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TUCoPS :: Cyber Culture :: mediacls.txt

How the Traditional Media Clasifications Fail to Protect in the Electronic Frontier




 A CLASS LIKE NONE OTHER:  HOW THE TRADITIONAL MEDIA CLASSIFICATIONS
              FAIL TO PROTECT IN THE ELECTRONIC FRONTIER

                           by Jonathan Bell


August 4, 1993
Mass Communications Law and Ethics
Dwight Teeter - Summer 1993

Imagine the mass communications functions of publisher, distributor,
broadcaster, advertiser and utility rolled into one and you might find
that the beast before you is being operated out of your own home -- or
at least that of a friend or neighbor.  The computer bulletin board
(BBS) offers a variety of services to its users: shopping, electronic
mail, public discussion of hot topics, free software, free advice,
news. All that may sound idealistic but it is here. The only thing
endangering BBS' and their system operators' (sysops') ability to run
them is a legal system unclear and uneducated about the First
Amendment held dearly by those who keep them going, whether they are
the users or the operators.

Exactly where BBS' stand in the legal structure has not been
definitively decided by anyone. Getting sysops to agree has yet to be
accomplished, users see things differently and lawyers and government
often have views widely divergent from the thoughts of the other two.
The simple fact that the proper status of bulletin boards has yet to
be answered reasonably opens up the dire need for a new media
classification system. No one sees eye to eye, and assurances that the
right thing will always be done do not work.

Professor Laurence Tribe is an advocate of an amendment to the U.S.
Constitution guaranteeing First Amendment protection for Americans
regardless of the technical means by which we disseminate our views.1
His proposal is an admirable step to solving the problems of BBS'. It
is not the only one as these problems suggest:

Discussions on computer bulletin boards and information systems vary
greatly. Topics cover everything imaginable and then some:  general
politics, vegetarianism, religion, UFOs, software, technology, movies,
television, writing, law, aviation, chocolate and soap operas.2 No
discussion area, or conference, is immune from wild and freewheeling
talk that at one time or another will inevitably fall from lively talk
into abusive, childish and defamatory personal attacks, otherwise
known as a flame war.

Unfortunately for those who like to participate in computer
discussions, these issues come up much too often. Technical
conferences wherein users seem to be headed on the path of an
operating system war (DOS, Windows v. Macintosh, NT v. OS/2, UNIX v.
VMS) quickly find the heavy hand of the moderator resting upon their
shoulder.3 Or in the case of social issues, avoiding arguments over
the rights and wrongs of homosexuality would probably be hopeless.4
And the evils of liberalism or conservatism is a sure bet as well.

In one instance an argument developed among participants of the ILink
network's Opinion conference. What began as a conversation over civil
rights for gays turned into questioning the legal nature of state
sodomy laws, gay marriages, etc.5 Eventually one user, a former gay
activist, decided to appease other participants and explain in detail
what homosexuals (the men at least) do in bed.6 Not unsurprisingly a
parent chimed in to note that his preteen son had access to the
material on his own. He threatened to sue ILink and anyone else he
could think of, presumably on the grounds that the material -- graphic
sexuality and profane language -- was inappropriate for minors.7

That unfortunately was not all. The conference took a turn against the
activist because of what eventually bore out as his rude, indignant,
even childish behavior. The activist took the ensuing debate against
him as anti-gay, when in fact they were decidedly "anti-Gary." Even
the conference moderator, well known on the network as a lesbian,
could find no way to support his allegations. The activist eventually
won himself a "vacation" from the ILink Opinion conference for
violating network user guidelines.8

Any casual look at electronic systems should reveal to an observer
that the common user knows not one wit about copyright law. Users
routinely post copyrighted material, whether it be an article from The
New York Times,9 news briefs from Prodigy10 or the full text from
magazine articles.11 People seem to think that "fair use" means
reprinting much, if not all, of an article with no additional
commentary to solicit comments,12 or that reprinting is permissible so
long as the copyright notice is intact.13 Generally, publishers are
not likely to care, although repeated copying from a single source may
result in a stiff word or two from a representative.14 The Berne
Convention is misunderstood sometimes to mean that mere quoting of
copyrighted material is illegal without permission.15

Some users have managed to find themselves committing acts akin to
sexual harassment simply by continuing a thread, titled "Galactic
Breasts," that female readers found offensive.16 The topic began as
worthy comment and criticism of Star Trek: The Next Generation, which
began its first season placing Marina Sirtis in a costume which
displayed a great deal of cleavage.17 In the absence of a visible
moderator, the discussion turned from borderline sexual harassment to
name calling to claims of discriminatory treatment and accusations
that other users had lied about the goings-on of the "discussion."18

These problems tend to crop up often. Unlike the traditional media
classifications, there is often no one to screen what passes through
the system before material that is defamatory, obscene, infringing or
harassing reaches participants. Sysops generally do not have the time
to monitor everything on their own boards: Dealing with hardware and
software glitches, managing file directories, weeding out pirated
software and scanned images from Penthouse, and still maintaining a
day job and domestic necessities takes time from what is usually a
hobby.

In cases where messages will leave the local bulletin board and
"echo"19 across the country or to other countries, selective removal
of messages by local sysops can lead to fragmentation of discussions
where some people have seen certain messages and others have not.20
Theoretically, a user might log in one day to see replies to replies
of a message which were deleted before they reached the board he
uses.21

Even if the resources to screen every message before posting it to the
board were possible, a sysop would likely be falling prey to
censorship, much as if a broadcaster used a delay device to ward off
libel suits when a caller to a talk radio show could not refrain from
using specific words or simply chose to say something that was
conjecture or simply not true. In the 1976 case Adams v. Frontier
Broadcasting Co.,22 the Wyoming Supreme Court held that screening
calls to a talk show subverts a broadcaster's own First Amendment
principles:

"... broadcasters, to protect themselves from judgments for damages,
would feel compelled to adopt and regularly use one of the tools of
censorship, an electronic delay system. While using such a system a
broadcaster would be charged with the responsibility of concluding
that some comments should be edited or not broadcast at all.
Furthermore, we must recognize the possibility that the requirement
for the use of such equipment might, on occasion, tempt the
broadcaster to screen out the comments of those with whom the
broadcaster ... did not agree and then broadcast only the comments of
those with whom the broadcaster did agree."23

Forcing callers to adhere to the broadcaster's views essentially
destroys the purpose of open debate. Electronic systems are wide open
to debate based solely on their existence and the invitation of the
operators to friends and the public to join in. No one should be
forced to agree, and no one will agree.  Disputes are common and
expected. But with free expression comes the danger of overstepping
the bounds of the First Amendment:  obscenity, distributing material
not appropriate for minors, defamation,24 copyright infringement, and
more.

The level of ignorance and lack of courtesy or taste on computer
networks is astounding. Though not the heart of electronic discourse,
the problems exist enough to pose a problem for sysops, moderators and
network administrators.

Traditional media classifications carry varying levels of
responsibility and liability. What the law considers grounds for court
action against a broadcaster might have no bearing to a newspaper
publisher. A library or bookstore would likely have even less
responsibility.

Unfortunately, computer information systems and bulletin boards fit
none of the classic molds nicely. In some ways they are nothing more
than distributors, but in others they actively behave as publishers.
In the case of the echo networks mentioned above, they behave to some
degree as republishers, although responsibility for removing or
lessening the damage of problematic material is shifted.25

Users who have found the rules of electronic networks restrictive
sometimes advocate the common carrier principle.26 Such a standard has
been denounced as an intrusion on the rights of owners to operate
their private property as they desire27 and impractical28; impractical
because as a common carrier, they would then be obligated to carry
everything posted to the boards.

This might be fine if computer operators had an unlimited supply of
disk space and money. They do not. Many systems are operated as a
hobby with no fees charged of users. Sysops foot the bill to shuttle
information around a volunteer network.29 Under those restrictions,
moderators attempt to maintain as high a signal to noise ratio as they
possibly can, cutting off chitchat, directing off-topic conversations
to a more appropriate venue, ending disputes and attacks before they
turn into virtual brawls or a flame war with no end in sight.

Evidence of what happens when the stops are removed exists on USENET
in the alt.* hierarchy of newsgroups. These "alt" groups have no
moderators to prescreen posts or discipline unruly participants.30
They are anarchy at work.31 If proof of how uncivilized these groups
can become is required, any interested party is directed toward
alt.flame, the USENET equivalent of a grudge match. Some newsgroups
under the alt.flame heading carry the names of legendary net
personalities.32 Others such as alt.flame.fucking.faggots have been
turned by heterosexuals to attack those who would call themselves
homophobic and proud of it, undoubtedly to the dismay of the people
who created it.

No mistake should be made here: Those who are "wired" to the realm of
computer networks often start them or volunteer and are aware of
networks such as USENET, where "In a few groups, the postings lack any
coherence at all, and make you wonder what, er, stimulants were
influencing the authors."33

Such anarchy would not be permitted on other networks, which either
due to cost or technical capabilities can not allow their facilities
to be roamed freely by what passes as atmosphere or lively discussion
elsewhere.34 An example of this is Prodigy.  When Prodigy's electronic
bulletin boards became exceedingly popular they drew all manner of
discussions. They became popular enough to overload a network intended
for the transmission of repetitive information (i.e. advertising,
shopping, news, etc.) not E-mail and bulletin board messages which
differ from one another.35 Prodigy, in a public relations disaster in
1990, announced the imposition of new fees on private electronic mail
to help hold off the costs incurred by heavy E-mail use by some of its
users.36

In its role as a "family" network, Prodigy also prescreened messages37
that did not fit the mold of something available to both children and
skin-thinned adults. Prodigy's computers routinely scanned messages
for key words often used as profanity or a pejorative.38
Unfortunately, this caused problems for people using the words
legitimately. Disguised words, those with letters replaced by *&%$#
characters, were acceptable.39 Users were also not allowed to name
other users in their posts regardless of the topic. In one case the
name in question referred not to Roosevelt Dime, a halfback for the
Chicago Bears as Prodigy insisted, but to a Roosevelt dime the user
was looking to add to his coin collection.40

The network has from the beginning considered itself a publisher,
choosing to allow some discussions and not others. In late 1989 when
arguments broke out in a Health Spa bulletin board,41 Prodigy
discontinued the area outright, saying that public interest had waned.
One Prodigy member who was evicted from the network for his protests
against its E-mail fee policy noted: "It was this wild debate between
fundamentalist Christians and gay activists. ... This is the kind of
thing that happens on a bulletin board. You wouldn't get this to
happen in a room."42

In a much more highly publicized incident, Prodigy recovered from
complaints against it by the Anti-Defamation League of the B'nai
B'rith when users in another area posted statements that the Holocaust
never happened43 or that if Hitler removed the Jews, we could "go a
long ways toward avoiding much trouble."44 Afterwards, Prodigy issued
its policy that it would no longer prescreen messages for content
(except for language)45 but would delete discussions it considered
"grossly repugnant to community standards."46

Such policies may be fine for Prodigy which directs itself to
families, but others contend that they are open to just about
anything. They act as libraries. In this category is CompuServe, a
system already legally classified by the New York courts as a
distributor:47

After Rumorville USA, an electronic publication on CompuServe's
Journalism Forum,48 claimed that its competitor Skuttlebut was a
"start-up scam,"49 the plaintiff filed a suit against not only
Rumorville's publisher but also CompuServe itself. District Court
Judge Peter Leisure granted a summary judgment to CompuServe on the
basis that as a distributor it could be held liable only if it knew or
had reason to know of the defamatory statements:

"Technology is rapidly transforming the information industry. A
computerized database is the functional equivalent of a more
traditional news vendor, and the inconsistent application of a lower
standard of liability to an electronic news distributor such as
CompuServe than that which is applied to a public library, book store,
or newsstand would impose an undue burden on the free flow of
information."

Industry observers naturally hailed Leisure's decision. Had the judge
ruled differently, CompuServe likely may have had to begin censoring
its boards,50 which like the Prodigy incidents outrages users and
violates the First Amendment principles so long defended by other
courts.

To an individual sysop without the resources of Prodigy, this would
become a nightmare, significantly slowing down the flow of
information. Lawyers on the electronic frontier suggest that should a
hobby bulletin board lose its privileges as a distributor they almost
unquestionably would shut down or "face the Hobson's choice of either
wasting vast amounts of time and effort combing through computer
files, or being subject to potential lawsuits and damage awards based
on the unknown illegal acts any one of hundreds or thousands of
callers might choose to commit on their systems."51

No such imposition should be allowed. Thus in some respects it is
logical to consider these systems a distributor free from most legal
liability.52 But the varying manners in which people communicate on
electronic systems makes this single, albeit protective, label
inaccurate. Real-time chats are immediate with no opportunity to
prescreen, although if someone is rude or abusive, they may find
themselves cut out. Such as the case when a male America Online user
entered the chat room "Women for Women."53 He wandered in blathering,
"So, any lesbian Nazi hookers from hell here?" The moderator quickly
booted him out, and the user later received a warning message in his
mailbox. The user -- already on notice -- later made the mistake of
using the word "piss" in another chat areas and lost his account on
America Online.

Because the user "spoke" in real time offering observers no chance to
filter out his offensive comments, the electronic chat system was much
like a broadcaster without a delay device. No prior censorship was in
place except that problem users would find themselves unable to
participate as long as they behaved inappropriately among a diverse
population.

This lack of ability to filter the speech of others is at the heart of
the needed definition for electronic mass communications systems. Only
common carriers do not have previous knowledge of the communication
carried through their systems. They also are obligated to carry it. As
the history of sysop intervention and moderation on shared networks
has indicated, however, the desire to maintain high-quality
discussions is a common desire.54 Low signal to noise ratios are
expensive. Users and sysops are paying to transmit messages across the
country and want to eliminate as much chaff as they possibly can. The
cornerstone of eliminating garbage is steering conversations to
appropriate areas (no religion talk in the soap opera conference) and
coming down hard on users who routinely abuse other users. This may
seem like an effort to censor views analogous to a broadcaster using a
delay device to silence its political opposition as warned against in
Adams v. Frontier Broadcasting. But administrators for these networks
will quickly remind people that the First Amendment simply doesn't
apply: The network makes the rules and grants users limited freedom of
speech.55

Though that has not been enough for some socialist members of society
who insist that computer networks are much like a company town or
shopping mall in that the more they open themselves to the public, the
less control over speech they have.56 The public forum doctrine,
unfortunately, is not equal from state to state. More state courts
have favored defendants who restricted speech than states that found
for the speaker.57

What this means for national and global computer networks is a
confusing array of laws that vary from state to state. Lance Rose, a
lawyer who has written much on the subject of computing-related law,
has suggested that laws related to the electronic frontier be
nationalized to alleviate the uncertain nature of laws from state to
state.58 That is a central goal to protecting operators from
unnecessary liability. Users will see their rights to speak in what
they believe to be a public forum enhanced if the proper steps after
that are taken. As Rose stated: "It's time to realize that provincial
state laws only hinder proper development of interstate electronic
systems."59

One direction that could be taken in the public discourse area of
computer-mediated communication is the notion of the public forum. No
method of communication ever developed by mankind so easily puts the
power of speech into individual hands. None ever has opened itself up
to the thoughts expressed by the millions of users who operate on the
commercial information services, the 60,000 bulletin board systems and
Internet-connected systems.

This certainly supports the expansion of "freedom of speech" to
computer networks to the point that respectable users can do or say
what they want. The technology provides everyone a chance to have
their say. Sysops tend to dislike this analogy, insisting that their
boards are their private property much like their private living room
to which they can invite anyone they want or from which they can
remove anyone they dislike.60 No infringement on their rights as the
owner is intended; computer bulletin boards are still safe because
they fit so many roles.

Different types of systems have different needs. To help them meet
that is the "time, place and manner" provision already assigned to
traditional public forums.61 It should be expected that in areas open
to minors, decent language will be used and certain types of discourse
are agreed upon as inappropriate. In those systems sensitive to cost,
rules barring extraneous ASCII (overquoting, cute quote boxes and
bloated signatures)62 are permissible as are those discouraging
off-topic meandering and flaming.

In none of these should operators be expected to prescreen discourse.
They do have the right and obligation, however, to remove damaging
materials on private, non-shared message bases once brought to their
attention.63 The cost is insignificant as the means to delete such
material is available at the tap of a key. Expecting the same behavior
on shared systems is impractical and counterproductive. In this case
moderators have an obligation to ensure that disruptive elements are
not allowed to continue inserting damaging material into the network.
Again, there is little need of this when the area at question has no
sponsor, such as with the "alt" groups on USENET. The individual, not
the network's leadership or its connecting parts, is responsible for
material placed in the public arena. The system operators in this case
act as pure distributors. Some have a choice over what areas they will
support and which they will not, but not individual statements.64 This
is like a library which might cancel a periodical subscription but not
remove a single issue someone considers offensive.65

If a bookstore chooses to carry pornographic material it should be
allowed to do as long as state laws regarding distribution to minors
and obscenity are adhered to. The same should apply to computer
bulletin boards; operators should not be afraid to maintain adult
areas simply because law enforcement behaves like the Keystone Kops.
One would hope that local authorities have learned something about the
rights of bulletin board operators and users over the last 10 years
when Tom Tcimpidis' BBS was seized in 1984 after a user posted a
stolen telephone credit card number on the board.66 Unfortunately,
they have not. One local Knoxville board removed its adult area
reportedly for fear of legal disputes,67 and the Secret Service was
chastised for seizing the computer equipment of a publisher which
contained works in progress and electronic mail.68 Sysop Mark Lehrer
of Ohio is still fighting to recover the private E-mail from his
system which authorities took along with his entire BBS in a failed
sting operation directed at suspected child pornography
distribution.69

As long as sysops see such reports and fear the security of their
board, open exchange of ideas whether written or graphic can not
freely occur despite American courts' insistence they support the
First Amendment as well as privacy. Once definitive classification is
obtained, the freedom that spread across computer bulletin boards in
their birth will continue into the next century as networks grow and
as new systems reach completion.70

With that classification must come an understanding of what
responsibilities a sysop has as a distributor or publisher.  Injurious
materials can include defamation, copyright infringement and computer
viruses, all of which can affect users or third parties. A sysop
operator's role in preventing or limiting damage has yet to be finely
detailed, although the considerations of negligence and actual malice
can be extended to the operations of a computer bulletin board. Which
standard of fault is best hasn't been decided.71 Operators may prefer
one, parents another and adult users yet their own again.

Some steps have already been taken. The Electronic Frontier Foundation
has supported building a consensus on the limits of sysop liability.72
A handful of law review articles have suggested that the current media
classifications are unfit to include BBS' in their realm and that a
new class is needed.73 Unfortunately, most of this discussion has
taken place among computer watchers and interested law parties. Many
Americans still lag behind in its understanding of what bulletin
boards are and where they stand as evidenced by reports in the media
on how BBS scandals continue to mystify basic concepts long accepted
by the public as expected.74

It may seem shocking for users today to learn that more than ever they
are responsible for what they write and what they distribute. The
ability to have your voice heard is unprecedented but so is the
capability to harm. The media lessons of copyright, privacy and
defamation still are being taught on the networks today. They will
continue as more people log on to the networks at hand, spreading
their personage electronically.

Education can answer many of the problems facing the electronic world
today. But no puzzles are solvable until computer information systems
and bulletin boards are granted the highest degree of First Amendment
rights and freedom from liability necessary to keep the waves of
public exchange coming throughout the future.

[FOOTNOTES]

1 Here is the text of Tribe's proposed amendment:

"This Constitution's protections for the freedoms of speech, press,
petition, and assembly, and its protections against unreasonable
searches and seizures and the deprivation of life, liberty, or
property without due process of law, shall be construed as fully
applicable without regard to the technological method or medium
through which information content is generated, stored, altered,
transmitted, or controlled."

2 "ILink Conference Information," (short list) July 1993 from the file
ILCNF307.ZIP available on ILink-affiliated boards of which Data World
BBS in Maryville, Tenn. (615-675-3282) is one.

Besides conferences geared to debate, technical discussion, hobbies,
professions and entertainment, networks often maintain administrative
areas for news announcements and handling of user-moderator disputes.

The Mod & User area of ILink for example is set aside as the "hallway"
where users and conference hosts can discuss instances where someone
has been moderated for rules violations. Its implementation is public.
Other networks may handle moderations similarly, very differently,
privately or not at all (as is the case with LuciferNet).

3 A recurring problem in almost any conference devoted to computer
operating systems. The author has personally noted warnings and minor
disputes in Windows and Macintosh-oriented conferences. Other users
have been moderated for similar instances in OS/2, according to
exchanges in the ILink Mod & User conference.

4 Common conferences for such debates: Politics, Opinion and even Star
Trek.

5 Because this incident began in the summer of 1992 and continued into
the autumn months, copies of the dispute long ago disappeared from the
archives available to most users, including the author. Descriptions
of the account are based upon his memory of the conference's flame war
at the time.

6 Ibid. Gary Phillips' description did nothing to help his argument.
If anything it increased some users' distaste of homosexuals.

7 Ibid. Matthew Ackerman was the participant who threatened the ILink
network with legal action. He was eventually reassured that 1) ILink
policies would be sufficient and 2) successfully suing everyone
involved would be a monumental task because the boards are distributed
across the United States and internationally.

8 On the ILink network, the official moderation schedule is as
follows:

-- Informal warning. Discuss in Mod & User.

-- Formal warning. Discuss in Mod & User. Replying to moderation
   messages in the conference in which one has broken a rule rather
   than Mod & User is a common method of earning the next step:

-- 30-day suspension. Applies to the conference only. This is
   unappealable and thus no discussion is warranted.

-- 6-month revocation. This is appealable. Upon a return from a 30-day
   suspension, any violation of rules demands this access restriction.
   Discuss in Mod & User.

-- Network expulsion. In rare instances a user may have access to
   ILink removed completely. See note 34 below.

9 An E-mail acquaintance of the author is the culprit in this case. He
eventually stopped posting the articles after Russell King, an
assistant managing editor at The New York Times who read the
conference, informed him that he was in violation of copyright law and
should immediately cease posting Times articles verbatim or as lengthy
excerpts.

10 This particular user posted several different messages in several
different conferences on ILink.

11 Take for example a posting in the ILink Politics conference of the
article from The American Spectator on Magic Johnson's contraction of
HIV.

12 Such reprinting without permission occurs on a regularly basis on
some Internet discussion groups. These are posted apparently for
nonprofit information distribution in most cases.

13 Pham, Dewey. Response to moderator's notice that he could not post
an Associated Press wire service article, no matter how fascinating
and pertinent, about Robin Williams possibly showing up as a guest
star on Star Trek: The Next Generation.

14 See note 9 above.

15 Posting on USENET's alt.censorship newsgroup.

"The USENET is an informal, rather anarchic, group of systems that
exchange `news.' News is essentially similar to `bulletin boards' on
other networks." Krol, Ed. The Whole Internet: User's Guide and
Catalog, p. 363.

16 Account of a month-long incident according to complaints and
moderation posts in the network's Mod & User conference. Some of the
posts included verbatim quotations. Available on Data World BBS.

17 As the seasons progressed, Sirtis' cleavage diminished. It
disappeared completely beginning with the sixth season episode "Chain
of Command," which aired just before the "Galactic Breasts" thread
started and seemed to spark the discussion. A captain in temporary
command of the program's starship ordered Sirtis' character to "wear a
standard uniform." She hasn't switched back to the revealing uniform
since despite the return of the permissive commanding officer.

18 See note 16 above.

19 Echo networks are also known as shared network systems and
store-and-forward networks. Though messages may enter the network from
a specific point, it passes through many systems before reaching
everyone on the network.

Such systems are organized in a hierarchical tree fashion.  Naturally,
if one of the major hub systems goes down, anyone "downstream" from
that board is cut off until the hub recovers.  In the case of
Knoxville's ILink connection, problems on Data Warp BBS in Houston,
Texas would disrupt the mail flow to and from Knoxville and 10 other
cities. (Boone, Earl. ILink International Network Map.)

Because individual systems vary in how quickly they receive messages
from different points on the network, a message entered in one city
may appear on one BBS the next day and another BBS as much as a week
later. (Public message from a moderator to a user returning from a
suspension on how exchanges were delayed due to slow mail delivery.)
Internet-based discussions tend to appear on member systems within
minutes or hours. (Just try it.)

20 Rose, Lance and Jonathan Wallace. SysLaw, Winona, Minn.: PC
Information Group. p. 15.

21 A similar situation occurs with mail loss, a phenomenon considered
to be tamed but never really controlled. As an example: The author one
day noticed replies to the announcement of a new moderator for a Star
Trek conference. The original message which named the new moderator
never arrived.

22 555 P.2d 556 (Wyo.1976), 2 Med.L.Rptr. 1166.

23 Ibid., 564-567, 2 Med.L.Rptr. at 1173-75.

24 An interesting idea is that the (limited purpose) public figure
status could be extended to include online participants who log on
frequently so that they become well known even if they would be
considered private individuals offline. (Rose and Wallace. p. 75)
Their involvement may not necessarily include participation in debate
conferences but their identity is common. Even stronger a case might
be made for users who post numerous messages on topics in debate
areas. Debate by its very nature (barring academic mock competitions
which is not the issue here) demands that someone place themselves
into the spotlight.

25 Rose and Wallace. pp. 8-17.

26 See a long-standing argument from ILink's BBSPolicy conference
July-August 1992. See generally messaged labeled "Your Freedom, My
Toys" and "Free Speech -- Again." The "common carrier" and "public
forum" principles were initiated by a user.

27 Ibid. Property and privacy rights defended by sysops and network
volunteers.

28 Cavasos, Edward A. "Computer Bulletin Board Systems and The Right
of Reply: Redefining Defamation Liability for a New Technology," 12
Review of Litigation (Fall 1992) pp. 231-248 at 239-240.

29 Your Freedom, My Toys.

30 Rose and Wallace. p. 15.

31 Hunt, Eric. In the "Opinion Conference" thread from the general
Your Freedom, My Toys discussion (August 6, 1992):

"USENET is a full-fledged anarchy. ... It contains some of the most
informative and technical discussion areas available in cyberspace. It
also contains some of the worst message areas in terms of the
signal/noise ratio."

32 Satirical versions may be discovered under alt.fan, however.

33 Krol. p. 131.

34 LuciferNet is a worthy exception. There are no rules, although one
user reportedly was expelled for publicly stating that he hoped to
embarrass the network and its users. That user also was expelled from
the ILink network after several concurrent suspensions.

35 Kapor, Mitch. "Keep the Switches Open. Prodigy: A Cautionary Tale,"
Wired 1.3 (July/August 1993) p. 57.

36 Taylor, Marianne. "Users say computer network is muzzling their
give-and-take," Chicago Tribune, January 7, 1991. sec. 4 p. 1,4 at 4.

37 "The Lessons of the Prodigy Controversy," EFF News 1.00 (December
10, 1990) lines 444-588.

38 Godwin, Mike. "What's Important About the Medphone Libel Case?" 5
EFFector Online No. 5 (April 2, 1993) lines 258-436, at ln. 388-389.

39 On the ILink echomail network, such attempts at disguising "potty
mouth" still warrant warnings from the conference moderator. (Bibich,
Larry. Message dated July 14, 1993 in Politics conference listing
rules by which users should abide.)

40 Gaffin, Adam. Prodigy: Where Is It Going? Available from the files
of the Electronic Frontier Foundation.

41 Di Lello, Edward V. "Functional Equivalency and Its Application to
Freedom of Speech on Computer Bulletin Boards," 26 Columbia Journal of
Law and Social Problems (Winter 1993) pp.  199-247, at 207.

42 Taylor. sec. 4 p. 4.

43 Feder, Barnaby J. "Toward Defining Free Speech in the Computer
Age," The New York Times (November 3, 1991) p. E5.

44 Steele, Shari. April 26, 1993 letter to the National
Telecommunications and Information Administration on behalf of the
Electronic Frontier Foundation. The letter was in response to the
NTIA's request for comments on hate crimes as related to
telecommunications, including computer bulletin boards.

45 Godwin at lines 387-389.

And a good thing too. Earlier this year, Prodigy user Peter Denigris
posted messages to the Money Talk forum that led to a business
disparagement suit being filed against Denigris, an investor who
reportedly lost $9,000 on Medphone stock and encouraged others to
steer clear because the company was financially and managerially
unsecure, and "appears to be a fraud." Prodigy was not named in the
suit. Ibid. See also Lance Rose, "When Modems Squawk, Wall Street
Listens," Wired 1.3 (July/August 1993) p. 30 for a brief article
raising the question of a "chilling effect" that resulted on Prodigy
during the discovery portion of the suit.

46 Feder.

47 Cubby v. CompuServe 776 F.Supp. 135 (S.D.N.Y. 1991)

48 Ibid. The Journalism Forum is run by Cameron Communications Inc.
under contract with CompuServe.

49 Ibid. That statement unfortunately was not the only one at issue as
the court's background statement indicates:

"The allegedly defamatory remarks included a suggestion that
individuals at Skuttlebut gained access to information first published
in Rumorville `through some back door'; a statement that [Skuttlebut
publisher Robert G.] Blanchard was `bounced' from his previous
employer, WABC; and a description of Skuttlebut as a `new start-up
scam.'"

50 Garneau, George. "Ruling protects electronic services," Editor &
Publisher (November 16, 1991) p. 15.

51 Rose and Wallace. p. 12.

52 No attempt is made in this paper to defend known pirate boards such
as Rusty & Edie's or Event Horizons, both of which carried copyrighted
images from porn magazines. (Copies of images from both boards are
available on boards in other cities including Knoxville.)

Event Horizons settled out of court with Playboy (Public message dated
September 18, 1992 by Lance Rose in ILink's BBSPolicy conference).

Rusty & Edie's was temporarily shut down by the FBI after an
investigation by that agency and the Software Publishers Association,
which learned that the board was illegally distributing commercial
software. (Hobbs, Michael A. "FBI Shuts Bulletin Board -- Copyright
Probe Begun," Cleveland Plain Dealer, February 17, 1993. See also a
message dated February 27, 1993 in the ILink BBSPolicy conference
noting the board's return after one month.)

53 See a series of alt.censorship posts on USENET dated mid-July 1993.
Copy available from author if archives cannot be located.

54 Sumrada, Bobbie. "Users' Etiquette Guide to Interlink," ILink
information packet as file ILGUIDE.ZIP. Note that ILink(sm) has since
replaced the term Interlink, which was registered by a package
delivery service (public posting supported by LegalTrac index).

55 Your Freedom, My Toys.

56 Ibid.

57 Di Lello. pp. 225-226.

58 Rose. Cyberspace and the Legal Matrix: Laws or Confusion?
Available from the files of the Electronic Frontier Foundation.

59 Ibid. at line 360.

60 Your Freedom, My Toys. See specifically messages by Glenn Sieb.

61 Taviss, Michael L. "Dueling forums: the public forum doctrine's
failure to protect the electronic forum," 60 University of Cincinnati
Law Review. (Winter 1992) pp. 757-795 at 788.

62 Sumrada. For notes on extraneous ASCII, see the sections labeled
"Don't quote excessively" and "How to bug your fellow BBSer."

See also the "Intelec International E-Mail Network Operational
Guidelines." The Intelec Network Information File. (May 1993) The
latest release is available on computer bulletin boards as
IN-yymm.ZIP, where yy is the year and mm is the month.

This document, an unretrievably terse accounting of the network rules,
spells out in no uncertain terms that signatures can be no longer than
three lines and "taglines," the parting witticisms after a signature,
may be only one line.

Some other networks and/or sysops are not as generous.

63 Rose and Wallace. pp. 8-10.

64 Ibid. pp. 15-16.

65 Though high school libraries and bookstores have been known to
accept such restrictions, the concept that they as a whole abhor the
behavior defends the free expression and distribution of all ideas.

66 Pollack, Andrew. "Free-Speech Issues Surround Computer Bulletin
Board Use," The New York Times (November 12, 1984), pp.  A1, D4. See
also, Stiff, David. "Computer Bulletin Boards Fret Over Liability for
Stolen Data," Wall Street Journal (November 9, 1984) p. 33.

67 From an announcement in the early 1993 on Data World BBS' news
screen. That message has since expired and is no longer available.

68 Nathan, Paco Xander. "Jackson Wins, Feds Lose," Wired 1.2 (May/June
1993) p. 20. Federal District Judge Sam Sparks cited two Federal acts
which the Secret Service violated in its investigation of Steve
Jackson Games: the Privacy Protection Act barring government officials
from searching publishers, and the Electronic Communications Privacy
Act severely limiting who can intercept and read private electronic
mail.

69 Lehrer, David. "Akron Anomaly BBS Update," 5 Computer underground
Digest No. 56, File 1. The update by the sysops' father has been
widely circulated around the Internet; this reference to CuD is only
one of several where the report can be obtained. The editors at CuD
note:

"Subsequent events indicated that the raid was an excessive exercise
in local law enforcement zeal. Under pressure, the sysop pleaded
guilty to a minor misdemeanor charge to avoid costly legal
entanglements. But, the case continues to raise issues ..."

70 Kapor. "Where is the Digital Highway Really Heading?" Wired 1.3
(July/August 1993), pp. 53-59, 94.

71 Rose and Wallace. pp. 71-74.

72 Kapor. "Legal and Policy Projects," EFF News 1.03 (March 7, 1991)
ln. 115-470, at ln. 117-123, 157-198.

73 See: Di Lello, note 41 above;

Sassan, Anthony J. "Comparing apples to oranges: the need for a new
media classification," 5 Software Law Journal (December 1992) pp.
821-844; and

Taviss, note 61 above.

74 Schwartz, John. "Sex Crimes on Your Screen?" Newsweek (December 23,
1991) p. 66. After a user received computer graphic files of minors
engaged in sex acts in his private mailbox, America Online president
Steve Case said: "People ask, `How can you permit this?' It's the same
question that could be asked to the postmaster general."

______________________________________________________________________
Jonathan Bell                          Internet: jmbell@darmok.win.net


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