free speech in cyberspace.txt

黑客培训教程

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            crime.42  In particular, phreaking, the theft of long-

            distance telephone service -- usually closely associated

            with hacking -- has been a popular subject of discussion.

            "While bulletin boards are usually not directly involved in

            any of these crimes, they are used to receive and distribute

            information by the computer enthusiasts who commit the

            illegal acts," writes attorney Eric Jensen, who also

            includes distribution of pornography and the formation of

            pedophilia rings among the potential abuses of BBSs.43

               Jensen similarly asks whether earlier models of media law

            can accommodate BBSs.  Dividing older media into the

            categories of publishers, republishers, and common carriers

            -- and choosing republishers as the best analogy to BBSs --

            Jensen ultimately reaches a conclusion much like Charles',

            that sysop liability should be based upon the degree of the

            sysop's participation in the illegal actions.44  He cautions

            that direct regulation of BBSs, because of their nature,



                                

            42The term hacker originally meant a person with great
             technical expertise with computers -- particularly with
             programming -- and for whom computing was an end in
             itself, even an art form. However, it has popularly come
             to mean a person who, through stealing passwords and
             otherwise exploiting security holes, gains unauthorized
             access to computer systems, either maliciously or
             mischievously.  See Chapter 2, notes 36-38 and surrounding
             text.

            43E. Jensen, "An Electronic Soapbox: Computer Bulletin
             Boards and the First Amendment," 39 Fed. Comm. L.J. 217,
             224-226 (1987).

            44Id. at 257.


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            would be unenforceable.  Hobbyists could easily "go

            underground," concealing their activities from regulators.45

               Jensen provides one original analogy, what he calls "the

            BBS as an association,"46 a place where "people from all

            across the country gather electronically and exchange views,

            recipes, or epithets, just as would the local Jaycees."47

            Citing NAACP v. Alabama,48 he writes, "As an association

            engaged in speech, a bulletin board is entitled to

            constitutional protection."49

                A slightly different approach to the sysop liability

            question is taken by Edward Di Cato,50 who discusses a more

            recent addition to the list of BBS hazards: the distribution

            of computer viruses.51  Di Cato reaches a familiar

            conclusion -- that a sysop would be liable only for

            "recklessly" allowing a computer virus to spread through a


                                
            45
              Id. at 232-3.

            46Id. at 252.

            47Id.

            48357 U.S. 449 (1958).

            49Id.

            50E. Di Cato, "Operator Liability Associated With
             Maintaining a Computer Bulletin Board," 4 Software L.J.
             147 (1990).

            51A virus is a computer program that is designed to
             replicate itself by attaching itself surreptitiously to
             other programs. Viruses may be fairly harmless, perhaps
             popping up a mischievous message on the screen, or
             destructive -- erasing files from a hard disk or perhaps
             scrambling the disk's data irretrievably.


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            BBS.52  He also suggests that sysops could protect

            themselves by exercising tight control over their BBSs,

            verifying users' identities before giving them access.53  He

            further suggests that a disclaimer clearly specifying the

            responsibilities of users and specifically repudiating sysop

            responsibility might further protect sysops from

            liability.54

               The sysop liability question has also been tackled by

            John T. Soma, Paula J. Smith and Robert D. Sprague.55  Their

            article, however, consists mostly of an extensive survey of

            "computer crime" laws, engaging in little First Amendment

            analysis.

               One commentator reaches a conclusion quite different from

            most others on the subject of BBS regulation.  Robert Beall

            examines the liability of sysops for the posting of

            illegally obtained information by phone phreakers.56  In

            asking which model of media law will apply, Beall forces a

            choice between the laws covering newspapers or the laws



                                

            52Di Cato, supra note 50, at 155.

            53Id. at 156.

            54Id. at 157.

            55J. Soma, P. Smith, R. Sprague, "Legal Analysis of
             Electronic Bulletin Board Activities," 7 W. New Eng. L.
             Rev. 571 (1985).

            56R. Beall, "Developing a Coherent Approach to the
             Regulation of Computer Bulletin Boards," 7 Computer/Law
             Journal 499 (1987).


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            covering telephone service;57 he ends up choosing elements

            of each.  He agrees with other commentators that a sysop may

            not be liable without affirmative involvement in the illegal

            activity.58  While he seems to favor strong First Amendment

            protection for BBSs, he is not satisfied with the resulting

            lack of protection against phreaking activity.  He therefore

            proposes a full-fledged system of licensing of BBSs by the

            FCC, with licensees required to adhere to certain rules in

            order to retain or renew their licenses.59  However, he

            would rely upon the private sector for enforcement of these

            rules; telephone companies, for instance, would be expected

            to monitor BBSs for stolen credit card numbers.60

               Besides the BBS, the only other related communication

            media that have received significant attention in the legal

            literature are the similar technologies of teletext and

            videotex.   Teletext is a form of electronic text delivered

            by television stations to subscribers' TV sets, either via

            broadcasting or cable hookups but as part of a conventional

            television signal.  Teletext presents a series of pages, or

            frames, of text, from which the subscriber may select using

            a special keypad.61  Videotex is a similar service,

                                

            57Id. at 509-10.

            58Id. at 504-5.

            59Id. at 513-15.

            60Id. at 516.

            61Freedman, supra note 7, at 689.


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            delivered to customers' TV sets via telephone lines.62

            Neither service has been implemented on a large scale in the

            United States, but despite their obscurity, they have

            received much attention from legal commentators.

               Jeffrey Hurwitz devotes his attention to teletext,

            particularly broadcast teletext.63  He suggests that the

            FCC's 1983 decision not to regulate teletext -- reasoning

            that it is an "ancillary service" not subject to the

            regulations applied to regular TV programming -- was

            incorrect.64  Teletext, like traditional broadcasting, he

            felt should be content regulated -- subject to the Fairness

            Doctrine,65 the "equal opportunity" rule and the "reasonable

            access" rule.66  Exempting teletext from such content

            regulations provides an easy avenue for circumventing the

            purpose of such regulations as applied to broadcasting, he

            writes.67  Perhaps most troubling, however, is his argument

            that the FCC, more than anything else, has simply

            misconstrued the clear language of the statutes and


                                

            62Id. at 735.

            63J. Hurwitz, "Teletext and the FCC: Turning the Content
             Regulatory Clock Backwards," 64 Boston Univ. L. Rev. 1057
             (1984).

            64Id. at 1057.

            65The Fairness Doctrine, no longer FCC policy, was still
             applied to broadcasters when Hurwitz wrote his article.

            66Hurwitz, supra note 63, at 1083.

            67Id. at 1098.


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            regulations in question.68  Hurwitz's arguments suggest that

            the existing statutes could pose a threat to the freedom of

            computer communication.

               Another writer, Richard Hindman, has a markedly different

            view of teletext.69  "The first amendment," he writes,

            "protects the right of every person to participate in the

            marketplace of ideas."70  Most of Hindman's article is

            devoted to an analysis of a consent decree that currently

            bars telecommunications giant AT&T from entering the

            teletext business.71  However, Hindman's comments about the

            First Amendment issues underlying teletext regulation are

            insightful:

                    The history of broadcast and cable regulation
                 suggests that as new communication technologies
                 become available Congress and the courts will fail
                 to fully comprehend how the first amendment limits
                 government authority to regulate.  In fact, at
                 first, the courts will attempt to characterize
                 users of the new medium as someone other than a
                 speaker entitled to full first amendment
                 protection or, as a speaker entitled to some
                 lessor [sic] protected right.... [U]ntil a new
                 technology becomes familiar in its own right,
                 courts generally attempt to impute the regulatory
                 baggage of an existing medium, leaving unresolved
                 the difficult constitutional issues.72

                                

            68Id. at 1083-1094.

            69R. Hindman, "The Diversity Principle and the MFJ
             Information Services Restriction: Applying Time-Worn First
             Amendment Assumptions to New Technologies," 38 Catholic
             Univ. L. Rev. 471 (1989).

            70Id. at 471.

            71U.S. v. AT&T, 552 F.Supp. 131 (D.C. Cir. 1982).

            72Id. at 494-5.


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               Lynn Becker, in her survey of the confused state of the

            law regarding teletext and videotex, agrees that the

            technology of delivery should not be the decisive factor in

            deciding its regulatory status.73  "A preferable

            alternative," she writes, "would be to view all electronic

            publishing as a single communications medium regardless of

            the method of transmission.... The basis for distinguishing

            between typeset and electronically transmitted

            communications is not viable in 1985.  The regulatory

            underpinnings are without merit."74  Instead, she calls for

            the design of a new legal framework designed to accommodate

            the new media and to recognize their true nature.  "[T]he

            new media must be viewed according to their function rather

            than through their methods of distribution.... When viewed

            in this manner, the regulatory mandate is clear: Congress

            shall make no laws abridging ... the freedom of the

            press."75

               What conclusions emerge from this body of literature?

            It is clear that analogy to older media has been the method

            of choice for deciding the legal status of computer

            communication, whether BBS, teletext or videotex.  Almost

            every author divides existing media into regulatory

                                

            73L. Becker, "Electronic Publishing: First Amendment Issues
             in the Twenty-First Century," 13 Fordham Urban L.J. 801
             (1985).

            74Id. at 866.

            75Id. at 868.


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            categories, generally classifying print media as most immune