computer bulliten boards and the law.txt

黑客培训教程

              THE ELECTRONIC PAMPHLET--COMPUTER
                 BULLETIN BOARDS AND THE LAW


              Submitted in Partial Fulfillment
                   Of the Requirements of
                     Mass Communications
 
                             by
                      Michael H. Riddle
                  [e-mail]
                  Sysop on 1:285/27@fidonet


(c) Copyright 1990, by Michael H. Riddle.  All Rights Reserved.  
This paper may be freely distributed via electronic media 
provided that the entire text remains intact, including this 
first page,notice, and disclaimer, and further provided that 
full credit is given.  

DISCLAIMER:  This paper was prepared by a law student as part 
of a course of study, and should not be construed to represent a 
legal opinion.  Anyone with a need for a current legal opinion 
relating to this material should contact an attorney licensed 
to practice in their state.
---



              THE ELECTRONIC PAMPHLET--COMPUTER
                 BULLETIN BOARDS AND THE LAW


         Introduction--Bulletin Boards Then and Now

     In 1517, Martin Luther nailed his 95 theses to the door
of the church in Wittenberg, Germany, an act which is gener-
ally considered the start of the Reformation, the Protestant
religious  movement  (Protesting  aspects  of  the  Catholic
church as it then existed). [FN1]   The author remembers how
outrageous it seemed  to him,  the first time  he heard  the
story, that anyone  would have the  effrontery to nail  even
one, let alone 95, documents to a church door.  It  was only
later,  after much  study of  history and theology,  that he
came to learn  that the church  door was routinely used  for
this  purpose.  At  a time before  widespread publication of
newspapers, before  telegraph, telephone, television,  or CB
radio, the  church door  was the  acknowledged location  for
important notes or topics of discussion. [FN2] 

     Students at the  University of Nebraska College  of Law
use the "kiosk" inside  the main entrance to the  college to
pass notes to  each other.  Hexagonal in shape,  one side of
the kiosk is  reserved for general announcements  and bulle-
tins.  Sometimes the postings are as routine as announcement
of a meeting; at other times, they might be a call to action
to  save  the trees  in  a  local park  from  the bulldozer.
Students are  cautioned, during their first  formal orienta-
tion at the College, to check the kiosk daily. [FN3] 

     Just inside the door at Baker's Supermarket in LaVista,
Nebraska, is a board where customers (and presumably others)
may post notes  about items for sale,  offers of employment,
and the like.   Similar boards are found in  other locations
around town, provided either as a  public service by a busi-
ness,  or  perhaps  as yet  another  advertising  "gimmick,"
another way of increasing business at the store. [FN4] 

     During   the   Revolution,   and  when   the   Founding
Fathers [FN5]   wrote  the  Constitution  and  the  Bill  of
Rights, similar functions were often fulfilled by  "pamphle-
teers."  Anyone with an idea and a little loose change could
buy or  borrow a  printing press,  and soon be  distributing
their ideas around the town. [FN6] 

     Today, another  forum  is  increasingly  available  for
notices,  reminders  and discussions--the  computer bulletin
board. [FN7]    Listings of items for sale, notices of meet-
ings, and discussion about matters  important or trivial may
be found in the  world of electronics as well  as groceries.
At one time the province  of the technically and financially
gifted, bulletin  boards are increasing available  to Every-
man. [FN8]   At least one  commentator has directly compared
the  bulletin board  system of  today with  the  pamphlet of
yesterday. [FN9]   

     In the simplest form,  a bulletin board is a  computer,
often a small personal  computer (PC), connected to  a tele-
phone line by a device called  a modem. [FN10]   While large
and expensive  systems are  possible, a  person desiring  to
enter the bulletin board arena may do so for a total invest-
ment less than $500. [FN11]    At the simplest, the bulletin
board system acts as a "store and forward" system.  Individ-
uals call  the BBS one at a  time, "log on" (typically using
some  sort of entry  code and password  protection to insure
identity), read  messages that have  been left and  post any
messages they desire.  They then log  off, and the system is
available to the next caller. [FN12] 

     "Networked" systems  add an additional step,  one which
greatly expands the nature of the  forum.  At pre-designated
times,  the  BBS scans  the messages  to  see what  has been
posted on the board  since the last similar event,  and pre-
pares  "mail packets"  with those messages.   It  then calls
other systems  and forwards  the packets  to those  systems,
receiving  in  turn any  mail designated  for  it.   In this
manner, messages may  be entered in  Lincoln or Omaha at  no
expense  to  the  user,  and be  sent  literally  around the
world. [FN13] 

                    Static on the Lines?

     While bulletin board  systems may facilitate communica-
tion, they have  a potential  for misuse as  well.   Several
positive  benefits  of bulletin  boards  are that  users may
express their opinions  on matters  of public interest,  may
look for reviews  of products  they are considering  buying,
and might ask  specific questions about  any number of  mat-
ters. [FN14]   Potential for abuse exists in  both civil and
criminal areas, particularly for  defamation (libel or slan-
der), theft of intellectual  property (particularly software
piracy and  copyright  violations), and  theft (credit  card
abuse, telephone system fraud, and similar actions). [FN15] 
Press coverage of this type of activity inevitably refers to
the use of  bulletin boards, [FN16]  and in  the public mind
all  bulletin board  operators and  users become  associated
with "hackers" and "phreakers." [FN17]    Recent news events
covered at  some length  the "Internet  worm" propagated  by
Robert  Morris,  which  brought  several  national  computer
networks  almost  to  a complete  halt. [FN18]     The press
treatment of the  event once again tended toward  the sensa-
tional, using what have come to be pejorative terms, such as
"hacker,"  "phreaker",  and the  like.   These  reports also
frequently included what could easily interpreted as deroga-
tory references to bulletinboard systems ingeneral. [FN19] -
 
     The United States Secret Service  has been charged with
enforcement of federal laws relating  to computer crime, and
a recent  investigation known  as "Sun  Devil" has  received
some publicity  in the traditional  media, and even  more in
the  electronic  fora. [FN20]    In  the zealous  pursuit of
their goal to  eliminate computer crime, the  Secret Service
is often  trampling on toes  and arguably chilling  the free
expression of ideas.  An example of what can happen occurred
recently when someone  illegally (meaning without authoriza-
tion) entered a Bellsouth computer and downloaded  (arguably
"stole") documentation about  the "E911" enhanced  emergency
communications system.   (E911 is the system  that calls the
emergency dispatcher when someone  dials 9-1-1 and automati-
cally displays  for the  dispatcher the  calling number  and
address, and any other information  that has previously been
filed, such as hazardous chemicals,  invalids or small chil-
dren, etc.)   One Robert  Biggs plead guilty  to the  actual
theft, and  a Craig  Neidorf was charged  along with  Biggs.
Neidorf apparently was  not charged directly with  the theft
(assuming, arguendo,  theft had  occurred), but  rather with
publishing the data in an  electronic newsletter.  Neidorf's
computer equipment, including that use  for a bulletin board
system,  was  seized,  even though  it  contained electronic
mail. [FN21] 

     The case against Neidorf was  suddenly dismissed on the
fourth day, after it  became apparent that nothing  of value
(in  the sense that  it was already  publicly available) had
been published by Neidorf. [FN22] 

       Legal Issues Relating to Bulletin Board Systems

     Several  legal issues  remain unresolved,  at least  as
they pertain to bulletin board  systems. [FN23]   This paper
will survey what appear to  be the most obvious ones at  the
moment,  briefly review the law  as it appears  to be on the
subject, and may occasionally suggest  what the author advo-
cates as the  "proper" rule on  the issue.  Briefly  stated,
the  emerging  issues appear  to  be whether  bulletin board
systems are protected by either the Speech  or Press Clauses
of the  First Amendment,  and to  what  extent; whether  the
bulletin board system operators are or  should be liable for
illegal  or  actionable misdeeds  of  their users;  what the
expected duty of care should be  for the system operators as
a defense  to such liability, and what  protections might be
extended to bulletin board  systems, directly or  indirectly
through their operators,  under the Fourth Amendment.   This
paper will discuss  four areas bearing  on the legal  rights
and responsibilities of system operators:   whether a bulle-
tin board system  is "press"  for First Amendment  purposes,
what rules of  decision ought to  apply for system  operator
liability for defamation originally published by users, what
other liability might attach for contents of messages on the
system, and some limited concerns about privacy of electron-
ic mail vis-a-vis search and seizure rules.

       Bulletin Board Systems and the First Amendment

     In assessing  what vicarious liability,  for defamation
or for  illegal or  illegally  obtained information,  system
operators might have for information  posted on their bulle-
tin boards by users,  one is drawn to a comparison  with the
press.  While the analogy,  like most analogies, breaks down
at  some point, it is still helpful.   At least one reported
decision  has held that  electronic information  storage and
retrieval systems  may in  some circumstances be  considered
"press." [FN24]  

Access to Information

     In Legi-Tech,  Inc., v. Keiper, [FN25]   a computerized
legislative information retrieval service was denied  access
to a state-owned computer database of legislative materials.
In deciding for Legi-Tech, the  court treated the service as
if it were  a form of press,  in that it existed  to collect
and disseminate  information about  issues of  public impor-
tance  and interest.   While Legi-Tech did  not directly ad-
dress a bulletin  board system,  at least not  in the  sense
that the term  is generally  used, the  comparison is  clear
when the  bulletin board  system contains  message areas  of
public discussion  in traditional  areas of public  concern,
such as government, politics,  and laws.  At least  one com-
mentator,  citing Legi-Tech,  has  concluded  that for  some
purposes [FN26]   bulletins  boards  should   be  considered
press. [FN27]   

Liability for Defamation

     Deciding that a  bulletin board  system is "press"  for
some purposes  begs the  question, what  does it  mean about
anything?   One of  the  more common  concerns among  system
operators  appears to  be  vicarious  liability  for  libels
published by users. [FN28]    While the seminal  modern case
discussing liability of  the press for libel, New York Times
v. Sullivan, [FN29]  might suggest  a stringent standard for
press liability, more recent cases  call that into question.
Dun & Bradstreet, Inc. v.  Greenmoss Builders, Inc., [FN30] 
might fairly be read  to suggest there is no  difference, in
the libel context,  between press and non-press,  but rather
the true distinction is between what is and is  not a matter
of public concern worthy of  heightened protection.  Such an
interpretation would arguably be consistent with the interim
case of  Robert Welch,  Inc., v.  Gertz, [FN31]  which  also
appeared to rest  its holding  on a public-private  distinc-
tion.

     Assuming, arguendo, that  the New York Times  v. Sulli-
van [FN32]   decision established a special level of protec-
tion  for the  press, then  the BBS  operator clearly  would
benefit from the extension of such a privilege.  At the time
the message  is entered  by the  user, the  operator has  no
knowledge whatsoever  of the  contents of  the message,  and
therefore  cannot  know it  to be  false.   Later,  when the
operator sees the message, the  operator might arguably have
a duty to remove  it if it were blatantly  false; otherwise,
the issue would appear  to become when failure to  remove or
challenge a message would be  "reckless disregard of whether
it was  false or not." [FN33]   In considering the question,
one might expect normally to find dispositive the holding in
St.  Amant v. Thompson [FN34]   that failure to investigate,
without more, could not establish reckless disregard for the
truth. [FN35] 

     The astute reader  recognizes, of course, that  the New
York Times  holding concerned statements about  public offi-
cials.  The  commentary found  on bulletin boards  certainly
talks  about  politics and  public  officials. [FN36]    The
question  remains, however, about  private parties.   Robert
Welch,  Inc.,  v. Gertz [FN37]   is  generally cited  as the
decision next addressing the subject.  In Gertz, an attorney
had representing police officer's family  in a murder inves-
tigation.   The defendant  made false  statements about  the
attorney in its  monthly publication American Opinion.   The
judge having ruled the attorney was not a public figure, the
jury returned  a plaintiff's verdict for $50,000.  The trial
judge later reconsidered his ruling,  and entered a judgment
not withstanding the verdict on the theory that a discussion
about a matter  of public concern deserved  protection.  The
issue on appeal  appeared to be  whether the attorney was  a
public figure, not whether the  issue was of public concern.
The Court  ruled that the  fact he  was not a  public figure
controlled.  He had  not "thrust himself into the  vortex of
this public issue, nor did he engage  the public's attention
in an attempt to influence the outcome." The Court then held
that as long as liability was not imposed without some basis
of fault, the states  could write their own rules  for "pri-
vate" libels. [FN38] 

     If New York Times [FN39]  established a new standard of
"malice"  for  press  publishing   on  public  matters,  and
Gertz [FN40]   refused  to extend  that standard  to private
parties, even  when matters  of public  concern might be  at
stake, then  what  about Dun  & Bradstreet? [FN41]    Dun  &
Bradstreet, a private credit-reporting firm, published false
information about Greenmoss  Builders, suggesting  Greenmoss
had filed bankruptcy  when in fact  it was an Greenmoss  em-
ployee who had filed.  The Vermont Supreme Court found Gertz
inapplicable to  nonmedia defamation actions,  and sustained
damages to Greenmoss.  The Supreme  Court affirmed, but on a
different  basis not  involving a distinction  between media