From: mnemonic@eff.org (Mike Godwin)
Subject: My Job (Was Re: Actual lawyers on this group?)
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Fri, 20 Nov 1992 23:04:21 GMT

In article <1992Nov13.220225.9737@hellgate.utah.edu> tolman%asylum.cs.utah.edu@cs.utah.edu (Kenneth Tolman) writes:
>  I am considering practicing law, and would like to hear actual unfiltered
>comments from lawyers in the ditches.  Do you like your job?  Why/not?

I like it, and rather than simply tell you why, I'll repost here an
article describing the legal services I provide as part of my job (the
other parts of my work include writing and speaking for EFF).

EFF LEGAL SERVICES, by Mike Godwin, EFF Staff Counsel, Cambridge
   Because EFF has spent the last year developing and publicizing our
policy-focused efforts at our new Washington office, many of our
constituents have wondered whether EFF is still active on the
civil-liberties front. The answer to that question is an unqualified
"Yes!" This activity has been less well-publicized, however, often because
of the privacy interests of most of the people who seek EFF help with
their individual cases. I want to take this opportunity to let our members
and constituents know what kind of legal services we offer, and what kind
of casework we do.
   The primary legal services I provide are basic counselling and
referrals. EFF does not charge for this, and you do not have to be an EFF
member to call or write and ask for help. I answer general questions about
computer law and telecommunications law at the federal level as well as in
the jurisdictions in which I am admitted to the bar (currently Texas and
Washington, D.C.). When appropriate, I instruct people to seek further
consultation with lawyers in their respective jurisdictions, giving them
referrals to specific lawyers when possible. (EFF maintains a database of
attorneys who've volunteered to do some kinds of work on these kinds of
cases.) I often mail out source materials to individuals and
organizations. (One of the most frequently requested materials is the
original complaint filed by Steve Jackson Games in its lawsuit against the
U.S. government--many lawyers find that the complaint is a good primer on
civil-liberties issues raised by the search and seizure of a computer
bulletin-board system.) More frequently, I talk to people on the
telephone. The kinds of questions I deal with tend to fall into the
following three general areas:
      General questions about legal issues. A caller may be a sysop who's
been told by someone that it's against the law to read users' e-mail, and
she wants to know whether this is true. Or it may be a user who wants to
know if it's legal to upload a scanned image of a copyrighted photograph
to a BBS for downloading by other users. Or it may be a hobbyist
programmer who wonders if he may be held liable if a computer virus he
writes somehow "escapes" and infects and damages other systems. Usually
these questions are aimed at *anticipated* legal risks (the caller wants
to know ahead of time if  her actions will lead to legal trouble), but a
significant number of the calls are from people who wonder if their
*current* activities are illegal or create risks of legal liability.  For
example, a lot of sysops of "pirate" BBSs have acquired the notion that
they can't be held liable for providing access to unauthorized copies of
commercial software because it's "the guy downloading the stuff who's
doing the copying"--I tell them they are mistaken and point out the legal
risks of providing such access. A small but consistent fraction of callers
prefer to remain anonymous. I respect their wishes, and try to give just
as much help to anonymous callers as to those who identify themselves.
      Requests for help in criminal cases. Basically, these types of
requests fall into two categories, which I call "target cases" and
"non-target cases" :
      	A "target case" is one in which the request is from someone (the
"target") who is very likely to become, or who has already become, a
defendant in a state or federal case. I may get the request from the
target personally, or I may get a call from the target's lawyer. (If the
target doesn't have a lawyer, my first priority is to do what I can to
help him get one. Although EFF does not normally provide funds for legal
representation in criminal cases, I can tell a caller how to go about
contacting a private defense lawyer or a public defender.) I'll ask the
caller for basic facts about the case, and, once I'm in contact with his
lawyer, I'll do what I can to help the lawyer learn the relevant law and
gather the necessary facts to prepare the case. Even the very best defense
lawyers are likely to be unfamiliar with the legal and evidentiary issues
raised by computer-crime investigations--I'm often able to give them a
running start on their case preparation. On a few occasions, a case may
raise a particularly unusual and important civil-liberties issue, and I'll
make a recommendation to EFF management as to whether EFF should formally
support the case in some way.
      	A "non-target case" is one in which the person asking for
assistance or advice is not an actual or prospective defendant, but her
rights or interests have somehow been affected by a criminal investigation
or by the actions of law-enforcement officials. (The classic example is
one in which a non-target sysop's BBS or networked computer has been
seized as part of an investigation of one the system's users.) As in
target cases, I may advise her lawyer, but I often can resolve things
quickly by acting directly as a representative for the person asking for
help. For example, in a recent Washington State case, I helped a
non-target negotiate a quick return of his equipment, which federal agents
had seized and searched as part of a multi-state criminal investigation. 
      Requests for help in civil cases. Normally, EFF won't take sides in
a civil case unless it clearly raises an important civil-liberties issue.
One such case involved the manufacturers of a VCR-programming device who
threatened to sue individuals participating in a discussion of their
coding algorithms on the Usenet newsgroup sci.crypt. The company's lawyer
insisted that the Usenetters' efforts at figuring out the algorithms by
deducing them from the codes published in TV Guide listings and elsewhere
was a violation of their copyright, patent, and trade-secret interests. I
researched their claim and confirmed the Usenet posters' belief that their
research did not violate any intellectual-property protections of the
manufacturers' products, and I represented their position to the
manufacturer, telling the company that the posters were engaged in
Constitutionally protected speech and inquiry. After several convesations
between me and the company's lawyer, the company dropped its claims. (The
sci.crypt posters' research was eventually published as a paper in the
journal CRYPTOLOGIA--Vol. XVI, Number 3, July 1992--in which the authors
thanked EFF for their legal assistance.)
      Requests for help in situations where there's no criminal or civil
case. This category includes situations in which, for example, a college
student has his computer-access privileges suspended because a "hacker
newsletter" is discovered by a system administrator rummaging through the
student's directory. (I've explained to more than one system administrator
that mere possession of such information does not make one a computer
intruder, and that their rummaging may have violated the students'
rights.) Or a university computer center may decide to suspend some kinds
of Usenet newsgroups, justifying their actions by saying they're afraid
the sexually oriented newsgroups are illegal. (I've written and spoken to
university administrators to explain that virtually none of the
discussions in the sexually oriented newsgroups on Usenet qualify legally
as "obscenity"--instead, they're protected expression under established
American Constitutional law.) Or a group of sysops may be concerned about
their local phone company's efforts to impose business rates on nonprofit
BBS phone lines. (I now refer most such calls to Shari Steele,
ssteele@eff.org, the staff counsel of EFF's Washington office, who has
given special study to these issues.)
   In addition to individual casework:  I have represented EFF's legal
services primarily on three forums--the WELL, Usenet, and CompuServe. As a
result of my presence there, I have been receiving an increasing amount of
casework, requests for legal advice, and invitations to speak. The number
of these cases has increased in response to my presence online--it also
has increased in response to my public appearances. After the Second
Computers, Freedom, and Privacy conference, for example, I had three or
four cases referred to me by people who met me in Washington.
   It is important that EFF members and constituents recognize we are here
to help you solve individual problems as well as promote your interests on
general policy issues. If you are running into a legal problem, or if you
simply have a general legal question, or even if you're having a problem
on the Electronic Frontier and you're not sure whether or not it's a legal
problem, you should call me, Mike Godwin, at 617-864-0665, or send me
electronic mail at mnemonic@eff.org or at 76711,317 on CompuServe. I won't
always be able to help, but I'm always willing to listen. And I may be
able to help more often than you'd think.






-- 
Mike Godwin,    |"I can solve this Orient Express thing without
mnemonic@eff.org| breaking a sweat. It's that simple."
(617) 864-0665  | 
EFF, Cambridge  |                           --Hercule Perot