computer bulliten boards and the law.txt

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sysops have  difficulty in separating the two,  and it seems
that  to   "normal" sysops  "liability is  liability."   The
distinction as to the form of  the action, and whether it is
brought by a citizen or the state, either eludes or does not
concern them.

                         Conclusion

     The ever-increasing rate of change  in the world around
us has eclipsed  the state of the law  in many ways.   As we
have progressed from  Luther's church door, to  Paine's pam-
phlet, to the supermarket bulletin board, and to the comput-
erized  BBS, the lines between mail  and press and telephony
and  public  and private  have  often become  unclear.   The
application of  traditional legal lines  of demarcation  and
tests for responsibility for defamation and criminal liabil-
ity  appears  unclear as  well.   The  computerized bulletin
board system has become a fixture  in a small but increasing
segment  of our society,  and that  society needs  the legal
system to sort out the rules so that everyone in it can play
the game on  a level playing  field--so that they both  know
what  they may reasonably  expect of others  and what others
may reasonably expect of them.

[Footnotes -cmk]

FN1.  LINDBERG, MARTIN LUTHER: JUSTIFIED BY GRACE 24 (1988)

FN2.  Id.

FN3.  The  author  remembers  well  his orientation  at  the
beginning of  the fall  semester, 1988,  and the  admonition
given by (now  assistant dean) Anne  Lange.  His  experience
since then has borne out the wisdom of her words.

FN4.  The author sees the board at Baker's all too frequent-
ly, as his meager  income outgoes to the provider  of suste-
nance.

FN5.  In the spirit of inclusive  language, should one, with
tongue  in cheek, refer  to them as  the "Precipitating Par-
ents"?  On a more serious note, to make  the sentence struc-
ture as  short and direct  as possible, and  consistent with
the  generally accepted  rules of construction  for statutes
and legal texts, we  have used the pronouns "he",  "his," in
lieu  of "he  or she," or  "his or  hers," etc.   Unless the
context  clearly  indicates  otherwise,  masculine  pronouns
should be read as inclusive.

FN6.  Pamphleteers  were  pervasive  and   almost  certainly
within the intended coverage of  the First Amendment's Press
Clause.  Lange,  The Speech and Debate  Clauses, 23 U.C.L.A.
L. REV. 77, 106 (1975).

FN7.  The terminology is far from standardized in discussing
computer bulletin board systems.  The author, in researching
this paper and  in general experience, has  experienced com-
puter  bulletin board systems  (CBBS), remote bulletin board
system (RBBS),  electronic bulletin  board system,  and just
"bulletin board system:  (BBS).  For simplicity,  this paper
will use  bulletin board, bulletin  board system, or  BBS as
the context dictates.  

FN8.  A  1985 law  review article  cited  sources indicating
there were some  1500 active bulletin  board systems in  the
United States  as of  1984; however,  the authors  indicated
some skepticism as  the source cited  15 in the Denver  area
and they personally knew  of 50-60.  Soma, Smith  & Sprague,
Legal Analysis of Electronic Bulletin Board Activities, 7 W.
NEW  ENG. L.  REV. 571,  572 n. 3  (1985).   Another article
suggests the number is between 1000 and 5000.  Note, Comput-
er Bulletin  Board Operator  Liability for  User Misuse,  54
FORDHAM L.  REV. 439, 441 n. 12 (1985).   The author is cur-
rently system operator ("sysop") of an bulletin board system
affiliated with networks known as "Fidonet," "Metronet," and
"OPCN."   The current  combined  "nodelists," or  addressing
information,  list  over  8500  independent bulletin  boards
worldwide.  Nodelist 222, Fidonet, available  electronically
and from the author.   In addition, several large commercial
networks exist.  While it is  apparently difficult to obtain
information  about their subscriber  base, one  source lists
them  as CompuServe  (500,000 +),  Dow Jones/News  Retrieval
(275,000), and GEnie (General Electric Network for  Informa-
tion  Exchange) (150,000).   Becker,  Liability of  Computer
Bulletin Board Operators for Defamation Posted by Others, 22
CONN. L. REV. 203, 204 n. 4 (1989).

FN9.  Dembart,  The  Law  Versus  Computers:  A  Confounding
Terminal Case, L.A. Times, Aug. 11, 1985, at 3, col. 1.

FN10.  "Modem" is a contraction of  two terms, modulator and
demodulator, referring to  two separate processes  that must
occur  to transmit  computerized information  over telephone
lines.  At  the present time, the modem is normally either a
small box set next to the  computer and connected by cables,
or a small printed circuit  card physically installed inside
the  PC.  In either instance  the modem must be connected to
the  telephone  system for  the  bulletin board  to operate.
Kahn,  Defamation Liability  of Computerized  Bulletin Board
Operators  and  Problems of  Proof 6  (1989) (electronically
distributed, available from the author of this paper).

FN11.  Becker, supra n. 8 at 203 n. 2.

FN12.  Becker,  supra  n.  8.   See  also,  Soma,  Smith and
Sprague, supra n. 8.

FN13.  Attached to this paper are a partial current combined
system list for  FidoNet, MetroNet and  OPCN, and a list  of
"echo"  areas, by  somewhat  cryptic but  at  the same  time
somewhat understand area  "tags," that are available  to him
as a system operator.  Also  attached is a brief description
of "echomail," and  sample printouts of some  recent discus-
sions. The  cost of  long distance  transmission is  usually
absorbed  by the system operator as part  of the cost of the
hobby.    Occasional  "pooling" arrangements  allow  for the
economical transmission between cities (several operators in
the Omaha area do this, for example).

FN14.  Note, FORDHAM L. REV., supra.

FN15.  Id.

FN16.  Id., at 439, n. 4.

FN17.  Soma, Smith and Sprague, Legal Analysis of Electronic
Bulletin board Activities, 7  W. NEW ENG. L. REV.  571, 572-
575 (1985).  See also note 19, infra.

FN18.  UPI, May  5,  1990, Computer  hacker gets  probation,
fine, LEXIS, NEXIS library, Current file.

FN19.  Westbrook, User  to user: the comms  column; Bulletin
boards  helpful  for communication,  PC  User, LEXIS,  NEXIS
library, Current file (1990).  

     Consider the following equation: Computer +  Modem
     = Illegal  Activity.   This is  the basic  formula
     used by non-expert TV and radio programme  editors
     when examining the subject of data  communications
     and it's a view which has been encouraged by a few
     pundits who're  only too  happy to  take money  to
     talk about  children playing  noughts and  crosses
     with  military computers.   This attitude seems to
     be  the  result of  a  few celebrated  cases where
     illegal activity has been brought to light involv-
     ing a hacker, his  computer and a modem.   Yet the
     same principle might be applied  to all drivers of
     Mk II Jaguars to identify  them as getaway drivers
     for bank robbers. 
     The suspicion that the  modem/computer combination
     can generate is nowhere more  apparent than in the
     public view  of the bulletin board.   To read, see
     or hear  the popular media in action, you could be
     forgiven  for thinking  that  bulletin boards  are
     used  exclusively  to  disseminate pornography  or
     recipes for Molotov cocktails.  At the very least,
     such  services  are  seen as  havens  for  spotty,
     adolescent, sex-mad anarchists rather than serious
     computer users.

Id.  Westbrook goes on to  suggest that bulletin boards have
valuable uses as sources of  information and discussion, but
that the  general public can  be forgiven for  not realizing
this, given the nature of press coverage of computer crime.

FN20.  In fact,  the Internet/Usenet system,  with which the
University of Nebraska is  affiliated, carries a "newsgroup"
somewhat  misleadingly  labelled  the "Computer  Underground
Digest," which devotes a  great deal of space to  known cur-
rent investigations and debunking rumors and myths surround-
ing them.  CuD Volumes 1.22 through 1.28, available from the
author.

FN21.  Electronic mail is  specially protected by 18  U.S.C.
   2701 et  seq., the Electronic Communications  Privacy Act
of 1986 (ECPA).   There is  no indication that the  officers
requesting  any  warrants or  the  judge or  magistrate that
issued  them paid any  attention to the  requirements of the
ECPA.   See  generally, CuD  Vol. 1.23,  available  from the
author.   A limited  discussion of  electronic mail  privacy
issues as  they interact  with bulletin  board systems  will
follow infra.

FN22.  The following  electronic note  was published  in the
newsgroup comp.dcom.telecom  (Telecommunications Digest)  on
Saturday,  August  11, 1990.    The accompanying  header and
routing control information is deliberately left in place so
one may get a  sense of the complexity and  pervasiveness of
the electronic world:

      From comp.dcom.telecom Sat Aug 11 09:47:24 1990
      Path: hoss!maverick.ksu.ksu.edu!ux1.cso.uiuc.edu!
         brutus.cs.uiuc.edu!wuarchive!cs.utexas.edu!mailrus!
         accuvax.nwu.edu!nucsrl!telecom-request
      From: [e-mail] (Colin Plumb)
      Newsgroups: comp.dcom.telecom
      Subject: Dial 1-800 ... For Bellsouth `Secrets'
      Message-ID: <[e-mail]>
      Date: 10 Aug 90 17:41:07 GMT
      Sender: [e-mail]
      Organization: Array Systems  Computing, Inc.,  Toronto,
      Ontario,    CANADA 
      Lines: 71
      Approved: [e-mail]
      X-Submissions-To: [e-mail]
      X-Administrivia-To: [e-mail]
      X-Telecom-Digest: Volume 10, Issue 558, Message 5 of 11


      {Computerworld},  August 6,  1990, Vol.  XXIV,  No. 32,
      Page 8.

      Dial 1-800...for Bellsouth `Secrets'

        BY MICHAEL ALEXANDER
                      CW STAFF
       CHICAGO --- The attorney for  Craig Neidorf, a 20-year-
      old  electronic newsletter editor,  said last week that
      he  plans  to file  a  civil lawsuit  against Bellsouth
      Corp.  as  a  result  of  the  firm's ``irresponsible''
      handling  of a case  involving the theft  of a computer
      text file from the firm.

      Federal prosecutors dismissed  charges against  Neidorf
      four days into  the trial,  after the prosecution  wit-
      nesses conceded  in cross-examination that much  of the
      information in the text was widely available.

      Neidorf,  the co-editor of ``Phrack,'' a newsletter for
      computer hackers, was accused by federal authorities of
      conspiring to steal  and publish a  text file that  de-
      tailed  the inner workings  of Bellsouth's enhanced 911
      emergency telephone  system across  none states  in the
      southeast [CW, July 30].

      ``What happened  in this  case is  that the  government
      accepted  lock,  stock,  and   barrel  everything  that
      Bellsouth    told    them   without    an   independent
      assessment.'' said Sheldon Zenner, Neidorf's attorney.

      One witness, a Bellsouth service manager,  acknowledged
      that detailed  information about the inner  workings of
      the 911 system could be purchased  from Bellsouth for a
      nominal fee using a toll-free telephone number.

      A Bellcore security  expert who was hired  by Bellsouth
      to  investigate intrusions  into  its computer  systems
      testified that the  theft of  the file went  unreported
      for nearly a year.

      Last week, a Bellsouth spokesman  said the firm's secu-
      rity experts delayed reporting  the theft because  they
      were  more intent on  monitoring and  preventing intru-
      sions into the company's computer systems.  ``There are
      only so much  resources in the data security arena, and
      we felt  that it was  more urgent to  investigate,'' he
      said.

      He also disputed  assertions that  the document was  of
      little  value. ``It is  extremely proprietary  and con-
      tained  routing information  on 911  calls through  our
      none-state [sic -cmk] territory as  well as entry points  into the
      system,'' he said.

      A quick ending:

      The case  unraveled after  Robert Riggs, a  prosecution
      witness who  had already pleaded guilty for his role in
      the theft of the document,  testified that he had acted
      alone and Neidorf had merely agreed to publish the text
      file in ``Phrack.''

      Neidorf and his  attorney agreed  to a pretrial  diver-
      sion, a  program under which the government voluntarily
      dismisses the  indictment  but could  reinstate  it  if
      Neidorf commits a similar crime within a year.

      The case has  stirred up national debate  on the rights
      of computer users in the age of electronic information.
      The Electronic  Frontier Foundation, a  civil liberties
      group  set up by Mitch Kapor, founder of Lotus Develop-