computer bulliten boards and the law.txt

1000 HOWTOs for various needs [WINDOWS]

and  nonmedia.   The  plurality  opinion suggested  that the
crucial distinction was whether the  speech involved a "pub-
lic issue,"  "public speech,"  or an  "issue of public  con-
cern."  While Gertz did not clearly draw the distinction, it
was clear to the plurality from the facts of Gertz that such
a limitation was implied. [FN42] 

     As applied to  bulletin board systems, it  would appear
then that if the BBS  is press, New York Times malice  would
be the rule for defamation involving public issues or public
officials.  As long as the  defamation was by one user about
another user, the defamed party could be held to have delib-
erately  "thrust  himself  into the  vortex  of  this public
issue"  in an  "attempt  to influence  the outcome." [FN43] 
That the issue was of public concern [FN44]  could fairly be
implied  from  the fact  of discussion  on a  public message
base,  subject  to  rebuttal.   Of  course,  the possibility
always exists that  a user  inserted a defamatory  statement
into a void, [FN45]  in which case the system operator would
arguably at least have a duty to remove the offending state-
ment, absent a privilege to republish. [FN46] 

     One of  the difficulties in  discussing the  defamation
issue lies in  distinguishing the  system operator as  "vic-
tim," i.e., the  innocent republisher of a  defamation, from
the system  operator as initial  defamer.  The  operator may
be, but usually is not, the original publisher of an alleged
defamation. [FN47]   The system operator is more generally a
republisher of information and, like the bookseller in Smith
v. California, [FN48]  may  not fairly  be held  to know  in
advance the contents of messages left on the bulletin board,
let alone whether they are true or false. [FN49]   In Smith,
the issue was  whether the  bookseller, absent knowledge  of
the contents, could  be held liable for  obscene material in
his store.   The Court held that he could not.  "Every book-
seller  would be placed under  an obligation to make himself
aware of  the contents of every book in  his shop.  It would
be altogether unreasonable  to demand so near an approach to
omniscience...." [FN50]   One must be careful, however, when
discussing the  impact of Smith.   At least  one commentator
has suggested that the typical application of Smith is that,
in the totality of the  circumstances surrounding an "adult"
bookstore, the bookseller  can be inferred to  know the con-
tents of his  merchandise. [FN51]    One could suggest  that
the factual situation would be critical  in the context of a
bulletin board system.

     In manner similar  to the Smith bookseller,  the system
operator is not  aware of the contents  of a message  at the
moment it is posted.  While most system operators review the
contents of most messages left on their bulletin boards most
of the time, it is not always practical to do so, and to the
extent  that  the discussion  centers  on issues  of obvious
public  importance,  such  prescreening  implicates  serious
First Amendment  concerns regarding censorship  and chilling
debate on issues of public importance. [FN52]   

     While it is  not reasonable to expect  system operators
to be aware of the  contents of every message,  particularly
as it is  posted, the  question still remains  of what  duty
they  owe once they  become aware  of an  offending message.
Courts  interpreting  Smith [FN53]   generally have  applied
some element of scienter.   Once system operators  are aware
that  offending messages have been posted on the board, they
arguably have a  duty to remove the  message. [FN54]   Proof
of scienter might arguably  be shown by the totality  of the
circumstances  surrounding the  operation,  such as  limited
access, extensive  password protection, or  previous pattern
of abuse. [FN55] 

     Such a  pattern  might be  shown  if a  bulletin  board
system has, for example,  16 message areas, 15 of  which are
generally available to the public at large, but one of which
is  "hidden" and available only to close friends and associ-
ates of  the system  operator.   Such a  restricted sub-area
("sub"),  if used  for questionable  activities, might  more
easily  be  distinguishable  from the  generally  accessible
subs.  The operator, by exercising the control  necessary to
keep the sub restricted  and to grant access to  the "chosen
few," could arguably be inferred  to have personal knowledge
of the questionable activities. [FN56] 

     A question also arises about  whether the system opera-
tors might be  able to claim  a privilege of  republication.
The  primary privilege normally  mentioned in bulletin board
circles  is that  of the  common carrier.   The  Restatement
(Second)  of  Torts acknowledges  a  privilege for  a common
carrier to  republish a  defamation if  the "public  utility
[is]  under  a  duty to  transmit  messages...." [FN57]    A
careful examination  suggests that  a common  carrier privi-
lege, however, is neither warranted  nor wise.  In  National
Ass'n of  Reg. Util.  Comm'rs v.  F.C.C., [FN58]  the  court
formulated a  two-part test  that would  appear to apply  to
bulletin boards and one which they could arguably pass.  The
case involved cable television.  The coaxial cable installed
for distribution of cable television  is capable of carrying
signals in the reverse direction.   FCC regulations required
such a reverse channel to be  available.  The FCC originally
had not completely foreclosed state  and local regulation of
the reverse channel.  When it  acted to preempt such regula-
tion, the plaintiffs in this action sued to void the preemp-
tion.    The court  ruled that  the  reverse channel  was an
intrastate  common  carrier,  holding that  to  be  a common
carrier an entity must first  provide indifferent service to
all who request it.   Many bulletin board systems  will nor-
mally accept as  a user  anyone who applies,  and many  more
accept anyone  who applies whose registration information is
not facially false;  e.g., anyone who  might provide a  name
listed in the  applicable telephone directory at  the number
provided.  Second, the system must  be such that the custom-
ers can transmit  information of their  own choice.  In  the
case of the bulletin board system, by  definition the infor-
mation is of the customer's own choice.  The difficulty with
this approach, probably  fatal if ever adjudicated,  is that
no one has yet suggested a  duty of bulletin board operators
to transmit any or  all messages submitted to them,  or even
to  open their boards to  the public. [FN59]   Most bulletin
board  systems,  after  all,  are  run   as  a  hobby  at  a
loss. [FN60]   It would  be an absurd result to  decide that
merely by operating a bulletin board system as a hobby, that
an operator mustprovide service to anyonewho asked. [FN61] -
Additionally, most  system operators reserve  the right to
edit  or delete  questionable messages, an  action certainly
incompatible with the requirement that  on a common carrier,
the  information be  of the  customer's own  choice. [FN62] 
(Such a reservation of rights,  however, is entirely consis-
tent  with  the  editorial discretion  inherent  in  a Press
Clause  model,  as is  the  discretion concerning  which few
echoes or message areas, out of the extensive possibilities,
should  be carried on the system. [FN63] )  In addition, the
bulletin board is not a common carrier as that term has been
interpreted by the  FCC, and the  courts will normally  give
"great deference" to the interpretation  given by the admin-
istrative agency. [FN64]    The Federal  Communications Com-
mission  is  authorized to  regulate interstate  commerce by
wire or radio. [FN65]   Since bulletin board systems operate
by connection to the interstate  telephone system, and since
many of them actually are connected [FN66]  to an interstate
network of computerized bulletin board systems, and since it
seems well-settled  that the term "interstate  commerce" has
an extremely broad  meaning, then it  would follow that  the
FCC could  assert jurisdiction.   While  it would  logically
follow, it seems  to this  author that it  would exceed  the
probable intent of  the Congress which enacted  the Communi-
cations Act of 1934. [FN67]   

     The FCC appears to agree with  the author.  In response
to the "increasing complexity  and overlap of communications
systems in the 1970s," [FN68]  the FCC conducted a series of
hearings   which  has become  known as  the  Second Computer
Inquiry. [FN69]     The  Commission   distinguished  between
"basic" and  "enhanced" services.   Basic services act  as a
pipe for  information without  significantly altering  it--a
transparent  path.  Enhanced  services combine basic service
with some sort  of processing.  The  Commission retained its
traditional  jurisdiction  over  basic  services,  but  left
enhanced  services  essentially  unregulated.   Computerized
bulletin  board  services  were  specifically  mentioned  as
enhanced services. [FN70] 

     If it seems likely that bulletin board  systems are not
common carriers, it also seems wise.   We saw in the discus-
sion of defamation, supra, that  bulletin boards might argu-
ably  be characterized as  press.  While  the discussion was
based on access to information, it  was noted that a logical
extension  could be made.  One such likely extension is to a
privilege  of  republication.   In  1977, the  United States
Supreme  Court  denied  certiorari  to Edwards  v.  National
Audubon Society, Inc. [FN71]    In Edwards, the editor of an
Audubon  Society  magazine  characterized  scientists  using
Society data to support  the continued use of the  pesticide
DDT as "paid liars." [FN72]   The  New York Times accurately
reported the  charges.   Five scientists  sued both  Audubon
Society and  the Times.   The  Second Circuit  dismissed the
judgment against the  Times, finding a privilege  of neutral
reporting essential to the operation  of the Press Clause of
the First  Amendment. [FN73]   While the  precedential value
of "cert. denied" is of uncertain value, the decision stands
in the Second Circuit.   The courts are split  about whether
the  "neutral reporting" privilege  is valid. [FN74]    Many
have accepted it and many have refused to accept it. [FN75] 
If there is any  validity to it, however, it should apply to
bulletin boards.  The  editors of the New York  Times, after
all, had the  option (editorial discretion) not  to publish.
In contrast, inherent in the nature of the bulletin board is
immediate republication.   The  operator may  only, once  he
becomes aware of the libel, remove  it.  No editorial choice
is  exercised  immediately,  and in  the  case  of networked
systems, an intervening mail event  will cause the question-
able  matter  to  be republished  widely  before  the system
operator has the reasonable opportunity  to take any action.
At  least to the extent that  bulletin board systems facili-
tate  discussion  of matters  of  public importance,  and at
least to  the  extent that  the  Edwards privilege  is  ever
valid,  the neutral (fair)  reporting privilege should apply
to  bulletin  boards. [FN76]     This  application  of   the
neutral/fair  reporting  privilege would,  it  seems to  the
author, be a better solution to the problem of republication
than  common  carrier  recognition, as  it  would  leave the
system operator with the independence and discretion implic-
it in a hobby. [FN77] 

    Civil and Criminal Liability for Contents of Messages

     In a similar manner, system operators have been charged
with various criminal  violations based  on the contents  of
messages  left on their bulletin boards. [FN78]   One of the
earliest reported cases  involved a  Mr. Tcimpidis, who  was
charged solely because of information posted on his bulletin
board containing stolen telephone credit  card numbers.  The
exact  basis of  the  charge is  missing  from the  reviews;
however, one can surmise that it was for aiding and abetting
or some similar theory, in  that charges were later  dropped
for lack  of evidence of  knowledge or intent. [FN79]    Re-
cently, the "Sun  Devil" investigation by the  United States
Secret  Service  has  resulted in  the  seizure  of computer
equipment and at least the temporary cessation of activities
at several  bulletin board systems.  Boards  operated by Mr.
Craig Neidorf and one outside Chicago, called "JOLNET" have,
for example, ceased operations.  The JOLNET  operator, a Mr.
Rich Andrews, initiated contact with the Secret Service when
he  became  aware  of potentially  illegal  activity  on his
board.    Notwithstanding 18  U.S.C.   2703  et seq.,  which
appear to prefer solicitation of  archival copies and backup
records  of  such  systems, the  Secret  Service  seized the
actual  computer equipment  as evidence,  shutting  down the
system. [FN80] 

     Such seizures  would appear  to be  troublesome to  the
extent that a bulletin board system may fairly be said to be
some kind of a  forum provided for the public  discussion of
matters of importance. [FN81]    One  cannot foresee a  more
"chilling" effect on free speech than to be frozen to death-
-or shut down by seizure.

          Privacy Concerns and the Fourth Amendment

     The discussion above briefly mentioned that some bulle-
tin board systems had been seized, apparently without regard
to the presence of  electronic mail.  While search  and sei-
zure and  privacy  issues are  not directly  pertinent to  a
paper on mass communications law, they seem to the author to
be  inextricably  combined  in  any discussion  of  bulletin
boards.   Virtually  every bulletin  board  system  provides
facilities forsome sort ofprivate, electronic mail. [FN82] -
  One  case  in California  involved  a foundation  known as
ALCOR, which  practiced cryogenic preservation of people who
died from what they hoped would,  in the future, be a treat-
able disease.   ALCOR  came under  investigation on  charges
they had preserved some people a little hastily, essentially
a charge of some kind of homicide.  While no serious commen-
tator  has  suggested that  the  case should  not  have been
investigated, the  problem appears  to be  that the  founda-
tion's electronic  mail system  was seized with  undelivered
mail still in storage.  The system was apparently accessible
to the  public. [FN83]   ALCOR  sued under 42  U.S.C.   1983
for the  return of the  system and damages,  alleging, inter
alia, that  the government  violated the  provisions of  the
Electronic Communication Privacy Act of 1986 (ECPA). [FN84] 
A decision has not yet been reached in the case.

     The  only  other  known action  involving  the  privacy
provisions of the ECPA  is Thompson v. Predaina. [FN85]    A
user  accused  a  system operator,  inter  alia,  of causing
private messages to be made public without the permission of
the sender or intended recipient, thereby violating the act.
The complaint was  voluntarily dismissed  prior to trial  on
the merits.   Predaina would have been  an ideal opportunity
for judicial  construction of  the latest  Congressional at-
tempt to define  the privacy  protections of the  electronic
world.

     As the technological complexity of society increasingly
draws us into the electronic world, privacy issues become of
more  concern to more people.  The responsibilities and duty
of  care of a  system operator to  the users  of the system,
regarding whatever  reasonable expectation  of privacy  they
may have,  would seem to  be something each  system operator
would want  to know.   Experience in both this  class and in
the real world tells the prudent observer of the legal scene
that Congress  passing an Act  is but  the first step  in an
area filled with  First and Fourth  Amendment concerns.   It
would have been helpful for  a judicial construction of  the
ECPA, but that will of necessity wait for another time.

          There is, from  empirical data, [FN86]  a  connec-
tion between the earlier discussion of liability for defama-
tion and illegal activities and liability for privacy.  Many

From kadie Sat Oct 12 09:51:10 1991
To: cafb-mail
~Subject: Computers and Academic Freedom mailing list (batch edition)
Status: R


Computers and Academic Freedom mailing list (batch edition)
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