[Itpolicy-np] Recommended reading: You are probably breaking at least one law with your computer right now

[Bipin Gautam]

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( News Original Source:
http://blogs.techrepublic.com.com/window-on-windows/?p=3389&tag=nl.e064
)


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

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

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

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




1: Digital Millennium Copyright Act (DMCA)

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

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

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



2: No Electronic Theft (NET) Act

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

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



3: Anti-Counterfeiting Trade Agreement (ACTA)

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

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

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



4: Court rulings regarding border searches

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

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

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

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5: State and federal laws regarding access to networks

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

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

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

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

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



6: “Tools of a crime” laws

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



7: Cyberstalking and Cyberbullying laws

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

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

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

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



8: Internet gambling laws

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

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



9: Child pornography laws

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

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

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



10: Pro IP Act

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

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

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