Wired News obtained this document, which the White House is preparing
http://www.wired.com/news/politics/0,1283,34720,00.html (4 Mar 2000)
President Clinton's executive order commissioning report:
politechbot.com articles on anonymity:
A text version of this report is available:
Photos from White House security summit in Feb 2000:
Justice Department complains to Congress about anonymity online:
http://www.wired.com/news/politics/0,1283,34659,00.html (1 Mar 2000)
THE ELECTRONIC FRONTIER: THE CHALLENGE OF UNLAWFUL CONDUCT INVOLVING THE USE OF THE INTERNET A Report of the President’s Working Group on Unlawful Conduct on the Internet February 2000 THE ELECTRONIC FRONTIER: THE CHALLENGE OF UNLAWFUL CONDUCT INVOLVING THE USE OF THE INTERNET TABLE OF CONTENTS EXECUTIVE SUMMARY iv I. INTRODUCTION 1 A. Executive Order 13,133 2 B. The Working Group on Unlawful Conduct on the Internet 3 C. Summary of Strategy 4 II. POLICY FRAMEWORK AND LEGAL ANALYSIS 5 A. Understanding the Nature of Unlawful Conduct Involving Computers 7 1. Computers as Targets 7 2. Computers as Storage Devices 9 3. Computers as Communications Tools 9 B. A Framework for Evaluating Unlawful Conduct on the Internet 11 1. Online-Offline Consistency 11 2. Appropriate Investigative Tools 12 3. Technology-Neutrality 13 4. Consideration of Other Societal Interests 13 C. Sufficiency of Existing Federal Laws 14 1. Analysis of Substantive Laws 14 2. New Investigatory Challenges 16 III. LAW ENFORCEMENT NEEDS AND CHALLENGES 22 A. Protecting Computers and Networks 22 B. Federal Tools and Capabilities 23 1. Personnel, Equipment, and Training 23 2. Locating and Identifying Cybercriminals 26 3. Collecting Evidence 30 TABLE OF CONTENTS (cont.) C. State and Local Tools and Capabilities 30 1. Jurisdiction 30 2. Interstate and Federal-State Cooperation 32 3. Resources 33 D. Private Sector Leadership 34 E. Legal Authorities: Gaps in Domestic Laws 37 1. Pen Register and Trap and Trace Statute 37 2. Computer Fraud and Abuse Act 37 3. Privacy Protection Act 39 4. Electronic Communications Privacy Act 39 5. Telephone Harassment 40 6. Cable Communications Policy Act 40 F. Challenges for International Cooperation 41 1. Substantive International Criminal Law 41 2. Multilateral Efforts 43 3. Continuing Need for International Cooperation 43 IV. THE ROLE OF PUBLIC EDUCATION AND EMPOWERMENT 44 A. Educating and Empowering Parents, Teachers, and Children 44 1. Technological Tools 45 2. Non-technological Tools 47 B. Educating and Empowering Consumers 51 1. FTC Initiatives: Using Technology to Educate Consumers 52 2. Department of Commerce Initiatives 56 3. FDA’s Outreach Campaign 56 4. SEC’s Investor Education Efforts 57 5. CPSC’s Consumer Outreach Efforts 57 C. Developing Cybercitizens 57 V. CONCLUSIONS AND RECOMMENDATIONS 59 TABLE OF CONTENTS (cont.) APPENDICES A EXECUTIVE ORDER 13,133 B INTERNET FRAUD C ONLINE CHILD PORNOGRAPHY D INTERNET SALE OF PRESCRIPTION DRUGS AND CONTROLLED SUBSTANCES E INTERNET SALE OF FIREARMS F INTERNET GAMBLING G INTERNET SALE OF ALCOHOL H ONLINE SECURITIES FRAUD I SOFTWARE PIRACY AND INTELLECTUAL PROPERTY THEFT J MULTILATERAL EFFORTS THE ELECTRONIC FRONTIER: THE CHALLENGE OF UNLAWFUL CONDUCT INVOLVING THE USE OF THE INTERNET A Report of the President’s Working Group on Unlawful Conduct on the Internet EXECUTIVE SUMMARY The Internet is rapidly transforming the way we communicate, educate, and buy and sell goods and services. As the Internet’s potential to provide unparalleled benefits to society continues to expand, however, there has been an increasing recognition that the Internet can also serve as a powerful new medium for those who wish to commit unlawful acts. Unlawful conduct involving the use of the Internet is just as intolerable as any other type of illegal activity. Ensuring the safety and security of those who use the Internet is thus a critical element of the Administration’s overall policy regarding the Internet and electronic commerce, a policy that seeks to promote private sector leadership, technology-neutral laws and regulation, and an appreciation of the Internet as an important medium for commerce and communication both domestically and internationally. Indeed, the Internet would not be able to realize its potential if it became a haven for unlawful activity. For these reasons, the President and Vice President established an interagency Working Group on Unlawful Conduct on the Internet, chaired by the Attorney General, to provide an initial analysis of legal and policy issues surrounding the use of the Internet for illegal purposes. Specifically, the Working Group considered (1) the extent to which existing federal laws are sufficient to address unlawful conduct involving the use of the Internet; (2) the extent to which new tools, capabilities, or legal authorities may be needed for effective investigation and prosecution of such conduct; and (3) the potential for using education and empowerment tools to minimize the risks from such conduct. Consistent with the Administration’s overall policy, the Working Group recommends a 3-part strategy for addressing unlawful conduct on the Internet: •. First, any regulation of unlawful conduct involving the use of the Internet should be analyzed through a policy framework that ensures that online conduct is treated in a manner consistent with the way offline conduct is treated, in a technology-neutral way, and in a way that takes account of other important societal interests, such as privacy and protection of civil liberties; •. Second, law enforcement needs and challenges posed by the Internet should be recognized as significant, particularly in the areas of resources, training, and the need for new investigative tools and capabilities, coordination with and among federal, state, and local law enforcement agencies, and coordination with and among our international counterparts; and •. Third, there should be continued support for industry self-regulation and the development of methods – such as "cyberethics" curricula, appropriate technological tools, and media and other outreach efforts – that educate and empower Internet users to minimize the risks of unlawful activity. Prior technological advances – the automobile, the telegraph, and the telephone, for example – have brought dramatic improvements for society, but have also created new opportunities for wrongdoing. The same is true of the Internet, which provides unparalleled opportunities for socially beneficial endeavors – such as education, research, commerce, entertainment, and debate on public affairs – in ways that we may not now even be able to imagine. By the same token, however, individuals who wish to use a computer as a tool to facilitate unlawful activity may find that the Internet provides a vast, inexpensive, and potentially anonymous way to commit unlawful acts, such as fraud, the sale or distribution of child pornography, the sale of guns or drugs or other regulated substances without regulatory protections, and the unlawful distribution of computer software or other creative material protected by intellectual property rights. In its analysis of existing federal laws in these and other areas, the Working Group finds that existing substantive federal laws generally do not distinguish between unlawful conduct committed through the use of the Internet and the same conduct committed through the use of other, more traditional means of communication. For example, laws governing fraud – such as credit card fraud, identity theft, securities fraud, gambling, and unfair and deceptive trade acts or practices – apply with equal force to both online as well as offline conduct. To the extent these existing laws adequately address unlawful conduct in the offline world, they should, for the most part, adequately cover unlawful conduct on the Internet. There may be a few instances, however, where relevant federal laws need to be amended to better reflect the realities of new technologies, such as the Internet. Despite the general adequacy of laws that define the substance of criminal and other offenses, the Working Group finds that the Internet presents new and significant investigatory challenges for law enforcement at all levels. These challenges include: the need for real-time tracing of Internet communications across traditional jurisdictional boundaries, both domestically and internationally; the need to track down sophisticated users who commit unlawful acts on the Internet while hiding their identities; the need for hand-in-glove coordination among various law enforcement agencies; and the need for trained and well-equipped personnel – at federal, state, local, and global levels – to gather evidence, investigate, and prosecute these cases. In some instances, federal procedural and evidentiary laws may need to be amended to better enable law enforcement to meet these challenges. These needs and challenges are not theoretical. Law enforcement agencies today, for example, are faced with the need to evaluate and to determine the source, typically on very short notice, of anonymous e-mails that contain bomb threats against a given building or threats to cause serious bodily injury. Other scenarios raise similarly significant concerns: If a hacker uses the Internet to weave communications through computers in six different countries to break into an online business’ records of customer credit card information, consumer confidence in the security of e-commerce and the Internet may be damaged if law enforcement agencies are unable to cooperate and coordinate rapidly with their counterparts in the other countries to find the perpetrator. Finally, an essential component of the Working Group’s strategy is continued support for industry self-regulation and the development of methods – such as "cyberethics" curricula, appropriate technological tools, and media and other outreach efforts – that educate and empower Internet users so as to minimize the risks of unlawful activity. This Administration has already initiated numerous efforts to educate consumers, parents, teachers, and children about ways to ensure safe and enjoyable Internet experiences, and those efforts should continue. The private sector has also undertaken substantial self-regulatory efforts – such as voluntary codes of conduct and appropriate cooperation with law enforcement – that show responsible leadership in preventing and minimizing the risks of unlawful conduct on the Internet. Those efforts must also continue to grow. Working together, we can ensure that the Internet and its benefits will continue to grow and flourish in the years and decades to come. THE ELECTRONIC FRONTIER: THE CHALLENGE OF UNLAWFUL CONDUCT INVOLVING THE USE OF THE INTERNET A Report of the President’s Working Group on Unlawful Conduct on the Internet February 2000 On April 7, 1999, visitors to an online financial news message board operated by Yahoo!, Inc. got a scoop on PairGain, a telecommunications company based in Tustin, California. An e-mail posted on the message board under the subject line "Buyout News" said that PairGain was being taken over by an Israeli company. The e-mail also provided a link to what appeared to be a website of Bloomberg News Service, containing a detailed story on the takeover. As news of the takeover spread, the company’s publicly traded stock shot up more than 30 percent, and the trading volume grew to nearly seven times its norm. There was only one problem: the story was false, and the website on which it appeared was not Bloomberg’s site, but a counterfeit site. When news of the hoax spread, the price of the stock dropped sharply, causing significant financial losses to many investors who purchased the stock at artificially inflated prices. Within a week after this hoax appeared, the Federal Bureau of Investigation arrested a Raleigh, North Carolina man for what was believed to be the first stock manipulation scheme perpetrated by a fraudulent Internet site. The perpetrator was traced through an Internet Protocol address that he used, and he was charged with securities fraud for disseminating false information about a publicly traded stock. The Securities and Exchange Commission also brought a parallel civil enforcement action against him. In August, he was sentenced to five years of probation, five months of home detention, and over $93,000 in restitution to the victims of his fraud. I. INTRODUCTION The use of new technology to commit traditional crimes, such as securities fraud, is not new. Advances in technology – the advent of the automobile and the telephone, for instance – have always given wrongdoers new means for engaging in unlawful conduct. The Internet is no different: it is simply a new medium through which traditional crimes can now be committed, albeit through the use of inexpensive and widely available computer and telecommunications systems, and with unprecedented speed and on a far-reaching scale. At the same time, as exemplified by the PairGain case, the tools and capabilities associated with new technologies can in many instances help law enforcement agencies solve such crimes. How should society, and government in particular, respond to the advent of these new ways of committing traditional crimes? This report responds to a recent Executive Order from the President and sketches the preliminary contours of a legal and policy answer to that question. It provides a foundation and offers a framework for further dialogue among law enforcement officials and policymakers at all levels; members of the business community, trade associations, and the non-profit sector; and members of the public on one of the most important issues we face in response to this powerful new communications medium and our new digital economy. A. Executive Order 13,133 On August 5, 1999, in Executive Order 13,133, President Clinton established an interagency Working Group on Unlawful Conduct on the Internet ("Working Group"). The Executive Order directed the Working Group, under the leadership of the Attorney General, to address the issue of unlawful conduct involving the use of the Internet and to prepare a report with recommendations on: •. The extent to which existing federal laws provide a sufficient basis for effective investigation and prosecution of unlawful conduct that involves the use of the Internet, such as the illegal sale of guns, explosives, controlled substances, and prescription drugs, as well as fraud and child pornography; •. The extent to which new technology tools, capabilities, or legal authorities may be required for effective investigation and prosecution of unlawful conduct that involves the use of the Internet; and •. The potential for new or existing tools and capabilities to educate and empower parents, teachers, and others to prevent or to minimize the risks from unlawful conduct that involves the use of the Internet. The Executive Order further directed the Working Group to conduct its review in the context of current Administration policy concerning the Internet. That policy includes support for industry self-regulation where possible, support for technology-neutral laws and regulations, and an appreciation of the Internet as an important medium for commerce and free speech both domestically and internationally. The full text of the Executive Order appears in Appendix A to this report. This report responds to the directive of Executive Order 13,133 and sets forth a strategy for responding to unlawful conduct on the Internet and for ensuring a safe and secure online environment. As discussed in greater detail below, the Working Group’s proposed strategy consists of a 3-part approach that includes: (a) a framework of policy principles for evaluating the need for Internet-specific laws to prohibit unlawful conduct; (b) recognition of the new and significant investigatory needs and challenges posed by the Internet; and (c) support for appropriate technological tools and outreach efforts to educate and empower Internet users to minimize the risks of unlawful acts facilitated by the Internet. Part II of this report focuses on the first component of the strategy, describing the nature of unlawful activity on the Internet and proposing a framework for analyzing policy and legal responses to such activity. Part II also summarizes the Working Group’s analysis of the adequacy of existing substantive federal laws as applied to unlawful conduct on the Internet. Part III of the report then identifies several areas in which new technology tools, capabilities, or legal authorities may be required for effective evidence-gathering, investigation, and prosecution of unlawful conduct that involves the use of the Internet. Part IV of the report focuses on the third component of the strategy, urging support for expanded educational efforts and technological tools to empower Internet users. Finally, Part V summarizes the report’s conclusions and recommendations for further action. B. The Working Group on Unlawful Conduct on the Internet Pursuant to Executive Order 13,133, the Working Group included the Attorney General, who served as chair of the Working Group;
THE ELECTRONIC FRONTIER: THE CHALLENGE OF
UNLAWFUL CONDUCT INVOLVING THE USE OF THE INTERNET
A Report of the President’s Working Group
on Unlawful Conduct on the Internet
THE ELECTRONIC FRONTIER: THE CHALLENGE OF
UNLAWFUL CONDUCT INVOLVING THE USE OF THE INTERNET
TABLE OF CONTENTS
EXECUTIVE SUMMARY iv
I. INTRODUCTION 1
A. Executive Order 13,133 2
B. The Working Group on Unlawful Conduct on the Internet 3
C. Summary of Strategy 4
II. POLICY FRAMEWORK AND LEGAL ANALYSIS 5
A. Understanding the Nature of Unlawful Conduct Involving
1. Computers as Targets 7
2. Computers as Storage Devices 9
3. Computers as Communications Tools 9
B. A Framework for Evaluating Unlawful Conduct on the
1. Online-Offline Consistency 11
2. Appropriate Investigative Tools 12
3. Technology-Neutrality 13
4. Consideration of Other Societal Interests 13
C. Sufficiency of Existing Federal Laws 14
1. Analysis of Substantive Laws 14
2. New Investigatory Challenges 16
III. LAW ENFORCEMENT NEEDS AND CHALLENGES 22
A. Protecting Computers and Networks 22
B. Federal Tools and Capabilities 23
1. Personnel, Equipment, and Training 23
2. Locating and Identifying Cybercriminals 26
3. Collecting Evidence 30
TABLE OF CONTENTS (cont.)
C. State and Local Tools and Capabilities 30
1. Jurisdiction 30
2. Interstate and Federal-State Cooperation 32
3. Resources 33
D. Private Sector Leadership 34
E. Legal Authorities: Gaps in Domestic Laws 37
1. Pen Register and Trap and Trace Statute 37
2. Computer Fraud and Abuse Act 37
3. Privacy Protection Act 39
4. Electronic Communications Privacy Act 39
5. Telephone Harassment 40
6. Cable Communications Policy Act 40
F. Challenges for International Cooperation 41
1. Substantive International Criminal Law 41
2. Multilateral Efforts 43
3. Continuing Need for International Cooperation 43
IV. THE ROLE OF PUBLIC EDUCATION AND EMPOWERMENT 44
A. Educating and Empowering Parents, Teachers, and
1. Technological Tools 45
2. Non-technological Tools 47
B. Educating and Empowering Consumers 51
1. FTC Initiatives: Using Technology to Educate Consumers 52
2. Department of Commerce Initiatives 56
3. FDA’s Outreach Campaign 56
4. SEC’s Investor Education Efforts 57
5. CPSC’s Consumer Outreach Efforts 57
C. Developing Cybercitizens 57
V. CONCLUSIONS AND RECOMMENDATIONS 59
TABLE OF CONTENTS (cont.)
A EXECUTIVE ORDER 13,133
B INTERNET FRAUD
C ONLINE CHILD PORNOGRAPHY
D INTERNET SALE OF PRESCRIPTION DRUGS AND CONTROLLED
E INTERNET SALE OF FIREARMS
F INTERNET GAMBLING
G INTERNET SALE OF ALCOHOL
H ONLINE SECURITIES FRAUD
I SOFTWARE PIRACY AND INTELLECTUAL PROPERTY THEFT
J MULTILATERAL EFFORTS
THE ELECTRONIC FRONTIER: THE CHALLENGE OF
UNLAWFUL CONDUCT INVOLVING THE USE OF THE INTERNET
A Report of the President’s Working Group
on Unlawful Conduct on the Internet
The Internet is rapidly transforming the way we communicate, educate, and buy and sell goods and services. As the Internet’s potential to provide unparalleled benefits to society continues to expand, however, there has been an increasing recognition that the Internet can also serve as a powerful new medium for those who wish to commit unlawful acts.
Unlawful conduct involving the use of the Internet is just as intolerable as any other type of illegal activity. Ensuring the safety and security of those who use the Internet is thus a critical element of the Administration’s overall policy regarding the Internet and electronic commerce, a policy that seeks to promote private sector leadership, technology-neutral laws and regulation, and an appreciation of the Internet as an important medium for commerce and communication both domestically and internationally. Indeed, the Internet would not be able to realize its potential if it became a haven for unlawful activity.
For these reasons, the President and Vice President established an interagency Working Group on Unlawful Conduct on the Internet, chaired by the Attorney General, to provide an initial analysis of legal and policy issues surrounding the use of the Internet for illegal purposes. Specifically, the Working Group considered (1) the extent to which existing federal laws are sufficient to address unlawful conduct involving the use of the Internet; (2) the extent to which new tools, capabilities, or legal authorities may be needed for effective investigation and prosecution of such conduct; and (3) the potential for using education and empowerment tools to minimize the risks from such conduct.
Consistent with the Administration’s overall policy, the Working Group recommends a 3-part strategy for addressing unlawful conduct on the Internet:
•. First, any regulation of unlawful conduct involving the use of the Internet should be analyzed through a policy framework that ensures that online conduct is treated in a manner consistent with the way offline conduct is treated, in a technology-neutral way, and in a way that takes account of other important societal interests, such as privacy and protection of civil liberties;
•. Second, law enforcement needs and challenges posed by the Internet should be recognized as significant, particularly in the areas of resources, training, and the need for new investigative tools and capabilities, coordination with and among federal, state, and local law enforcement agencies, and coordination with and among our international counterparts; and
•. Third, there should be continued support for industry self-regulation and the development of methods – such as "cyberethics" curricula, appropriate technological tools, and media and other outreach efforts – that educate and empower Internet users to minimize the risks of unlawful activity.
Prior technological advances – the automobile, the telegraph, and the telephone, for example – have brought dramatic improvements for society, but have also created new opportunities for wrongdoing. The same is true of the Internet, which provides unparalleled opportunities for socially beneficial endeavors – such as education, research, commerce, entertainment, and debate on public affairs – in ways that we may not now even be able to imagine. By the same token, however, individuals who wish to use a computer as a tool to facilitate unlawful activity may find that the Internet provides a vast, inexpensive, and potentially anonymous way to commit unlawful acts, such as fraud, the sale or distribution of child pornography, the sale of guns or drugs or other regulated substances without regulatory protections, and the unlawful distribution of computer software or other creative material protected by intellectual property rights.
In its analysis of existing federal laws in these and other areas, the Working Group finds that existing substantive federal laws generally do not distinguish between unlawful conduct committed through the use of the Internet and the same conduct committed through the use of other, more traditional means of communication. For example, laws governing fraud – such as credit card fraud, identity theft, securities fraud, gambling, and unfair and deceptive trade acts or practices – apply with equal force to both online as well as offline conduct. To the extent these existing laws adequately address unlawful conduct in the offline world, they should, for the most part, adequately cover unlawful conduct on the Internet. There may be a few instances, however, where relevant federal laws need to be amended to better reflect the realities of new technologies, such as the Internet.
Despite the general adequacy of laws that define the substance of criminal and other offenses, the Working Group finds that the Internet presents new and significant investigatory challenges for law enforcement at all levels. These challenges include: the need for real-time tracing of Internet communications across traditional jurisdictional boundaries, both domestically and internationally; the need to track down sophisticated users who commit unlawful acts on the Internet while hiding their identities; the need for hand-in-glove coordination among various law enforcement agencies; and the need for trained and well-equipped personnel – at federal, state, local, and global levels – to gather evidence, investigate, and prosecute these cases. In some instances, federal procedural and evidentiary laws may need to be amended to better enable law enforcement to meet these challenges.
These needs and challenges are not theoretical. Law enforcement agencies today, for example, are faced with the need to evaluate and to determine the source, typically on very short notice, of anonymous e-mails that contain bomb threats against a given building or threats to cause serious bodily injury. Other scenarios raise similarly significant concerns: If a hacker uses the Internet to weave communications through computers in six different countries to break into an online business’ records of customer credit card information, consumer confidence in the security of e-commerce and the Internet may be damaged if law enforcement agencies are unable to cooperate and coordinate rapidly with their counterparts in the other countries to find the perpetrator.
Finally, an essential component of the Working Group’s strategy is continued support for industry self-regulation and the development of methods – such as "cyberethics" curricula, appropriate technological tools, and media and other outreach efforts – that educate and empower Internet users so as to minimize the risks of unlawful activity. This Administration has already initiated numerous efforts to educate consumers, parents, teachers, and children about ways to ensure safe and enjoyable Internet experiences, and those efforts should continue. The private sector has also undertaken substantial self-regulatory efforts – such as voluntary codes of conduct and appropriate cooperation with law enforcement – that show responsible leadership in preventing and minimizing the risks of unlawful conduct on the Internet. Those efforts must also continue to grow. Working together, we can ensure that the Internet and its benefits will continue to grow and flourish in the years and decades to come.
THE ELECTRONIC FRONTIER: THE CHALLENGE OF
UNLAWFUL CONDUCT INVOLVING THE USE OF THE INTERNET
A Report of the President’s Working Group
on Unlawful Conduct on the Internet
On April 7, 1999, visitors to an online financial news message board operated by Yahoo!, Inc. got a scoop on PairGain, a telecommunications company based in Tustin, California. An e-mail posted on the message board under the subject line "Buyout News" said that PairGain was being taken over by an Israeli company. The e-mail also provided a link to what appeared to be a website of Bloomberg News Service, containing a detailed story on the takeover. As news of the takeover spread, the company’s publicly traded stock shot up more than 30 percent, and the trading volume grew to nearly seven times its norm. There was only one problem: the story was false, and the website on which it appeared was not Bloomberg’s site, but a counterfeit site. When news of the hoax spread, the price of the stock dropped sharply, causing significant financial losses to many investors who purchased the stock at artificially inflated prices.
Within a week after this hoax appeared, the Federal Bureau of Investigation arrested a Raleigh, North Carolina man for what was believed to be the first stock manipulation scheme perpetrated by a fraudulent Internet site. The perpetrator was traced through an Internet Protocol address that he used, and he was charged with securities fraud for disseminating false information about a publicly traded stock. The Securities and Exchange Commission also brought a parallel civil enforcement action against him. In August, he was sentenced to five years of probation, five months of home detention, and over $93,000 in restitution to the victims of his fraud.
The use of new technology to commit traditional crimes, such as securities fraud, is not new. Advances in technology – the advent of the automobile and the telephone, for instance – have always given wrongdoers new means for engaging in unlawful conduct. The Internet is no different: it is simply a new medium through which traditional crimes can now be committed, albeit through the use of inexpensive and widely available computer and telecommunications systems, and with unprecedented speed and on a far-reaching scale. At the same time, as exemplified by the PairGain case, the tools and capabilities associated with new technologies can in many instances help law enforcement agencies solve such crimes.
How should society, and government in particular, respond to the advent of these new ways of committing traditional crimes? This report responds to a recent Executive Order from the President and sketches the preliminary contours of a legal and policy answer to that question. It provides a foundation and offers a framework for further dialogue among law enforcement officials and policymakers at all levels; members of the business community, trade associations, and the non-profit sector; and members of the public on one of the most important issues we face in response to this powerful new communications medium and our new digital economy.
A. Executive Order 13,133
On August 5, 1999, in Executive Order 13,133, President Clinton established an interagency Working Group on Unlawful Conduct on the Internet ("Working Group"). The Executive Order directed the Working Group, under the leadership of the Attorney General, to address the issue of unlawful conduct involving the use of the Internet and to prepare a report with recommendations on:
•. The extent to which existing federal laws provide a sufficient basis for effective investigation and prosecution of unlawful conduct that involves the use of the Internet, such as the illegal sale of guns, explosives, controlled substances, and prescription drugs, as well as fraud and child pornography;
•. The extent to which new technology tools, capabilities, or legal authorities may be required for effective investigation and prosecution of unlawful conduct that involves the use of the Internet; and
•. The potential for new or existing tools and capabilities to educate and empower parents, teachers, and others to prevent or to minimize the risks from unlawful conduct that involves the use of the Internet.
The Executive Order further directed the Working Group to conduct its review in the context of current Administration policy concerning the Internet. That policy includes support for industry self-regulation where possible, support for technology-neutral laws and regulations, and an appreciation of the Internet as an important medium for commerce and free speech both domestically and internationally. The full text of the Executive Order appears in Appendix A to this report.
This report responds to the directive of Executive Order 13,133 and sets forth a strategy for responding to unlawful conduct on the Internet and for ensuring a safe and secure online environment. As discussed in greater detail below, the Working Group’s proposed strategy consists of a 3-part approach that includes: (a) a framework of policy principles for evaluating the need for Internet-specific laws to prohibit unlawful conduct; (b) recognition of the new and significant investigatory needs and challenges posed by the Internet; and (c) support for appropriate technological tools and outreach efforts to educate and empower Internet users to minimize the risks of unlawful acts facilitated by the Internet.
Part II of this report focuses on the first component of the strategy, describing the nature of unlawful activity on the Internet and proposing a framework for analyzing policy and legal responses to such activity. Part II also summarizes the Working Group’s analysis of the adequacy of existing substantive federal laws as applied to unlawful conduct on the Internet. Part III of the report then identifies several areas in which new technology tools, capabilities, or legal authorities may be required for effective evidence-gathering, investigation, and prosecution of unlawful conduct that involves the use of the Internet. Part IV of the report focuses on the third component of the strategy, urging support for expanded educational efforts and technological tools to empower Internet users. Finally, Part V summarizes the report’s conclusions and recommendations for further action.
B. The Working Group on Unlawful Conduct on the Internet
Pursuant to Executive Order 13,133, the Working Group included the Attorney General, who served as chair of the Working Group;the Director of the Office of Management and Budget; the Secretary of the Treasury; the Secretary of Commerce; the Secretary of Education; the Director of the Federal Bureau of Investigation; the Director of the Bureau of Alcohol, Tobacco and Firearms; the Administrator of the Drug Enforcement Administration; the Chair of the Federal Trade Commission; and the Commissioner of the Food and Drug Administration. In addition, given their interest and expertise in the subject matter, representatives from the Consumer Product Safety Commission, the U.S. Customs Service, the Department of Defense, the Department of State, the National Aeronautics and Space Administration, the National Commission on Libraries and Information Science, the Postal Inspection Service, the U.S. Secret Service, and the Securities and Exchange Commission also participated on the Working Group.
In preparing this report, the Working Group benefitted from the views of representatives of a variety of entities outside the federal government, including, for example:
•. State and local groups, such as the National Association of Attorneys General; the National District Attorneys Association; the National Association of Boards of Pharmacies; and the National League of Cities;
•. Industry groups, such as the Internet Alliance, the Computer Systems Policy Project, the Business Software Alliance, and representatives of Internet service providers and other high-technology companies; and
•. Non-profit advocacy and civil liberties groups, such as the National Center for Missing and Exploited Children, the Center for Democracy and Technology, and the Electronic Privacy Information Center.
We look forward to continuing our dialogue with these and other groups on the important and substantial issues raised in this report.
The Internet already is and will continue to be a major force for communication and economic growth in the decades ahead. Consistent with its 1997 Framework for Global Economic Commerce, the Administration is continuing to work toward providing a market-oriented policy environment to support the development of this new digital economy. In developing such an environment, it is essential to address some of the possible negative side effects associated with this new economy. These goals are not inconsistent; rather, they are mutually reinforcing: continued growth in economic commerce will require a stable, predictable legal environment that incorporates enforcement of consumer protections; and focused law enforcement efforts in turn will promote greater consumer confidence and trust in the Internet as a safe and secure medium of communications and commerce.
To further these goals, the Working Group recommends a 3-part strategy for addressing unlawful conduct on the Internet:
•. First, evaluating the need for Internet-specific regulation of unlawful conduct through a framework of general policy principles, including the principle that online and offline conduct should be treated consistently and in a technology-neutral way;
•. Second, recognizing the significant law enforcement needs and challenges posed by the Internet, particularly in the areas of resources, training, and the need for new investigatory tools and capabilities, coordination with and among federal, state, and local law enforcement agencies, and coordination with and among our international counterparts; and
•. Third, supporting industry self-regulation and the development of methods – such as "cyberethics" curricula, appropriate technological tools, and media and other outreach efforts – that educate and empower Internet users so as to minimize the risks of unlawful activity.
Each of these components is an integral part of our overall proposed strategy and is discussed in greater detail in the report that follows.
II. POLICY FRAMEWORK AND LEGAL ANALYSIS
There can be little doubt that the Internet – a global electronic network of computer
networks (including the World Wide Web) that connects people and information – has revolutionized and will continue to revolutionize how we communicate, educate ourselves, and buy and sell goods and services. The Internet has grown from 65 million users in 1998 to over 100 million users in the U.S. in 1999, or half the country’s adult population; the number of Internet users in the U.S. is projected to reach 177 million by the end of 2003; and the number of Internet users worldwide is estimated to reach 502 million by 2003. Business-to-business electronic commerce totaled over $100 billion in 1999 (more than doubling from 1998) and is expected to grow to over $1 trillion by 2003.
There can also be little doubt that the Internet has provided heretofore unfathomable opportunities for far-reaching social benefits. Communications over the Internet provide, for example, unparalleled opportunities for education, research, commerce, entertainment, and debate on public affairs. Electronic mail ("e-mail") has become an entirely new medium for business and personal communications, allowing users a fast and inexpensive way to keep in touch, to send text, pictures, or sound files to individuals or to groups, and to buy and sell goods and services. News and other information can be made available to anyone with a computer and a modem virtually instantaneously, and more information (on an absolute scale) can be made available to more people, due to the open and decentralized nature of the Internet (anyone can put up a website and "publish" information for the world to see). Access to research databases, directories, encyclopedias, and other information sources previously available only to those with the time, money, and energy to obtain physical access to print material has opened up a world of information to the average citizen. And by making transactions of all kinds cheaper, faster, interactive, and hence more efficient, e-commerce is transforming the way businesses operate and the way consumers work, shop, and play.
The Internet, like most new technologies, is an inherently value-neutral tool: It can be used in ways that are socially beneficial or socially harmful. New technologies can, of course, create new forms of socially undesirable behavior. More often, they provide new ways of committing traditionally undesirable behavior. For example, the advent of the telephone allowed innovative lawbreakers not only to develop new crimes (e.g., cellular phone "cloning"), but also to commit traditional crimes in a new manner (e.g., fraud and harassment through the use of the telephone).
The Internet has fared no better than other technologies against resourceful and technologically sophisticated individuals who seek to commit unlawful acts. Last year, for example, tens of thousands of computer users were struck by the "Melissa" and "Explore.Zip.Worm," e-mail viruses that quickly spread around the world, erasing files, crashing systems, and costing companies millions of dollars in support and downtime. During the same period, dozens of websites, including those of the White House, the FBI, and the U.S. Senate, were brought down by hackers. Other websites have been the targets of "page-jacking" schemes, in which websites and search engines are manipulated to drive unsuspecting users to unwanted (usually "adult") websites (Appendix B contains a further discussion of page-jacking).
More generally, individuals who wish to use a computer as a tool to facilitate criminal activity may find the Internet as appealing, if not more so, as they did the telephone decades ago or the telegraph before that. Similar to the technologies that have preceded it, the Internet provides a new tool for wrongdoers to commit crimes, such as fraud, the sale or distribution of child pornography, the sale of guns or drugs or other regulated substances without regulatory protections, or the unlawful distribution of computer software or other creative material protected by intellectual property rights. In the most extreme circumstances, cyberstalking and other criminal conduct involving the Internet can lead to physical violence, abductions, and molestation. Although the precise extent of unlawful conduct involving the use of computers is unclear, the rapid growth of the Internet and e-commerce has made such unlawful conduct a critical priority for legislators, policymakers, industry, and law enforcement agencies.
Although definitions of computer crime may differ, not every crime committed with a computer is a computer crime. For example, if someone steals a telephone access code and makes a long distance call, the code they have stolen is checked by a computer before the call is processed. Even so, such a case is more appropriately treated as "toll fraud," not computer crime. Although this example may seem straightforward, many cases cannot be so neatly categorized. For example, a bank teller who steals a 10-dollar bill from a cash drawer is embezzling. A bank teller who writes a computer program to steal pennies from many accounts (at random) and to funnel that money into another bank through the electronic funds transfer system may also be embezzling, but both committing and prosecuting this offense may require a working knowledge of the bank’s computer system. Thus, such a crime may reasonably be characterized as a computer offense.
Broadly speaking, computers can play three distinct roles in a criminal case. First, a computer can be the target of an offense. This occurs when conduct is designed to take information without authorization from, or cause damage to, a computer or computer network. The "Melissa" and "Explore.Zip.Worm" viruses, along with "hacks" into the White House and other websites, are examples of this type of offense. Second, a computer can be incidental to an offense, but still significant for law enforcement purposes. For example, drug dealers may store transactional data (such as names, dates, and amounts) on computers, rather than in paper form. Third, computers can be a tool for committing an offense, such as fraud or the unlawful sale of prescription drugs over the Internet. Each of these three roles can be and often are present in a single criminal case. Although this report focuses primarily on this third category of computer crime, it is important to understand the range of unlawful conduct that involves computers to appreciate the context of law enforcement needs and challenges relating to such conduct.
1. Computers as Targets
One obvious way in which a computer can be involved in unlawful conduct is when the confidentiality, integrity, or availability of a computer’s information or services is attacked. This form of crime targets a computer system, generally to acquire information stored on that computer system, to control the target system without authorization or payment (theft of service), or to alter the integrity of data or interfere with the availability of the computer or server. Many of these violations involve gaining unauthorized access to the target system (i.e., "hacking" into it).
Offenses involving theft of information may take a variety of forms, depending on the nature of the system attacked. Sensitive information stored on law enforcement and military computers offers a tempting target to many parties, including subjects of criminal investigations, terrorist organizations, and foreign intelligence operatives.
Hackers also target non-governmental systems to obtain proprietary or other valuable information. For example, a hacker might gain access to a hotel reservation system to steal credit card numbers. Other cases may fall into the broad category of intellectual property theft. This includes not only the theft of trade secrets, but also much more common offenses involving the unauthorized duplication of copyrighted materials, especially software programs. Other cases may involve a perpetrator who seeks private information about another individual, whether as a means to an end (e.g., to extort money or to embarrass the victim through public disclosure), to obtain a commercial advantage, or simply to satisfy personal curiosity. Targets in this category include systems containing medical records, telephone customer records (such as call records or unlisted directory information), or consumer credit report information.
Computers can also be the target of an offense in cases where an offender gains unauthorized access to a system. For instance, an offender may use his computer to break into a telephone switching system (including a private system, such as a PBX) to steal long-distance calling services. (This type of telephone equipment manipulation is often referred to as "phone phreaking" or simply "phreaking.") In some cases, hackers have used the resources of compromised systems to perform intensive computational tasks such as cracking encrypted passwords stolen from other sites. The theft-of-service offenses are often associated with the practice of "weaving," in which a hacker traverses multiple systems (and possibly multiple telecommunications networks, such as the Internet or cellular and landline telephone networks) to conceal his true identity and location. In this scenario, the sole reason for breaking into a given computer may be to use it as a stepping-stone for attacks on other systems.
A more insidious type of damage takes place in cases where the attacker compromises a system in furtherance of a larger scheme. The most well-known examples of this type of attack have involved telephone network computers. In one case, a hacker manipulated telephone switching equipment to guarantee that he would be the winning caller in several call-in contests held by local radio stations. The fruits of his scheme included two sports cars and $30,000 in cash. Internet-connected computers are subject to similar types of attacks. Routers – which are computers that direct data packets traveling on the Internet – are analogous to telephone switches and thus are tempting targets for skilled hackers who are interested in disrupting, or even rerouting, communications traffic on the network.
In the category of attacks known collectively as "denial of service," the objective is to disable the target system without necessarily gaining access to it. One technically straightforward method of accomplishing this objective is "mailbombing," the practice of sending large volumes of e-mail to a single site (or user account) to clog the mail server or even to cause the target host to crash. Other methods – ranging from simply tying up incoming phone lines to more sophisticated attacks using low-level data transmission protocols – may also be used to achieve the same end: rendering the target system unavailable for normal use. Such a denial-of-service attack occurred recently against several major websites, including Yahoo.com, Amazon.com, eBay.com, and Buy.com.
2. Computers as Storage Devices
A second way in which computers can be used to further unlawful activity involves the use of a computer or a computer device as a passive storage medium. As noted above, drug dealers might use computers to store information regarding their sales and customers. Another example is a hacker who uses a computer to store stolen password lists, credit card or calling card numbers, proprietary corporate information, pornographic image files, or "warez" (pirated commercial software). As discussed in Part III below, computers often can provide valuable evidence that may help law enforcement respond to unlawful conduct.
Indeed, computers have made it possible for law enforcement agencies to gather some information that may not have been previously even maintained in the physical world. For example, an unsophisticated offender, even after "deleting" computer files (as opposed to destroying paper records), might leave evidence of unlawful activity that a trained computer forensic expert could recover. In addition, because an average computer with several gigabytes of memory can contain millions of pages of information, a law enforcement agent might, pursuant to lawful authority (such as a warrant), find volumes of information in one place. Of course, that information is only useful if there are trained computer experts on hand in a timely fashion, familiar with the relevant computer hardware or software configuration, to search the computer for specific information and to retrieve it in readable form (see generally Part III.B below).
1. Computers as Communications Tools
Another way that a computer can be used in a cybercrime is as a communications tool. Many of the crimes falling within this category are simply traditional crimes that are committed online. Indeed, many of the examples in this report deal with unlawful conduct that exists in the physical, "offline" world – the illegal sale of prescription drugs, controlled substances, alcohol, and guns; fraud; gambling; and child pornography. These examples are, of course, only illustrative; online facilities may be used in the furtherance of a broad range of traditional unlawful activity. E-mail and chat sessions, for example, can be used to plan or coordinate almost any type of unlawful act, or even to communicate threats or extortion demands to victims (see cyberstalking box).
Just as legitimate use of the Internet is growing, so too is the Internet increasingly being used to facilitate traditional offenses. For example, because e-mail allows private communications between parties, individuals have used the Internet to send threatening e-mails (including threats to the President). The Internet's one-to-many broadcast capability has also allowed individuals to falsely advertise goods on the Internet or on a website.
The Internet's file transfer capability also enables the Internet to be used as a product delivery system. Because large files can be copied and transmitted reliably, quickly, and cheaply, software companies are now selling software over the Internet: the buyer simply provides a credit card number and downloads the software from the Internet to his or her personal computer. This same capability unfortunately allows for the unauthorized reproduction and distribution of copyrighted software.
Some criminal activities employ both the product delivery and communications features of the Internet. For example, pedophiles may use the Internet's file transfer utilities to distribute and receive child pornography, and use its communications features to make contact with children. Because users need not transmit their voice or appearance, it is easy for an adult to pose as a child and to gain the confidence of children online.
As noted above, this report’s primary focus is on this third way in which computers can be used to commit unlawful acts – the use of computers and modern telecommunications facilities as tools (analogous to the use of telephones as tools) to commit an offense. Many of the enforcement and investigative challenges associated with unlawful conduct on the Internet, however, extend to all three ways in which computers can be used for unlawful activity. Consequently, the recommendations contained in this report, if acted upon, could assist law enforcement agencies in combating all types of unlawful conduct involving the use of the Internet.
In its assessment of the extent to which existing federal laws are sufficient to address unlawful conduct involving the use of the Internet, the Working Group developed four general principles to guide its analysis. These principles form the basis for the analytical framework proposed by the Working Group for evaluating the need, if any, for Internet-specific regulation of the particular conduct at issue. The principles flow from the Administration’s overall pursuit of policies that recognize and support the enormous potential economic and social benefits of the medium, without unintentionally stifling its growth.
1. Online-Offline Consistency
First, substantive regulation of unlawful conduct (e.g., legislation providing for civil or criminal penalties for given conduct) should, as a rule, apply in the same way to conduct in the cyberworld as it does to conduct in the physical world. If an activity is prohibited in the physical world but not on the Internet, then the Internet becomes a safe haven for that unlawful activity. Similarly, conduct that is not prohibited in the physical world should not be subject to prohibition merely because it is carried out in cyberspace.
Thus, the first step in any analysis of unlawful conduct involving the use of the Internet is to examine how the law treats the same conduct in the offline world. That is, unlawful conduct involving the use of the Internet should not be treated as a special form of conduct outside the scope of existing laws. For example, fraud that is perpetrated through the use of the Internet should not be treated any differently, as a matter of substantive criminal law, from fraud that is perpetrated through the use of the telephone or the mail. To the extent existing laws treat online and offline conduct inconsistently, they should be amended to remove inconsistencies. As the discussion below and the detailed analyses of several examples in the appendices to this report illustrate, however, existing substantive law is generally sufficient to cover unlawful conduct involving the use of the Internet.
2. Appropriate Investigatory Tools
Second, to enforce substantive laws that apply to online conduct, law enforcement authorities need appropriate tools for detecting and investigating unlawful conduct involving the Internet. For example, as discussed in greater detail below, to the extent existing investigative authority is tied to a particular technology, it may need to be modified or clarified so that it also applies to the Internet.
Indeed, new technologies may justify new forms of investigative authority. Before the invention of the telephone, for example, law enforcement had no need for wiretaps, but once it was clear that the telephone was being used to facilitate illegal activity, that new authority – circumscribed with protections for civil liberties and other societal interests – became necessary and appropriate. Similarly, features of the Internet that make it different from prior technologies may justify the need for changes in laws and procedures that govern the detection and investigation of computer crimes. These features, highlighted here in summary form, are discussed in greater detail below:
•. The global and boundaryless nature of the Internet means that different law enforcement agencies in different jurisdictions will have to cooperate and coordinate their activities in ways that they have probably never before done.
•. Anonymity on the Internet can provide social benefits, but misrepresentation of identity can also facilitate fraud and deception. Misrepresentation of identity can also result in access by children to inappropriate material and can create law enforcement investigatory challenges, especially if perpetrated by sophisticated computer users, for it can make criminal activity on the Internet more difficult to detect and prove.
•. The potential to reach vast audiences easily means that the scale of unlawful conduct involving the use of the Internet is often much wider than the same conduct in the offline world. To borrow a military analogy, use of the Internet can be a "force multiplier."
•. The routine storage of information that can be linked to an individual can often provide more information to law enforcement (where an individual has been identified or a computer lawfully seized) than may be available in the offline world, but only if the electronic information is handled properly by a trained investigator and if the information obtained is ultimately available in useable form.
Thus, apart from ensuring that online and offline behavior is treated consistently as a matter of substantive law, legislators and policymakers should examine whether law enforcement agencies have appropriate tools to detect and investigate unlawful conduct involving the Internet. That is, even if Internet-specific laws are unnecessary to ensure that criminal and civil penalties apply to the use of the Internet to facilitate unlawful conduct, it may be necessary to alter or augment law enforcement’s tools and authorities to meet the new investigatory challenges that such unlawful conduct presents.
Third, to the extent specific regulation of online activity may be necessary (in view of the consistency principle noted above), any such regulation should be drafted in a technology-neutral way. Regulation tied to a particular technology may quickly become obsolete and require further amendment. In particular, laws written before the widespread use of the Internet may be based on assumptions regarding then-current technologies and thus may need to be clarified or updated to reflect new technological capabilities or realities. For example, regulation of "wire communications" may not account for the fact that communications may now occur through wireless means or by satellite. Technology-specific laws and regulations may also "lock-in" a particular technology, hindering the development of superior technology.
4. Consideration of Other Societal Interests
Fourth, any government regulation of conduct involving the use of the Internet requires a careful consideration of different societal interests. In addition to society’s strong interests in investigating and prosecuting unlawful conduct, society also has strong interests in promoting free speech, protecting children, protecting reasonable expectations of privacy, providing broad access to public information, and supporting legitimate commerce.
As applied to the Internet, consideration of other societal interests can present difficult issues, in part because the Internet is different in important ways from existing, "traditional" modes of communication. For example, the Internet is a multi-faceted communications medium that allows not only point-to-point transmission between two parties (like the telephone), but also the widespread dissemination of information to a vast audience (like a newspaper). Internet-specific laws and policies that operate by analogy to those designed for telephone communications or the press may not fit the new medium. The Internet also presents new issues relating to online expectations of privacy and confidentiality that may or may not have analogs in the offline world. Accordingly, rules and regulations designed to protect the safety and security of Internet users should be carefully tailored to accomplish their objectives without unintended consequences, such as stifling the growth of the Internet or chilling its use as a free and open communication medium.
Another aspect of the need to consider different societal interests is to appreciate the need for an appropriate balance among the roles of the government (whether federal, state, local, or other) and the role of the private sector in formulating solutions to Internet policy issues. For example, because regulation of the practices of medicine and pharmacy has traditionally been the province of the states, regulation of online pharmacies presents difficult federal-state jurisdictional and coordination issues (see Appendix D). Moreover, given the Administration’s support for private-sector leadership and market-based self-regulation regarding e-commerce, there must be ongoing and regular dialogue with interested parties and groups to ensure that government policies do not have unintended consequences.
In the context of these general principles, the Working Group analyzed several examples of unlawful conduct involving the use of the Internet. The examples, as discussed in detail in appendices to this report, include not only those specifically mentioned in Executive Order 13,133, but also those taken from our experience with legislative proposals and from Executive branch agencies that have jurisdiction to respond to these forms of unlawful conduct.
1. Analysis of Substantive Laws
The Working Group’s analysis reveals that existing substantive federal laws appear to be generally adequate to protect users from unlawful conduct on the Internet. As listed and summarized in Table 1 below, such laws generally do not distinguish between unlawful conduct committed through the use of the Internet and the same conduct committed through the use of other, more traditional means of communication.
For example, laws governing fraud – such as credit card fraud, identity theft, securities fraud, and unfair and deceptive trade acts or practices – apply with equal force to both online as well as offline conduct (see Appendix B). Laws prohibiting the distribution and possession of child pornography and the luring of minors across state lines for unlawful sexual activity have been used with success to prosecute and convict those who use the Internet to distribute such material or to communicate with child victims in violation of statutory prohibitions (see Appendix C). And laws that prohibit the dispensing of prescription drugs without a valid prescription from a licensed medical professional can be applied to online pharmacies that dispense prescription drugs without required regulatory safeguards (see Appendix D).
Laws in other areas – the sale of firearms (Appendix E); interstate transmission of gambling information (Appendix F); sale of alcohol (Appendix G); securities fraud (Appendix H); and theft of intellectual property (Appendix I) – also generally apply to online conduct as well as offline conduct. Although existing federal laws generally prohibit Internet gambling, technological advances make it prudent to update existing federal laws to ensure that they are technology-neutral and prohibit gambling activities that did not exist before the advent of the Internet (see Appendix F). And, in the area of intellectual property protection, current Sentencing Guidelines pertaining to intellectual property crimes should be updated to ensure that law enforcement agencies and prosecutors commit the resources to continue to pursue these cases vigorously (see Appendix I).
Table 1 – Summary of Analysis of Existing Federal Law
Examples of Potentially
Applicable Federal Laws
Detailed Discussion in Appendix
15 U.S.C. §§ 45, 52 (unfair or deceptive acts or practices; false advertisements)
15 U.S.C. § 1644 (credit card fraud)
18 U.S.C. §§ 1028,1029,1030 (fraud in connection with identification documents and information; fraud in connection with access devices; and fraud in connection with computers)
18 U.S.C. § 1341 et seq. (mail, wire, and bank fraud)
18 U.S.C. § 1345 (injunctions against fraud)
18 U.S.C. § 1956, 1957 (money laundering)
Online Child Pornography, Child Luring, and Related Activities
18 U.S.C. § 2251 et seq. (sexual exploitation and other abuse of children)
18 U.S.C. § 2421 et seq. (transportation for illegal sexual activity)
Internet Sale of Prescription Drugs and Controlled SubstancesD
Internet Sale of Firearms
18 U.S.C. § 921 et seq. (firearms)
15 U.S.C. § 3001 et seq. (Interstate Horseracing Act)
18 U.S.C. § 1084 (transmission of wagering information)
18 U.S.C. §§ 1301 et seq. (lotteries)
18 U.S.C. § 1952 (interstate and foreign travel or transportation in aid of racketeering enterprises)
Table 1 (cont.) – Summary of Analysis of Existing Federal Law
Examples of Potentially
Applicable Federal Laws
Detailed Discussion in Appendix
18 U.S.C. § 1953 (interstate transportation of wagering paraphernalia)
18 U.S.C. § 1955 (prohibition of illegal gambling businesses)
28 U.S.C. §§ 3701-3704(professional and amateur sports protection)
Internet Sale of Alcohol
18 U.S.C. § 1261 et seq. (liquor traffic)
27 U.S.C. §§ 122, 204 (shipments into states for possession or sale in violation of state law)
Online Securities Fraud
15 U.S.C. § 77e, 77j, 77q, 77x, 78i, 78j, 78l, 78o, 78ff (securities fraud)
Software Piracy and Intellectual Property Theft
17 U.S.C. § 506 (criminal copyright infringement)
17 U.S.C. § 1201 et seq. (copyright protection and management systems)
18 U.S.C. § 545 (smuggling goods into the United States)
18 U.S.C. §§ 1341, 1343 (frauds and swindles)
18 U.S.C. § 1831 et seq. (protection of trade secrets)
18 U.S.C. §§ 2318-2320 (trafficking in counterfeit labels for phonorecords, copies of computer programs or computer program documentation or packaging, and copies of motion pictures or other audio visual works)
2. New Investigatory Challenges
As law enforcement agencies adapt to a more technology-based society, they need to be aware of the challenges, as well as the benefits, of online investigations. In certain circumstances, law enforcement agencies have available to them tools and capabilities created by the Internet and computers that can assist them in their fight against computer-facilitated unlawful conduct. For example, just as advances in telephone technology gave law enforcement agents the ability to determine the origin of fraudulent or threatening calls, the Internet has given law enforcement agencies the ability to find unsophisticated offenders who leave the equivalent of "fingerprints" as they commit unlawful acts. Indeed, someone who makes a threat in an Internet chat room to set off a bomb at a school and who makes little or no effort to hide his or her identity (e.g., where accurate identifying information exists for a particular "screen name") can often be traced and found with relative ease.
At the same time, law enforcement agencies must also acknowledge the growing sophistication of other computer users, who wear the equivalent of Internet gloves that may hide their fingerprints and their identity. The following is an overview of investigatory challenges– taken from actual experiences involving online investigations and discussed in greater detail in the appendices for each example of Internet-facilitated unlawful conduct – that law enforcement agencies must consider as they become more proficient with such investigations.
In the physical world, one cannot visit a place without some sense of its geographic location. Whether a particular street address or an area of the world, human travel is spatially based. By contrast, because one can access a computer remotely without knowing where, in physical space, that computer is located, many people have come to think of the collection of worldwide computer linkages as "cyberspace" (a term coined by science fiction writer William Gibson). In short, cybercriminals are no longer hampered by the existence of national or international boundaries, because information and property can be easily transmitted through communications and data networks.
As a result, a criminal no longer needs to be at the actual scene of the crime (or within 1,000 miles, for that matter) to prey on his or her victims. Just as telephones were (and still are) used by traditional boiler-room operators to defraud victims from a distance, a computer server running a webpage designed to defraud senior citizens might be located in Thailand, and victims of the scam could be scattered throughout numerous different countries. A child pornographer may distribute photographs or videos via e-mail running through the communications networks of several countries before reaching the intended recipients. Likewise, evidence of a crime can be stored at a remote location, either for the purpose of concealing the crime from law enforcement and others, or simply because of the design of the network. To be sure, the Internet increases the ability of law enforcement officials and others to detect and gather evidence from a distance (e.g., a website involved in a fraud scheme can be spotted from the officials’ office, whereas a fraudulent telemarketing or mail-fraud scheme might require field work). Long-distance detection, however, may take the investigation and prosecution of these crimes out of the exclusive purview of any single jurisdiction, creating new challenges and obstacles to crime-solving.
For example, a cyberstalker in Brooklyn, New York may send a threatening e-mail to a person in Manhattan. If the stalker routes his communication through Argentina, France, and Norway before reaching his victim, the New York Police Department may have to get assistance from the Office of International Affairs at the Department of Justice in Washington, D.C. which, in turn, may have to get assistance from law enforcement in (say) Buenos Aires, Paris, and Oslo just to learn that the suspect is in New York. In this example, the perpetrator needs no passport and passes through no checkpoints as he commits his crime, while law enforcement agencies are burdened with cumbersome mechanisms for international cooperation, mechanisms that often derail or slow investigations. With over 200 Internet-connected countries in the world, the coordination challenges facing law enforcement are tremendous. And any delay in an investigation is critical, as a criminal’s trail often ends as soon as he or she disconnects from the Internet.
This does not mean that traditional legal structures cannot be meaningfully applied to the Internet. Even though connections may be of short duration, computers are still physically located in particular places. The challenge to law enforcement is identifying that location and deciding which laws apply to what conduct. The question is how sovereign nations can meaningfully enforce national laws and procedures on a global Internet.
Inconsistent substantive criminal laws are only part of the problem, for investigative techniques are also controlled by national (or local) law. For example, law enforcement agencies must consider such issues as transborder execution of search warrants. If law enforcement agents in the United States access a computer and seize data from a computer, the fact that they have a search warrant makes that action lawful. If, with that same search warrant, they remotely access a Canadian computer (from the United States), might this constitute a criminal act under Canadian law notwithstanding the existence of the U.S. warrant? To the extent that agents know nothing more than an Internet protocol address (essentially, a series of numbers that identify a particular machine), the physical location of the computer to be searched may not be accurately known. Yet ignorance of physical location may not excuse a transborder search; consider how we would react to a foreign country’s "search" of our defense-related computer systems based upon a warrant from that country’s courts.
This transborder issue may raise domestic issues as well. Gambling and obscenity laws provide criminal sanctions for individuals based, in part, upon their location. One federal law prohibits transmitting information assisting in the placing of bets or wagers on sporting events or contests unless both the sender and receiver are in states or foreign countries where gambling is legal, see 18 U.S.C. § 1084. Obscenity laws are also typically interpreted in light of local community standards, cf. Miller v. California, 413 U.S. 15 (1973). Even the search warrant provision in the federal rules requires that agents seek a warrant in the district where the property to be seized is located, see Fed. R. Crim. P. 41(a). To the extent the location of the sender, recipient, or data is unknown and perhaps unknowable, it may be difficult for law enforcement to investigate and prosecute online offenders.
Another thorny issue stems from the lack of identification mechanisms on global networks, and the fact that individuals can be anonymous or take on masked identities (i.e., adopt false personas by providing inaccurate biographical information and misleading screen names). Simply stated, given the current state of technology, it can be difficult to accurately identify an individual (especially sophisticated users who take affirmative steps to hide their identity) on the Internet. As noted above, there are cases, such as the PairGain case, where law enforcement agencies have been able to track down online criminals who leave evidence of their unlawful conduct. Over time, the ability of criminals to use technology to evade identification and the ability of law enforcement to use technology to overcome such evasion will continue to evolve. Some of the challenges of identifying perpetrators of unlawful conduct on the Internet, as well as measures taken by law enforcement and the private sector to respond to such challenges, are discussed below in Part III of this report.
At the very least, there needs to be widespread and extensive training of law enforcement personnel in ways to identify those who use the Internet to commit unlawful acts. Moreover, as policymakers increasingly seek to protect certain classes of citizens, most notably minors, from unsuitable material (e.g., pornography and gambling), the potential problems of identification are evident. How can activities, such as gambling or the sale of prescription drugs or alcohol, be limited to adults when children can identify themselves as adults? Similarly, if adults can falsely identify themselves as children and lure real children into dangerous situations, how can these victims be protected?
These issues are frequently at the heart of legislative and investigative efforts. Although there have been proposals to build identification mechanisms into Internet protocols, such an approach would have to be supported by internationally-recognized, market-based, standards-making bodies whose agenda did not directly include public safety. Even if the market supported such an approach, however, such proposals are controversial, because there are strong reasons to allow anonymity in communications networks. For example, whistleblowers may wish to remain anonymous, as may a group of rape victims who wish to convene an electronic meeting to discuss their experiences without revealing their identities.
In an attempt to create a framework for evaluating identification mechanisms on the Internet, some have compared the Internet with other forms of communications, such as pay telephones and regular mail, which may offer users some degree of anonymity. Of course, the difference between these traditional means of communication and the Internet is significant, and attempting to solve Internet problems only by drawing analogies to existing technologies will often fail. The problem is that the analogies may capture some aspects of the new technology, but fail to capture others. For example, the telephone and mail systems cited above allow predominantly one-to-one communications. Although someone wishing to defame a public figure or harass others can, in theory, call thousands of people anonymously, the time and cost make this impractical. By contrast, the cost-free, simple, one-to-many nature of the Internet dramatically alters the scope and impact of communications. It is this difference which explains why children who would never spend their weekly allowance buying The Anarchist Cookbook at a college bookstore may download the same information from the Internet and possibly injure themselves or others testing a recipe for the making of a bomb. Given the complexity of this issue, balancing the need for accountability with the need for anonymity may be one of the greatest policy challenges in the years ahead.
(c) Evidentiary Issues
Electronic data generated by computers and networked communications such as the Internet can be easily destroyed, deleted, or modified. Digital photographs are but one example of digital information that can be altered in ways that may be difficult to detect. As a result, law enforcement officials must be cognizant of how to gather, preserve, and authenticate electronic evidence. This will not only require substantial training of law enforcement personnel, but also sufficient experience with such evidence by investigators, prosecutors, defense counsel, courts, and others until clear rules and standards are established. The volume of electronic evidence that requires forensic analysis is also increasing substantially. The increasing use of computers and the Internet, of course, often means that information or records of communications that were previously never retained or routinely destroyed can (in some instances) now be recovered, but such recovery may still require sophisticated computer forensics.
Thus, for the reasons noted above, law enforcement agencies face significant challenges in dealing with electronic evidence. These challenges will continue to grow, because electronic evidence can become a part of any investigation. For example, electronic evidence can be any of the following items, each containing distinct evidentiary challenges: a drug dealer’s computerized customer records; a digital photograph of a murder scene; an encrypted e-mail containing details of a terrorist plot or fraud scheme; or a system administrator’s log files of a hacker attack.
(d) Infrastructure Protection
Protecting our information infrastructure is imperative but difficult for a host of reasons: the number of different systems involved, the interdependency of these systems, the varied nature of the threats (physical and cyber, military, intelligence, criminal, natural), and the fact that many of these infrastructures are maintained primarily by the commercial sector. Addressing cyberthreats to our infrastructure is particularly difficult, because of differing views regarding our vulnerabilities; the need to balance interests relating to privacy, economic competitiveness, commercial risk, national security, and law enforcement; and the overlapping authorities within the federal government for dealing with information infrastructure issues. Although such issues are beyond the scope of this report, see National Plan for Information Systems Protection (released Jan. 7, 2000), appreciating the importance and complexity of infrastructure protection is key to understanding the needs of law enforcement in countering unlawful conduct involving the Internet (see Part III.A below).
The ability of an individual to use one computer to conduct both lawful and unlawful activities or to store both contraband and legally possessed material presents another significant issue. Such commingling defies simple solutions. The fact is, one computer can be used simultaneously as a storage device, a communications device (e.g., to send, store, or retrieve e-mail), and a publishing device. Moreover, that same computer can be used simultaneously for both lawful and unlawful ventures, and the problem becomes more complex when a single machine is shared by many users.
For example, individuals who distribute child pornography or copyrighted software using their home computers may also publish a legitimate newsletter on stamp collecting or use an e-mail service with that same computer. By seizing the computer, law enforcement agencies can stop the illegal distribution of contraband, but may, at the same time, interfere with the legitimate publication of the newsletter and the delivery of e-mail, some of which may be between users who have no connection with the illegal activity. Similarly, a doctor who is illegally prescribing drugs over the Internet may not only have on her computer evidence relating to the illegal prescriptions, but files related to her lawfully treated patients. Likewise, an attorney accused of operating an Internet sportsbook may keep in the same folder on his computer materials relating to his gambling business and documents subject to the attorney-client privilege. Seizure of the doctor’s or the lawyer’s files in such circumstances could result in the seizure of legally privileged material.
III. LAW ENFORCEMENT NEEDS AND CHALLENGES
As the examples of Internet-facilitated unlawful conduct discussed above and in the appendices illustrate, the increasing sophistication and global reach of such conduct make it all the more important to adequately equip law enforcement agencies at all levels.
The following are some of the primary issues that should be considered when evaluating how to better equip federal, state, and local law enforcement agencies, and how the private sector can continue to lead, to ensure the safety and security of Internet users. We urge further analysis, in consultation with state and local law enforcement, industry, and privacy and other groups, to determine the most appropriate ways to empower law enforcement – at all levels – with the needed tools, capabilities, and legal authorities to curb unlawful conduct on the Internet while protecting privacy and supporting the growth of the electronic marketplace.
In assessing the tools, capabilities, and legal authorities needed by law enforcement to address unlawful conduct on the Internet, we must consider the larger context of how to protect the systems and networks of this Nation that make our businesses run and operate our Nation’s defenses and infrastructure. As we have become more dependent on technology, our energy production and distribution channels, our transportation networks, and our telecommunication systems have become increasingly reliant on a computer-based infrastructure.
Without a protected infrastructure, there could be no conduct, lawful or unlawful, on the Internet. Electronic commerce and the marketplace cannot thrive without a strong infrastructure that the public can trust and rely upon. Consequently, proposals relating to law enforcement challenges in this area (e.g., new investigative tools, capabilities, or legal authorities) need to be assessed in light of the broader need to protect the vital infrastructure, because cyberattacks on infrastructures and other cybercrimes can lead to telecommunications breakdowns that disable electronic commerce and destroy our citizens’ confidence in the Internet and computer networks.
The protection of this country’s computers and networks requires everyone’s cooperation. It demands a partnership among all federal agencies with responsibilities for different sectors of the economy or for certain special functions, such as law enforcement, intelligence, and defense. The private sector has an important role to play as well, whether through appropriate monitoring or other system security mechanisms, the timely reporting of potential intrusions or other cybercrimes, and the educational empowerment tools discussed in Part IV below. In addition, we must consider the needs of state and local law enforcement, which play a critical role in fighting the cybercriminals on the street.
Meeting its responsibility to protect critical infrastructures is one of the central challenges for law enforcement as we face the 21st Century. As our reliance on the Internet, on automated systems, and on other technological advances increases with every passing month, the potential impact of attacks on critical infrastructure expands as well. Law enforcement needs to be provided the legal mechanisms and financial resources to be prepared to confront this challenge in partnership with other federal agencies, with the private sector, and with state and local agencies. The Administration recognized this need for unprecedented cooperation between the private and public sectors in Presidential Decision Directive 63. That document provides a framework both for federal agencies to cooperate with their private sector partners and for the formation of the National Infrastructure Protection Center, an interagency center for analysis, warning, and investigation of cybercrime.
1. Personnel, Equipment, and Training
In 1986, an astronomer-turned-systems-manager at the University of California at Berkeley found a 75-cent accounting error in a computer’s billing program, which led to the discovery that an unauthorized user had penetrated Berkeley’s computer system. When the astronomer, Clifford Stoll, began to investigate further, he discovered that a hacker identified as "Hunter" was using Berkeley’s computer system as a conduit to break into U.S. government systems and steal sensitive military information. The hacker’s objective seemed to be to attain U.S. anti-ballistic missile technology.
As he began to pursue the hacker, Stoll encountered serious problems. To begin with, Stoll was unable to find computer-literate law enforcement personnel with an appreciation of the technical nature of the criminal activity. Local and federal agencies that Stoll contacted, including the FBI and CIA, initially expressed little interest in pursuing what at first looked like a computer prank. (Moreover, until government investigators learned of the potential threat to national security, they had no interest in pursuing a case which appeared to have damages valued at less than one dollar.) Because Hunter’s trail vanished each time he ended a communication, he could only be traced when he was online. But because it was often after business hours (and, indeed, sometimes in the middle of the night) when Hunter attacked, there were few (if any) law enforcement personnel available during those sessions. The call was eventually traced to Germany, but adding an international element to the case now meant that it was usually after business hours in at least one time zone where the communication was passing through. Stoll cleverly resorted to generating phony official-looking data to keep the hacker interested and online long enough for the trace to be completed. Eventually, the source of the attacks was identified as a German hacker, and he was successfully prosecuted there.
Ironically, one reason this investigation was successful is that Stoll did not rely solely on law enforcement, but instead was able to work directly with telephone company personnel, who in turn worked with other telecommunications providers. His investigation brought to light a number of interdependent personnel and resource requirements that, unless fulfilled, will impede the success of law enforcement in this area. Despite significant progress since the time of this example, it remains a useful illustration of some of the fundamental issues that continue to need further attention at the domestic and international level to eliminate weak links in the chain of an investigation.
(a) Experts Dedicated to High-tech Crime
The complex technical and legal issues raised by computer-related crime require that each jurisdiction have individuals who are dedicated to high-tech crime and who have a firm understanding of computers and telecommunications. The complexity of these technologies, and their constant and rapid change, mean that investigating and prosecuting offices must designate investigators and prosecutors to work these cases on a full-time basis, immersing themselves in computer-related investigations and prosecutions. Many agencies, including the Departments of Justice, Treasury, and others, have already dedicated available resources to do so. The Federal Trade Commission ("FTC") adopted this approach when it formed an Internet Rapid Response Team and successfully halted several online fraud schemes in a matter of weeks. Some federal agency inspectors general have also established computer crime divisions, complete with forensics laboratories and technical experts, and many have information technology audit and inspection capabilities to assist their agencies in identifying vulnerabilities, best practices, and other critical infrastructure issues.
But more of such expertise and the resources to support the increasing cyber-workload are needed. Indeed, each state attorney general’s office, each U.S. Attorney’s office, each federal law enforcement squad, and each country’s equivalent to the U.S. Department of Justice should have a dedicated high-tech crime unit that knows how to respond to a fast-breaking investigation and that knows who else to contact in the chain of a communication and how to reach those individuals. These experts will also be needed to support other law enforcement authorities faced with high-tech issues, such as when a computer is used to facilitate an otherwise traditional crime.
The Department of Justice has designated a prosecutor in each U.S. Attorney’s Office to serve as a computer and telecommunications coordinator for that district, and the FBI has established the National Infrastructure Protection Center and the National Infrastructure Protection and Computer Intrusion program. Staffing levels for these programs are below the level needed to effectively address the concerns raised in this report. Given the magnitude of the challenges, the continually changing technology, and the complexity of these investigations, these are necessarily resource-intensive programs.
(a) Experts Available on a 24-Hour Basis
A unique feature of high-tech and computer-related crime is that it often requires immediate action to locate and identify criminals. The trail of a criminal may be impossible to trace once a communication link is terminated, because the carrier may not keep (or is not required by law to keep) records concerning each individual communication. This lack of information is due, in part, to the fact that there often is no longer a revenue-related reason for recording transmission information (i.e., connection times or source and destination) for individual connections. For example, many businesses no longer bill their customers by individual telephone call or Internet connection but, instead, by bulk billing (e.g., a single rate for one month of usage). When a carrier does not collect traffic data, a criminal’s trail may evaporate as soon as the communication terminates.
Therefore, investigators and prosecutors with expertise in this field must be available 24 hours a day so that appropriate steps can be taken in a fast-breaking high-tech case. For example, the National Infrastructure Protection Center operates a 24-hour/7-day-a-week command post for around-the-clock coverage of computer intrusion matters. And, Attorney General Reno recently challenged the National Association of Attorneys General to work with the Department of Justice and other appropriate organizations (among other things) to create a 24/7 network of computer crime enforcement personnel in every state.
(a) Regular and Frequent Training
Because of the speed at which communications technologies and computers evolve, and because criminal methods in these areas generally change more rapidly than those in more traditional areas of crime, experts must receive regular and frequent training in the investigation and prosecution of high-tech cases. Programs such as those offered by the FBI at its Quantico facility and elsewhere and under the National Cybercrime Training Partnership provide such training to federal, state, and local law enforcement personnel, but more is needed. Government computer professionals, such as systems operators and administrators, also need regular and frequent training, because they are often the first to detect unlawful conduct that targets federal computer systems.
In addition to domestic training, countries should participate in coordinated training with other countries, so transnational cases can be pursued quickly and seamlessly. By way of example, in the U.S., high-tech prosecutors at the federal level attend a 1-week training course every year, with training provided by both government and private sector personnel. Likewise, in 1998, the G-8 countries held an international high-tech training conference for its countries’ law enforcement personnel.
(a) Up-to-date Equipment
In the past, a police officer would be given a gun, a flashlight, and a notepad when he or she was hired. Twenty years later, the three items would be returned to the police department when the officer retired, and the only intervening equipment expenses would have had to do with replacement bullets, batteries, and note paper. Today, keeping pace with computer criminals means that law enforcement experts in this field must be properly equipped with the latest hardware and software. Providing proper equipment, however, can be one of the more difficult challenges, because the cost of purchasing and upgrading sophisticated equipment and software places considerable burdens on the budget process.
Ultimately, personnel, training, and equipment needs require the direct involvement of senior officials, such as the Attorney General and FBI Director, because of the budget-request and budget-allocation processes that are involved with such expenditures. Moreover, in many jurisdictions, senior policymakers may not be as familiar with new computer and telecommunications technologies and with threats posed by cybercriminals. If senior government officials in those jurisdictions are unfamiliar with the technologies at issue or the new threats and challenges they pose, they may be hesitant to support law enforcement by seeking appropriate legislative and budgetary changes. The need for adequate personnel, resources, and training is thus a critical issue in this increasingly important area of law enforcement.
2. Locating and Identifying Cybercriminals
When a hacker disrupts air traffic control at a local airport, when a cyberstalker sends a threatening e-mail to a public school or a local church, or when credit card numbers are stolen from a company engaged in e-commerce, investigators must locate the source of the communication. To accomplish this, they must trace the "electronic trail" leading from the victim back to the perpetrator. But the realities for law enforcement engaged in such a pursuit are very different from those of just a few years ago. Consequently, society faces significant challenges in the coming years as online criminals become more sophisticated and as technology may make anonymity more easily available. The following are some of the challenges facing both industry and law enforcement.
Divested and Diverse Environment. In today’s communications environment, where telecommunication services are no longer provided by a monopoly carrier, a single end-to-end transmission is often carried by more than one carrier. As a result, the communications of a hacker or other criminal may pass through as many as a dozen (or more) different types of carriers, each with different technologies (e.g., local telephone companies, long-distance carriers, Internet service providers ("ISPs"), and wireless and satellite networks). The communication may also pass through carriers in a number of different countries, each in different time zones and subject to different legal systems. Indeed, each of these complications may exist within a single transmission. This phenomenon makes it more difficult (and sometimes impossible) to track criminals who are technologically savvy enough to hide their location and identity.
Wireless and Satellite Communications. Cellular and satellite-based telephone networks allow users to roam almost anywhere in the world using the same telephone. Although the social and commercial benefits of such networks are obvious, these networks can also provide a valuable communication tool for criminal use. Although sophisticated technology may allow law enforcement, under certain circumstances, to identify the general geographic region from which a wireless call is originating or terminating, the use of such technology raises profound and difficult issues at the intersection of privacy and law enforcement policies. Moreover, even identifying the owner of a particular mobile phone can be difficult, because mobile phones can be altered to transmit false identifying information. As the costs of mobile phones and mobile telephony service drop, we can expect to see the marketing of more "disposable phones," which will further complicate the ability of law enforcement agencies to gather evidence linking a perpetrator to the communication.
Satellite telephony presents additional issues. Current satellite-based networks transmit communications from users through one or more satellites and to earth-based gateways where the communications are routed using land-line systems. Providers of satellite-based telephony services typically do not need to build a gateway in each country to which service is to be provided. Indeed, it may be the case that one or two gateways can service an entire continent. The government’s ability to protect the public’s safety and privacy can be threatened in instances where a gateway servicing U.S. customers is located outside the U.S. In such cases, the content of the communications, as well as identifying information about the callers themselves, will be subject to the relevant laws (if any) of the host country and may not be protected in the same manner that the information is protected in the United States. More importantly to law enforcement, the location of a gateway in another country makes it difficult for law enforcement to meet its obligation to protect against criminal activities. In addition, law enforcement may have to rely on the willingness and technical and legal ability of the country in which the gateway is located to trace telephone calls, obtain information regarding suspected criminals in the United States, and provide that information to U.S. law enforcement agencies.
Recognizing the benefits and challenges created by advances in global telephony, the federal government has been working with telecommunications companies and foreign law enforcement agencies to ensure that the public interest is served in a global telephony environment. The government is also addressing global telecommunications issues in various international fora to ensure that the U.S. retains its ability to protect the U.S. public’s privacy and safety.
Real-time Tracing. Tracing a communication from victim back to attacker may be possible only when the attacker actually is online. Sophisticated criminals can alter data concerning the source and destination of their communications, or they may use the Internet account of another. In addition, transmission information may not be retained or recorded by communications providers or may not be captured at all or held for only a short period of time. Even if it is generated and retained, it might be deleted by a skilled intruder to hide his identity.
Consequently, when law enforcement officials have information that a crime is being committed online, they often must attempt to trace a communication as it occurs. To do so, a law enforcement agency must know which computer crime expert to call in which jurisdiction, be able to contact the relevant individuals at various ISPs and carriers, and secure appropriate legal orders in each jurisdiction where a relevant carrier or ISP is located. (Notably, many ISPs already coordinate and cooperate with law enforcement agencies in this respect, and industry groups are developing "best practices" to encourage others to do the same.) Critical personnel must also be available when network-facilitated crimes occur after business hours. When these crimes occur across borders, real-time investigations must be able to proceed on an international scale.
Technical Infrastructure and Data Retention. If the communications network and the computers and software that run it have not been designed and configured to generate and preserve critical traffic data, information relating to the source and destination of a cyber-attack will likely not exist. Consider, for example, the use by many ISPs of modem banks to provide Internet access to incoming callers. An ISP may have 2 million customers, but maintain only 100,000 phone lines, based on an expectation that no more than 100,000 customers will ever dial in at any given time. The ISP may give only one access number to its customers and dynamically assign each incoming call to the next available line. Without a revenue-related reason for knowing the specific line used for each connection, the ISP’s network may not be designed to generate the data necessary to link a customer with a specific incoming line. This, in turn, may make it impossible to trace the origin of the telephone call into the ISP’s network. Such a network design can make it difficult to obtain traffic data critical to an investigation.
Even if a particular piece of the technical infrastructure is capable of generating and preserving needed data, such data are not useful if carriers do not collect and retain such records. Issues concerning whether, to what extent, and for how long critical data are retained are decided both by national laws (or the lack thereof) and by industry practices, which generally reflect market preferences and other revenue-related needs. In examining data retention practices and laws, careful consideration must be given to privacy concerns, market realities, and public safety needs.
U.S. law enforcement may be significantly affected by the 1995 and 1997 directives of the European Union ("EU") concerning the processing of personal data, including the deletion of traffic data. EU Member States are in the process of developing implementing legislation. As the directives are implemented into national legislation throughout the EU, it is vital that public safety be considered, along with the privacy and market force elements.
Anonymity. Anonymous e-mail accounts, which are e-mail accounts where subscriber information is not requested or verified, are the proverbial double-edged sword. Such anonymous accounts can protect privacy, but they add new complexities to identifying online lawbreakers, such as individuals who send child pornography, death threats, computer viruses, or copyright-protected works by e-mail.
Similarly, "anonymous re-mailer" services, which are e-mail services that strip the source address information from e-mail messages before passing them along to their intended recipients, raise difficult privacy and law enforcement policy issues. On the one hand, anonymous re-mailer services provide privacy and encourage freedom of expression. For example, in early 1999, these services allowed ethnic Albanians to provide first-hand accounts of Serbian atrocities in Kosovo without the fear of retribution. On the other hand, such services can plainly frustrate legitimate law enforcement efforts. Indeed, as early as 1996, one such service expressly touted itself as "a way to thwart attempts by intelligence agencies to trace illegal traffic . . . . It holds all incoming messages until five minutes after the hour, then re-mails them in random order. The messages are sent through five to twenty other re-mailers, with a stop in at least one of the several countries noted for lax law enforcement."
To be sure, individuals can generally engage in many "real world" activities relatively anonymously, such as making small cash payments and attending public events. But they cannot remain anonymous in other contexts, such as opening a bank account or registering a car. Indeed, many financial institutions have substantial customer identification requirements. As discussed in Part II.B above, Internet-based activities should be treated consistently with physical world activities and in a technology-neutral way to further important societal goals (such as the deterrence and punishment of those who commit money laundering). National policies concerning anonymity and accountability on the Internet thus need to be developed in a way that takes account of privacy, authentication, and public safety concerns.
3. Collecting Evidence
When computers are used to store information, law enforcement agents generally can, upon securing a warrant, search the computer in the same way that they would a briefcase or file cabinet. The difference, of course, is that a computer can store a tremendous amount of information, including evidence that might not be known to the computer’s owner. This feature of computer information can, of course, be both a benefit to and a challenge for law enforcement. It can benefit law enforcement by providing information (sometimes in a readily searchable way) that might not have existed in the non-computer world. But it can obviously present law enforcement challenges by highlighting the need for training and expertise (and time) for the information to be recovered. For example, one computer with 3 gigabytes of memory can contain the equivalent of one million pages of information. "Keyword" searches can miss relevant information, and the difficulty of the search and recovery of information may depend on how familiar the forensic expert is with the particular hardware and software configuration of the computer at issue. Moreover, if information on the computer is encrypted, it may be completely inaccessible to law enforcement and contribute little to solving the crime at issue (see box on encryption).
State and local law enforcement agencies play a significant role in addressing unlawful conduct on the Internet. These agencies have been crucial in combating online child pornography, prescription drug sales, gambling, and fraud. Consequently, any initiatives by the federal government to address unlawful conduct on the Internet must account for the important role state and local governments play in online investigations and prosecutions and should address the following three areas of fundamental concern to these state and local law enforcement authorities: (1) jurisdiction; (2) cooperation and coordination; and (3) resources.
The following is a brief discussion of the jurisdictional, cooperation and coordination, and resources issues facing state and local governments. Because the Executive Order that prompted this report focuses on federal law enforcement issues, we recommend that a more detailed analysis of state and local law enforcement issues be undertaken as a next step.
In responding to the challenge of law enforcement on the Internet, one of the problems that state and local governments face is that, although the crimes and schemes on the Internet may victimize local populations, the medium over which these crimes are committed permits a
defendant to be located anywhere in the world. The traditional investigative tools available to the state – interviews, physical or electronic surveillance, and service of subpoenas for the production of documents or for testimony – are not necessarily adequate to compel information from a wrongdoer who is located out of state.
For example, if a fraud scheme is committed against Ohio residents by an operator of a website located in Florida, and the Ohio prosecutors issue a subpoena for records from the company in Florida, there is currently no formal procedural mechanism for the service and enforcement of that subpoena. Although the Ohio prosecutors may informally succeed in obtaining assistance from the Florida authorities, this is a matter of professional courtesy rather than legal process. There is no guarantee that the subpoena will be served, or, if served, enforced. Running into such a roadblock could well mean the end of the Ohio investigation. In the absence of any ability to investigate the case themselves, it remains possible for the Ohio prosecutors simply to refer the case to their Florida counterparts by reporting their complaints about the cybercriminal in Florida, but if the crime involves no Florida victims or is otherwise outside its jurisdiction, there is no guarantee that the case will be investigated by anyone.
This example illustrates the kinds of jurisdictional hurdles that are becoming increasingly common for state and local law enforcement authorities pursuing crime over the Internet. Another difficulty in this area arises from the disparate approaches taken by state courts to whether a state can exert long-arm jurisdiction over an Internet site accessible in that state. The lack of uniformity may make it more difficult for investigators in some jurisdictions to conduct meaningful investigations of Internet conduct. And, the enforcement of state electronic surveillance orders can also be a challenge. The Internet and modern satellite communications have made it more necessary for state wiretap orders to be served on and enforced against an out-of-state service provider. Unfortunately, no legal mechanism exists that would allow this. For example, drug traffickers operating entirely in New York, but using satellite telephones with signals that are received at a ground station outside of New York, potentially are completely immune from a New York wiretap order if the out-of-state ground station refuses to comply with a New York court’s wiretap order.
2. Interstate and Federal-State Cooperation
Because the gathering of information in other jurisdictions and internationally will be crucial to investigating and prosecuting cybercrimes, all levels of government will need to develop concrete and reliable mechanisms for cooperating with each other. The very nature of the Internet – its potential for anonymity and its vast scope – may cause one law enforcement agency to investigate, inadvertently, the activities of another agency that is conducting an undercover operation. Likewise, the law enforcement agency of one state may require the assistance of another for capturing and extraditing a criminal to its state for prosecution. In other words, crimes that were once planned and executed in a single jurisdiction are now planned in one jurisdiction and executed in another, with victims throughout the United States and the world.
The effective coordination and cooperation between various branches of the law enforcement community is crucial to any effort to combat unlawful conduct on the Internet. One area that may deserve further review concerns the extent to which federal, state, and local authorities can share and gather information about pending cases, potential targets, investigative procedures and tactics, and contact personnel. Such coordination is necessary for federal, state, and local law enforcement agencies to avoid duplicating and possibly undermining investigations.
In January 2000, Attorney General Reno challenged the National Association of Attorneys General and other state and local law enforcement groups to make it a priority to respond to these significant needs. Among other things, she specifically urged the groups to:
• Create a 24-hour cybercrime point of contact network, where each participating federal, state, and local law enforcement agency would provide a designated contact who is available 24 hours per day, 7 days per week to assist with cybercrime issues. This contact could be available via a pager system or coordinated through a centralized "command center."
(•) Create an online clearinghouse for sharing information to avoid duplication of effort and multiple investigations of the same unlawful conduct. Existing mechanisms, such as XSP, LEO, or Consumer Sentinel, may either serve this function or serve as building blocks for such a service.
• Develop conferences for all state and local Internet investigators and prosecutors, yearly or bi-annually, at which recent developments are discussed, case progress shared, and networks reinforced that will facilitate state, federal, and local cooperation.
• Develop additional policies and mechanisms to enhance cooperative interstate investigative and prosecutorial capacities and encourage coordination among their constituents.
Although state and local law enforcement organizations are responsible for investigating and prosecuting most forms of unlawful conduct involving the use of the Internet, they have limited resources with which to pay the substantial costs of developing the technical, investigative, and prosecutorial expertise and acquiring the new and often expensive technology necessary to address these crimes. Personnel, equipment, and training must be funded not only once but on a recurring basis. In addition, the structure of state and local law enforcement agencies is different from state to state and even county to county within a state. Resources must not be so restricted as to prohibit a state or local government from tailoring programs and initiatives within their current structures.
A dedicated source of federal funding for state and local law enforcement agencies is needed to aid them in obtaining the necessary personnel, training, and equipment to properly investigate and prosecute high technology crime cases. To the extent that federal funds are being expended on enhancing federal law enforcement’s forensic capabilities, these projects should be structured in a way that allows state and local law enforcement to use these forensic resources. Regional computer forensic laboratories, such as the new laboratory in San Diego, have been successful and may be a model for other such facilities.
Consistent with the Administration’s overall e-commerce policy, the private sector has a critical role to play in ensuring a safe and secure online environment. The distributed, networked, and decentralized nature of the Internet now means that the "rules of the road" must be global, flexible, effective, and readily adaptable to technological change. In particular, the private sector must take the lead in areas such as the design of new technologies to protect children online, self-regulatory consumer protection initiatives, and coordination and cooperation with law enforcement authorities.
In response to the marketplace, for example, there are now many technological options for shielding children from inappropriate content. As discussed in more detail in Part IV.A below, these technological developments include filtering and blocking software, outgoing information blocks, filtered Internet browsers and search engines, filtered Internet service providers, time blocking mechanisms and monitoring tools. Similarly, child-friendly websites are now widespread on the Internet. These websites allow parents to limit a child’s access to sites beyond the web service designated for the child’s use. In July 1999, the private sector launched the "GetNet Wise" initiative, a new easy-to-access online resource for parents to help keep their children safe online. "GetNet Wise" is a resource containing information on Internet safety tips, consumer content filtering products, law enforcement contacts, and a guide to quality educational and age appropriate online content. Although none of these tools can guarantee that a child will be shielded at all times from inappropriate material on the Internet, their use gives parents the ability to restrict a child’s use to the resources on the Internet that they may deem appropriate.
In response to challenges laid out by Secretary of Commerce William M. Daley, industry has worked with consumer representatives to develop effective consumer protection practices by developing codes of conduct for business-to consumer e-commerce and alternative, easy-to-use mechanisms for consumer resolution, redress, and enforcement. For example, the Better Business Bureau’s online division, BBBOnLine, is working with industry, consumer, and government representatives to develop a voluntary code to provide online merchants with guidelines to implement consumer protections. The code includes guidance on key consumer protections such as disclosure of sale terms, data privacy, dispute resolution mechanisms, and non-deceptive advertising.
Another group, the Electronic Commerce and Consumer Protection Group, whose members include America Online, American Express, AT&T, Dell, IBM, Microsoft, Time Warner, Inc., and Visa, is working with consumer leaders to develop an innovative approach to jurisdiction as it applies to consumer protection in a global electronic marketplace. This group is also developing a voluntary code of conduct. The goal of the group is to formulate concrete approaches to protect consumers and facilitate e-commerce.
These innovative efforts are important to developing effective consumer protection in e- commerce, because as e-commerce expands to encompass more international business-to-consumer transactions, the traditional means of protecting consumers solely through national laws will become more difficult.
In addition to specific consumer protection initiatives, the private sector’s dedication and support for a secure Internet system is crucial to curbing unlawful conduct on the Internet. Not only must industry continue to develop security policies and safeguards for their networks and systems, but it should continue its efforts to identify security flaws that threaten the Internet. For example, computer experts from industry and the Computer Emergency Response Team Coordination Center of Carnegie-Mellon University recently warned of a serious new Internet security threat that wrongdoers could potentially use to place malicious programs on a victim’s computer and to gather information that a person volunteers on websites, such as credit card and Social Security numbers. Another example of private sector cooperation in this effort is InfraGard, which is an information sharing and analysis partnership among the FBI, private sector companies, academic institutions, and other federal, state, and local agencies. InfraGard serves to increase the security of the national infrastructure through ongoing exchanges of infrastructure-protection information and through education, outreach, and other awareness efforts.
The private sector also has a key role to play in continuing to coordinate and cooperate with law enforcement authorities as appropriate. Industry trade groups, such as the Internet Alliance and the Information Technology Association of America ("ITAA"), have been working to develop public-private cooperative efforts that will mutually benefit law enforcement, industry, and consumers. The Internet Alliance’s Law Enforcement and Security Council has been developing parental control software and educational campaigns, opening channels of communication between industry and law enforcement representatives, and creating training programs for law enforcement and industry on issues of mutual interest. ITAA, through its Cybercitzen Project (see Part IV.C below), is working with the Department of Justice to develop education campaigns, personnel exchange programs, and a directory of industry contacts.
There is still much that industry can do to ensure that the Internet is a safe and secure environment. For example:
•. Industry should continue to develop and embrace initiatives to protect consumers and children online. These may include technological tools (e.g., more sophisticated blocking, filtering, and parental control software) as well as non-technological tools (e.g., educational campaigns). In particular, industry should continue to be involved in education programs that teach younger Internet users about online responsibilities and online citizenship.
•. Industry should continue to cooperate with law enforcement agencies as appropriate. This does not mean that industry ought to be a "co-regulator" with government or that industry needs to be an online police officer. But it does mean that industry should be a voluntary, responsible partner in society’s fight against crime, educating its employees on how to recognize unlawful conduct on the Internet and what to do if they discover such conduct. It means working with law enforcement agencies to develop reliable and efficient procedures and channels of communication and cooperation for processing law enforcement requests and investigative information. As the "Melissa" virus case demonstrates, industry’s involvement and reporting of information is often crucial to the investigation and prosecution of online offenders.
•. Industry should carefully balance reasonable expectations of customer privacy with the need to ensure a safe and secure online environment. For example, some industry members may not retain certain system data long enough to permit law enforcement to identify online offenders. This does not mean that data retention policies need to be uniform or mandatory. To the contrary, in evaluating the costs and benefits of data retention – which include a wide variety of considerations, including market needs, protection of consumer privacy, and public safety – industry should simply give appropriate weight to the wider value to itself and to society of retaining certain information that, among other things, may be essential to apprehending a lawbreaker.
•. Industry should be encouraged to recognize that meaningful self-regulation is in its interest as well as in the interests of its customers. Information technology security programs (that teach employees about computer ethics, responsible online practices, and security policies), for instance, help protect computer systems from intruders as well as online offenders. Indeed, as noted at the beginning of this report, law enforcement and industry share a common mission in reducing unlawful online conduct, for a safe and secure online environment is essential to consumer confidence, which is in turn essential to ensuring that the Internet continues to grow as a medium for communications and commerce.
The Working Group looks forward to continuing to work with the private sector and other interested parties and groups on these important issues.
Law enforcement agencies need strong laws to protect society against unlawful activity. This is as true in the online world as it is in the offline world. As discussed above in Part II and detailed in the appendices to this report, existing federal law is generally adequate to cover unlawful conduct involving the use of the Internet.
Strong substantive laws, however, that apply to the use of the Internet to commit traditional offenses such as fraud, child pornography, gambling, and the illegal sale of intellectual property are necessary but not sufficient to ensure a safe and secure online environment. To achieve that goal, law enforcement, in cooperation with the private sector, must also be able to gather evidence, investigate, and prosecute these cases. Unfortunately, in some areas, the legal authorities and tools needed to do this have lagged behind technological and social changes. This section examines several laws related to the investigation and prosecution of high-tech offenses that have not kept pace with technological changes. Although we do not offer specific solutions in this report, we are committed to working with interested parties to devise appropriate solutions.
1. Pen Register and Trap and Trace Statute
Pen registers (devices that record the numbers dialed on a telephone line) and trap and trace devices (devices that capture incoming electronic impulses that identify the originating number) are important tools in the investigation of unlawful conduct on the Internet. Unfortunately, the statute that governs such devices, 18 U.S.C. §§ 3121-3127, is not technology-neutral and has become outdated.
As an initial matter, advances in telecommunications technology have made the language of the statute obsolete. The statute, for example, refers to a "device" that is "attached" to a telephone "line," id. § 3127(3). Telephone companies, however, no longer accomplish these functions using physical hardware attached to actual telephone lines. Moreover, the statute focuses specifically on telephone "numbers," id., a concept made out-of-date by the need to trace communications over the Internet that may use other means to identify users’ accounts.
Moreover, the deregulation of the telecommunications industry has created unprecedented hurdles in tracing long-distance telephone calls. Many different companies, located in a variety of judicial districts, may handle a single call. Under the existing statute, however, a court can only order communications carriers within its district to provide tracing information to law enforcement. As a result, investigators have to apply for several, sometimes many, court orders to trace a single communication, causing needless waste of time and resources and hampering important investigations.
2. Computer Fraud and Abuse Act
Originally passed in 1984, and amended in 1986, 1994, and 1996, the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, protects a broad range of computers that facilitate interstate and international commerce and communications. For example, section 1030(a)(2) makes it a crime to access a computer without or in excess of authority and obtain (1) financial information from a financial institution or credit reporting company; (2) any information in the possession of
the government; or (3) any private information where the defendant’s conduct involves interstate or foreign commerce. Section 1030(a)(5) makes it a crime for anyone to knowingly cause the transmission of a computer program, information, code, or command, that results in unauthorized damage to a protected computer. (A "protected computer" is one used exclusively or partly by the United States or a financial institution in which the defendant’s conduct affects the government’s or financial institution’s operation of the computer; or any computer that is used in interstate or foreign commerce or communications, see 18 U.S.C. § 1030(e)(2).)
Despite its broad reach and relatively recent amendment, the statute nevertheless contains several flaws that could hinder law enforcement’s ability to respond effectively to unlawful conduct on the Internet. For example, given the increasing interdependency and availability of global computer networks, it is increasingly likely that computer system intruders within the United States may begin to concentrate their unlawful activity on systems located entirely outside the United States. Alternatively, individuals in foreign countries may route communications through systems located within the United States, even as they hack from one foreign country to another. In such cases, they may hope that the lack of any U.S. victim would either prevent or discourage U.S. law enforcement agencies from assisting in any foreign investigation or prosecution. It is unclear whether section 1030, in its existing form, protects against such situations, which may affect the United States even though the perpetrator and the victim are located elsewhere.
The Department of Justice has encountered several instances where intruders have attempted to damage critical systems used in furtherance of the administration of justice, national defense, or national security, as well as systems (whether publicly or privately owned) that are used in the provision of "critical infrastructure" services such as telecommunications, transportation, or various financial services, but where proof of damage in excess of $5,000, as required by section 1030(a)(5), has not been readily available. Although such activities may pose extreme risks to our infrastructure, section 1030(a)(5) currently does not allow law enforcement to proceed without evidence of over $5,000 in damages.
Another problem is that prosecutions under section 1030(a)(5) carry a mandatory minimum sentence of at least six months. In some instances, prosecutors have exercised their discretion and elected not to charge some defendants whose actions otherwise would qualify them for prosecution under that section, knowing that the result would be mandatory imprisonment. It may be useful to examine whether requiring imprisonment for six months should be applied in more limited circumstances than allowed under existing law, or whether other punishments, such as reduced penalties and forfeiture of any instrumentalities or proceeds of the violation, might provide adequate punishment and deterrence.
3. Privacy Protection Act
The Privacy Protection Act of 1980 ("PPA"), 42 U.S.C. § 2000aa, et seq., makes it unlawful for local, state, or federal law enforcement authorities to "search for or seize any work product materials" or any "documentary materials . . . possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication," 42 U.S.C. § 2000aa(a), (b) (emphasis added). The statute defines "work product materials" as materials prepared or possessed in anticipation of communicating such materials to the public, except if the materials constitute contraband or the fruits or instrumentalities of crime. Id. § 2000aa-7(b). "Documentary materials," on the other hand, consist of materials upon which information is recorded, once again with the exception of contraband and the fruits or instrumentalities of crime. Id. § 2000aa-7(a).
In enacting the PPA, Congress restricted searches for evidence of crime held by innocent third-parties who were engaged in First Amendment-protected activities. The PPA thus protects the confidentiality of non-evidentiary files held by this special group of innocent third-parties – such as drafts of articles not yet published and the research and other supporting information (e.g., notes and interviews) that are never intended to be published. To preserve the confidentiality of these designated materials, the PPA instructs investigators not to search for the evidence at all, but to compel the innocent third-parties to find and produce it themselves. Thus, subject to certain exceptions, the PPA generally limits searches for work product and documentary materials held by third-parties who plan to use them to communicate to the public.
New issues arise with the PPA due to the exponential growth in computer use over the last decade. With the advent of the Internet and widespread computer use, almost any computer can be used to "publish" material. As a result, the PPA may now apply to almost any search of any computer. Because computers now commonly contain enormous data storage devices, wrongdoers can use them to store material for publication – material that the PPA protects – while simultaneously storing (in a commingled fashion) child pornography, stolen classified documents, or other contraband or evidence of crime.
4. Electronic Communications Privacy Act
In 1986, Congress enacted the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. § 2510 et seq., in an effort to revise and expand the scope of the 1968 wiretap act. The statute attempted to strike a workable balance among the competing interests addressed in the statute at the time: the privacy interests of telecommunications users, the business interests of service providers, and the legitimate needs of government investigators.
Two factors have raised concerns about ECPA: (1) the statute treats wire and electronic communications inconsistently; and (2) use of the Internet has grown dramatically, and voice and non-voice data have converged. First, although ECPA attempted to create a technology-neutral framework for regulating the disclosure of electronic communications and records, it was only partially successful. For example, the 1986 legislation distinguished broadly between "wire communications" (such as voice telephone calls) and "electronic communications," which it accorded lesser protections. This inconsistency create practical problems in today’s converged network environment where voice and non-voice data may be intertwined in a single data stream.
These inconsistencies take on additional significance with the now widespread use of computers and the Internet, because the proportion of criminal activity occurring online, or using telecommunications technologies, has increased over time. E-mail, voice mail, user access logs, and remotely stored files play an important, and in many cases, critical role in investigating and prosecuting crimes ranging from large-scale consumer fraud to extortion and murder.
These developments suggest that ECPA be carefully evaluated to ensure that it (1) takes into account new communications technologies in its treatment of wire and electronic communications; (2) has appropriate penalties for a variety of criminal invasions of communications privacy; (3) resolves deficiencies in the rules for government access to customer records, especially with respect to access by civil and regulatory agencies; and (4) cures omissions and inconsistencies within the statutory framework.
5. Telephone Harassment
The Internet and the widespread use of computers have created a host of new tools for communication. Existing statutes provide criminal penalties for persons who use telephones to harass or abuse others. For example, one provision of 47 U.S.C. § 223 makes it a federal crime, punishable by up to two years in prison, to use a telephone or telecommunications device to annoy, abuse, harass, or threaten any person at the called number. The statutory prohibition applies only if the perpetrator does not reveal his or her name. See 47 U.S.C. § 223(a)(1)(C).
The new means of communication by computer, however, have given computer users a new method of inflicting such abuse not covered by the existing laws. A malicious computer user, for example, can post an electronic message in which he pretends to be the person that he intends to harass (see cyberstalking box in Part II.A above). In this fraudulent message (that may reach thousands of people), he can state, for example, that he (posing as the victim) likes to participate in some particular sexual act and then invite anyone who reads the message to call the victim’s home telephone number. Yet this form of harassment evades the prohibitions of 47 U.S.C. § 223, which applies only to direct communications between the perpetrator and the victim.
6. Cable Communications Policy Act
The Cable Communications Policy Act of 1984, which regulates various aspects of the cable television industry, includes provisions that protect the privacy of individual cable subscribers’ records. See 47 U.S.C. § 551(c), (h). Such records should indeed remain private under most circumstances. The statute, however, did not take into account the changes in technology that have occurred over the last 15 years. Cable television companies now often provide Internet access and telephone service in addition to television programming. Some cable companies have interpreted the statute as overriding their obligations to disclose certain records pursuant to other statutes, such as the Electronic Communications Privacy Act, 18 U.S.C. § 2701, and the trap and trace statute, 18 U.S.C. § 3121. This interpretation – which courts have not accepted – would create greater protections for subscribers who receive Internet service from cable companies than for those who access the Internet by other methods.
Such an interpretation is inconsistent with the technology-neutrality principle discussed in section II.B above. Moreover, some cable companies that provide Internet service have relied on the Act to refuse to disclose subscriber information pursuant to state grand jury subpoenas, even though these records would otherwise be available through legal process under existing law. As more and more Internet users shift to high-speed cable access from traditional analog telephone equipment, it will be important to ensure that privacy standards are harmonized for all Internet users.
* * *
These examples are only some of the areas in which the law has not kept up with new technology. Specific legislative proposals to update these laws are beyond the scope of this report. The gaps illuminate, however, the investigatory challenges posed by the use of the Internet for unlawful conduct, and they deserve prompt legislative consideration and attention.
1. Substantive International Criminal Law
When one country’s laws criminalize high-tech and computer-related crime and another country’s laws do not, cooperation to solve a crime, as well as the possibility of extraditing the criminal to stand trial, may not be possible. Inadequate regimes for international legal assistance and extradition can therefore, in effect, shield criminals from law enforcement: criminals can go unpunished in one country, while they thwart the efforts of other countries to protect their citizens.
International legal assistance can be requested and provided through several means. The United States is party to over 20 bilateral mutual legal assistance treaties ("MLATs"). Where there is no MLAT in force, international legal assistance is governed by domestic mutual legal assistance laws and practices, which include the letters rogatory process. (A letter rogatory is a letter request for assistance from one country’s judicial authority – e.g., a U.S. District Court – to that of another country. See, e.g., 28 U.S.C. § 1782.) MLATs and domestic laws vary with regard to the requirements relating to a request for assistance. To issue subpoenas, interview witnesses, or produce documents, some MLATs and some laws permit assistance as long as the conduct under investigation is a crime in the requesting state, even where it is not also a crime in the requested state.
In the more sensitive area of searches and seizures, however, dual criminality (i.e., that the conduct under investigation is a crime in both the requesting and requested countries and is punishable by at least one year in prison) is often required (e.g., U.S./Netherlands MLAT). In other circumstances, a country can refuse a request if the request "relates to conduct in respect of which powers of search and seizure would not be exercisable in the territory of the Requested Party in similar circumstances" (e.g., U.S./U.K. MLAT). Finally, some MLATs and domestic laws permit assistance only if dual criminality exits and if the offense is extraditable (e.g., mutual assistance laws of Germany). With regard to extradition, the United States has entered into bilateral treaties with over 100 countries. These treaties are either "list treaties," containing a list of offenses for which extradition is available, or they require dual criminality and that the offense be punishable by a specified minimum period. Therefore, if one country does not criminalize computer misuse (or provide for sufficient punishment), extradition may be prohibited.
The issue of dual criminality is not an academic or theoretical matter. In 1992, for example, hackers from Switzerland attacked the San Diego Supercomputer Center. The U.S. sought help from the Swiss, but the investigation was stymied due to lack of dual criminality (i.e., the two nations did not have similar laws banning the conduct), which in turn impeded official cooperation. Before long, the hacking stopped, the trail went cold, and the case had to be closed.
The solution to the problems stemming from inadequate laws is simple to state, but not as easy to implement: countries need to reach a consensus as to which computer and technology-related activities should be criminalized, and then commit to taking appropriate domestic actions. Unfortunately, a true international "consensus" concerning the activities that universally should be criminalized is likely to take time to develop. Even after a consensus is reached, individual countries that lack appropriate legislation will each have to pass new laws, an often time-consuming and iterative process.
1. Multilateral Efforts
Although bilateral cooperation is important in pursuing investigations concerning unlawful conduct involving the use of the Internet, multilateral efforts are a more effective way to develop international policy and cooperation in this area. The reason for this stems from the nature of the Internet itself. Because Internet access is available in over 200 countries, and because criminals can route their communications through any of these countries, law enforcement challenges must be addressed on as broad a basis as possible, because law enforcement assistance may be required from any Internet-connected country. That is, even if two countries were able to resolve all the high-tech crime issues they faced, they would still (presumably) only be able to solve those crimes that involved their two countries. Multilateral fora allow many countries to seek solutions that will be compatible to the greatest extent with each country’s domestic laws.
Several multilateral groups currently are addressing high-tech and computer-related crime. Of these groups, the Council of Europe ("COE"), and the Group of Eight ("G-8") countries are the most active. To begin to address the need to harmonize countries’ computer crime laws, the COE is drafting a Cybercrime Convention, which will define cybercrime offenses and address such topics as jurisdiction, international cooperation, and search and seizure. The Convention may be completed as soon as December 2000. After approval by a high-level committee, the Convention will be open for signature by COE members and non-member states which participated in the drafting. The G-8 Subgroup on High-tech Crime has been focusing on ways to enhance the abilities of law enforcement agencies to investigate and to prosecute computer- and Internet-facilitated crimes, such as establishing a global network of high-tech crime experts and developing capabilities to locate and identify those who use the Internet to commit crimes. In May 1998, President Clinton and his G-8 counterparts adopted a set of principles and an action plan, developed by the Subgroup, for fighting computer crime. The COE and G-8 efforts, as well as other international efforts, are described in more detail in Appendix J to this report.
1. Continuing Need for International Cooperation
As these multilateral efforts progress and as more formal mechanisms for cooperation are developed, law enforcement agencies in the U.S. and other countries are cooperating informally and have undertaken joint initiatives to achieve their goals. For example, the Customs Service has been involved in joint cyber-investigations with the German Federal police. These joint investigations have resulted in 24 referrals from Customs’ Cybersmuggling Center to field offices during the last three months. In most instances, these referrals have led to the issuance of federal or state search warrants. Customs is also involved in joint efforts on Internet-related investigations involving money laundering and child pornography distribution with officials in countries such as Indonesia, Italy, Honduras, Thailand, and Russia.
As international issues become more prevalent in investigations of Internet-facilitated offenses, U.S. law enforcement agencies must continue to develop cooperative working relationships with their foreign counterparts. The 24/7 high-tech point-of-contact network established among the G-8 countries and others must continue to be developed and expanded to
include more countries. In addition, the U.S. should continue to work with other countries, international groups, and industry to develop comprehensive and global plans for addressing the complex and challenging legal and policy issues surrounding jurisdiction raised by unlawful conduct on the Internet.
IV. THE ROLE OF PUBLIC EDUCATION AND EMPOWERMENT
The third component of the Working Group’s 3-part strategy for responding to unlawful conduct involving the use of the Internet is to implement aggressive efforts to educate and empower the public to minimize risks associated with the Internet and to use the Internet responsibly through technological and non-technological tools. Although both types of tools can be extremely useful when used appropriately, "one size does not fit all." One must weigh the advantages and disadvantages in determining which set of tools will work best for an individual’s particular situation.
This part of the report therefore discusses existing and potential new tools and resources that can be used to educate and empower parents, teachers, and others to prevent or minimize the risks from unlawful conduct involving use of the Internet. First, we review the technological and non-technological tools that are available for parents and teachers to use to help ensure that children have a safe and rewarding experience online. Next, we discuss how consumers can educate themselves in order to avoid fraudulent and deceptive practices on the Internet. In particular, this part highlights how several federal agencies are using technology to educate consumers and how they are working with the private sector to develop effective consumer protection practices. Many other agencies are undertaking similar efforts. Last, we discuss government-industry cooperation efforts to educate the public on the importance of being good "cybercitizens."
With the growing number of U.S. classrooms connected to the Internet and the rising number of personal computers used in the home, more and more children are now able to access the Internet. Almost 90 percent of public schools – including over 1 million classrooms – in the U.S. are connected to the Internet. Over 40 percent of American households own computers and one-quarter of all households have Internet access.
One of the greatest benefits of the Internet is the access it provides children to such things as educational materials, subject matter experts, online friendships, and penpals. Nevertheless, like many other pursuits that children engage in without adequate parental supervision, the Internet should also be approached with careful consideration of risks and benefits. One concern of course is that the Internet may allow children unrestricted access to inappropriate materials. Such materials may contain sexually explicit images or descriptions, advocate hate or bigotry, contain graphic violence, or promote drug use or other illegal activities. In the worst instances, children have become victims of physical molestation and harassment by providing personal information about themselves over the Internet and making contact with strangers.
To protect children from such risks, parents and teachers therefore need to empower themselves with the tools, knowledge, and resources to supervise and guide children’s online experience and to teach children how to use the Internet responsibly.
1. Technological Tools
Technology provides tools that may assist in preventing children from accessing inappropriate materials on the Internet or divulging personal information about themselves or their families online. The most common technological tools are "blocking" and "filtering" software, as described more fully below.
(a) Blocking Software
"Blocking" software uses a "bad site" list and prevents access to those sites. The vendor
of the software identifies specified categories of words or phrases that are deemed inappropriate and configures the blocking software to block sites on which the prohibited language appears. Although some vendors allow parents to customize the "bad site" list by allowing them to add or remove sites, others keep the list secret and do not permit parents to modify it.
There are several drawbacks to relying upon "blocking" software. Use of this software can create a false sense of security because it cannot restrict access to all inappropriate sites for children. The number of websites published each day far exceeds the ability of software companies to review the sites and categorize them for their "bad site" lists. "Out of approximately 3 million separate websites in existence (each website may contain two or more separate webpages and the number of separate files, pages and graphics online is estimated at 330 million), only a small fraction have been reviewed, in aggregate, by child protection software companies." Because the gap widens daily, with the 160,000 new websites registered each month, "bad sites" will inevitably get through.
Another drawback is that most blocking software does not differentiate between the age of the users. What may be inappropriate for an eight year old, may be appropriate for a teenager. However, because most software only has one user setting to determine what should be blocked, either the teenager will be denied access to sites that are beneficial or the eight year old will be given access to sites that are inappropriate.
In addition, in cases where software vendors do not allow parents to customize the "bad site" list, parents cannot make an informed decision on what material should be restricted. They must rely on the judgment of an unknown third party to decide what sites are acceptable for their children.
(b) Filtering Software
"Filtering" software blocks sites containing keywords, alone or in context with other keywords. For example, if parents wanted to restrict their child’s access to sites related to drug
use, the software would be configured to deny access to sites containing such words as "marijuana," "cocaine," "heroin," etc. Filtering software is available both directly and through some Internet service providers ("ISPs") such as Lycos or FamilyNet.
A noteworthy drawback to filtering software is that it may often filter out sites that are
either harmless or even desirable. With the example above, sites that promote drug rehabilitation, seeking help for a drug problem, or drug prevention would be blocked simply because they use the keywords. Another example of how filtering is over inclusive is denying access to the word "sex." While this filter would block certain sites with inappropriate sexual content, it would also block harmless sites that contained the words "sextuplets," "sexton," "Mars Exploration," among many others. In addition, some website operators have learned to bypass the filtering mechanism by misspelling the typical keywords.
Filtering software may also be used to block sites that have a particular label or rating. The content provider or a labeling service classifies the site in a particular category (e.g., "romance: no sex" or "explicit sexual activity") and the filtering software is programmed to deny access to sites with particular ratings. As with "bad sites," parents must rely on the judgment of unknown third parties to determine what is appropriate for their children. In this case, the content provider must self-label the site accurately or a labeling service must assign the appropriate label to the site. Another major drawback is that very few sites are labeled. Parents must decide whether to block or allow access to unrated sites. Blocking all unrated sites would deny access to harmless and educational material, while allowing access to all unrated sites would undoubtedly allow inappropriate material to get through.
(c) Other Software
Other types of software enable parents to monitor and control their children’s use of the computer. For example, "monitoring and tracking" software allows parents to track how much time their children spend online, where their children go online, and how much time their children spend on the computer offline. "Outgoing filtering" software prevents children from sharing certain information with others over the Internet, such as their name, telephone number, and address. Every time the child tries to send the prohibited information to someone online, it shows up as "XXX."
1. Non-technological Tools
(a) What Parents Can Do
One of the most effective ways of protecting children from inappropriate material on the Internet is to teach them to use the Internet responsibly. Parents play a major role in this by taking responsibility for children’s online computer use. By doing so, parents can greatly minimize any potential risks of being online.
There are certain safety tips parents can follow to ensure that their children use the Internet safely. These tips include:
•. never give out personal information, such as home address, school name, or telephone number, in a public message such as a chat room or bulletin board;
•. do not post photographs of children on websites or news groups that are available to the public;
•. never allow a child to arrange a face-to-face meeting with another computer user without parental permission;
•. if a meeting is arranged, make the first one in a public place and be sure to accompany the child;
•. never respond to messages that are suggestive, obscene, belligerent, threatening or make you feel uncomfortable;
•. encourage children to tell you if they encounter such messages;
•. report any inappropriate messages you receive immediately;
•. consider keeping the computer in the family room rather than the child’s bedroom in order to monitor their online use;
•. get to know your children’s online friends just as you get to know all of their other friends;
•. set up specific rules for your children’s online use, such as the time of day and length of time that they can be online and appropriate sites for them to visit.
There are many useful publications and websites for parents on this topic. For example, The Parent’s Guide to the Internet (published by the U.S. Department of Education), Site Seeing on the Internet: A Guide to Traveling in Cyberspace (published by the FTC and the National Association of Attorneys General), and The Parent’s Guide to the Internet: Raising Your Family on the Information Superhighway (by Travis West) explain the basics of the Internet, how it works, what is available online, and give guidance on how to ensure safe use of the Internet. For additional publications on responsible use of the Internet, visit www.childrenspartnership.org for a list of resources.
Likewise, there are many websites that give parents guidelines to promote safe, rewarding online experiences for children. For example:
•. www.getnetwise.org – This website was created by 15 Internet companies as a comprehensive resource guide for parents. It includes instant access to tools representing the latest technologies that allow parents to block and filter inappropriate content, monitor the websites and chat rooms that their children visit, and set strict time limits on their children’s online sessions. It also includes access to information on how to report a crime or other troubling activity online and provides a guide to quality, educational websites beneficial to children. The website also provides safety tips for online use.
•. www.americalinksup.org – This website seeks to bring the online industry, families, teachers, librarians and other children’s advocates together to ensure that children have a rewarding and educational online experience. It provides safety tips for parents and children; access to discussion groups of parents, teachers and other Internet users on critical safety issues; links to more than 700 quality websites for children reviewed and recommended by children’s librarians; and information on local events where parents and children can learn about Internet basics and tools that promote rewarding online experiences.
•. www.cyberangels.org – This website has been in existence since 1995 and is considered the largest Internet safety and education program. In addition to providing parents guidance on how to supervise their children online, it teaches children how to use the Internet safely with material geared toward them. For example, children can join Sophia’s Safe Surfing Club, take a safe surfing quiz, and earn a safe surfing permit. Cyberangels also has Net Patrol teams that regularly monitor the Internet for child-crimes, cyberstalkers, and fraudulent scams and report it to law enforcement authorities. The website provides support groups for victims of stalking and harassment over the Internet and gives tips on how to document and report cyber-stalking. CyberAngels also provides links to safe sites and reviews and recommends blocking/filtering software.
•. www.parentech.org – This site provides families and educators of middle school children (grades 6-8) with free resources focusing on how technology affects education, careers, and society. It includes parent and teacher guides in these three areas. For example, the parent’s guide on technology and education has articles on how to help middle schoolers get the most out of learning with technology, a parent’s guide to classroom technologies, and technology standards for middle schools. The teacher’s guide to technology and careers includes articles on what skills are necessary for these careers and how to develop those skills at the middle school level. In addition, the site has a discussion corner where parents and educators can share ideas, concerns, and questions with each other and with experts from across the nation.
•. www.safekids.com – This website contains various articles about Internet basics and online safety, guidelines for parents on how to supervise their children on the Internet, safety tips for children, and filtering/blocking software reviews. In addition, the site has links to other sites that offer Internet advice to parents and includes a link to report online crime against children.
(b) What Schools and Libraries Can Do
As increasing numbers of children have access to the Internet from their schools and neighborhood libraries, we need to address the issue of how best to ensure that these children have positive, age-appropriate, educational online experiences. The Administration has taken the view that empowering parents, teachers, and librarians with a wide range of tools with which they can protect children in their community in a manner consistent with their values is ultimately the most effective approach and one that is most compatible with the First Amendment.
Schools and libraries are currently using a wide range of technology tools and monitoring techniques to ensure that children do not encounter inappropriate material or dangerous situations while online. These schools and libraries are determining what will work best in their particular schools and communities. Absent proof that local decision making is not working to protect our children, the federal government should not mandate a particular type of technology, such as filtering or blocking software. Rather, we should encourage "acceptable use" policies ("AUPs") by all public institutions that offer access to online resources, including the Internet. Such policies may include the use of blocking and filtering technologies, or they may involve the use of monitoring, smart cards, or codes of conduct. An AUP should, while being sensitive to local needs and concerns, offer reasonable assurances to parents that safeguards will be in place in the particular school or library setting that permit users to be empowered to have educational experiences consistent with their values.
In addition to AUPs, schools may also use "intranets" to restrict student access to inappropriate material. An intranet is a controlled computer network that uses similar software and transmission mechanisms as the Internet, but is accessible only to those who have permission to use it (an intranet is generally confined to users within an organization). These controls permit the intranet system managers to limit user access to Internet material as well as to restrict those outside the network from being able to reach it.
Schools and districts may also use Regional Technology and Education Consortia organizations ("RTECs") as a resource. Six regional consortia, funded by the Department of Education, assist and support states, districts, schools, and other educational institutions in the use of advanced technologies to improve teaching and student achievement. In helping schools and districts with planning and implementation of technology, RTECs can help schools identify Internet safety solutions that meet the schools’ needs and policy preferences. In addition, RTECs also provide resources for teacher training in technology.
(c) Next Steps
The Department of Justice and the Department of Education have funded a study by the National Academy of Sciences on how to protect children from inappropriate material on the Internet. This study will include a description of the risks and benefits of various tools and strategies that can be used to protect children from inappropriate material, an analysis of how the different tools and strategies can be used together, and case studies of how different communities have approached this problem. The final report is scheduled to be completed in November 2001.
In addition, in October 1998, Congress passed the Child Online Protection Act ("COPA") that, among other things, established a Commission on Online Child Protection to examine the extent to which current technological tools effectively help protect children from inappropriate online content. The members of the commission were appointed last year, with the final members coming on board in October 1999, and the commission’s report is due to Congress in November 2000.
Finally, the Departments of Commerce, Education, and Justice are planing a joint effort to host a roundtable discussion with industry representatives, especially those in the software industry, to discuss the benefits and limitations of existing blocking and filtering software. These discussions can lay the groundwork for future software contributions to Internet safety.
The electronic marketplace offers consumers unprecedented choice and around-the-clock accessibility and convenience. It gives established marketers and new entrepreneurs low-cost access to a virtually unlimited customer base. With these benefits, however, comes the challenge of ensuring that the virtual marketplace is a safe and secure place to purchase goods, services, and digitized information. Consumers must be confident that the goods and services offered online are fairly represented and the merchants with whom they are dealing – many of whom may be located in another part of the world – deliver their goods in a timely manner and are not engaged in illegal business practices like fraud or deception. Consumer confidence also requires that consumers have access to fair and effective redress if they are not satisfied with some aspect of the transaction.
This section highlights some of the Federal Trade Commission’s initiatives to educate consumers through technology; the Department of Commerce’s coordination efforts with the private sector to develop effective consumer protection practices; and the Food and Drug Administration’s outreach campaign regarding medical products on the Internet. As described more fully below, the FTC has made innovative use of the Internet to educate and alert consumers about fraud and deceptive practices online, to disseminate its publications, to investigate potential violations, and to receive and respond to consumer complaints. The Department of Commerce has also worked with consumer and business representatives to develop codes of conduct for electronic commerce and mechanisms for consumer dispute resolution, redress, and enforcement. In addition, the FDA has used the Internet to educate consumers and health professionals about the possible risks of ordering prescription medications and other medical products on the Internet, and the Securities and Exchange Commission ("SEC") has likewise used the Internet to help investors avoid online securities fraud. The Postal Inspection Service posts consumer fraud prevention "tip sheets" and other fraud prevention information on its website (www.usps.gov/postalinspectors). And, as part of its Internet Fraud Initiative, the Department of Justice has been active in public education and outreach efforts to prevent online fraud (e.g., establishing a website on identity theft and fraud (www.usdoj.gov/criminal/fraud/idtheft)), and the FBI has prepared an online Parent’s Guide to Internet Safety (www.fbi.gov).
1. FTC Initiatives: Using Technology to Educate Consumers
The FTC is committed to stemming fraudulent, misleading, and deceptive trade practices through actions that involve both law enforcement and education. Acting on the belief that the most effective consumer protection is education, the FTC has sought to help alert as many consumers as possible to the telltale signs of fraud, the importance of privacy in the information age, and other critical consumer protection issues. Use of the Internet to develop and disseminate information about fraud and technology-related matters is integral to the FTC’s education, deterrence, and enforcement efforts and has allowed the agency to reach vast numbers of consumers and businesses quickly, simply, and at low cost.
(a) Fraud Prevention Information for Consumers
More than 200 of the consumer and business publications produced by the FTC’s Bureau of Consumer Protection are available on the agency’s website in text and .pdf format. Indeed, the difference in the number of publications viewed online in 1996 and 1999 (140,000 versus 2.5 million page-views) tells the story of the Internet’s coming of age as a mainstream medium and its importance to any large-scale dissemination effort. Those 2.5 million page views are in addition to the 6 million print publications distributed each year to organizations that disseminate them on the FTC’s behalf.
(b) Link Program
The FTC also actively encourages "partners" – government agencies, associations, organizations, and corporations with an interest in a particular subject – to link to the FTC’s website from their sites and to place banner public service announcements provided by the FTC on their sites. Links from the banners allow visitors to click through to the FTC site quickly to get the information the user is looking for exactly when they want it. Among the organizations that have helped drive traffic to the consumer information on www.ftc.gov are the Alliance for Investor Education, the Arthritis Foundation, the American Association of Retired Persons, American Express, the Better Business Bureau, CBS, Circuit City, motleyfool.com, the National Institutes of Health, the North American Securities Administrators Association, Shape Up America!, the U.S. Patent and Trademark Office, and Yahoo!.
(c) "Sting" Pages
Many Internet shoppers looking for weight loss products will find an attractive-looking site that trumpets NordiCaLite, a "safe and natural" way to lose weight. Three clicks into the sales pitch, the FTC seal appears, alerting consumers that the site was put up by the federal agency, that the product is a fake, and that certain words and phrases are tip offs to help them avoid most rip offs.
Too often, warning information about frauds reaches consumers after they’ve been scammed. For the FTC, the challenge is how to reach consumers before they fall victim to a fraudulent scheme. Knowing that many consumers use the Internet to shop for information, agency staff develop "sting" sites that mimic the characteristics of a site selling fraudulent products or services. "Metatags" embedded in the FTC websites make them accessible to consumers who are using major search engines and indexing services as they look for products, services, and business opportunities. The "sting" websites link back to the FTC’s webpage, where consumers can find the practical, plain English information they need. The agency has developed 13 "sting" sites on topics ranging from health care products to scholarship services to vacation deals and investments, and feedback from the public has been overwhelmingly positive. Many visitors express appreciation – not only for the information, but also for the novel, trouble-free, and anonymous way it is offered.
The FTC has also developed interactive puzzles and games to reinforce the concepts spelled out in its brochures, 1-page "news you can use" consumer alerts, and graphics. For example, to mark the first anniversary of the Telemarketing Sales Rule in December 1996, the FTC placed a recording of a fraudulent telemarketing call on its website and developed a quiz to test a consumer’s ability to tell the difference between a legitimate call and fraudulent one. Later, the Field of Schemes investment fraud initiative included the launch of an online quiz called "Test Your Investment I.Q." A series of typical telephone misrepresentations asked consumers to define an investment offering as solid or risky and then explained the answers. As part of Project Mousetrap, which dealt with fraudulent invention promotion firms, the FTC created an activity designed to test a reader’s "patent-ability": a crossword puzzle containing critical terms from the world of patents and idea promotion. And to support the first National Consumer Protection Week, an online crossword puzzle, a true-false quiz, and a word find that focused on credit terms were developed for the National Consumer Protection Weekly, a newsletter that was distributed electronically to consumer agencies, law enforcement officials, and corporations across the country.
Armed with a vision of the Internet as a powerful tool for consumer education and empowerment, the FTC convened a group of five small federal agencies in 1997 to develop and launch a website that would offer 1-stop access to the array of federal consumer information. On the theory that consumers may not know one federal agency from another, the information is arranged topically. Federal agencies and consumers have responded well to www.consumer.gov. The site includes contributions from over 60 federal agencies and logs some 50,000 user sessions a month, each of which last an average of over four minutes. The site also houses special initiatives: The President’s Council on Y2K Conversion asked the FTC to establish a Y2K consumer information site; the Quality Interagency Coordination Task Force requested a special site on health care quality; and the U.S. Postal Inspection Service asked that www.consumer.gov house the site to support the "kNOw Fraud" initiative, a public-private campaign that involved sending postcards about telemarketing fraud to 115 million American households in the fall of 1999. The original www.consumer.gov team received the Hammer Award for its efforts. The FTC continues to maintain the site.
(a) Spam Mailbox
Millions of consumers are besieged by unsolicited commercial e-mail ("UCE") or "spam" every time they open their e-mailboxes. At best, spam is annoying. At worst, it is costly and disruptive to consumers. Hoping to relieve consumer frustration and gain a foothold on deceptive e-mail offers, the FTC invited consumers to forward their spam to a special address (email@example.com). With 3,000 e-mails arriving each day, the FTC has been able to build a spam database that is an extremely helpful resource for investigators. With partners from the Postal Inspection Service, the agency lets "junk e-mailers" know how not to break the law, and lets consumers know how to recognize the 12 most common types of e-mail fraud, known as the "dirty dozen."
(a) Online Complaint Handling
By 1998, with consumer use of the Internet to access information, entertainment, products and services becoming routine, the FTC began accepting consumer complaints electronically. The consumer response to the online complaint feature indicates that the FTC is meeting a real need: The agency receives online – and responds online to – an estimated 1,000 complaints and inquiries a week.
(h) Business Education for Online Marketers
As part of its mission, the FTC provides guidance to online marketers on how to assure that basic consumer protection principles apply online. Many of these entrepreneurs, new to the Internet and to marketing in general, may be unfamiliar with consumer protection laws. But even experienced marketers have raised novel issues in their efforts to apply traditional consumer protection laws to the online environment. The FTC has used a variety of approaches to get its consumer protection messages out to the business community, from compliance guides, brochures and speeches at industry and academic meetings and conferences to e-mails and Web-based public service announcements, staff advisory letters on www.ftc.gov, use of the trade press to promote the availability of information on the agency site, and workshops on issues of interest and posting the transcripts.
(i) Publications for Business
Among the publications for business that have been distributed widely in print and online are Advertising and Marketing on the Internet: Rules of the Road, which has had a print distribution of over 22,000 and over 33,000 page-views of the online version. In addition, two business alerts – Selling on the Internet: Prompt Delivery Rules and Website Woes: Avoiding Web Service Scams – have been widely disseminated.
Just as consumers were discovering the benefits of "surfing" the Internet for instant access to information, FTC staff saw the value of surfing to educate businesses and to investigate potential legal violations. Since December 1996, when the FTC organized its first "surf" to ferret out pyramid schemes, it has become clear that this tool gives new meaning to efficiency. To date, the FTC has led some 16 surfs, with over 120 other agencies and 25 countries, identifying some 4,000 commercial websites that make dubious claims, largely in the promotion of health and diet products, pyramid schemes, business opportunities, investments, and credit repair.
Internet surfs allow law enforcement officials to survey the nature and scope of particular violations online. They also offer an opportunity to educate website operators – many of whom are new entrepreneurs unaware of existing laws – instantly and directly. When agency staff surfers identify a site that may have problems, they send an e-mail message that explains why the site may violate the law. Their message also provides a link to the FTC website for more information and gives notice about a follow-up visit. These follow-up surfs reveal that about 20 to 70 percent of the problem sites in a particular area are improved or removed. Those sites that continue their problem practices may be subject to further investigation and enforcement.
(k) Protecting Privacy Online
In May 1998, at the request of the Vice President, the FTC used www.consumer.gov to unveil a 1-stop shop for information about how to protect one’s privacy both on and off the Internet. The "About Privacy" site explains consumer privacy rights and provides visitors with contact information to ask that their personal information not be shared with third parties. For example, the page provides information on how to contact credit bureaus, state motor vehicle offices, and marketing organizations via the web, telephone, or mail. It includes sample opt-out letters that consumers can tailor to their own needs, as well as hyper-links to each of the three major credit reporting bureaus and the Direct Marketing Association’s opt-out pages.
In addition, the FTC has initiated a major multi-pronged information campaign focused on the provisions of the recent Children’s Online Privacy Protection Act of 1998, Pub. L. No. 105-277, Div. C, tit. 13, § 1302(6), which requires parental permission before collecting data from those under 13 years old. Businesses will be alerted to their responsibilities, and parents and youngsters will hear and read about their rights under the law.
2. Department of Commerce Initiatives
U.S. government policymakers and law enforcement officials are working to ensure consumer confidence in the virtual marketplace by enforcing existing legal protections and encouraging private sector leadership. Last spring, the Department of Commerce challenged the private sector to work with consumer representatives to develop effective consumer protection practices, including developing codes of conduct for business-to-consumer electronic commerce and alternative, easy-to-use mechanisms for consumer dispute resolution, redress, and enforcement. This approach recognizes that as e-commerce expands to encompass more international business-to-consumer transactions, alternative, easy-to-use mechanisms for consumer dispute resolution, redress and enforcement can help to ensure strong and effective consumer protection in the online environment and obviate the need for immediate resolution of the difficult issues surrounding jurisdiction and choice of law that would result if disputes had to be resolved in the courts.
There have been several significant responses to this challenge. In June 1999, the Better Business Bureau’s online division, BBBOnLine, announced a project to develop a Code of OnLine Business Practices (see www.bbbonline.org). BBBOnLine will work with industry, consumer representatives and government to develop a code to provide online merchants with guidelines to implement important consumer protections, such as disclosure of sale terms, data privacy, dispute resolution mechanisms, and non-deceptive advertising.
A similar effort was initiated in August 1999 with the formation of the Electronic Commerce and Consumer Protection Group, whose members include a number of industry leaders such as America Online, American Express, AT&T, Dell, IBM, Microsoft, Time Warner Inc., and Visa. This group is committed to working with consumer leaders to address electronic commerce confidence issues by formulating concrete approaches to protect consumers and facilitate e-commerce (see www.ecommercegroup.org).
1. FDA’s Outreach Campaign
As part of a major public education campaign, the FDA is informing consumers about the potential public health risks of buying medical products on the Internet. To increase awareness, FDA has developed a multimedia education campaign that includes messages targeted to specific audiences and the formation of partnerships for creating and disseminating information through government agencies, national organizations, consumer groups, and the Internet industry. The campaign will include public service announcements, brochures, newspaper articles, media interviews, and an FDA website (www.fda.gov).
FDA’s website on buying medical products online provides information on how consumers can protect themselves from certain online practices involving the sale of FDA-regulated products; reports on FDA’s enforcement efforts; advice on spotting health care fraud; and answers to frequently asked questions about online drug sales. Consumers who suspect that a website is illegally selling human or animal drugs, medical devices, biological products, foods, dietary supplements, or cosmetics can also complete and submit to FDA an electronic complaint form provided at the site.
2. SEC’s Investor Education Efforts
The Securities and Exchange Commission ("SEC") believes that an educated investor is the best defense – and offense – against securities fraud. Investors who know what questions to ask and how to detect fraud will be less likely to fall prey to con-artists, on or off the Internet. And, because they are more likely to report wrongdoing to the SEC and their state securities regulators, educated investors serve as an important early warning system to help regulators fight fraud. In particular, the SEC’s Internet mailbox (firstname.lastname@example.org) and online complaint form have made it easy and convenient for investors to express concerns and to report complaints to the agency.
The SEC publishes and distributes more than a dozen free brochures that explain in plain English how the securities industry works, how to invest wisely, and what to do if something goes wrong. They include Internet Fraud: How to Avoid Online Investment Scams, which helps investors identify different types of Internet fraud, describes what the SEC is doing to fight Internet investment scams, and explains how to use the Internet to invest wisely. These and other materials are available on the SEC’s website (www.sec.gov/consumer/online.htm).
Because investors increasingly use the Internet to research investment opportunities and to buy and sell securities, the SEC in 1999 launched a revised investor education page on the SEC’s website (www.sec.gov/invkhome.htm). The new page features interactive quizzes and calculators, information about online investing, tips for avoiding Internet fraud, and a special section for students and teachers. The page also features the SEC’s latest investor alerts, such as Tips for Online Investing: What You Need to Know About Trading in Fast-Moving Markets and Day Trading: Your Dollars at Risk. In addition to individual securities firms, a number of financial services industry associations, educational organizations, consumer groups, media outlets, and publicly traded companies provide links from their websites to the SEC’s website.
3. CPSC’s Consumer Outreach Efforts
An important part of the mission of the Consumer Product Safety Commission ("CPSC") is to inform and to communicate with the public about consumer product safety issues. Because banned or recalled products can find their way into commerce via the Internet, it is important for consumers to have direct access to safety information. Through its web site (www.cpsc.gov), the CPSC educates the public about critical product safety issues; provides a secure and efficient means by which consumers can report unsafe products; and provides a medium through which manufacturers, importers and distributors of consumer products can report substantial hazards associated with their products.
Children and young adults are the fastest growing group using the Internet. Helping children draw conclusions about behavior and its consequences in cyberspace is an important part of educating responsible (future) online users. Although most children are taught at an early age that it is wrong to break into a neighbor’s house or read their best friend’s diaries, we must also emphasize that it is equally wrong, and potentially more damaging, to break into their neighbor's computers and snoop through their computer files. Computer hacking "for fun" is a very serious problem, not only for the targets of the attacks, but also for law enforcement personnel who often have no way to determine the motivation for and the identity of the person behind the intrusion.
Educating children (and adults) about acceptable online behavior is crucial for the Internet to continue to grow as a safe and useful medium. Likewise, there is a need to educate the public on the dangers posed by cybercrimes and how harm can be reduced if people use technology responsibly. As the proliferation of low-cost computers and networks has spread information technology to every corner of society, people of all ages who use this technology must understand that along with the obvious benefits of technology comes a set of corresponding responsibilities. To this end, the Attorney General announced in April 1999 that the Department of Justice had joined with the Information Technology Association of America ("ITAA") for a partnership on a national campaign to educate and raise awareness of computer responsibility and to provide resources to empower concerned citizens.
The Cybercitizen Awareness Program seeks to engage children, young adults, and others on the basics of critical information protection and security and on the limits of acceptable online behavior. The objectives of the program are to give children:
•An understanding of cyberspace benefits and responsibilities;
•An awareness of potential negative consequences resulting from the misuse of the medium;
•An understanding of the personal dangers that exist on the Internet and techniques to avoid being harmed; and
•An ability to commit to adhere to these principles as they mature.Thus far, the campaign has received $300,000 in grants from the Department of Justice’s Office of Justice Programs. The partnership awarded a contract to a public relations firm in December 1999 to implement the objectives of the campaign. The Department of Justice and ITAA believe that the program will play a significant role in deterring potential hacking, educating the public about the potential dangers of the Internet, raising awareness about the potential consequences of online activities, reducing the threat to the nation’s critical infrastructure, increasing online security in the United States, and providing savings to information technology resources owners and users who suffer economic losses as a result of computer crimes. In addition to the awareness program detailed above, the Cybercitizen Partnership also has initiated a personnel exchange program between private business and federal agencies that is designed to educate both groups about how the other responds to threats and crimes over the Internet. This initiative will allow companies to find out how best to help law-enforcement agencies, and government officials will learn what business interests and influences drive industry decisions. The exchange program will be coordinated by the ITAA, which intends to detail personnel from the private sector to the FBI’s National Infrastructure Protection Center. The partnership also expects to create a directory of computer experts and computer security resources so that law enforcement will know where to turn when they need assistance from industry. V. CONCLUSIONS AND RECOMMENDATIONS Ensuring the safety and security of those who use the Internet is a critical element of the Administration’s overall policy regarding the Internet and electronic commerce, a policy that seeks to promote private sector leadership, technology-neutral laws and regulation, and an appreciation of the Internet as an important medium for commerce and communication both domestically and internationally Consistent with the Administration’s overall policy, the Working Group recommends a 3-part strategy for addressing unlawful conduct on the Internet: