how the traditional media clasifications fail to protect in t.txt

1000 HOWTOs for various needs [WINDOWS]

wasting vast amounts of time and effort combing through computer
files, or being subject to potential lawsuits and damage awards based
on the unknown illegal acts any one of hundreds or thousands of
callers might choose to commit on their systems."51

No such imposition should be allowed. Thus in some respects it is
logical to consider these systems a distributor free from most legal
liability.52 But the varying manners in which people communicate on
electronic systems makes this single, albeit protective, label
inaccurate. Real-time chats are immediate with no opportunity to
prescreen, although if someone is rude or abusive, they may find
themselves cut out. Such as the case when a male America Online user
entered the chat room "Women for Women."53 He wandered in blathering,
"So, any lesbian Nazi hookers from hell here?" The moderator quickly
booted him out, and the user later received a warning message in his
mailbox. The user -- already on notice -- later made the mistake of
using the word "piss" in another chat areas and lost his account on
America Online.

Because the user "spoke" in real time offering observers no chance to
filter out his offensive comments, the electronic chat system was much
like a broadcaster without a delay device. No prior censorship was in
place except that problem users would find themselves unable to
participate as long as they behaved inappropriately among a diverse
population.

This lack of ability to filter the speech of others is at the heart of
the needed definition for electronic mass communications systems. Only
common carriers do not have previous knowledge of the communication
carried through their systems. They also are obligated to carry it. As
the history of sysop intervention and moderation on shared networks
has indicated, however, the desire to maintain high-quality
discussions is a common desire.54 Low signal to noise ratios are
expensive. Users and sysops are paying to transmit messages across the
country and want to eliminate as much chaff as they possibly can. The
cornerstone of eliminating garbage is steering conversations to
appropriate areas (no religion talk in the soap opera conference) and
coming down hard on users who routinely abuse other users. This may
seem like an effort to censor views analogous to a broadcaster using a
delay device to silence its political opposition as warned against in
Adams v. Frontier Broadcasting. But administrators for these networks
will quickly remind people that the First Amendment simply doesn't
apply: The network makes the rules and grants users limited freedom of
speech.55

Though that has not been enough for some socialist members of society
who insist that computer networks are much like a company town or
shopping mall in that the more they open themselves to the public, the
less control over speech they have.56 The public forum doctrine,
unfortunately, is not equal from state to state. More state courts
have favored defendants who restricted speech than states that found
for the speaker.57

What this means for national and global computer networks is a
confusing array of laws that vary from state to state. Lance Rose, a
lawyer who has written much on the subject of computing-related law,
has suggested that laws related to the electronic frontier be
nationalized to alleviate the uncertain nature of laws from state to
state.58 That is a central goal to protecting operators from
unnecessary liability. Users will see their rights to speak in what
they believe to be a public forum enhanced if the proper steps after
that are taken. As Rose stated: "It's time to realize that provincial
state laws only hinder proper development of interstate electronic
systems."59

One direction that could be taken in the public discourse area of
computer-mediated communication is the notion of the public forum. No
method of communication ever developed by mankind so easily puts the
power of speech into individual hands. None ever has opened itself up
to the thoughts expressed by the millions of users who operate on the
commercial information services, the 60,000 bulletin board systems and
Internet-connected systems.

This certainly supports the expansion of "freedom of speech" to
computer networks to the point that respectable users can do or say
what they want. The technology provides everyone a chance to have
their say. Sysops tend to dislike this analogy, insisting that their
boards are their private property much like their private living room
to which they can invite anyone they want or from which they can
remove anyone they dislike.60 No infringement on their rights as the
owner is intended; computer bulletin boards are still safe because
they fit so many roles.

Different types of systems have different needs. To help them meet
that is the "time, place and manner" provision already assigned to
traditional public forums.61 It should be expected that in areas open
to minors, decent language will be used and certain types of discourse
are agreed upon as inappropriate. In those systems sensitive to cost,
rules barring extraneous ASCII (overquoting, cute quote boxes and
bloated signatures)62 are permissible as are those discouraging
off-topic meandering and flaming.

In none of these should operators be expected to prescreen discourse.
They do have the right and obligation, however, to remove damaging
materials on private, non-shared message bases once brought to their
attention.63 The cost is insignificant as the means to delete such
material is available at the tap of a key. Expecting the same behavior
on shared systems is impractical and counterproductive. In this case
moderators have an obligation to ensure that disruptive elements are
not allowed to continue inserting damaging material into the network.
Again, there is little need of this when the area at question has no
sponsor, such as with the "alt" groups on USENET. The individual, not
the network's leadership or its connecting parts, is responsible for
material placed in the public arena. The system operators in this case
act as pure distributors. Some have a choice over what areas they will
support and which they will not, but not individual statements.64 This
is like a library which might cancel a periodical subscription but not
remove a single issue someone considers offensive.65

If a bookstore chooses to carry pornographic material it should be
allowed to do as long as state laws regarding distribution to minors
and obscenity are adhered to. The same should apply to computer
bulletin boards; operators should not be afraid to maintain adult
areas simply because law enforcement behaves like the Keystone Kops.
One would hope that local authorities have learned something about the
rights of bulletin board operators and users over the last 10 years
when Tom Tcimpidis' BBS was seized in 1984 after a user posted a
stolen telephone credit card number on the board.66 Unfortunately,
they have not. One local Knoxville board removed its adult area
reportedly for fear of legal disputes,67 and the Secret Service was
chastised for seizing the computer equipment of a publisher which
contained works in progress and electronic mail.68 Sysop Mark Lehrer
of Ohio is still fighting to recover the private E-mail from his
system which authorities took along with his entire BBS in a failed
sting operation directed at suspected child pornography
distribution.69

As long as sysops see such reports and fear the security of their
board, open exchange of ideas whether written or graphic can not
freely occur despite American courts' insistence they support the
First Amendment as well as privacy. Once definitive classification is
obtained, the freedom that spread across computer bulletin boards in
their birth will continue into the next century as networks grow and
as new systems reach completion.70

With that classification must come an understanding of what
responsibilities a sysop has as a distributor or publisher.  Injurious
materials can include defamation, copyright infringement and computer
viruses, all of which can affect users or third parties. A sysop
operator's role in preventing or limiting damage has yet to be finely
detailed, although the considerations of negligence and actual malice
can be extended to the operations of a computer bulletin board. Which
standard of fault is best hasn't been decided.71 Operators may prefer
one, parents another and adult users yet their own again.

Some steps have already been taken. The Electronic Frontier Foundation
has supported building a consensus on the limits of sysop liability.72
A handful of law review articles have suggested that the current media
classifications are unfit to include BBS' in their realm and that a
new class is needed.73 Unfortunately, most of this discussion has
taken place among computer watchers and interested law parties. Many
Americans still lag behind in its understanding of what bulletin
boards are and where they stand as evidenced by reports in the media
on how BBS scandals continue to mystify basic concepts long accepted
by the public as expected.74

It may seem shocking for users today to learn that more than ever they
are responsible for what they write and what they distribute. The
ability to have your voice heard is unprecedented but so is the
capability to harm. The media lessons of copyright, privacy and
defamation still are being taught on the networks today. They will
continue as more people log on to the networks at hand, spreading
their personage electronically.

Education can answer many of the problems facing the electronic world
today. But no puzzles are solvable until computer information systems
and bulletin boards are granted the highest degree of First Amendment
rights and freedom from liability necessary to keep the waves of
public exchange coming throughout the future.

[FOOTNOTES]

1 Here is the text of Tribe's proposed amendment:

"This Constitution's protections for the freedoms of speech, press,
petition, and assembly, and its protections against unreasonable
searches and seizures and the deprivation of life, liberty, or
property without due process of law, shall be construed as fully
applicable without regard to the technological method or medium
through which information content is generated, stored, altered,
transmitted, or controlled."

2 "ILink Conference Information," (short list) July 1993 from the file
ILCNF307.ZIP available on ILink-affiliated boards of which Data World
BBS in Maryville, Tenn. (615-675-3282) is one.

Besides conferences geared to debate, technical discussion, hobbies,
professions and entertainment, networks often maintain administrative
areas for news announcements and handling of user-moderator disputes.

The Mod & User area of ILink for example is set aside as the "hallway"
where users and conference hosts can discuss instances where someone
has been moderated for rules violations. Its implementation is public.
Other networks may handle moderations similarly, very differently,
privately or not at all (as is the case with LuciferNet).

3 A recurring problem in almost any conference devoted to computer
operating systems. The author has personally noted warnings and minor
disputes in Windows and Macintosh-oriented conferences. Other users
have been moderated for similar instances in OS/2, according to
exchanges in the ILink Mod & User conference.

4 Common conferences for such debates: Politics, Opinion and even Star
Trek.

5 Because this incident began in the summer of 1992 and continued into
the autumn months, copies of the dispute long ago disappeared from the
archives available to most users, including the author. Descriptions
of the account are based upon his memory of the conference's flame war
at the time.

6 Ibid. Gary Phillips' description did nothing to help his argument.
If anything it increased some users' distaste of homosexuals.

7 Ibid. Matthew Ackerman was the participant who threatened the ILink
network with legal action. He was eventually reassured that 1) ILink
policies would be sufficient and 2) successfully suing everyone
involved would be a monumental task because the boards are distributed
across the United States and internationally.

8 On the ILink network, the official moderation schedule is as
follows:

-- Informal warning. Discuss in Mod & User.

-- Formal warning. Discuss in Mod & User. Replying to moderation
   messages in the conference in which one has broken a rule rather
   than Mod & User is a common method of earning the next step:

-- 30-day suspension. Applies to the conference only. This is
   unappealable and thus no discussion is warranted.

-- 6-month revocation. This is appealable. Upon a return from a 30-day
   suspension, any violation of rules demands this access restriction.
   Discuss in Mod & User.

-- Network expulsion. In rare instances a user may have access to
   ILink removed completely. See note 34 below.

9 An E-mail acquaintance of the author is the culprit in this case. He
eventually stopped posting the articles after Russell King, an
assistant managing editor at The New York Times who read the
conference, informed him that he was in violation of copyright law and
should immediately cease posting Times articles verbatim or as lengthy
excerpts.

10 This particular user posted several different messages in several
different conferences on ILink.

11 Take for example a posting in the ILink Politics conference of the
article from The American Spectator on Magic Johnson's contraction of
HIV.

12 Such reprinting without permission occurs on a regularly basis on
some Internet discussion groups. These are posted apparently for
nonprofit information distribution in most cases.

13 Pham, Dewey. Response to moderator's notice that he could not post
an Associated Press wire service article, no matter how fascinating
and pertinent, about Robin Williams possibly showing up as a guest
star on Star Trek: The Next Generation.

14 See note 9 above.

15 Posting on USENET's alt.censorship newsgroup.

"The USENET is an informal, rather anarchic, group of systems that
exchange `news.' News is essentially similar to `bulletin boards' on
other networks." Krol, Ed. The Whole Internet: User's Guide and
Catalog, p. 363.

16 Account of a month-long incident according to complaints and
moderation posts in the network's Mod & User conference. Some of the
posts included verbatim quotations. Available on Data World BBS.

17 As the seasons progressed, Sirtis' cleavage diminished. It