Perspective: Will this land me in jail?

CNET's Washington Watcher Declan McCullagh wonders whether a provision in the DMCA means that he might get an all-expenses-paid vacation to Club Fed.

WASHINGTON--It's not every day that I fret about committing a string of federal felonies that could land me in prison until sometime in 2008.

But right now I'm wondering about whether the Digital Millennium Copyright Act (DMCA) means that I might get an all-expenses-paid vacation to Club Fed.

It turns out that software company executives like the ones at ElcomSoft, whom a federal jury acquitted on Dec. 17 on charges of violating the DMCA, aren't the only people who might want to have a defense lawyer on retainer. Journalists might be affected too.

Our story starts with the Transportation Security Administration (TSA) Web site, which has an area called "Security and Law Enforcement" featuring four password-protected Microsoft Word documents. No password is necessary to download those encrypted documents, but a password is required to open and read them.

According to the brief descriptions on the TSA Web site, the four files cover airport security procedures, the relationship between federal and local police, and a "liability information sheet." A note on the site says this "information is restricted to airport management and local law enforcement." (Who knows? Maybe the sure-to-be-convincing reasoning behind banning those deadly nail clippers will be revealed.)

Anyway, a confidential source recently gave me what I believe is the correct secret password to the documents.

But here's the catch, and it's a pretty silly one: If I type the password into Microsoft Word or even tell you what it is, I could be liable for civil and criminal penalties under the DMCA. Section 1201 of the law contains two prohibitions: First, "no person shall circumvent a technological measure" that controls access to copyrighted information, and second, no one may publish information such as a password that's designed to circumvent "a technological measure that effectively controls access" to a copyrighted document.

Civil penalties include hefty fines and computer confiscation. And since CNET is a for-profit business, I need to worry about criminal sanctions too. Under the current law, I or my editors can "be fined not more than $500,000 or imprisoned for not more than five years, or both."

That's the section of the DMCA under which first Russian programmer Dmitry Sklyarov and then his employer, ElcomSoft, were prosecuted. True, ElcomSoft beat the rap--but who's willing to risk having a different jury reach a different conclusion? How about if a prosecutor calls it a case of endangering national security? And even an acquittal would happen only after years of agonizing and expensive legal proceedings. No thanks.

"If you don't have permission and you use the password without permission, that's within the definition of a circumvention act," says Jonathan Band, a partner at Morrison and Foerster who specializes in intellectual property law. "The DMCA is very broad. It doesn't take a lot to trigger liability."

But, wait! There's a loophole. Because the DMCA is a copyright law, it covers only passwords and other "access controls" protecting copyrighted documents. Specificially, the law says official documents prepared by federal employees are "not subject to copyright protection." Lee Tien, a staff attorney at the Electronic Frontier Foundation, says "such works are not protected by U.S. copyright law." So I'm off the hook, right? Well, not so fast. It turns out that other Word documents on the same page that aren't password-protected were created by Deloitte Consulting. If that's true for the password-protected ones too, they're copyrighted, the DMCA applies, and I could be prosecuted. Besides, as Tien points out, the terms of use on the TSA contains this worrisome language: "Users shall not access other users' files or system files without proper authority. Absence of access controls is not authorization for access." By browsing the site, the TSA claims that I've agreed to those conditions.


The easiest way to resolve this problem was to phone the Justice Department and ask them about their plans. "We deal with these things on a case-by-case basis," Brian Sierra, a department spokesman, told me. "There are always determinations that must be made in any allegation of criminal wrongdoing. Our policy is to enforce the law. If the law is being violated we will investigate, and we may prosecute."

Well, that's hardly reassuring. "I'm not in a position to give you legal advice," Sierra added. "I suggest you contact your attorney."


In this lies a lesson: Journalists traditionally haven't worried about copyright law all that much. If anything, we've instinctively supported it. Copyright law helps us get paid for what we do for a living.

But nowadays intellectual property rights have gone too far, and arguably interfere with the newsgathering process. In addition, the DMCA has been used to prohibit 2600 magazine from linking to a DVD-descrambling utility--a precedent, upheld by a federal appeals court, that should worry any online publisher.

"It would seem to me that if a citizen or a journalist goes to a government site, that they would have the expectation of being able to access any information on that site, not just because of the First Amendment, but also because that information is collected and maintained with the citizen's tax dollars," says Paul McMasters, the First Amendment ombudsman at the Freedom Forum, a nonpartisan group devoted to freedom of the press. "To intentionally or unintentionally set a trap for the unwary citizen looking for information on a government Web site is to me very troubling."

All this is good news for journalists and muckrakers in other countries who don't have to worry about the DMCA--as long as they don't want to travel to the U.S. Since I can't tell you what the password is or what these mysterious documents contain, maybe somebody else can?

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