defamation liability of computerized bulliten board operators.txt

1000 HOWTOs for various needs [WINDOWS]

the  masquerader's  libellous messages back to him is proving his 
authorship  of  the  libel,  or "authenticating" the computerized 
records.140  The computer-generated phone and BBS records showing 
that  a call from a certain phone number at a particular date and 
time  resulted  in  a  libellous  message  being  published  must 
somehow be linked to the masquerader.

         The  Federal  Rules  of  Evidence  provide  in pertinent 

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part:
    (a)  General     provision.     The    requirement    of 
         authentication  or  identification  as  a condition 
         precedent   to   admissibility   is   satisfied  by 
         evidence  sufficient  to support a finding that the 
         matter in question is what its proponent claims.
    (b)  Illustrations.  By  way  of  illustration only, and 
         not   by  way  of  limitation,  the  following  are 
         examples   of   authentication   or  identification 
         conforming with the requirements of this rule:...
         (6)  Telephone       conversations.       Telephone 
              conversations,  by  evidence  that  a call was 
              made  to  the  number  assigned at the time by 
              the  telephone  company to a particular person 
              or business, if 
              (A)  in  the  case of a person, circumstances, 
                   including  self-identification,  show the 
                   person  answering  to  be the one called, 
                   or
              (B)  in  the  case of a business, the call was 
                   made  to  a  place  of  business  and the 
                   conversation    related    to    business 
                   reasonably     transacted     over    the 
                   telephone....141

         The   question   of   whether   a  writing  is  properly 
authenticated  is  primarily  one  of  law  for the court; if the 
court  decides  the  question affirmatively, it is ultimately for 
the  jury.142  The  court  will  make  no  assumptions  as to the 
authenticity    of    documents   in   deciding   their   initial 
admissibility.143  The  difficulty  presented  here  is  that the 
Federal  Rules  of  Evidence  seem  to  require authentication of 
telephone  calls  by  reference to their specific content.144 The 
specific  content  of  a  given phone call is not demonstrated by 
phone logs showing merely the date and time the call occurred.

         The   authentication   of  extrinsic  documents  may  be 
subject  to  a  "best  evidence  rule"  objection.  As  stated in 
Federal Rule of Evidence 1002:
    REQUIREMENT  OF  ORIGINAL:  To  prove  the contents of a 

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    writing,  recording, or photograph, the original of that 
    writing,  recording,  or  photograph is required, unless 
    provided  otherwise  in  these  rules  or  by  an act of 
    Congress.145
    
    

         Since  its  introduction  in  the  18th century, various 
rationales  have  been  posited  for  this rule.146 While earlier 
writers  asserted  that  the  rule  is intended to prevent fraud, 
most  modern  commentators  agree that the rule's main purpose is 
to  convey  to  the  court  the  exact  operative  effect  of the 
writing's contents.147

         However,   at  least  one  jurisdiction  has  implicitly 
equated  compliance  with the business records exception with the 
Best  Evidence  Rule.  In Louisiana v. Hodgeson,148 the defendant 
in  a  manslaughter  trial  contended  that  a  printout  of  her 
telephone  bill, offered to show communications between her and a 
third  party,  was  not authenticated.149 The court, while making 
no  specific  reference  to  the  authentication  point, rejected 
defendant's  contention,  noting  that  the  information from the 
computer's  storage was the company's business record and that it 
was accessible only by printout.150

         Similarly,  in  an  Indiana bank robbery prosecution,151 
the  state  offered  microfiche copies of the telephone company's 
computerized   records   showing  certain  telephone  calls  from 
defendant.  On appeal, defendant argued that these documents were 
not  authenticated  because  they were not the "original or first 
permanent  entry,"  and  that they therefore should not have been 
admitted  into  evidence.  The  court  disagreed,  saying  that a 
duplicate  was  admissible  to  the  same  extent  as an original 

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unless  a  "genuine  issue" were raised as to the authenticity of 
the original.152

         By  these  precedents,  then,  provided  plaintiff  user 
establishes  that  both  the  telephone and BBS user records were 
prepared  in  accordance  with the business records exception,153 
the  fact  that  a  call from the masquerader's phone is shown to 
have  occurred  at  the  same  instant  the libellous message was 
posted  may  be sufficient to authenticate that the call was made 
by  the  masquerader.  Other  circumstantial  evidence adduced by 
plaintiff user would strengthen this inference.154

         Another  authentication  hurdle  in  plaintiff's case is 
the  requirement  that  the  entire  original record sought to be 
authenticated  be  produced.155 This requirement can prove highly 
impractical  in  situations  where  there  are  vast  numbers  of 
individual  records  extending  over  long  periods  of  time.156 
Requiring  plaintiff  to produce the entire body of these records 
would  be  unduly  expensive and time-consuming. What is more, if 
plaintiff   were   to  attempt  to  summarize  vast  computerized 
business  data  compilations  so  as to introduce those summaries 
into  evidence  without  producing  the complete body of computer 
records,  such  summaries  might not be admissible on the grounds 
that they were not made "in the regular course of business."157

         However,   an   exception   to   strict   authentication 
requirements   of   the   Federal  Rules  of  Evidence  has  been 
developed. Rule 1006 provides:
    The  contents  of  voluminous  writings,  recordings, or 
    photographs  which  cannot  conveniently  be examined in 
    court  may be presented in the form of a chart, summary, 
    

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    or  calculation.  The originals, or duplicates, shall be 
    made  available  for examination or copying, or both, by 
    other  parties  at  reasonable time and place. The court 
    may order that they be produced in court.158
    
    

         In   Cotton   v.  John  W.  Eshelman  &  Sons,  Inc.,159 
summaries  of  certain  computerized  records  were held properly 
admitted  into  evidence on the theory that "[w]hen pertinent and 
essential  facts  can  be ascertained only by an examination of a 
large  number  of  entries  in  books  of  account, an auditor or 
expert  examiner  who has made an examination and analysis of the 
books  and  figures  may testify as a witness and give summarized 
statements   of   what   the  books  show  as  a  result  of  his 
investigation,  provided  the  books themselves are accessible to 
the   court   and  to  the  parties."160  Under  this  precedent, 
plaintiff  user would only need to produce the pertinent parts of 
the computerized records, as determined by an impartial auditor.
IV. CONCLUSION

         It  is  difficult  to  overestimate  the ease with which 
computers  now  enable  us  to  compile and exchange information. 
Computerized  "bulletin boards" run on personal microcomputers by 
private  persons  and  businesses  are  examples of this enhanced 
form  of  communication.  Users  can  trade computer programs and 
exchange  a  wealth  of ideas, opinions, and personal information 
through such forums.

         The  advantages  of  this  process  break down, however, 
when   malicious   users   abuse   the   system  and  BBS  SYSOPS 
intentionally  or  negligently allow this to occur. The nature of 
computerized  data  is  such  that  tortious  misinformation  may 

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easily  be  spread to thousands of users before it is discovered. 
Because  the  potential  for harm to reputation is so tremendous, 
appropriate  standards  of liability and methods of proof must be 
addressed.

         The  requisite  degree  of  fault  in  libelling private 
persons  is  less than that for libelling public officials/public 
figures,  and  may  be established as against a SYSOP by a simple 
showing  of  his  negligent failure to observe reasonably minimal 
computer   security  measures.  The  basis  of  liability  for  a 
masquerader  who  intentionally misappropriates another's private 
information is even less subject to debate.

         Two  main evidentiary hurdles face the plaintiff seeking 
to  link  the  masquerader  with  his  libellous  message through 
reliance  on  computer-generated records. First, the hearsay rule 
automatically  excludes  all  evidence produced out-of-court that 
is  being  offered  to  prove  the  truth  of the matter at hand. 
Second,   the   authentication   requirement   demands  that  the 
masquerader's   connection   to  the  entire  body  of  proffered 
computer records be established.

         However,  certain exception to both of these limitations 
ease   the   plaintiff's  burden.  First,  the  business  records 
exception  to  the  hearsay  rule  admits  computer  records into 
evidence  if they (1) were made reasonably contemporaneously with 
the  events  they record; (2) were prepared/kept in the course of 
a  regularly  conducted  business  activity; and (3) the business 
entity  creating  these  records relied on them in conducting its 
operations.  Both  BBS  and  telephone  company  records may come 

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under  this  exception. Second, the voluminous writings exception 
allows  the  contents  of  voluminous  computerized records which 
cannot  conveniently  be examined in court to be presented in the 
form  of a summary. So long as the original records or duplicates 
thereof  are  available  for  examination  by  other  parties  at 
reasonable  times  and  places,  the entire data compilation need 
not   be   produced.   Plaintiff  should  employ  both  of  these 
exceptions  in an effort to convince a jury by a preponderance of 
the  evidence that the masquerader has abused his computer skills 
and has damaged plaintiff's reputation.

           ==============================================
Resent-Message-Id: <[e-mail]>
	id AA20305; Fri, 20 Apr 90 12:46:45 PDT
~Date: Fri, 20 Apr 90 12:42:02 PDT
~From: Lang Zerner <[e-mail]>
Message-Id: <[e-mail]>
~Subject: Sysops and libel liability -- endnotes
Resent-Date:  Sat, 21 Apr 90 0:05:23 CDT
Resent-From: [e-mail]
Resent-To: [e-mail]
Status: RO
Here are the endnotes to the paper I submitted in a separate message.
Be seeing you...
==Lang
=======

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& Problems of Proof          (C) 1989 John R. Kahn             35
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                             ENDNOTES

1.       418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

2.       These  interests can cover anything from science fiction 
         to  gourmet  cooking. Uyehara, Computer Bulletin Boards: 
         Let the Operator Beware, 14 Student Lawyer 28 (1986).

3.       Id., at 30.

4.       The  data  service  Compuserve  is one such national BBS 
         run  for  profit  by business organizations. Uyehara, at 
         28.  Other  examples  of  large databases of interest to 
         the  legal profession are computerized research services 
         such as LEXIS and WESTLAW.

5.       Uyehara,  at  28;  Manning, Bulletin Boards: Everybody's 
         Online  Services,  Online, Nov. 1984, at 8,9. "Modem" is 
         defined infra, note 17 and accompanying text.

6.       "...computer   bulletin   boards   offer   their   users 
         important  benefits.  An  individual  can use a bulletin 
         board  to  express  his  opinion  on  a matter of public 
         interest.  He  may  find  a  review  of  a product he is 
         considering  buying.  He  may  find  a  useful  piece of 
         software.  An  individual  might  also  use the bulletin 
         board  to  ask  a  technic