computer bulliten boards and the law.txt

1000 HOWTOs for various needs [WINDOWS]

      ment Corp., may  participate in the filing of a lawsuit
      against Bellsouth, and Terry Gross,  an attorney at the
      New York law firm of Rabinowitz Boudin Standard Krinsky
      & Lieberman.

      ``The  Electronic Frontier  Foundation is  concerned by
      the
      irresponsibility of  Bellsouth  of  claiming  from  the
      outset that  this was confidential information  when it
      should have known that it was not,'' Gross said.

FN23.  The unsettled state of  the law may be discovered  by
reviewing the current writing on  the subject, at least some
of which is listed in note 28, infra.

FN24.  Legi-Tech, Inc.,  v. Keiper,  766 F.2d  728 (2d  Cir.
1985).

FN25.  Id.

FN26.  The narrow holding in Legi-Tech was that an electron-
ic  information  and retrieval  service  is "press"  for the
purpose of access to government  information.  The commenta-
tor  extends  this  holding from  information  retrieval  to
bulletin boards, and suggests that it  would extend at least
as far as  defamation actions.   He then appears to  abandon
this line, as he reads Dun & Bradstreet, note 30, infra, and
accompanying text, as  negating the need for such a distinc-
tion.

FN27.  Comment,  An  Electronic  Soapbox: Computer  Bulletin
Boards  and the  First  Amendment, 39  FED.  COMM. L.J.  217
(1987) (authored by Eric L. Jensen).

FN28.  The Jensen article, supra note 27, for example pays a
great  deal of attention  to the libel  question.  Liability
for  defamation is also discussed  in Soma, Smith & Sprague,
Legal Analysis of Electronic Bulletin Board Activities, 7 W.
NEW ENG. L. REV.  571 (1985); Becker, The Liability  of Com-
puter  Bulletin Board  Operators  for  Defamation Posted  by
Others, 22 CONN. L.  REV. 203 (1989); and Comment,  Computer
Bulletin  Board  Operator  Liability  for  User  Misuse,  54
FORDHAM  L.  REV. 439  (1985).   The  subject  is frequently
discussed  within the framework  of bulletin  board systems,
particularly in those message areas devoted to system opera-
tors, and at least one paper on the subject is electronical-
ly distributed:  Kahn, Defamation Liability  of Computerized
Bulletin Board  Operators  and  Problems  of  Proof  (1989),
available by anonymous ftp from the archives of the Internet
Telecommunications Digest,  lcs.mit.edu, directory  telecom-
archives,  as sysop.libel.liability.   It is  also available
from the author of this paper.

FN29.  New York Times v. Sullivan, 376 U.S. 254 (1964).

FN30.  Dun &  Bradstreet, Inc. v. Greenmoss  Builders, Inc.,
105 S. Ct. 2939 (1985).

FN31.  Robert Welch, Inc., v. Gertz, 418 U.S. 323 (1974).

FN32.  376 U.S. 254 (1964).

FN33.  Id.

FN34.  390 U.S. 727 (1968).  In  St. Amant, a candidate read
on television statements received from a union official that
had been made  under oath.  The court found  that the candi-
date's failure to investigate the  statements' truth was not
reckless  disregard  for  the purpose  of  "New  York Times"
malice.

FN35.  There "must  be  sufficient evidence  to  permit  the
conclusion that  the defendant  in fact  entertained serious
doubts as  to the truth  of his publication."   390 U.S. 727
(1968).

FN36.  See  generally,  the samples  from  the  POLITICS and
SERIOUS SIDE echoes attached at the end of this paper.

FN37.  418 U.S. 323 (1974).

FN38.  The case  was remanded for  retrial, as the  jury had
found  liability without  fault  being  established and  had
awarded $50,000 without proof of damages.  Id.

FN39.  376 U.S. 254.

FN40.  418 U.S. 323.

FN41.  472 U.S. 749 (1985).

FN42.  472 U.S. 749.

FN43.  Gertz.

FN44.  Dun & Bradstreet.

FN45.  Dare I say, "amorphous void?"

FN46.  See generally,the discussionof republication,notes 57
- 77, infra, and accompanying text.

FN47.  See generally, Jensen, supra note 27.

FN48.  Smith v. California, 361 U.S. 147 (1959).

FN49.  See both Jensen and Soma, supra note 28.

FN50.  Smith v. California, 361 U.S. at 153-4.

FN51.  Interview with Professor  John Snowden, University of
Nebraska College of Law, August 4, 1990.

FN52.  See Comment, Computer Bulletin Board Operator Liabil-
ity for User Misuse,  54 FORDHAM L. REV. 439,  447-9 (1985).
Attached at the end of this paper is a sample of the debates
recently carried in  message echoes  available in the  Omaha
area.

FN53.  Smith v. California, 361 U.S. 147 (1959).

FN54.  United States  v. Mishkin,  317 F.2d  634 (2d  Cir.),
cert denied, 375 U.S. 827 (1963).

FN55.  In  Gold v.  United States,  378 F.2d  588 (9th  Cir.
1967),  the defendant knew the detailed shipping identifica-
tion of the parcel in question; in United States v. Mishkin,
317 F.2d 634  (2d Cir.), cert  denied, 375 U.S. 827  (1963),
the defendant was held to  have scienter of obscene contents
based on the clandestine nature of the transaction.

FN56.  The  hypothetical  becomes  real  in  the  electronic
world.   "Dr. Ripco" operated  a bulletin board  in Chicago,
one  which  included  electronic  mail  (see generally,  the
limited  discussion of  electronic mail,  infra), which  in-
cluded  a restricted  access sub  called "phone phun."   The
Secret Service recently executed a search warrant and seized
his system in an ongoing investigation, the details of which
have not  yet been released.   While Dr.  Ripco has  not yet
been charged, he  relates the existence of the  "phone phun"
sub was prominent  when he was  interrogated at the time  of
the search and seizure.   CuD, Vol. 1.28 (1990), distributed
electronically and  available from  the author.   While  Dr.
Ripco's knowledge, if any, was about illegal activities, one
can easily  see a similar  argument being made  about libel.
If system operators carefully control  access to an area, or
if the  operators frequently  participate in the  discussion
where a libel is committed, then activities of  the operator
could lead to  a presumption of  knowledge of the libel  and
liability at least  for failure  to promptly remove,  absent
some privilege.   See the  discussion of a  possible Edwards
privilege, infra.

FN57.  RESTATEMENT (SECOND) OF TORTS   612 (1977).

FN58.  533 F.2d 601 (D.C. Cir. 1976).

FN59.  See Jensen, supra note 27, at 251.

FN60.  See Soma, Smith & Sprague, supra n. 8.

FN61.  "The Restatement privilege recognizes `that a [common
carrier],  which with  very  limited exceptions  extends its
facilities to all users, has exhibited no actual or  implied
"malice"  when  it  merely refuses  to  censor  a particular
communication.'"  39 FED.  COMM. L.J.  217 at  250, n.  173,
citing Anderson v.  New York Telephone  Co., 42 A.D.2d  151,
345  N.Y.S.2d  745  (1973)  (dissenting  opinion), rev'd  35
N.Y.2d 746, 361  N.Y.S.2d 913 (1974) (emphasis added).   See
also note 59, supra.

FN62.  553 F.2d 601.

FN63.  See generally, the listing attached  to this paper of
message  echo  areas available  to  system operators  in the
Omaha, Nebraska, vicinity.

FN64.  Notwithstanding the  ultimate holding adverse  to the
FCC, the court  in National Ass'n  of Reg. Util. Comm'rs  v.
F.C.C. went to  some lengths  to acknowledge the  principle,
and then to  distinguish it on the facts in the case at bar.
553 F.2d 601.

FN65.  47 U.S.C.   151 (1982).

FN66.    They are connected in the logical sense, if not the
physical sense, as computer theorists use the terms.

FN67.  June 19, 1934, c. 652, 48 Stat. 1064.

FN68.  Comment,  An  Electronic  Soapbox: Computer  Bulletin
Boards and the First Amendment, 39 FED. COMM. L.J. 217, 220.

FN69.  Second Computer Inquiry,  Final Decision, 77 F.C.C.2d
384, 47 R.R.2d 669 (1980), reconsidered  84 F.C.C.2d 512, 50
R.R.2d 629 (1981),  aff'd sub  nom. Computer and  Communica-
tions Indus.  Assn'n  v. F.C.C.,  693  F.2d 198  (D.C.  Cir.
1982), cert. den., 461 U.S. 938 (1983).

FN70.  "In an enhanced  service the content of  the informa-
tion need  not be changed and may  simply involve subscribed
interaction with stored information.  Many enhanced services
feature  voice or data  storage and  retrieval applications,
such as in a 'mail box' service."  Id. at 421.

FN71.  556  F.2d 113  (2d Cir.  1977), cert.  den. sub  nom.
Edwards v. New York Times Co., 434 U.S. 1002 (1977).

FN72.  The pesticide DDT  had been criticized as  harmful to
many kinds of wildlife, particularly following  the publica-
tion of  Rachel Carson's book  Silent Spring.   The National
Audubon Society had  for many years conducted  periodic bird
counts.    The counts  could  be interpreted  to  show that,
contrary to the anti-DDT concerns, bird life was increasing.
The  Audubon  Society  felt  that statistical  reasons,  not
actual wildlife increases, were  responsible for the  anoma-
lous count data  and opposed the use of its  data to support
DDT.  556 F.2d 113.

FN73.  Id.

FN74.  Magnetti, "In the  End the Truth  Will Out" . . .  Or
Will It?, 52 MISS. L. REV. 299, 329-331 (1987).

FN75.  Id.

FN76.  The privilege of fair reporting, after all, should at
the minimum include the actual words of the original author,
nothing more and nothing  less being said, which is  exactly
what the bulletin board republishes.

FN77.  The question would  arise of what judgment  was exer-
cised if anyone could post a message.  The judgment arguably
would in the first instance be the exercise of discretion in
awarding access to the  system.  See Soma, Smith  & Sprague,
supra.  The  final exercise  of judgment would  be when  the
editor/system operator removed or left in place a potential-
ly offending  message.   Removal would  be  the exercise  of
editorial judgment, leaving in place an exercise of neutral-
ly reporting what the individual already had said.

FN78.  A Mr. Len Rose was recently indicted for the theft of
American Telephone and Telegraph  Company software detailing
the  operation of  the  "E911"  emergency telephone  system.
Several other individuals were charged because the software,
either without their knowledge, or  with their knowledge but
without their  knowing it was  stolen, was stored  or trans-
mitted  by their systems.  (This is the same theft where Mr.
Biggs was convicted.   See  n. 21,  supra, and  accompanying
text.)  A final decision has  not been reached in Mr. Rose's
case.  A copy  of the Rose indictment is available  from the
author.  Various versions of the other charges are available
in issues of the Computer  Underground Digest available from
the author.

FN79.  Soma, Smith & Sprague,  Legal Analysis of  Electronic
Bulletin Board Activities,  7 W. NEW  ENG. L. REV. 571,  605
(1985).

FN80.  Computer  Underground   Digest,  various   electronic
editions,  available  from the  author.   The parallel  to a
pamphleteer  would  be the  seizure  of his  printing press.
Particularly troublesome  is that the  warrants, apparently,
did not specify seizure of the electronic mail stored on the
system.  An action is pending in a California case.

FN81.  Public importance might not be  the only First Amend-
ment concern--the Speech Clause, on its face, does not limit
itself to public importance--but would be applicable to most
bulletin board systems with which the author is familiar.

FN82.  Hernandez, ECPA and Online Computer Privacy,  41 FED.
COMM. L.J. 17 (1989).

FN83.  Copies of most of the pleadings  to date in the ALCOR
case are available from the author.

FN84.  The relevant  portions of  the Electronic  Communica-
tions Privacy Act as recorded in  the United States Code are
set out in an attachment to this paper.

FN85.  Complaint,  Thompson v.  Predaina,  No. 88-93C  (S.D.
Indiana  1988),  dismissed August  10th,  1988.   One source
relates the dismissal  was voluntary.   Hernandez, ECPA  and
Online  Computer  Privacy,  41 FED.  COMM.  L.J.  17 (1989).
Another source  indicates the  dismissal was  caused by  the
defendant's filing bankruptcy, thereby automatically staying
the prosecution of the suit.  Wilson, message in Fidonet:LAW
echo (1990).  An electronic copy  of the complaint is avail-
able from the author.

FN86.  By "empirical data" the author means that he continu-
ally receives questions from fellow  sysops who, knowing him
to be a law student, verbalize questions about their liabil-
ity  exposure over  the range  of issues  discussed in  this
paper.