV SUBSTANCES.--Section 401(b)(2) of the Controlled
|
|
Substances Act (21 U.S.C. 841(b)(2)) is amended--
|
|
|
|
(1) in the first sentence by striking "of not more than 3
|
|
years" and inserting "which shall be not less than 5 years
|
|
without release";
|
|
|
|
(2) in the second sentence by striking "of not more than 6
|
|
years" and inserting "which shall be not less than 10 years
|
|
without release"; and
|
|
|
|
(3) by adding the following new sentence at the end thereof:
|
|
"Notwithstanding any other provision of law, the court shall
|
|
not place on probation or suspend the sentence of any person
|
|
sentenced under this subparagraph, nor shall a person so
|
|
sentenced be eligible for parole during the term of such a
|
|
sentence.".
|
|
|
|
(d) SCHEDULE V SUBSTANCES.--Section 401(b)(3) of the Controlled
|
|
Substances Act (21 U.S.C. 841(b)(3)) is amended--
|
|
|
|
(1) in the first sentence by striking "of not more than one
|
|
year" and inserting "which shall be not less than 5 years
|
|
without release";
|
|
|
|
(2) in the second sentence by striking "of not more than 2
|
|
years" and inserting "which shall be not less than 10 years
|
|
without release"; and
|
|
|
|
(3) by adding the following new sentence at the end thereof:
|
|
"Notwithstanding any other provision of law, the court shall
|
|
not place on probation or suspend the sentence of any person
|
|
sentenced under this subparagraph, nor shall a person so
|
|
sentenced be eligible for parole during the term of such a
|
|
sentence.".
|
|
|
|
SEC. 115. MANDATORY PENALTIES FOR ILLEGAL DRUG USE IN FEDERAL PRISONS.
|
|
|
|
(a) DECLARATION OF POLICY.--It is the policy of the Federal Government
|
|
that the use or distribution of illegal drugs in the Nation's Federal
|
|
prisons will not be tolerated and that such crime shall be prosecuted
|
|
to the fullest extent of the law.
|
|
|
|
(b) AMENDMENT.--Section 401(b) of the Controlled Substances Act (21
|
|
U.S.C. 841(b)) is amended by adding the following new paragraph and the
|
|
end thereof:
|
|
|
|
"(7)(A) In a case involving possession of a controlled
|
|
substance within a Federal prison or other Federal detention
|
|
facility, such person shall be sentenced to a term of
|
|
imprisonment of 1 year without release in addition to any
|
|
other sentence imposed for the possession itself.
|
|
|
|
"(B) In a case involving the smuggling of a controlled
|
|
substance into a Federal prison or other Federal detention
|
|
facility or the distribution of a controlled substance within
|
|
a Federal prison or other Federal detention facility, such
|
|
person shall be sentenced to a term of imprisonment of 10
|
|
years without release in addition to any other sentence
|
|
imposed for the possession or distribution itself.
|
|
|
|
"(C) Notwithstanding any other law, the court shall not place
|
|
on probation or suspend the sentence of a person sentenced
|
|
under this paragraph. No person sentenced under this
|
|
paragraph shall be eligible for parole during the term of
|
|
imprisonment imposed under this paragraph.".
|
|
|
|
SEC. 116. DEPORTATION OF CRIMINAL ALIENS.
|
|
|
|
(a) DEPORTATION OF ALIENS CONVICTED OF CRIMES OF VIOLENCE.--Section
|
|
241(a)(14) of the Immigration and Nationality Act (8 U.S.C.
|
|
1251(a)(14)) is amended by inserting after "convicted" the following:
|
|
"of a drug trafficking crime or a crime of violence (as those terms are
|
|
defined in paragraphs (2) and (3) of section 924(c) of title 18, United
|
|
States Code), or".
|
|
|
|
(b) REENTRY OF DEPORTED ALIENS.--Section 276(b)(2) of the Immigration
|
|
and Nationality Act (8 U.S.C. 1326(b)(2)) is amended to read as
|
|
follows:
|
|
|
|
"(2) whose deportation was subsequent to a conviction for a
|
|
drug trafficking crime or a crime of violence (as those terms
|
|
are defined in sections 924(c) (2) and (3) of title 18,
|
|
United States Code), such alien shall be fined under such
|
|
title and imprisoned for 20 years without release, and in the
|
|
case of a second violation of subsection (a) shall be
|
|
imprisoned for life without release. Notwithstanding any
|
|
other law, the court shall not place on probation or suspend
|
|
the sentence of any person sentenced under this paragraph and
|
|
such person shall not be released during the term of such
|
|
sentence.".
|
|
|
|
SEC. 117 ENCOURAGEMENT TO STATES TO ADOPT MANDATORY MINIMUM PRISON
|
|
SENTENCES.
|
|
|
|
(a) PRIORITY.--Beginning on the date that is 2 calendar years after the
|
|
date of enactment of this Act, a request for Federal drug law
|
|
enforcement assistance funds from the Bureau of Justice Assistance
|
|
Grant Programs by a State whose law provides for--
|
|
|
|
(1) mandatory minimum sentences equal to or greater than the
|
|
sentences authorized in sections 111, 112, 113, 114, and 115
|
|
for the commission of crimes against the State that are
|
|
equivalent to the Federal crimes punished in those sections;
|
|
|
|
(2) elimination of early release from prison of persons
|
|
convicted in a State court of committing a crime of violence
|
|
against a person or drug trafficking crime (other than simple
|
|
possession), equivalent to the requirements of section 103;
|
|
and
|
|
|
|
(3) payment of trial costs and mandatory fines equivalent to
|
|
that imposed by section 202,
|
|
|
|
shall receive priority over a request by a State whose law does not so
|
|
provide.
|
|
|
|
(b) REDISTRIBUTION.--Beginning on the data that is 2 calendar years
|
|
after the date of enactment of this Act, the formula for determining
|
|
the amount of funds to be distributed from the Drug Control and System
|
|
Improvement Grant Program to state and local governments shall be
|
|
adjusted by--
|
|
|
|
(1) reducing by 10 percent the amount of funds that would,
|
|
except for the application of this paragraph, be allocated to
|
|
States whose laws do not provide as stated in subsection (a);
|
|
and
|
|
|
|
(2) allocating the amount of the reduction pro rata to the
|
|
other States.
|
|
|
|
Subtitle C--Mandatory Work Requirements for Prisoners, Withholding
|
|
Federal Benefits, and Drug Testing of Prisoners
|
|
|
|
SEC. 131 MANDATORY WORK REQUIREMENT FOR ALL PRISONERS.
|
|
|
|
(A) IN GENERAL.--(1) It is the policy of the Federal Government that
|
|
convicted prisoners confined in Federal prisons, jails, and
|
|
other detention facilities shall work. The type of work in
|
|
which they will be involved shall be dictated by appropriate
|
|
security considerations and by the health of the prisoner
|
|
involved. Such labor may include, but not be limited to--
|
|
|
|
(A) local public works projects and infrastructure
|
|
repair;
|
|
|
|
(B) construction of new prisons and other detention
|
|
facilities;
|
|
|
|
(C) prison industries; and
|
|
|
|
(D) other appropriate labor.
|
|
|
|
(2) It is the policy of the Federal Government that States
|
|
and local governments have the same authority to require all
|
|
convicted prisoners to work.
|
|
|
|
(b) PRISONERS SHALL WORK.--Medical certification of 100 percent
|
|
disability, security considerations, or disciplinary action shall be
|
|
the only excuse to remove a Federal prisoner from labor participation.
|
|
|
|
(c) USE OF FUNDS.--(1) Subject to paragraph (2), any funds generated by
|
|
labor conducted pursuant to this section shall be deposited
|
|
in a separate fund in the Treasury of the United States for
|
|
use by the Attorney General for payment of prison
|
|
construction and operating expenses or for payment of
|
|
compensation judgements. Notwithstanding any other law, such
|
|
funds shall be available without appropriation.
|
|
|
|
(2) Prisoners shall be paid a share of funds generated by
|
|
their labor conducted pursuant to this section.
|
|
|
|
SEC. 132. REPEAL OF CONSTRAINTS ON PRISON INDUSTRIES.
|
|
|
|
(a) SUMNERS-ASHURST ACT.--(1) Chapter 85 of part 1 of title 18, United
|
|
States Code, is repealed.
|
|
|
|
(2) The table of chapters for part 1 of title 18, United
|
|
States Code, is amended by striking the item for chapter 85
|
|
and inserting the following:
|
|
|
|
"[85. Repealed.]".
|
|
|
|
(3) The repeal made by this subsection shall not affect the
|
|
performance to completion of the pilot projects authorized by
|
|
section 1761(c) of title 18, United States Code, prior to
|
|
enactment of this act.
|
|
|
|
(b) FEDERAL PRISON INDUSTRIES.--(1) Section 4122(a) of title 18, United
|
|
States Code, is amended to read as follows:
|
|
|
|
|
|
"(a) Federal Prison Industries shall determine in
|
|
what manner and to what extent industrial
|
|
operations shall be carried on in Federal penal and
|
|
correctional institutions for the product of
|
|
commodities for consumption in such institutions
|
|
or for sale to governmental departments and
|
|
agencies and to the public.".
|
|
|
|
(2) The first paragraph of section 4124 of title 18, United
|
|
States Code, is amended to read as follows:
|
|
|
|
"The several Federal departments and agencies and
|
|
all other Government institutions of the United
|
|
States may purchase such products of the industries
|
|
authorized by this chapter as meet their
|
|
requirements and may be available.".
|
|
|
|
(3) The second sentence of section 4126(f) of title 18,
|
|
United States Code, is amended to read as follows: "To the
|
|
extent that the amount of such funds is excess to the needs
|
|
of the corporation for such purposes, such funds may be
|
|
transferred to the Attorney General for the construction or
|
|
acquisition of penal and correctional institutions, including
|
|
camps described in section 4125.".
|
|
|
|
(c) WALSH-HEALY ACT.--Subsection (d) of the first section of the Act
|
|
entitled "An Act to provide conditions for the purchase of supplies and
|
|
the making of contracts by the United States, and for other purposes",
|
|
approved June 30, 1936, (41 U.S.C. 35(d)), is amended--
|
|
|
|
(1) by striking "and no convict labor"; and
|
|
|
|
(2) by striking ", except that this section, or any law or
|
|
Executive order contrasting similar prohibitions against
|
|
purchase of goods by the Federal Government, shall not apply
|
|
to convict labor which satisfies the conditions of section
|
|
1761(c) of title 18, United States Code".
|
|
|
|
(d) LEGISLATIVE RECOMMENDATIONS.--The Attorney General shall submit to
|
|
Congress a report making recommendations for legislation to--
|
|
|
|
(1) ensure that private businesses and labor do not suffer
|
|
unfair consequences from the repeal in subsection (a); and
|
|
|
|
(2) encourage greater private sector participation in prison
|
|
industries and create incentives for cooperative arrangements
|
|
between private businesses and prisons providing for such
|
|
participation.
|
|
|
|
SEC. 133. EMPLOYMENT OF PRISONERS.
|
|
|
|
(a) IN GENERAL.--The Attorney General may enter into contracts with
|
|
private businesses for the use of inmate skills that may be of
|
|
commercial use to such businesses.
|
|
|
|
(b) USE OF FEES AND PAYMENTS.--A portion of the fees and payments
|
|
collected for the use of inmate skills under contracts entered into
|
|
pursuant to subsection (a) shall be deposited in the fund described in
|
|
section 131(c)(1), and a portion shall be paid to the prisoners who
|
|
conduct the labor.
|
|
|
|
(c) SECURITY REQUIREMENT.--In the case of contracts described in
|
|
subsection (a) in which the provision of inmate skills would require
|
|
prisoners to leave the prison--
|
|
|
|
(1) prisoners shall be permitted to travel directly to a work
|
|
site and to remain at the work site during the work day and
|
|
shall be required to return directly to prison at the end of
|
|
each work day; and
|
|
|
|
(2) only prisoners with no history of violent criminal
|
|
activity and who are able to meet strict security standards
|
|
to insure that they pose no threat to the public, shall be
|
|
eligible to participate.
|
|
|
|
SEC. 134. WITHHOLDING PRISONERS' FEDERAL BENEFITS TO OFFSET
|
|
INCARCERATION COSTS.
|
|
|
|
(a) IN GENERAL.--The Federal benefits received by any prisoner (not
|
|
including those of a prisoner's spouse or dependents) who has been
|
|
convicted of a crime of violence against a person or drug trafficking
|
|
crime (other than simple possession) under Federal or State law and who
|
|
is incarcerated in a Federal or State prison shall, during the period
|
|
of the prisoner's incarceration, be withheld to offset the costs of--
|
|
|
|
(1) any victim compensation award against such prisoner; and
|
|
|
|
(2) any incarceration costs of the prisoner incurred by the
|
|
prison system.
|
|
|
|
(b) PAYMENT.--(1) In the case of a Federal Prisoner, Federal benefits
|
|
withheld for the purpose of subsection (a)(2) shall be paid
|
|
into the fund established by section 131(c).
|
|
|
|
(2) In the case of a State prisoner, Federal benefits
|
|
withheld for the purpose of subsection (a)(2) shall be paid
|
|
to the State.
|
|
|
|
(c) EXCEPTION.--The withholding of Federal benefits of a prisoner with
|
|
a spouse or other dependents under subsection (a) shall be adjusted by
|
|
the court to provide adequate support to and to prevent the
|
|
impoverishment of dependents.
|
|
|
|
(d) DEFINITIONS.--As used in this section the term "Federal benefit"
|
|
means the issuance of any payment of money, by way of grant, loan, or
|
|
statutory entitlement, provided by an agency of the United States or by
|
|
appropriated funds or trust funds of the United States but does not
|
|
include a right to payment under a contract.
|
|
|
|
SEC. 135. DRUG TESTING OF FEDERAL PRISONERS.
|
|
|
|
(a) DRUG TESTING PROGRAM.--(1) Subchapter A of chapter 229 of title 18,
|
|
United States Code, is amended by adding at the end thereof
|
|
the following new section:
|
|
|
|
"Section 3608. Drug testing of defendants on
|
|
post-conviction release
|
|
|
|
"(a) The Attorney General, in consultation with the
|
|
Director of the Administrative Office of the United
|
|
States Courts shall, as soon as is practicable
|
|
after the effective date of this section, establish
|
|
by regulation a program of drug testing of targeted
|
|
classes of arrestees, individuals in jails,
|
|
prisons, and other correctional facilities, and
|
|
persons on conditional or supervised release before
|
|
or after conviction, including probationers,
|
|
parolees, and persons released on bail.
|
|
|
|
"(b)(1) The Attorney General shall, not later than
|
|
6 months after the date of enactment of
|
|
this section, promulgate regulations for
|
|
drug testing programs under this section.
|
|
|
|
"(2) The regulations issued pursuant to
|
|
paragraph (1) shall be based in part on
|
|
scientific and technical standards
|
|
determined by the Secretary of Health
|
|
and Human Services to ensure reliability and
|
|
accuracy of drug test results. In
|
|
addition to specifying acceptable methods
|
|
and procedures for carrying out drug
|
|
testing, the regulations may include
|
|
guidelines or specifications concerning--
|
|
|
|
"(A) the classes of persons to
|
|
be targeted for testing;
|
|
|
|
"(B) the drugs to be tested
|
|
for;
|
|
|
|
"(C) the frequency and duration
|
|
of testing; and
|
|
|
|
"(D) the effect of test results
|
|
in decisions concerning the
|
|
sentence, the conditions to be
|
|
imposed on release before or
|
|
after conviction, and the
|
|
granting, continuation, or
|
|
termination of such release.
|
|
|
|
"(c) In each district where it is feasible to do
|
|
so, the chief probation officer shall arrange for
|
|
the drug testing of defendants on a post-conviction
|
|
release pursuant to a conviction for a felony or
|
|
other offense described in section 3563(a)(4) of
|
|
this title.".
|
|
|
|
SEC. 136. DRUG TESTING OF STATE PRISONERS.
|
|
|
|
(a) IN GENERAL.--Title I of the Omnibus Crime Control and Safe Streets
|
|
Act of 1968 (42 U.S.C. 3711 et seq.) is amended by adding at the end of
|
|
part E (42 U.S.C. 3750-3766b) the following:
|
|
|
|
"DRUG TESTING PROGRAMS
|
|
|
|
"SEC. 523. (a) PROGRAM REQUIRED.--No funding shall be
|
|
provided under this part, whether by direct grant,
|
|
cooperative agreement, or assistance in any form, to any
|
|
State or any political subdivision or instrumentality of a
|
|
State that has not formulated and implemented a drug testing
|
|
program, subject to periodic review by the Attorney General,
|
|
as specified in the regulations described in subsection (b),
|
|
for targeted classes of arrestees, individuals in jails,
|
|
prisons, and other correctional facilities, and persons on
|
|
conditional or supervised release before or after conviction,
|
|
including probationers, parolees, and persons released on
|
|
bail.
|
|
|
|
"(b) REGULATIONS.--(1) The Attorney General shall, not later
|
|
than 6 months after the enactment of this section,
|
|
promulgate regulations for drug testing programs
|
|
under this section.
|
|
|
|
"(2) The regulations issued pursuant to paragraph
|
|
(1) shall incorporate the standards applicable to
|
|
drug testing of Federal prisoners under section
|
|
3608 of title 18, United States Code.
|
|
|
|
"(c) EFFECTIVE DATE.--This section shall take effect with
|
|
respect to any State, subdivisions, or instrumentality
|
|
receiving or seeking funding under this subchapter at a time
|
|
specified by the Attorney General, but no earlier than the
|
|
date of promulgation of the regulations required by
|
|
subsection (b).".
|
|
|
|
(b) AMENDMENT TO TABLE OF CONTENTS.--The table of contents of title I
|
|
of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C.
|
|
3711 et seq.) is amended by inserting at the end of the item relating
|
|
to part E the following:
|
|
|
|
"Sec. 523. Drug testing program.".
|
|
|
|
Subtitle D--Judicial Reform to Protect the Innocent and Punish the
|
|
Guilty
|
|
|
|
SEC. 151. GOOD FAITH STANDARDS FOR GATHERING EVIDENCE.
|
|
|
|
(a) IN GENERAL.--Chapter 223 of title 18, United States Code, is
|
|
amended by adding at the end thereof the following new section:
|
|
|
|
"Section 3509. Admissibility of evidence obtained by search
|
|
or seizure
|
|
|
|
"(a) EVIDENCE OBTAINED BY OBJECTIVELY REASONABLE SEARCH OR
|
|
SEIZURE.--Evidence which is obtained as a result of a search
|
|
or seizure shall not be excluded in a proceeding in a court of
|
|
the United States on the ground that the search or seizure
|
|
was in violation of the fourth amendment to the Constitution
|
|
of the United States, if the search or seizure was carried
|
|
out in circumstances justifying an objectively reasonable
|
|
belief that it was in conformity with the fourth amendment.
|
|
The fact that evidence was obtained pursuant to and within
|
|
the scope of a warrant constitutes prima facie evidence of
|
|
the existence of such circumstances.
|
|
|
|
"(b) EVIDENCE NOT EXCLUDABLE BY STATUTE OR RULE.--Evidence
|
|
shall not be excluded in a proceeding in a court of the
|
|
United States on the ground that it was obtained in violation
|
|
of a statute, an administrative rule or regulation, or a rule
|
|
of procedure unless exclusion is expressly authorized by a
|
|
statute or by a rule prescribed by the Supreme Court pursuant
|
|
to statutory authority.
|
|
|
|
"(c) RULE OF CONSTRUCTION.--This section shall not be
|
|
constructed to require or authorize the exclusion of evidence
|
|
in any proceeding.".
|
|
|
|
(b) TECHNICAL AMENDMENT.--The table of sections at the beginning of
|
|
chapter 223 of title 18, United States Code, is amended by adding at
|
|
the end the following:
|
|
|
|
"3509. Admissibility of evidence obtained by search or
|
|
seizure.".
|
|
|
|
SEC. 152. STROM THURMOND HABEAS CORPUS REFORM INITIATIVE.
|
|
|
|
(a) FINALITY OF DETERMINATIONS.--Section 2244 of title 28, United
|
|
States Code, is amended by adding at the end thereof the following new
|
|
subsections:
|
|
|
|
"(d) When a person in custody pursuant to the judgment of a
|
|
State court fails to raise a claim in State proceedings at
|
|
the time or in the manner required by State rules of
|
|
procedure, the claim shall not be entertained in an
|
|
application for a writ of habeas corpus unless actual
|
|
prejudice resulted to the applicant from the alleged denial
|
|
of Federal right asserted and--
|
|
|
|
"(1) the failure to raise the claim properly or to
|
|
have it heard in State proceedings was the result
|
|
of State action in violation of the Constitution or
|
|
laws of the United States;
|
|
|
|
"(2) the Federal right asserted was newly
|
|
recognized by the Supreme Court subsequent to the
|
|
procedural default and is retroactively applicable;
|
|
or
|
|
|
|
"(3) the factual predicate of the claim could not
|
|
have been discovered through the exercise of
|
|
reasonable diligence prior to the procedural
|
|
default.
|
|
|
|
"(e) A one-year period of limitation shall apply to an
|
|
application for a writ of habeas corpus by a person in
|
|
custody pursuant to the judgment of a State court. The
|
|
limitation period shall run from the latest of the following
|
|
times:
|
|
|
|
"(1) the time at which State remedies are
|
|
exhausted;
|
|
|
|
"(2) the time at which the impediment to filing an
|
|
application created by State action in violation to
|
|
the Constitution or laws of the United States is
|
|
removed, where the applicant was prevented from
|
|
filing by such State action;
|
|
|
|
"(3) the time at which the Federal right asserted
|
|
was initially recognized by the Supreme Court,
|
|
where the right has been newly recognized by the
|
|
Court and is retroactively applicable; or
|
|
|
|
"(4) the time at which the factual predicate of the
|
|
claim or claims presented could have been
|
|
discovered through the exercise of reasonable
|
|
diligence.".
|
|
|
|
(b) APPEAL.--Section 2253 of title 28, United States Code, is amended
|
|
to read as follows:
|
|
|
|
"Section 2253. Appeal
|
|
|
|
"In a habeas corpus proceeding or a proceeding under section
|
|
2255 of this title before a circuit or district judge, the
|
|
final order shall be subject to review, on appeal, by the
|
|
court of appeals for the circuit where the proceeding is had.
|
|
|
|
"There shall be no right of appeal from such an order in a
|
|
proceeding to test the validity of a warrant to remove, to
|
|
another district or place for commitment or trial, a person
|
|
charged with a criminal offense against the United States, or
|
|
to test the validity of the person's detention pending
|
|
removal proceedings.
|
|
|
|
"An appeal may not be taken to the court of appeals from the
|
|
final order in a habeas corpus proceeding where the detention
|
|
complained of arises out of process issued by a State court,
|
|
or from the final order in a proceeding under section 2255 of
|
|
this title, unless a circuit justice or judge issues a
|
|
certificate of probable cause.".
|
|
|
|
(c) APPELLATE PROCEDURE.--Rule 22 of the Federal Rules of Appellate
|
|
Procedure is amended to read as follows:
|
|
|
|
"Rule 22. Habeas Corpus and Section 2255 Proceedings
|
|
|
|
"(a) APPLICATION FOR AN ORIGINAL WRIT OF HABEAS CORPUS.--An
|
|
application for a writ of habeas corpus shall be made to the
|
|
appropriate district court. If application is made to a
|
|
circuit judge, the application will ordinarily be transferred
|
|
to the appropriate district court. If an application is made
|
|
to or transferred to the district court and denied, renewal
|
|
of the application before a circuit judge is not favored; the
|
|
proper remedy is by appeal to the court of appeals from the
|
|
order of the district court denying the writ.
|
|
|
|
"(b) NECESSITY OF CERTIFICATE OF PROBABLE CAUSE FOR
|
|
APPEAL.--In a habeas corpus proceeding in which the detention
|
|
complained of arises out of process issued by a State court,
|
|
and in a motion proceeding pursuant to section 2255 of title
|
|
28, United States Code, an appeal by the applicant or movant
|
|
may not proceed unless a circuit judge issues a certificate
|
|
of probable cause. If a request for a certificate of
|
|
probable cause is addressed to the court of appeals, it shall
|
|
be deemed addressed to the judges thereof and shall be
|
|
considered by a circuit judge or judges as the court deems
|
|
appropriate. If no express request for a certificate is
|
|
filed, the notice of appeal shall be deemed to constitute a
|
|
request addressed to the judgements of the court of appeals.
|
|
If an appeal is taken by a State or the government or its
|
|
representative, a certificate of probable cause is not
|
|
required.".
|
|
|
|
(d) STATE CUSTODY.--Section 2254 of title 28, United States Code, is
|
|
amended--
|
|
|
|
(1) by amending subsection (b) to read as follows:
|
|
|
|
"(b) An application for a writ of habeas corpus in
|
|
behalf of a person in custody pursuant to the
|
|
judgment of a State court shall not be granted
|
|
unless it appears that the applicant has exhausted
|
|
the remedies available in the courts of the State,
|
|
or that there is either an absence of available
|
|
State corrective process or the existence of
|
|
circumstances rendering such process ineffective to
|
|
protect the rights of the applicant. An
|
|
application may be denied on the merits
|
|
notwithstanding the failure of the applicant to
|
|
exhausted the remedies available in the courts of
|
|
the States.";
|
|
|
|
(2) by redesignating subsection (d), (e), and (f) as
|
|
subsections (e), (f), and (g), respectively;
|
|
|
|
(3) by inserting after subsection (c) the following new
|
|
subsection:
|
|
|
|
"(d) An application for a writ of habeas corpus in
|
|
behalf of a person in custody pursuant to the
|
|
judgment of a State court shall not be granted
|
|
with respect to any claim that has been fully and
|
|
fairly adjudicated in State proceedings."; and
|
|
|
|
(4) by amending subsection (e), as redesignated by paragraph
|
|
(2), to read as follows:
|
|
|
|
"(e) In a proceeding instituted by an application
|
|
for a writ of habeas corpus by a person in custody
|
|
pursuant to the judgment of a State court, a full
|
|
and fair determination of a factual issue made in
|
|
the case by a State court shall be presumed to be
|
|
correct. The applicant shall have the burden of
|
|
rebutting this presumption by clear and convincing
|
|
evidence.".
|
|
|
|
(e) FEDERAL CUSTODY.--Section 2255 of title 28, United States Code, is
|
|
amended by striking the second paragraph and the penultimate paragraph
|
|
thereof, and by adding at the end thereof the following new paragraphs:
|
|
|
|
"When a person fails to raise a claim at the time or in the
|
|
manner required by Federal rules of procedure, the claim
|
|
shall not be entertained in a motion under this section
|
|
unless actual prejudice resulted to the movant from the
|
|
alleged denial of the right asserted and--
|
|
|
|
"(1) the failure to raise the claim properly, or to
|
|
have it heard, was the result of governmental
|
|
action in violation of the Constitution or the laws
|
|
of the United States;
|
|
|
|
"(2) the right asserted was newly recognized by the
|
|
Supreme Court subsequent to the procedural default
|
|
and is retroactively applicable; or
|
|
|
|
"(3) the factual predicate of the claim could not
|
|
have been discovered through the exercise of
|
|
reasonable diligence prior to the procedural
|
|
default.
|
|
|
|
"A two-year period of limitation shall apply to a motion
|
|
under this section. The limitation period shall run from the
|
|
latest of the following times;
|
|
|
|
"(1) The time at which the judgment of conviction
|
|
becomes final.
|
|
|
|
"(2) The time at which the impediment to making a
|
|
motion created by governmental action in violation
|
|
of the Constitution or laws of the United States is
|
|
removed, where the movant was prevented from making
|
|
a motion by such governmental action.
|
|
|
|
"(3) The time at which the right asserted was
|
|
initially recognized by the Supreme Court, where
|
|
the right has been newly recognized by the Court
|
|
and is retroactively applicable.
|
|
|
|
"(4) The time at which the factual predicate of the
|
|
claim or claims presented could have been
|
|
discovered through the exercise of reasonable
|
|
diligence.".
|
|
|
|
SEC. 153. PROSCRIPTION OF USE OF DRUG PROFITS.
|
|
|
|
(a) LIST OF ASSETS.--Section 511(d) of the Controlled Substances Act
|
|
(21 U.S.C. 881(d)) is amended by--
|
|
|
|
(1) inserting "(1)" after (d)"; and
|
|
|
|
(2) adding at the end thereof the following new paragraph:
|
|
|
|
"(2)(A) Prior to sentencing a defendant on
|
|
conviction in a Federal court of a felony under
|
|
this title, the court shall compile a list of all
|
|
assets owned by the defendant not subject to
|
|
forfeiture.
|
|
|
|
"(B) After the release of a defendant described in
|
|
subparagraph (A), upon request of the Attorney
|
|
General, the court shall required the defendant to
|
|
provide proof that any asset owned by the defendant
|
|
not listed on the list described in subparagraph
|
|
(A) was legally obtained.".
|
|
|
|
"(C) In order to prove that a defendant legally
|
|
obtained an asset not listed on the list described
|
|
in subparagraph (A), the defendant shall be
|
|
required to produce documentation of the same
|
|
nature as that required of a taxpayer by the
|
|
Internal Revenue Service.
|
|
|
|
"(D) Assets that a defendant does not prove were
|
|
legally obtained under subparagraph (B) may be
|
|
seized by the Attorney General through attachment
|
|
and foreclosure proceedings, and the proceeds of
|
|
such proceedings shall be deposited in the
|
|
Department of Justice's Assets Forfeiture Fund and
|
|
shall be available for transfer to the building and
|
|
facilities account of the Federal prison system.".
|
|
|
|
SEC. 154. JURISDICTION OF SPECIAL MASTERS.
|
|
|
|
Notwithstanding any other law, a special master appointed to serve in a
|
|
United States court to monitor compliance with a court order, including
|
|
special masters who have been appointed prior to the date of enactment
|
|
of this Act--
|
|
|
|
(1) shall be appointed for a term of no more than 1 year;
|
|
|
|
(2) may be reappointed for terms of 1 year;
|
|
|
|
(3) shall be given a clear and narrow mandate by the court
|
|
and shall have no authority in any area where a specific
|
|
mandate is not granted; and
|
|
|
|
(4) shall not have jurisdiction to enforce any judicial order
|
|
with respect to the management of prisons or jails.
|
|
|
|
SEC. 155. SENTENCING PATTERNS OF FEDERAL JUDGES.
|
|
|
|
(a) IN GENERAL.--Chapter 49 of title 28, United States Code, is amended
|
|
by adding at the end thereof the following new section:
|
|
|
|
"Section 757 Sentencing patterns
|
|
|
|
"(a) The Administrative Office of the United States Courts
|
|
shall annually publish a cumulative report on sentencing by
|
|
United States District Judges. The report shall be compiled
|
|
for the purpose of enabling the reader to assess criminal
|
|
sentencing patterns among Federal judges and post-sentencing
|
|
treatment to determine judicial accuracy of forecasting
|
|
future responsible and lawful behavior by those whom they
|
|
sentence.
|
|
|
|
"(b) The report shall--
|
|
|
|
"(1) personally identify the judge that pronounced
|
|
each criminal sentence;
|
|
|
|
"(2) give a brief description of the crime or
|
|
crimes perpetrated by the criminal and the prison,
|
|
probation, parole, furlough, recidivism, and other
|
|
history of the criminal that is reasonably
|
|
available for compilation; and
|
|
|
|
"(3) include such charts, profiles, and narratives
|
|
as are necessary.".
|
|
|
|
(b) TECHNICAL AMENDMENT.--The table of sections for chapter 49 of title
|
|
28, United States Code, is amended by adding at the end thereof the
|
|
following:
|
|
|
|
"757. Sentencing patterns.".
|
|
|
|
TITLE II--ACHIEVING A DRUG-FREE AMERICA BY 1995
|
|
|
|
SEC. 201. FINDINGS.
|
|
|
|
The Congress finds that--
|
|
|
|
(1) to make America drug-free by 1995 requires a concerted
|
|
effort to hold drug users accountable for their actions,
|
|
which sustain the drug trade and related criminal activities;
|
|
and
|
|
|
|
(2) the anti-drug policy of the 1990's must emphasize the
|
|
principles of zero tolerance, user accountability, and
|
|
measured user penalties.
|
|
|
|
SEC. 202 PAYMENT OF TRIAL COSTS AND MANDATORY MINIMUM FINES.
|
|
|
|
(a) FINE TO PAY COST OF TRIAL.--(1) A person who is convicted of a
|
|
violation of section 404 of the Controlled Substances Act (21
|
|
U.S.C. 844) shall pay to the Treasury of the United States
|
|
the cost of the trial in which the person is convicted, as
|
|
determined by the court, out of the income of such person.
|
|
|
|
(2) If a person convicted of drug possession has insufficient
|
|
income and property to pay the cost of trial as required by
|
|
paragraph (1), the court shall determine an appropriate
|
|
amount that should be paid in view of the person's income and
|
|
the cost of trial.
|
|
|
|
(3) The amount that a person shall be required to pay out of
|
|
the person's income to pay the cost of trial shall not exceed
|
|
25 percent of the person's annual income.
|
|
|
|
(b) ADDITIONAL MANDATORY FINE.--In addition to the fines authorized in
|
|
section 404 of the Controlled Substances Act (21 U.S.C. 844) and in
|
|
subsection (a), a person who is convicted of section 404 of the
|
|
Controlled Substances Act shall be assessed a mandatory fine of at
|
|
least 10 percent of the person's income for a first offense and at
|
|
least 25 percent of the person's income for a second or subsequent
|
|
offense.
|
|
|
|
(c) INCOME.--For the purposes of this section, a person's annual income
|
|
shall be determined to be no less than the amount of income reported on
|
|
the person's most recent Federal income tax filing.
|
|
|
|
(d) FORFEITURE OF PROPERTY.--If a person convicted of a drug crime has
|
|
insufficient income to pay the fines imposed under subsections (a) and
|
|
(b), the person's property, including wages and other earnings, shall
|
|
be subject to forfeiture through attachment, foreclosure, and
|
|
garnishment procedures.
|
|
|
|
(e) The court may order payment of trial costs and fines imposed under
|
|
this section in a single payment or in installments, as necessary to
|
|
realize the greatest possibility that the entire amount of costs and
|
|
fines will be paid.
|
|
|
|
SEC. 203. WITHHOLDING OF UNEARNED FEDERAL BENEFITS FROM DRUG
|
|
TRAFFICKERS AND USERS WHO ARE NOT IN PRISON.
|
|
|
|
(a) DRUG TRAFFICKERS.--Section 5301(a) of the Anti-Drug Abuse Act of
|
|
1988 (21 U.S.C 853a(a)) is amended--
|
|
|
|
(1) by amending paragraph (1) to read as follows:
|
|
|
|
"(1) Any individual who is convicted of any State
|
|
offense consisting of the distribution of
|
|
controlled substances (as such terms are defined
|
|
for purposes of the Controlled Substances Act) who
|
|
is not sentenced to a prison term or who serves a
|
|
prison term of less than the time periods specified
|
|
in subparagraph (A), (B), or (C) of this paragraph
|
|
shall--
|
|
|
|
"(A) upon the first conviction for such
|
|
an offense be ineligible for unearned
|
|
Federal benefits for 5 years after such
|
|
conviction;
|
|
|
|
"(B) upon a second conviction be
|
|
ineligible for all unearned Federal
|
|
benefits for 10 years after such
|
|
conviction; and
|
|
|
|
"(C) upon a third or subsequent
|
|
conviction for such an offense be
|
|
permanently ineligible for all unearned
|
|
Federal benefits."; and
|
|
|
|
(2) in paragraph (2) by striking "there is a reasonable body
|
|
of evidence to substantiate such declaration" and inserting
|
|
"there is clear and convincing evidence to substantiate such
|
|
declaration".
|
|
|
|
(b) DRUG USERS.--Section 5301(b) of the Anti-Drug Abuse Act of 1988 (21
|
|
U.S.C. 853a(b)) is amended--
|
|
|
|
(1) in paragraph (1) by amending subparagraphs (A) and (B) to
|
|
read as follows:
|
|
|
|
"(A) upon the first conviction for such an offense
|
|
be ineligible for all unearned Federal benefits for
|
|
1 year after such conviction;
|
|
|
|
"(B) upon a second and subsequent convictions be
|
|
ineligible for all unearned Federal benefits for 5
|
|
years after such convictions; and
|
|
|
|
(2) in paragraph (2) by striking "there is a reasonable body
|
|
of evidence to substantiate such declaration" and inserting
|
|
"there is clear and convincing evidence to substantiate such
|
|
declaration".
|
|
|
|
(c) SUSPENSION OF PERIOD OF INELIGIBILITY.--Subsection (c) of section
|
|
5301 of the Anti-Drug Abuse Act of 1988 (21 U.S.C. 853a(c)) is amended
|
|
to read as follows:
|
|
|
|
"(c) SUSPENSION OF PERIOD OF INELIGIBILITY.--A court may
|
|
reduce the period of ineligibility referred to in subsection
|
|
(b)(1)(A) to 3 months if the individual--
|
|
|
|
"(1) successfully completes a supervised drug
|
|
rehabilitation program which includes periodic,
|
|
random drug testing after becoming ineligible
|
|
under this section; or
|
|
|
|
"(2) completes a period of community service
|
|
satisfactory to the court and passes period and
|
|
random drug tests administered during the 3-month
|
|
period of suspension.".
|
|
|
|
(d) DEFINITIONS.--Subsection (d) of section 5301 of the Anti-Drug Abuse
|
|
Act of 1988 (21 U.S.C. 853a(d)) is amended to read as follows:
|
|
|
|
"(d) DEFINITIONS.--As used in this section--
|
|
|
|
"(1) the term 'earned Federal benefits' means
|
|
programs and benefits that are earned through or by
|
|
financial contributions or service, such as Social
|
|
Security or veterans' benefits; and
|
|
|
|
"(2) the term 'unearned Federal benefits' means all
|
|
Federal benefits, including the issuance of any
|
|
grant, contract, loan, professional license, or
|
|
commercial license provided by an agency of the
|
|
United States or by appropriated funds of the
|
|
United States, but not including earned Federal
|
|
benefits, such as Social Security and veteran's
|
|
benefits.
|
|
|
|
(e) MONITORING.--The Attorney General shall establish a system to
|
|
monitor implementation of section 5301 of the Anti-Drug Abuse Act of
|
|
1988 (21 U.S.C. 853a).
|
|
|
|
SEC. 204. REVOCATION OF DRUG USERS' DRIVER'S LICENSES AND PILOT'S
|
|
LICENSES.
|
|
|
|
|
|
(a) DRIVER'S LICENSES.--(1) Chapter 1 of title 23, United States Code,
|
|
is amended by adding at the end thereof the following new
|
|
section:
|
|
|
|
"Section 159. Revocation of the driver's licenses
|
|
of persons convicted of drug possession
|
|
|
|
"(a) Beginning on the date that is 2 calendar years
|
|
after the date of enactment of this section, a
|
|
request for Federal drug law enforcement assistance
|
|
funds from the Bureau of Justice Assistance Grant
|
|
programs by a State whose law provides for
|
|
revocation of drivers' licenses as provided in
|
|
subsection (c) shall receive priority over a
|
|
request by a State whose law does not so provide.
|
|
|
|
"(b) Beginning on the date that is 2 calendar years
|
|
after the date of enactment of this section, the
|
|
formula for determining the amount of funds to be
|
|
distributed from the Drug Control and System
|
|
Improvement Grant Program to State and local
|
|
governments shall be adjusted by--
|
|
|
|
"(1) reducing by 10 percent the amount of
|
|
funds that would, except for the
|
|
application of this paragraph, be
|
|
allocated to States whose laws do not
|
|
provide as stated in subsection (c); and
|
|
|
|
"(2) allocated the amount of the
|
|
reduction pro rata to the other States.
|
|
|
|
"(c)(1) A State meets the requirements of this
|
|
section if the State has enacted and is enforcing a
|
|
law that requires in all circumstances, except as
|
|
provided in paragraph(2)--
|
|
|
|
"(A) the mandatory revocation of the
|
|
driver's license for at least 1 year of
|
|
any person who is convicted, after the
|
|
enactment of such law, of--
|
|
|
|
"(i) a violation of section 404
|
|
of the Controlled Substances
|
|
Act (21 U.S.C. 844); or
|
|
|
|
"(ii) any other Federal or
|
|
State drug offense for which a
|
|
person serves less than 1 year's
|
|
imprisonment; and
|
|
|
|
"(B) the mandatory denial of any request
|
|
for the issuance or reinstatement of a
|
|
driver's license to such a person if the
|
|
person does not have a driver's license,
|
|
or the driver's license of the person is
|
|
suspended, at the time the person is so
|
|
convicted.
|
|
|
|
"(2) The State law referred to in paragraph (1) may
|
|
provide that the driver's license of a first
|
|
offender, but not of a second or subsequent
|
|
offender, may be reinstated on performance of 3
|
|
months' community service and passes periodic drug
|
|
tests administered during the period of community
|
|
service.".
|
|
|
|
"(d) For purposes of this section--
|
|
|
|
"(1) The term 'driver's license' means a
|
|
license issued by a State to any person
|
|
that authorizes the person to operate a
|
|
motor vehicle on the highways.
|
|
|
|
"(2) The term 'drug offense' means any
|
|
criminal offense which proscribes the
|
|
possession, distribution, manufacture,
|
|
cultivation, sale, transfer, or the
|
|
attempt or conspiracy to possess,
|
|
distribute, manufacture, cultivate, sell,
|
|
or transfer any substance the possession
|
|
of which is prohibited under the
|
|
Controlled Substances Act (21 U.S.C. 801
|
|
et seq.) and such offenses under State
|
|
laws.
|
|
|
|
"(3) The term 'convicted' includes
|
|
adjudicated under juvenile proceedings.".
|
|
|
|
(2) The table of contents for chapter 1 of title 23, United
|
|
States Code, is amended by adding at the end thereof the
|
|
following new item:
|
|
|
|
"159. Revocation of the driver's licenses of
|
|
persons convicted of drug offenses.".
|
|
|
|
(b) PILOT'S LICENSES.--The Secretary of Transportation shall cause the
|
|
Federal Aviation Administration to amend its regulations as necessary
|
|
to cause the revocation of pilot's licenses on the terms and conditions
|
|
prescribed for revocation of driver's licenses in subsection (a).
|
|
|
|
SEC. 205. ACCOUNTABILITY AND PERFORMANCE OF DRUG TREATMENT FACILITIES.
|
|
|
|
(a) STATEWIDE DRUG TREATMENT PLANS.--Title XIX of the Public Health
|
|
Service Act is amended by inserting after section 1916A (42 U.S.C.
|
|
300x-4a) the following new section:
|
|
|
|
"SEC. 1916B. STATEWIDE DRUG TREATMENT PLAN.
|
|
|
|
"(a) NATURE OF PLAN.--To receive the drug abuse portion of
|
|
its allotment for a fiscal year under section 1912A, a State
|
|
shall develop, implement, and submit, as part of the
|
|
application required by section 1916(a), an approved
|
|
statewide Drug Treatment Plan, prepared according to
|
|
regulations promulgated by the Secretary, that shall
|
|
contain--
|
|
|
|
"(1) a single, designated State agency for
|
|
formulating and implementing the Statewide Drug
|
|
Treatment Plan;
|
|
|
|
"(2) a description of the mechanism that shall be
|
|
used to assess the needs for drug treatment in
|
|
localities throughout the State including the
|
|
presentation of relevant data;
|
|
|
|
"(3) a description of a statewide plan that shall
|
|
be implemented to expand treatment capacity and
|
|
overcome obstacles that restrict the expansion of
|
|
treatment capacity (such as zoning ordinances), or
|
|
an explanation of why such a plan is necessary;
|
|
|
|
"(4) a description of performance-based criteria
|
|
that shall be used to assist in the allocating of
|
|
funds to drug treatment facilities receiving
|
|
assistance under this subpart: [sic]
|
|
|
|
"(5) a description of the drug-free patient and
|
|
workplace programs, that must include some form of
|
|
drug testing, to be utilized in drug treatment
|
|
facilities and programs;
|
|
|
|
"(6) a description of the mechanism that shall be
|
|
used to make funding allocations under this
|
|
subpart;
|
|
|
|
"(7) a description of the actions that shall be
|
|
taken to improve the referral of drug users to
|
|
treatment facilities that offer the most
|
|
appropriate treatment modality;
|
|
|
|
"(8) a description of the program of training that
|
|
shall be implemented for employees of treatment
|
|
facilities receiving Federal funds, designed to
|
|
permit such employees to stay abreast of the latest
|
|
and most effective treatment techniques;
|
|
|
|
"(9) a description of the plan that shall be
|
|
implemented to coordinate drug treatment facilities
|
|
with other social, health, correctional and
|
|
vocational services in order to assist or properly
|
|
refer those patients in need of such additional
|
|
services; and
|
|
|
|
"(10) a description of the plan that will be
|
|
implemented to expand and improve efforts to
|
|
contact and treat expectant women who use drugs and
|
|
to provide appropriate follow-up care to their
|
|
affected newborns.
|
|
|
|
"(b) SUBMISSION OF PLAN.--The plan required by subsection (a)
|
|
shall be submitted to the Secretary annually for review and
|
|
approval. The Secretary shall have the authority to review
|
|
and approve or disapprove such State plans, and to propose
|
|
changes to such plans.
|
|
|
|
"(c) SUBMISSION OF PROGRESS REPORTS.--Each State shall submit
|
|
reports, in such form, and containing such information as the
|
|
Secretary may, from time to time, require, and shall comply
|
|
with such additional provisions as the Secretary may from
|
|
time to time find are necessary to verify the accuracy of
|
|
such reports but are not overly burdensome to the State.
|
|
|
|
"(d) WAIVER OF PLAN REQUIREMENT.--At the discretion of the
|
|
Secretary, the Secretary may waive any or all of the
|
|
requirements of this section on the written request of a
|
|
State, except that such waiver shall not be granted unless
|
|
the State implements an alternative treatment plan that
|
|
fulfills the objectives of this section.
|
|
|
|
"(e) DEFINITION.--As used in this section, the term 'drug
|
|
abuse portion' means the amount of a State's allotment under
|
|
section 1912A that is required by this subpart, or by any
|
|
other law, to be used for programs or activities relating to
|
|
drug abuse.".
|
|
|
|
(b) REGULATIONS AND EFFECTIVE DATES.--(1) The Secretary of Health and
|
|
Human Services shall promulgate regulations to carry out
|
|
section 1916B of the Public Health Service Act (as added by
|
|
subsection (a)) not later than 6 months after the date of
|
|
enactment of this section.
|
|
|
|
(2)(A)Sections 1916B(a) (4) and (5) of such Act (as added by
|
|
subsection (a)) shall become effective on October 1
|
|
of the second fiscal year beginning after the date
|
|
that final regulations under paragraph (1) are
|
|
published in the Federal Register.
|
|
|
|
(B) The remaining provision of such section 1916B
|
|
shall become effective on October 1 of the first
|
|
fiscal year beginning after the date final
|
|
regulations under paragraph (1) are published in
|
|
the Federal Register.
|
|
|
|
SEC. 206. DRUG-FREE SCHOOLS.
|
|
|
|
(a) ELEMENTARY AND SECONDARY EDUCATION.--(1) Title XII of the Higher
|
|
Education Act of 1965 (20 U.S.C. 1001 et seq.), is amended by
|
|
inserting at the end thereof the following new section 1213:
|
|
|
|
"DRUG AND ALCOHOL ABUSE PREVENTION
|
|
|
|
"SEC. 1213. (a) Notwithstanding any other law, no
|
|
institution of higher education shall be eligible
|
|
to receive funds or any other form of financial
|
|
assistance under any Federal program, including
|
|
participation in any federally funded or guaranteed
|
|
student loan program, unless it certifies to the
|
|
Secretary that it has adopted and has implemented a
|
|
program to prevent the use of illicit drugs and the
|
|
abuse of alcohol by students and employees that, at
|
|
a minimum, includes--
|
|
|
|
"(1) the annual distribution to each
|
|
student and employee of--
|
|
|
|
"(A) standards of conduct that
|
|
clearly prohibit, at a minimum,
|
|
the unlawful possession, use,
|
|
or distribution of illicit
|
|
drugs and alcohol by students
|
|
and employees on its property
|
|
or as a part of any of its
|
|
activities;
|
|
|
|
"(B) a description of
|
|
applicable legal sanctions
|
|
under local, State, or Federal
|
|
law for the unlawful
|
|
possession or distribution of
|
|
illicit drugs and alcohol;
|
|
|
|
"(C) a description of the
|
|
health risks associated with
|
|
the use of illicit drugs and
|
|
the abuse of alcohol;
|
|
|
|
"(D) a description of any drug
|
|
or alcohol counseling,
|
|
treatment, or rehabilitation
|
|
programs that are available to
|
|
employees or students; and
|
|
|
|
"(E) a clear statement that the
|
|
institution will impose
|
|
sanctions on students and
|
|
employees (consistent with
|
|
local, State, and Federal
|
|
laws), and a description of
|
|
those sanctions, up to and
|
|
including expulsion or
|
|
termination of employment and
|
|
referral for prosecution, for
|
|
violations of the standards of
|
|
conduct required by paragraph
|
|
(1)(A);
|
|
|
|
"(2) provisions for drug testing; and
|
|
|
|
"(3) a biennial review by the institution
|
|
of its program to--
|
|
|
|
"(A) determine its
|
|
effectiveness and implement
|
|
changes to the program if they
|
|
are needed; and
|
|
|
|
"(B) ensure that the sanctions
|
|
required by paragraph (1)(E)
|
|
are consistently enforced.
|
|
|
|
"(b) Each institution of higher education that
|
|
provides the certification required by subsection
|
|
(a) shall, upon request, make available to the
|
|
Secretary and to the public a copy of each item
|
|
required by subsection (a)(1) as well as the
|
|
results of the biennial review required by
|
|
subsection (a)(2).
|
|
|
|
"(c)(1) The Secretary shall publish regulations to
|
|
implement and enforce this section,
|
|
including regulations that provide for--
|
|
|
|
"(A) the periodic review of a
|
|
representative sample of
|
|
programs required by subsection
|
|
(a); and
|
|
|
|
"(B) sanctions, up to and
|
|
including the termination of
|
|
any form of financial
|
|
assistance, for institutions of
|
|
higher education that fail to
|
|
implement their programs or to
|
|
consistently enforce their
|
|
sanctions.
|
|
|
|
"(2) The sanctions required by subsection
|
|
(a)(1)(E) may include the completion of
|
|
an appropriate rehabilitation program".
|
|
|
|
(2) Paragraph (1) shall take effect on October 1, 1990.
|
|
|
|
(b) DRUG AND ALCOHOL ABUSE PREVENTION.--(1) Part D of the Drug-Free
|
|
Schools and Communities Act of 1986 (20 U.S.C. 3171 et seq.)
|
|
is amended by adding at the end thereof a new section 5145 to
|
|
read as follows:
|
|
|
|
"CERTIFICATION OF DRUG AND ALCOHOL ABUSE
|
|
PREVENTION PROGRAMS.
|
|
|
|
"SEC. 5145. (a) Notwithstanding any other law, no
|
|
local educational agency shall be eligible to
|
|
receive funds or any other form of financial
|
|
assistance under any Federal program unless it
|
|
certifies to the State educational agency that it
|
|
has adopted and has implemented a program to
|
|
prevent the use of illicit drugs and alcohol by
|
|
students or employees that, at a minimum,
|
|
includes--
|
|
|
|
"(1) mandatory, age-appropriate,
|
|
developmentally based drug and alcohol
|
|
education and prevention programs (which
|
|
address the legal, social, and health
|
|
consequences of drug and alcohol use and
|
|
which provide information about effective
|
|
techniques for resisting peer pressure to
|
|
use illicit drugs or alcohol) for
|
|
students in all grades of the schools
|
|
operated or served by the applicant, from
|
|
early childhood level through grade 12;
|
|
|
|
"(2) conveying to students that the use
|
|
of illicit drugs and alcohol is wrong and
|
|
harmful;
|
|
|
|
"(3) standards of conduct that are
|
|
applicable to students and employees in
|
|
all the applicant's schools and that
|
|
clearly prohibit, at a minimum, the
|
|
possession, use, or distribution of
|
|
illicit drugs and alcohol by students and
|
|
employees on school premises or as part
|
|
of any of its activities;
|
|
|
|
"(4) a clear statement that sanctions
|
|
(consistent with local, State, and
|
|
Federal law), up to and including
|
|
expulsion or termination of employment
|
|
and referral for prosecution, will be
|
|
imposed on students and employees who
|
|
violate the standards of conduct required
|
|
by paragraph (3) and a description of
|
|
those sanctions;
|
|
|
|
"(5) information about any available drug
|
|
and alcohol counseling and rehabilitation
|
|
programs that are available to students
|
|
and employees;
|
|
|
|
"(6) a requirement that parents,
|
|
students, and employees be given a copy
|
|
of the standards of conduct required by
|
|
paragraph (3) and the statement of
|
|
sanctions required by paragraph (4);
|
|
|
|
"(7) notifying parents, students, and
|
|
employees that compliance with the
|
|
standards of conduct required by
|
|
paragraph (3) is mandatory;
|
|
|
|
"(8) provisions for drug testing; and
|
|
|
|
"(9) a biennial review by the applicant
|
|
of its program to--
|
|
|
|
"(A) determine its
|
|
effectiveness and implement
|
|
changes to the program if they
|
|
are needed; and
|
|
|
|
"(B) ensure that the sanctions
|
|
required by paragraph (4) are
|
|
consistently enforced.
|
|
|
|
"(b) Each local educational agency that provides
|
|
the certification required by subsection (a) shall,
|
|
upon request, make available to the Secretary, the
|
|
State educational agency, and the public full
|
|
information about the elements of its program
|
|
required by subsection (a), including the results
|
|
of its biennial review.
|
|
|
|
"(c) Each State educational agency shall certify to
|
|
the Secretary that it has adopted and has
|
|
implemented a program to prevent the use of illicit
|
|
drugs and the abuse of alcohol by its students and
|
|
employees that is consistent with the program
|
|
required by subsection (a) of this section. The
|
|
State educational agency shall, upon request, make
|
|
available to the Secretary and to the public full
|
|
information about the elements of its program.
|
|
|
|
"(d)(1) The Secretary shall publish regulations to
|
|
implement and enforce the provisions of
|
|
this section, including regulations that
|
|
provide for--
|
|
|
|
"(A) the periodic review by
|
|
State educational agencies of a
|
|
representative sample of
|
|
programs required by subsection
|
|
(a); and
|
|
|
|
"(B) sanctions, up to and
|
|
including the termination of
|
|
any form of financial
|
|
assistance, for local
|
|
educational agencies that fail
|
|
to implement their programs or
|
|
to consistently enforce their
|
|
sanctions.
|
|
|
|
"(2) The sanctions required by subsection
|
|
(a)(1) through (4) may included the
|
|
completion of an appropriate
|
|
rehabilitation program.".
|
|
|
|
(2) The Drug-Free Schools and Communities Act of 1986 is
|
|
further amended in section 5126(c)(2) by--
|
|
|
|
(A) striking subparagraphs (E), (F), and (G); and
|
|
|
|
(B) redesignating subparagraphs (H) through (M) as
|
|
subparagraphs (E) through (J), respectively.
|
|
|
|
(3) Paragraphs (1) and (2) shall take effect on October 1,
|
|
1990.
|
|
|
|
SEC. 207. DRUG-FREE TRANSPORTATION.
|
|
|
|
(a) SHORT TITLE.--This section may be cited as the 'Transportation
|
|
Employee Testing Act'.
|
|
|
|
(b) FINDINGS.--The Congress finds that--
|
|
|
|
(1) alcohol abuse and illegal drug use pose significant
|
|
dangers to the safety and welfare of the Nation;
|
|
|
|
(2) millions of the Nation's citizens utilize transportation
|
|
by aircraft, railroads, trucks, and buses, and depend on the
|
|
operators of aircraft, railroads, trucks, and buses to
|
|
perform in a safe and responsible manner;
|
|
|
|
(3) the greatest efforts must be expended to eliminate the
|
|
abuse of alcohol and the use of illegal drugs, whether on or
|
|
off duty, by persons who are involved in the operation of
|
|
aircraft, railroads, trucks, and buses;
|
|
|
|
(4) the use of alcohol and illegal drugs has been
|
|
demonstrated to affect significantly the performance of
|
|
persons who use them, and has been proven to have been a
|
|
critical factor in transportation accidents;
|
|
|
|
(5) the testing of uniformed personnel of the Armed Forces
|
|
has shown that the most effective deterrent to abuse of
|
|
alcohol and use of illegal drugs is increased testing,
|
|
including random testing;
|
|
|
|
(6) adequate safeguards can be implemented to ensure that
|
|
testing for abuse of alcohol or use of illegal drugs is
|
|
performed in a manner that protects a person's right of
|
|
privacy, ensures that no person is harassed by being treated
|
|
differently from other persons, and ensures that no person's
|
|
reputation or career development is unduly threatened or
|
|
harmed; and
|
|
|
|
(7) rehabilitation is a critical component of any testing
|
|
program for abuse of alcohol or use of illegal drugs, and
|
|
should be made available to persons, as appropriate.
|
|
|
|
(C) AMENDMENT OF THE FEDERAL AVIATION ACT.--(1) Title VI of the Federal
|
|
Aviation Act of 1958 (49 App. U.S.C. 1421 et seq.) is amended
|
|
by adding at the end thereof the following:
|
|
|
|
"ALCOHOL AND CONTROLLED SUBSTANCES TESTING
|
|
|
|
"TESTING PROGRAM
|
|
|
|
"SEC. 613. (a)(1) The Administrator shall, in the
|
|
interest of aviation safety, prescribe regulations
|
|
not later than 12 months after the date of
|
|
enactment of this section. Such regulations shall
|
|
establish a program that requires air carriers and
|
|
foreign air carriers to conduct preemployment,
|
|
reasonable suspicion, random, and post-accident
|
|
testing of airmen, crewmembers, airport security
|
|
screening contract personnel, and other air
|
|
carrier employees responsible for safety-sensitive
|
|
functions (as determined by the Administrator) for
|
|
use, in violation of law, of alcohol or a
|
|
controlled substances. The Administrator may also
|
|
prescribe regulations, as the Administrator
|
|
considers appropriate in the interest of safety,
|
|
for the conduct of periodic recurring testing of
|
|
such employees for such use in violation of law.
|
|
|
|
"(2) The Administrator shall establish a program
|
|
applicable to employees of the Federal Aviation
|
|
Administration whose duties include responsibility
|
|
for safety-sensitive functions. Such programs
|
|
shall provide for preemployment, reasonable
|
|
suspicion, random, an post-accident testing for
|
|
use, in violation of law, of alcohol or a
|
|
controlled substance. The Administrator may also
|
|
prescribe regulations, as the Administrator
|
|
considers appropriate in the interest of safety,
|
|
for the conduct of periodic testing of such
|
|
employees for such use in violation of law.
|
|
|
|
"(3) In prescribing regulations under the programs
|
|
required by this subsection, the Administrator
|
|
shall require, as the Administrator considers
|
|
appropriate, the suspension or revocation of any
|
|
certificate issued to such a person, or the
|
|
disqualification or dismissal of any such person,
|
|
in accordance with this section, in any instance
|
|
where a test conduct and confirmed under this
|
|
section indicates that such person has used, in
|
|
violation of law, alcohol or a controlled
|
|
substance.
|
|
|
|
"PROHIBITION OF SERVICE
|
|
|
|
"(b)(1) No person may use, in violation of law,
|
|
alcohol or a controlled substance after the date of
|
|
enactment of this section and serve as an airman,
|
|
crewmember, airport security screening contract
|
|
personnel, air carrier employee responsible for
|
|
safety-sensitive functions (as determined by the
|
|
Administrator), or employee of the Federal Aviation
|
|
Administration with responsibility for
|
|
safety-sensitive functions.
|
|
|
|
"(2) No person who is determined to have used, in
|
|
violation of law, alcohol or a controlled substance
|
|
after the date of enactment of this section shall
|
|
serve as an airman, crewmember, airport security
|
|
screening contract personnel, air carrier employee
|
|
responsible for safety-sensitive functions (as
|
|
determined by the Administrator), or employee of
|
|
the Federal Aviation Administration with
|
|
responsibility for safety-sensitive functions
|
|
unless such person has completed a program of
|
|
rehabilitation described in subsection (c).
|
|
|
|
"(3) Any such person determined by the
|
|
Administrator to have used, in violation of law,
|
|
alcohol or a controlled substance after the date of
|
|
enactment of this section who--
|
|
|
|
"(A) engaged in such use while on duty;
|
|
|
|
"(B) prior to such use had undertaken or
|
|
completed a rehabilitation program
|
|
described in subsection (c) of this
|
|
section;
|
|
|
|
"(C) following such determination refuses
|
|
to undertake such rehabilitation program;
|
|
or
|
|
|
|
"(D) following such determination fails
|
|
to complete such a rehabilitation
|
|
program,
|
|
|
|
shall not be permitted to perform the duties
|
|
relating to air transportation which such person
|
|
performed prior to the date of such determination.
|
|
|
|
"PROGRAM FOR REHABILITATION
|
|
|
|
"(c)(1) The Administrator shall prescribe
|
|
regulations setting forth requirements for
|
|
rehabilitation programs which at a minimum provide
|
|
for the identification and opportunity for
|
|
treatment of employees referred to in subsection
|
|
(a)(1) in need of assistance in resolving problems
|
|
with the use, in violation of law, of alcohol or
|
|
controlled substances. Each air carrier or foreign
|
|
air carrier is encouraged to make such a program
|
|
available to all of its employees in addition to
|
|
those employees referred to in subsection (a)(1).
|
|
The Administrator shall determine the circumstances
|
|
under which such employees shall be required to
|
|
participate in such a program. Nothing in this
|
|
subsection shall preclude any air carrier or
|
|
foreign air carrier from establishing a program
|
|
under this subsection in cooperation with any other
|
|
air carrier or foreign air carrier.
|
|
|
|
"(2) The Administrator shall establish and maintain
|
|
a rehabilitation program which at a minimum
|
|
provides for the identification and opportunity for
|
|
treatment of those employees of the Federal
|
|
Aviation Administration whose duties include
|
|
responsibility for safety-sensitive functions who
|
|
are in need of assistance in resolving problems
|
|
with the use of alcohol or controlled substances.
|
|
|
|
"PROCEDURES
|
|
|
|
"(d) In establishing the program required under
|
|
subsection (a) of this section, the Administrator
|
|
shall development requirements which shall--
|
|
|
|
"(1) promote, to the maximum extent
|
|
practicable, individual privacy in the
|
|
collection of specimen samples;
|
|
|
|
"(2) with respect to laboratories and
|
|
testing procedures for controlled
|
|
substances, incorporate the Department of
|
|
Health and Human Services scientific and
|
|
technical guidelines dated April 11,
|
|
1988, and any amendments thereto,
|
|
including mandatory guidelines which--
|
|
|
|
"(A) establish comprehensive
|
|
standards for all aspects of
|
|
laboratory controlled
|
|
substances testing and
|
|
laboratory procedures to be
|
|
applied in carrying out this
|
|
section, including standards
|
|
that require the use of the
|
|
best available technology for
|
|
ensuring full reliability and
|
|
accuracy of controlled
|
|
substances tests and strict
|
|
procedures governing the chain
|
|
of custody of specimen samples
|
|
collected for controlled
|
|
substances testing;
|
|
|
|
"(B) establish the minimum list
|
|
of controlled substances for
|
|
which persons may be tested;
|
|
and
|
|
|
|
"(C) establish appropriate
|
|
standards and procedures for
|
|
periodic review of laboratories
|
|
and criteria for certification
|
|
and revocation of certification
|
|
of laboratories to perform
|
|
controlled substances testing
|
|
in carrying out this section;
|
|
|
|
"(3) require that all laboratories
|
|
involved in the controlled substances
|
|
testing of any person under this section
|
|
shall have the capability and facility,
|
|
at such laboratory, of performing
|
|
screening and confirmation tests;
|
|
|
|
"(4) provide that all tests that indicate
|
|
the use, in violation of law, of alcohol
|
|
or a controlled substance by any person
|
|
shall be confirmed by a scientifically
|
|
recognized method of testing capable of
|
|
providing quantitative data regarding
|
|
alcohol or a controlled substance;
|
|
|
|
"(5) provide that each specimen sample be
|
|
subdivided, secured, and labeled in the
|
|
presence of the tested person and that a
|
|
portion thereof be retained in a secure
|
|
manner to prevent the possibility of
|
|
tampering, so that if the person's
|
|
confirmation test results are positive
|
|
the person has an opportunity to have the
|
|
retained portion assayed by a
|
|
confirmation test done independently at a
|
|
second certified laboratory if the person
|
|
requests the independent test within 3
|
|
days after being advised of the results
|
|
of the confirmation test;
|
|
|
|
"(6) ensure appropriate safeguards for
|
|
testing to detect and quantify alcohol in
|
|
breath and body fluid samples, including
|
|
urine and blood, through the development
|
|
of regulations as may be necessary and in
|
|
consultation with the Department of
|
|
Health and Human Services;
|
|
|
|
"(7) provide for the confidentiality of
|
|
test results and medical information
|
|
(other than information relating to
|
|
alcohol or a controlled substance) of
|
|
employees, except that this paragraph
|
|
shall not preclude the use of test
|
|
results for the orderly imposition of
|
|
appropriate sanctions under this section;
|
|
and
|
|
|
|
"(8) ensure that employees are selected
|
|
for tests by nondiscriminatory and
|
|
impartial methods, so that no employee is
|
|
harassed by being treated differently
|
|
from other employees in similar
|
|
circumstances.
|
|
|
|
"EFFECT ON OTHER LAWS AND REGULATIONS
|
|
|
|
"(e)(1) No State or local government shall adopt or
|
|
have in effect any law, rule, regulation,
|
|
ordinance, standard, or order that is inconsistent
|
|
with the regulations promulgated under this
|
|
section, except that the regulations promulgated
|
|
under this section shall not be construed to
|
|
preempt provisions of State criminal law which
|
|
impose sanctions for reckless conduct leading to
|
|
actual loss of life, injury, or damage to property,
|
|
whether the provisions apply specifically to
|
|
employees of an air carrier or foreign air carrier
|
|
or to the general public.
|
|
|
|
"(2) Nothing in this section shall be construed to
|
|
restrict the discretion of the Administrator to
|
|
continue in force, amend, or further supplement any
|
|
regulations issued before the date of enactment of
|
|
this section that govern the use of alcohol and
|
|
controlled substances by airmen, crewmembers,
|
|
airport security screening contract personnel, air
|
|
carrier employees responsible for safety-sensitive
|
|
functions (as determined by the Administrator), or
|
|
employees of the Federal Aviation Administration
|
|
with responsibility for safety-sensitive functions.
|
|
|
|
"(3) In prescribing regulations under this section,
|
|
the Administrator shall establish requirements
|
|
applicable to foreign air carriers that are
|
|
consistent with the international obligations of
|
|
the United States, and the Administrator shall
|
|
take into consideration any applicable laws and
|
|
regulations of foreign countries. The Secretary of
|
|
State and the Secretary of Transportation, jointly,
|
|
shall call on the member countries of the
|
|
International Civil Aviation Organization to
|
|
strengthen and enforce existing standards to
|
|
prohibit the use, in violation of law, of alcohol
|
|
or a controlled substance by crewmembers in
|
|
international civil aviation.
|
|
|
|
"DEFINITION
|
|
|
|
"(f) For the purposes of this section, the term
|
|
"controlled substance" means any substance under
|
|
section 102(6) of the Controlled Substances Act
|
|
(21 U.S.C. 802(6)) specified by the
|
|
Administrator.".
|
|
|
|
(2) The portion of the table of contents of the Federal
|
|
Aviation Act of 1958 relating to title VI is amended by
|
|
adding at the end thereof the following:
|
|
|
|
"Sec. 613. Alcohol and controlled substances testing.
|
|
"(a) Testing program.
|
|
"(b) Prohibition on service.
|
|
"(c) Program for rehabilitation.
|
|
"(d) Procedures.
|
|
"(e) Effect on other laws and regulations.
|
|
"(f) Definition.".
|
|
|
|
(d) AMENDMENT OF THE FEDERAL RAILROAD SAFETY ACT.--Section 202 of the
|
|
Federal Railroad Safety Act of 1970 (45 U.S.C. 431) is amended by
|
|
adding at the end thereof the following new subsection:
|
|
|
|
"(r)(1) In the interest of safety, the Secretary shall, not
|
|
later than 12 months after the date of enactment of this
|
|
subsection, issue rules, regulations, standards, and orders
|
|
relating to alcohol and drug use in railroad operations.
|
|
Such regulations shall establish a program which--
|
|
|
|
"(A) requires railroads to conduct preemployment,
|
|
reasonable suspicion, random, and post-accident
|
|
testing of all railroad employees responsible for
|
|
safety-sensitive functions (as determined by the
|
|
Secretary) for use, in violation of law, of alcohol
|
|
or a controlled substance;
|
|
|
|
"(B) requires, as the Secretary considers
|
|
appropriate, disqualification for an established
|
|
period of time or dismissal of any employee
|
|
determined to have used or to have been impaired by
|
|
alcohol while on duty; and
|
|
|
|
"(C) requires, as the Secretary considers
|
|
appropriate, disqualification for an established
|
|
period of time or dismissal of any employee
|
|
determined to have used a controlled substance,
|
|
whether on duty or not on duty, except as permitted
|
|
for medical purposes by law and any rules,
|
|
regulations, standards, or orders issued under this
|
|
title.
|
|
|
|
The Secretary may also issue rules, regulations, standards,
|
|
and orders, as the Secretary considers appropriate in the
|
|
interest of safety, requiring railroads to conduct periodic
|
|
testing of railroad employees responsible for such safety
|
|
sensitive functions, for use of alcohol or a controlled
|
|
substance in violation of law. Nothing in this subsection
|
|
shall be construed to restrict the discretion of the
|
|
Secretary to continue in force, amend, or further supplement
|
|
any rules, regulations, standards, and orders governing the
|
|
use of alcohol and controlled substances in railroad
|
|
operations issued before the date of enactment of this
|
|
subsection.
|
|
|
|
"(2) In carrying out this subsection, the Secretary shall
|
|
develop requirements which shall--
|
|
|
|
"(A) promote, to the maximum extent practicable,
|
|
individual privacy in the collection of specimen
|
|
samples;
|
|
|
|
"(B) with respect to laboratories and testing
|
|
procedures for controlled substances, incorporate
|
|
the Department of Health and Human Services
|
|
scientific and technical guidelines dated April 11,
|
|
1988, and any amendments thereto, including
|
|
mandatory guidelines which--
|
|
|
|
"(i) establish comprehensive standards
|
|
for all aspects of laboratory controlled
|
|
substances testing and laboratory
|
|
procedures to be applied in carrying out
|
|
this subsection, including standards that
|
|
require the use of the best available
|
|
technology for ensuring the full
|
|
reliability and accuracy of controlled
|
|
substances tests and strict procedures
|
|
governing the chain of custody of
|
|
specimen samples collected for controlled
|
|
substances testing;
|
|
|
|
"(ii) establish the minimum list of
|
|
controlled substances for which persons
|
|
may be tested; and
|
|
|
|
"(iii) establish appropriate standards
|
|
and procedures for periodic review of
|
|
laboratories and criteria for
|
|
certification and revocation of
|
|
certification of laboratories to perform
|
|
controlled substances testing in carrying
|
|
out this subsection;
|
|
|
|
"(C) require that all laboratories involved in the
|
|
controlled substances testing of any employee under
|
|
this subsection shall have the capability and
|
|
facility, at such laboratory, of performing
|
|
screening and confirmation tests;
|
|
|
|
"(D) provide that all tests which indicate the use,
|
|
in violation of law, of alcohol or a controlled
|
|
substance by any employee shall be confirmed by a
|
|
scientifically recognized method of testing capable
|
|
of providing quantitative data regarding alcohol or
|
|
a controlled substance;
|
|
|
|
"(E) provide that each specimen sample be
|
|
subdivided, secured, and labeled in the presence of
|
|
the tested person and that a portion thereof be
|
|
retained in a secure manner to prevent the
|
|
possibility of tampering, so that in the event the
|
|
person's confirmation test results are positive the
|
|
person has an opportunity to have the retained
|
|
portion assayed by a confirmation test done
|
|
independently at a second certified laboratory if
|
|
the person requests the independent test within 3
|
|
days after being advised of the results of the
|
|
confirmation test;
|
|
|
|
"(F) ensure appropriate safeguards for testing to
|
|
detect and quantify alcohol in breath and body
|
|
fluid samples, including urine and blood, through
|
|
the development of regulations as may be necessary
|
|
and in consultation with the Department of Health
|
|
and Human Services;
|
|
|
|
"(G) provides for the confidentiality of test
|
|
results and medical information (other than
|
|
information relating to alcohol or a controlled
|
|
substance) of employees, except that the provisions
|
|
of this subparagraph shall not preclude the use of
|
|
test results for the orderly imposition of
|
|
appropriate sanctions under this subsection; and
|
|
|
|
"(H) ensure that employees are selected for tests
|
|
by nondiscriminatory and impartial methods, so that
|
|
no employee is harassed by being treated
|
|
differently from other employees in similar
|
|
circumstances.
|
|
|
|
"(3) The Secretary shall issue rules, regulations, standards,
|
|
or orders setting forth requirements for rehabilitation
|
|
programs which at a minimum provide for the identification
|
|
and opportunity for treatment of railroad employees
|
|
responsible for safety-sensitive functions (as determined by
|
|
the Secretary) in need of assistance in resolving problems
|
|
with the use, in violation of law, of alcohol or a controlled
|
|
substance. Each railroad is encouraged to make such a
|
|
program available to all of its employees in addition to
|
|
those employees responsible for safety-sensitive functions.
|
|
The Secretary shall determine the circumstances under which
|
|
such employees shall be required to participate in such
|
|
program. Nothing in this paragraph shall preclude a railroad
|
|
from establishing a program under this paragraph in
|
|
cooperation with any other railroad.
|
|
|
|
"(4) In carrying out the provisions of this subsection, the
|
|
Secretary shall establish requirements that are consistent
|
|
with the international obligations of the United States, and
|
|
the Secretary shall take into consideration any applicable
|
|
laws and regulations of foreign countries.
|
|
|
|
"(5) For the purposes of this subsection, the term
|
|
'controlled substance' means any substance under section
|
|
102(6) of the Controlled Substances Act (21 U.S.C. 802(6))
|
|
specified by the Secretary.".
|
|
|
|
(e) AMENDMENT OF THE COMMERCIAL MOTOR VEHICLE SAFETY ACT.--(1) The
|
|
Commercial Motor Vehicle Safety Act of 1986 (49 App. U.S.C.
|
|
2701 et seq.) is amended by adding at the end thereof the
|
|
following new section:
|
|
|
|
"SEC. 12020. ALCOHOL AND CONTROLLED SUBSTANCES
|
|
TESTING.
|
|
|
|
"(a) REGULATIONS.--The Secretary shall, in the
|
|
interest of commercial motor vehicle safety, issue
|
|
regulations not later than 12 months after the date
|
|
of enactment of this section. Such regulations
|
|
shall establish a program which requires motor
|
|
carriers to conduct preemployment, reasonable
|
|
suspicion, random, and post-accident testing of the
|
|
operators of commercial motor vehicles for use, in
|
|
violation of law, of alcohol or a controlled
|
|
substance. The Secretary may also issue
|
|
regulations, as the Secretary considers appropriate
|
|
in the interest of safety, for the conduct of
|
|
periodic testing of such operations for such use in
|
|
violation of law.
|
|
|
|
"(b) TESTING.--
|
|
|
|
"(1) POST-ACCIDENT TESTING.--In issuing
|
|
such regulations, the Secretary shall
|
|
require that post-accident testing of the
|
|
operator of a commercial motor vehicle be
|
|
conducted in the case of any accident
|
|
involving a commercial motor vehicle in
|
|
which occurs loss of human life, or, as
|
|
determined by the Secretary, other serious
|
|
accidents involving bodily injury or
|
|
significant property damage.
|
|
|
|
"(2) TESTING AS PART OF MEDICAL
|
|
EXAMINATION.--Nothing in subsection (a)
|
|
shall preclude the Secretary from
|
|
providing in such regulations that such
|
|
testing be conducted as part of the
|
|
medical examination required by subpart E
|
|
of part 391 of title 49, Code of Federal
|
|
Regulations, with respect to operators of
|
|
commercial motor vehicles to whom such
|
|
part is applicable.
|
|
|
|
"(c) PROGRAM FOR REHABILITATION.--The Secretary
|
|
shall issue regulations setting forth requirements
|
|
for rehabilitation programs which provide for the
|
|
identification and opportunity for treatment of
|
|
operators of commercial motor vehicles who are
|
|
determined to have used, in violation of law or
|
|
Federal regulation, alcohol or a controlled
|
|
substance. The Secretary shall determine the
|
|
circumstances under which such operators shall be
|
|
required to participate in such program. Nothing
|
|
in this subsection shall preclude a motor carrier
|
|
from establishing a program under this subsection
|
|
in cooperation with any other motor carrier.
|
|
|
|
"(d) PROCEDURES FOR TESTING.--In establishing the
|
|
program required under subsection (a) of this
|
|
section, the Secretary shall develop requirements
|
|
which shall--
|
|
|
|
"(1) promote, to the maximum extent
|
|
practicable, individual privacy in the
|
|
collection of specimen samples;
|
|
|
|
"(2) with respect to laboratories and
|
|
testing procedures for controlled
|
|
substances, incorporate the Department of
|
|
Health and Human Services scientific and
|
|
technical guidelines dated April 11,
|
|
1988, and any subsequent amendments
|
|
thereto, including mandatory guidelines
|
|
which--
|
|
|
|
"(A) establish comprehensive
|
|
standards for all aspects of
|
|
laboratory controlled
|
|
substances testing and
|
|
laboratory procedures to be
|
|
applied in carrying out this
|
|
section, including standards
|
|
which require the use of the
|
|
best available technology for
|
|
ensuring the full reliability
|
|
and accuracy of controlled
|
|
substances tests and strict
|
|
procedures governing the chain
|
|
of custody of specimen samples
|
|
collected for controlled
|
|
substances testing;
|
|
|
|
"(B) establish the minimum list
|
|
of controlled substances for
|
|
which individuals may be
|
|
tested; and
|
|
|
|
"(C) establish appropriate
|
|
standards and procedures for
|
|
periodic review of laboratories
|
|
and criteria for certification
|
|
and revocation of certification
|
|
of laboratories to perform
|
|
controlled substances testing
|
|
in carrying out this section;
|
|
|
|
"(3) require that all laboratories
|
|
involved in the testing of any individual
|
|
under this section shall have the
|
|
capability and facility, at such
|
|
laboratory, of performing screening and
|
|
confirmation tests;
|
|
|
|
"(4) provide that all tests which
|
|
indicate the use, in violation of law or
|
|
Federal regulation, of alcohol or a
|
|
controlled substance by any individual
|
|
shall be confirmed by a scientifically
|
|
recognized method of testing capable of
|
|
providing quantitative data regarding
|
|
alcohol or a controlled substance;
|
|
|
|
"(5) provide that each specimen sample be
|
|
subdivided, secured, and labeled in the
|
|
presence of the tested individual and
|
|
that a portion thereof be retained in a
|
|
secure manner to prevent the possibility
|
|
of tampering, so that in the event the
|
|
individual's confirmation test results
|
|
are positive the individual has an
|
|
opportunity to have the retained portion
|
|
assayed by a confirmation test done
|
|
independently at a second certified
|
|
laboratory if the individual requests the
|
|
independent test within 3 days after
|
|
being advised of the results of the
|
|
confirmation test;
|
|
|
|
"(6) ensure appropriate safeguards for
|
|
testing to detect and quantify alcohol in
|
|
breath and body fluid samples, including
|
|
urine and blood, through the development
|
|
of regulations as may be necessary and in
|
|
consultation with the Department of
|
|
Health and Human Services;
|
|
|
|
"(7) provide for the confidentiality of
|
|
test results and medical information
|
|
(other than information relating to
|
|
alcohol or a controlled substance) of
|
|
employees, except that the provisions of
|
|
this paragraph shall not preclude the use
|
|
of test results for the orderly
|
|
imposition of appropriate sanctions under
|
|
this section; and
|
|
|
|
"(8) ensure that employees are selected
|
|
for tests by nondiscriminatory and
|
|
impartial methods, so that no employee is
|
|
harassed by being treated differently
|
|
from other employees in similar
|
|
circumstances.
|
|
|
|
"(e) EFFECT ON OTHER LAWS AND REGULATIONS.--
|
|
|
|
"(1) STATE AND LOCAL LAW AND
|
|
REGULATIONS.--No State or local
|
|
government shall adopt or have in effect
|
|
any law, rule, regulation, ordinance,
|
|
standard, or order that is inconsistent
|
|
with the regulations issued under this
|
|
section, except that the regulations
|
|
issued under this section shall not be
|
|
construed to preempt provisions of State
|
|
criminal law which impose sanctions for
|
|
reckless conduct leading to actual loss
|
|
of life, injury, or damage to property,
|
|
whether the provisions apply specifically
|
|
to commercial motor vehicle employees, or
|
|
to the general public.
|
|
|
|
"(2) OTHER REGULATIONS ISSUED BY
|
|
SECRETARY.--Nothing in this section shall
|
|
be construed to restrict the discretion
|
|
of the Secretary to continue in force,
|
|
amend, or further supplement any
|
|
regulations governing the use of alcohol
|
|
or controlled substances by commercial
|
|
motor vehicle employees issued before the
|
|
date of enactment of this section.
|
|
|
|
"(3) INTERNATIONAL OBLIGATIONS.--In
|
|
issuing regulations under this section,
|
|
the Secretary shall only establish
|
|
requirements that are consistent with the
|
|
international obligations of the United
|
|
States, and the Secretary shall take into
|
|
consideration any applicable laws and
|
|
regulations of foreign countries.
|
|
|
|
"(f) APPLICATION OF PENALTIES.--
|
|
|
|
"(1) EFFECT ON OTHER PENALTIES.--Nothing
|
|
in this section shall be construed to
|
|
supersede any penalty applicable to the
|
|
operator of a commercial motor vehicle
|
|
under this title or any other provision
|
|
of law..
|
|
|
|
"(2) DETERMINATION OF SANCTIONS.--The
|
|
Secretary shall determine appropriate
|
|
sanctions for commercial motor vehicle
|
|
operators who are determined, as a result
|
|
of tests conducted and confirmed under
|
|
this section, to have used, in violation
|
|
of law or Federal regulation, alcohol or
|
|
a controlled substance but are not under
|
|
the influence of alcohol or a controlled
|
|
substance as provide in this title.
|
|
|
|
"(g) DEFINITION.--(1) For the purposes of this section, the
|
|
term 'controlled substance' means any substance under section
|
|
102(6) of the Controlled Substances Act (21 U.S.C. 802(6))
|
|
specified by the Secretary.".
|
|
|
|
(2) The table of contents of the Commercial Motor Vehicle
|
|
Safety Act of 1986 (Public Law 99-570; 100 Stat. 5223) is
|
|
amended by adding at the end thereof the following:
|
|
|
|
"Sec. 12020. Alcohol and controlled substances
|
|
testing.".
|
|
|
|
(3) The Secretary shall design within 9 months after the date
|
|
of enactment of this subsection, and implement within 15
|
|
months after the date of enactment of this subsection, a
|
|
pilot test program for the purpose of testing the operators
|
|
of commercial motor vehicles on a random basis to determine
|
|
whether an operator has used, in violation of law or Federal
|
|
regulation, alcohol or a controlled substance. The pilot
|
|
test program shall be administered as part of the Motor
|
|
Carrier Safety Assistance Program.
|
|
|
|
(4) The Secretary shall solicit the participation of State
|
|
which are interested in participating in such program and
|
|
shall select four States to participate in the program.
|
|
|
|
(5) The Secretary shall ensure that the states selected
|
|
pursuant to this section are representative of varying
|
|
geographical and population characteristics of the Nation and
|
|
that the selection takes into consideration the historical
|
|
geographical incidence of commercial motor vehicle accidents
|
|
involving loss of human life.
|
|
|
|
(6) The pilot program authorized by this section shall
|
|
continue for a period of one year. The Secretary shall
|
|
consider alternative methodologies for implementing a system
|
|
of random testing of operators of commercial motor vehicles.
|
|
|
|
(7) Not later than 30 months after the date of enactment of
|
|
this section, the Secretary shall prepare and submit to the
|
|
Congress a comprehensive report setting forth the results of
|
|
the pilot program conducted under this subsection. Such
|
|
report shall include any recommendations of the Secretary
|
|
concerning the desirability and implementation of a system
|
|
for the random testing of operators of commercial motor
|
|
vehicles.
|
|
|
|
(8) For the purposes of carrying out this subsection, there
|
|
shall be available to the Secretary $5,000,000 from funds
|
|
made available to carry out section 404 of the Surface
|
|
Transportation Assistance Act of 1982 (49 App. U.S.C. 2304)
|
|
for fiscal year 1990.
|
|
|
|
(9) For the purposes of this subsection, the term "commercial
|
|
motor vehicle" shall have the meaning given to such term in
|
|
section 12019(6) of the Commercial Motor Vehicle Safety Act
|
|
of 1986 (49 App. U.S.C. 2716(6)).
|
|
|
|
(f) AMENDMENT OF THE URBAN MASS TRANSPORTATION ACT.--The Urban Mass
|
|
Transportation Act of 1964 is amended by adding at the end thereof the
|
|
following new section:
|
|
|
|
"ALCOHOL AND CONTROLLED SUBSTANCES TESTING
|
|
|
|
"SEC. 26. (a) REGULATIONS.--The Secretary shall, in the
|
|
interest of mass transportation safety, issue regulations
|
|
within 12 months after the date of enactment of this section.
|
|
Such regulations shall establish a program which requires
|
|
each recipient of assistance under this Act to conduct
|
|
preemployment, reasonable suspicion, random, and postaccident
|
|
testing of the operators of mass transportation vehicles for
|
|
use, in violation of law or Federal regulation, of alcohol or
|
|
a controlled substance. The Secretary may also issue
|
|
regulations, as the Secretary considers appropriate in the
|
|
interest of safety, for the conduct of periodic recurring
|
|
testing of such operators for such use in violation of law or
|
|
Federal regulation.
|
|
|
|
"(b) POSTACCIDENT TESTING.--In issuing such regulations, the
|
|
Secretary shall require that postaccident testing of the
|
|
operator of a mass transportation vehicle be conducted in the
|
|
case of any accident involving a mass transportation vehicle
|
|
in which occurs loss of human life, or, as determined by the
|
|
Secretary, other serious accidents involving bodily injury or
|
|
significant property damage.
|
|
|
|
"(c) PROGRAM FOR REHABILITATION.--The Secretary shall issue
|
|
regulations setting forth requirements for rehabilitation
|
|
programs which provide for the identification and opportunity
|
|
for treatment of operators of mass transportation vehicles
|
|
who are determined to have used, in violation of law or
|
|
Federal regulation, alcohol or a controlled substance. The
|
|
Secretary shall determine the circumstances under which such
|
|
operators shall be required to participate in such a program.
|
|
Nothing in this subsection shall preclude a recipient from
|
|
establishing a program under this subsection in cooperation
|
|
with any other recipient.
|
|
|
|
"(d) PROCEDURES FOR TESTING.--In establishing the program
|
|
required under subsection (a) of this section, the Secretary
|
|
shall develop requirements which shall--
|
|
|
|
"(1) promote, to the maximum extent practicable,
|
|
individual privacy in the collection of specimen
|
|
samples;
|
|
|
|
"(2) with respect to laboratories and testing
|
|
procedures for controlled substances, incorporate
|
|
the Department of Health and Human Services
|
|
scientific and technical guidelines dated April 11,
|
|
1988, and any subsequent amendments thereto,
|
|
including mandatory guidelines which--
|
|
|
|
"(A) establish comprehensive standards
|
|
for all aspects of laboratory controlled
|
|
substances testing and laboratory
|
|
procedures to be applied in carrying out
|
|
this section, including standards which
|
|
require the use of the best available
|
|
technology for ensuring the full
|
|
reliability and accuracy of controlled
|
|
substances tests and strict procedures
|
|
governing the chain of custody of
|
|
specimen samples collected for controlled
|
|
substances testing;
|
|
|
|
"(B) establish the minimum list of
|
|
controlled substances for which
|
|
individuals may be tested; and
|
|
|
|
"(C) establish appropriate standards and
|
|
procedures for periodic review of
|
|
laboratories and criteria for
|
|
certification and revocation of
|
|
certification of laboratories to perform
|
|
controlled substances testing in carrying
|
|
out this section;
|
|
|
|
"(3) require that all laboratories involved in the
|
|
testing of any individual under this section shall
|
|
have the capability and facility, at such
|
|
laboratory, of performing screening and
|
|
confirmation tests;
|
|
|
|
"(4) provide that all tests which indicate the use,
|
|
in violation of law or Federal regulation, of
|
|
alcohol or a controlled substance by any individual
|
|
shall be confirmed by a scientifically recognized
|
|
method of testing capable of providing quantitative
|
|
data regarding alcohol or a controlled substance;
|
|
|
|
"(5) provide that each specimen sample be
|
|
subdivided, secured, and labeled in the presence of
|
|
the tested individual and that a portion thereof be
|
|
retained in a secure manner to prevent the
|
|
possibility of tampering, so that in the event the
|
|
individual's confirmation test results are positive
|
|
the individual has an opportunity to have the
|
|
retained portion assayed by a confirmation test
|
|
done independently at a second certified laboratory
|
|
if the individual requests the independent test
|
|
within 3 days after being advised of the results of
|
|
the confirmation test;
|
|
|
|
"(6) ensure appropriate safeguards for testing to
|
|
detect and quantify alcohol in breath and body
|
|
fluid samples, including urine and blood, through
|
|
the development of regulations as may be necessary
|
|
and in consultation with the Department of Health
|
|
and Human Services;
|
|
|
|
"(7) provide for the confidentiality of test
|
|
results and medical information (other than
|
|
information relating to alcohol or a controlled
|
|
substance) of employees, except that the provisions
|
|
of this paragraph shall not preclude the use of
|
|
test results for the orderly imposition of
|
|
appropriate sanctions under this section; and
|
|
|
|
"(8) ensure that employees are selected for tests
|
|
by nondiscriminatory and impartial methods, so that
|
|
no employee is harassed by being treated
|
|
differently from other employees in similar
|
|
circumstances.
|
|
|
|
"(e) EFFECT ON OTHER LAWS AND REGULATIONS.--
|
|
|
|
"(1) STATE AND LOCAL LAW AND REGULATIONS.--No State
|
|
or local government shall adopt or have in effect
|
|
any law, rule, regulation, ordinance, standard, or
|
|
order that is inconsistent with the regulations
|
|
issued under this section, except that the
|
|
regulations issued under this section shall not be
|
|
construed to preempt provisions of State criminal
|
|
law which impose sanctions for reckless conduct
|
|
leading to actual loss of life, injury, or damage
|
|
to property.
|
|
|
|
"(2) OTHER REGULATIONS ISSUED BY
|
|
SECRETARY.--Nothing in this section shall be
|
|
construed to restrict the discretion of the
|
|
Secretary to continue in force, amend, or further
|
|
supplement any regulations governing the use of
|
|
alcohol or controlled substances by mass
|
|
transportation employees issued before the date of
|
|
enactment of this section.
|
|
|
|
"(3) INTERNATIONAL OBLIGATIONS.--In issuing
|
|
regulations under this section, the Secretary shall
|
|
only establish requirements that are consistent
|
|
with the international obligations of the United
|
|
States, and the Secretary shall take into
|
|
consideration any applicable laws and regulations
|
|
of foreign countries.
|
|
|
|
"(f) APPLICATION OF PENALTIES.--
|
|
|
|
"(1) EFFECT ON OTHER PENALTIES.--Nothing in this
|
|
section shall be construed to supersede any penalty
|
|
applicable under this title or any other provision
|
|
of law..
|
|
|
|
"(2) DETERMINATION OF SANCTIONS.--The Secretary
|
|
shall determine appropriate sanctions for mass
|
|
transportation vehicle operators who are
|
|
determined, as a result of tests conducted and
|
|
confirmed under this section, to have used, in
|
|
violation of law or Federal regulation, alcohol or
|
|
a controlled substance but are not under the
|
|
influence of alcohol or a controlled substance as
|
|
provide in this title.
|
|
|
|
"(g) DEFINITION.--(1) For the purposes of this
|
|
section, the term 'controlled substance' means any
|
|
substance under section 102(6) of the Controlled
|
|
Substances Act (21 U.S.C. 802(6)) specified by the
|
|
Secretary.".
|
|
|
|
SEC. 208. MONETARY AWARDS FOR CERTAIN INFORMATION RELATING TO THE
|
|
UNLAWFUL SALE OF CONTROLLED SUBSTANCES.
|
|
|
|
Section 524z(c)(1) of title 28, United States Code is amended--
|
|
|
|
(1) by striking "Justice--" and inserting "Justice:";
|
|
|
|
(2) in subparagraph (A)--
|
|
|
|
(A) by striking "the" in the first place it appears
|
|
and inserting "The"; and
|
|
|
|
(B) by striking the semicolon at the end and
|
|
inserting a period; and
|
|
|
|
(3) in subparagraph (B)--
|
|
|
|
(A) by striking "the" the first place it appears
|
|
and inserting "The"; and
|
|
|
|
(B) by striking the semicolon at the end and
|
|
inserting a period; and
|
|
|
|
(4) in subparagraph (C)--
|
|
|
|
(A) by striking "the" the first place it appears
|
|
and inserting "The"; and
|
|
|
|
(B) by striking the semicolon at the end and
|
|
inserting a period;
|
|
|
|
(5) in subparagraph (D)--
|
|
|
|
(A) by striking "the" the first place it appears
|
|
and inserting "The"; and
|
|
|
|
(B) by striking the semicolon at the end and
|
|
inserting a period;
|
|
|
|
(6) in subparagraph (E)--
|
|
|
|
(A) by striking "disbursements" and inserting
|
|
"Disbursements"; and
|
|
|
|
(B) by striking the semicolon at the end and
|
|
inserting a period;
|
|
|
|
(7) in subparagraph (F)--
|
|
|
|
(A) by striking "for" the first place it appears
|
|
and inserting "For"; and
|
|
|
|
(B) by striking the semicolon at the end and
|
|
inserting a period;
|
|
|
|
(8) in subparagraph (G)--
|
|
|
|
(A) by striking "for" the first place it appears
|
|
and inserting "For"; and
|
|
|
|
(B) by striking the semicolon at the end and
|
|
inserting a period;
|
|
|
|
(9) in subparagraph (H)--
|
|
|
|
(A) by striking "after" and inserting "After";
|
|
|
|
(B) by striking "(H)" and inserting "(I)"; and
|
|
|
|
(10) by inserting after subparagraph (G) the following:
|
|
|
|
"(H)(i) For the payment of an award to any person
|
|
or persons who provide information leading to the
|
|
arrest and conviction under Federal law of any
|
|
individual or individuals for the unlawful sale, or
|
|
possession for sale, of a controlled substance or a
|
|
controlled substance analogue. The aggregate
|
|
amount of such award shall be equal to 50 percent
|
|
of the fair market value (as of the date of
|
|
forfeiture) of all property forfeited to the United
|
|
States as a result of such conviction and pursuant
|
|
to a law enforced or administered by the Department
|
|
of Justice: _Provided_, That payment of such
|
|
awards shall not reduce the amount of such moneys
|
|
or property available for distribution to State and
|
|
local law enforcement agencies.
|
|
|
|
"(ii) For the payment to the State or States in
|
|
which the Federal offense was committed by such
|
|
individual or individuals, of an incentive award to
|
|
encourage such State or States, at their option, to
|
|
establish a program (including outreach) to pay
|
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rewards to persons who provide information leading
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|
to the arrest and conviction under State law of
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individuals for the unlawful sale, or possession
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|
for sale, of controlled substances or controlled
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|
substance analogues. The aggregate amount of such
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|
incentive award shall be equal to 5 percent of the
|
|
fair market value (as of the date of forfeiture) of
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|
all property forfeited to the United States as a
|
|
result of the convictions referred to in clause (i)
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|
and pursuant to a law enforced or administered by
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|
the Department of Justice.
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"(iii) For the purposes of this subparagraph--
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|
"(I) the term 'controlled substance' has
|
|
the meaning stated in section 102(6) of
|
|
the Controlled Substances Act;
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|
|
|
"(II) the term 'controlled substance
|
|
analogue' has the meaning stated in
|
|
section 102(32) of the Controlled
|
|
Substances Act; and
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|
|
|
"(III) the term 'individual' does not
|
|
include an individual who is convicted
|
|
under Federal or State law for the
|
|
unlawful sale, or possession for sale, of
|
|
a controlled substance or a controlled
|
|
substances analogue.".
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|
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TITLE III--AUTHORIZATION OF APPROPRIATIONS
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SEC. 301. AUTHORIZATION OF APPROPRIATIONS.
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|
|
|
There are authorized to be appropriated such sums as are necessary to
|
|
carry out this Act.
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|
|
|
SEC. 302. SEVERABILITY.
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|
|
|
If any provision of this Act or any amendment made by this Act, or the
|
|
application of any such provision or amendment to any person or
|
|
circumstance is held invalid, the validity of any other such provision
|
|
or amendment, and the application of such provisions or amendment to
|
|
other persons and circumstances, shall not be affected thereby.
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|
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*********************************************************************
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Editor's Comment: Well, I hope you enjoyed the first issue. I have no
|
|
reason to believe that there will not be many more to come. I am sorry if
|
|
this issue is a somewhat large. We had so much information, that we just
|
|
had to pack it in. The Rivendell BBS will be up as of May 1, 1991. We are
|
|
not sure of the number yet, but as soon as we find out, we will post it on
|
|
the current Rivendell BBS. (713) 481-3448. Please do not call this number
|
|
after May 1. I would like to extend my special thanks to Homer Mandrill for
|
|
that exclusive editorial and to the dudes at Beer*Net for the input. I hope
|
|
all of you are as happy with the first issue as I am. I would love nothing
|
|
more than to hear from our readers. Please write, call the BBS, or drop me
|
|
a line on Internet. All mailing/calling info is at the top of the magazine.
|
|
This issue came out almost two months early. I thought it would be hell to
|
|
do, but it was smooth as it could have ever been. But, send in those
|
|
articles and editorials. I will fit them in somewhere. Please state if you
|
|
would like to remain anonymous, use your handle, or real name. We will give
|
|
you the courtesy of any option you desire. Many thanks to the guys at NIA
|
|
for the plug. Keep on Rockin JD & LM! Well, thats the show, and I'm outta
|
|
here.
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The Desert Fox
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