Visit our newest sister site!
Hundreds of free aircraft flight manuals
Civilian • Historical • Military • Declassified • FREE!


TUCoPS :: Cyber Law :: bbs_law.txt

Bulletin Boards and the Law







              THE ELECTRONIC PAMPHLET--COMPUTER
                 BULLETIN BOARDS AND THE LAW


              Submitted in Partial Fulfillment
                   Of the Requirements of
                     Mass Communications
 
                             by
                      Michael H. Riddle
                  72446.3241@compuserve.com
                  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
and  nonmedia.   The  plurality  opinion suggested  that the
crucial distinction was whether the  speech involved a "pub-
lic issue,"  "public speech,"  or an  "issue of public  con-
cern."  While Gertz did not clearly draw the distinction, it
was clear to the plurality from the facts of Gertz that such
a limitation was implied. [FN42] 

     As applied to  bulletin board systems, it  would appear
then that if the BBS  is press, New York Times malice  would
be the rule for defamation involving public issues or public
officials.  As long as the  defamation was by one user about
another user, the defamed party could be held to have delib-
erately  "thrust  himself  into the  vortex  of  this public
issue"  in an  "attempt  to influence  the outcome." [FN43] 
That the issue was of public concern [FN44]  could fairly be
implied  from  the fact  of discussion  on a  public message
base,  subject  to  rebuttal.   Of  course,  the possibility
always exists that  a user  inserted a defamatory  statement
into a void, [FN45]  in which case the system operator would
arguably at least have a duty to remove the offending state-
ment, absent a privilege to republish. [FN46] 

     One of  the difficulties in  discussing the  defamation
issue lies in  distinguishing the  system operator as  "vic-
tim," i.e., the  innocent republisher of a  defamation, from
the system  operator as initial  defamer.  The  operator may
be, but usually is not, the original publisher of an alleged
defamation. [FN47]   The system operator is more generally a
republisher of information and, like the bookseller in Smith
v. California, [FN48]  may  not fairly  be held  to know  in
advance the contents of messages left on the bulletin board,
let alone whether they are true or false. [FN49]   In Smith,
the issue was  whether the  bookseller, absent knowledge  of
the contents, could  be held liable for  obscene material in
his store.   The Court held that he could not.  "Every book-
seller  would be placed under  an obligation to make himself
aware of  the contents of every book in  his shop.  It would
be altogether unreasonable  to demand so near an approach to
omniscience...." [FN50]   One must be careful, however, when
discussing the  impact of Smith.   At least  one commentator
has suggested that the typical application of Smith is that,
in the totality of the  circumstances surrounding an "adult"
bookstore, the bookseller  can be inferred to  know the con-
tents of his  merchandise. [FN51]    One could suggest  that
the factual situation would be critical  in the context of a
bulletin board system.

     In manner similar  to the Smith bookseller,  the system
operator is not  aware of the contents  of a message  at the
moment it is posted.  While most system operators review the
contents of most messages left on their bulletin boards most
of the time, it is not always practical to do so, and to the
extent  that  the discussion  centers  on issues  of obvious
public  importance,  such  prescreening  implicates  serious
First Amendment  concerns regarding censorship  and chilling
debate on issues of public importance. [FN52]   

     While it is  not reasonable to expect  system operators
to be aware of the  contents of every message,  particularly
as it is  posted, the  question still remains  of what  duty
they  owe once they  become aware  of an  offending message.
Courts  interpreting  Smith [FN53]   generally have  applied
some element of scienter.   Once system operators  are aware
that  offending messages have been posted on the board, they
arguably have a  duty to remove the  message. [FN54]   Proof
of scienter might arguably  be shown by the totality  of the
circumstances  surrounding the  operation,  such as  limited
access, extensive  password protection, or  previous pattern
of abuse. [FN55] 

     Such a  pattern  might be  shown  if a  bulletin  board
system has, for example,  16 message areas, 15 of  which are
generally available to the public at large, but one of which
is  "hidden" and available only to close friends and associ-
ates of  the system  operator.   Such a  restricted sub-area
("sub"),  if used  for questionable  activities, might  more
easily  be  distinguishable  from the  generally  accessible
subs.  The operator, by exercising the control  necessary to
keep the sub restricted  and to grant access to  the "chosen
few," could arguably be inferred  to have personal knowledge
of the questionable activities. [FN56] 

     A question also arises about  whether the system opera-
tors might be  able to claim  a privilege of  republication.
The  primary privilege normally  mentioned in bulletin board
circles  is that  of the  common carrier.   The  Restatement
(Second)  of  Torts acknowledges  a  privilege for  a common
carrier to  republish a  defamation if  the "public  utility
[is]  under  a  duty to  transmit  messages...." [FN57]    A
careful examination  suggests that  a common  carrier privi-
lege, however, is neither warranted  nor wise.  In  National
Ass'n of  Reg. Util.  Comm'rs v.  F.C.C., [FN58]  the  court
formulated a  two-part test  that would  appear to apply  to
bulletin boards and one which they could arguably pass.  The
case involved cable television.  The coaxial cable installed
for distribution of cable television  is capable of carrying
signals in the reverse direction.   FCC regulations required
such a reverse channel to be  available.  The FCC originally
had not completely foreclosed state  and local regulation of
the reverse channel.  When it  acted to preempt such regula-
tion, the plaintiffs in this action sued to void the preemp-
tion.    The court  ruled that  the  reverse channel  was an
intrastate  common  carrier,  holding that  to  be  a common
carrier an entity must first  provide indifferent service to
all who request it.   Many bulletin board systems  will nor-
mally accept as  a user  anyone who applies,  and many  more
accept anyone  who applies whose registration information is
not facially false;  e.g., anyone who  might provide a  name
listed in the  applicable telephone directory at  the number
provided.  Second, the system must  be such that the custom-
ers can transmit  information of their  own choice.  In  the
case of the bulletin board system, by  definition the infor-
mation is of the customer's own choice.  The difficulty with
this approach, probably  fatal if ever adjudicated,  is that
no one has yet suggested a  duty of bulletin board operators
to transmit any or  all messages submitted to them,  or even
to  open their boards to  the public. [FN59]   Most bulletin
board  systems,  after  all,  are  run   as  a  hobby  at  a
loss. [FN60]   It would  be an absurd result to  decide that
merely by operating a bulletin board system as a hobby, that
an operator mustprovide service to anyonewho asked. [FN61] -
Additionally, most  system operators reserve  the right to
edit  or delete  questionable messages, an  action certainly
incompatible with the requirement that  on a common carrier,
the  information be  of the  customer's own  choice. [FN62] 
(Such a reservation of rights,  however, is entirely consis-
tent  with  the  editorial discretion  inherent  in  a Press
Clause  model,  as is  the  discretion concerning  which few
echoes or message areas, out of the extensive possibilities,
should  be carried on the system. [FN63] )  In addition, the
bulletin board is not a common carrier as that term has been
interpreted by the  FCC, and the  courts will normally  give
"great deference" to the interpretation  given by the admin-
istrative agency. [FN64]    The Federal  Communications Com-
mission  is  authorized to  regulate interstate  commerce by
wire or radio. [FN65]   Since bulletin board systems operate
by connection to the interstate  telephone system, and since
many of them actually are connected [FN66]  to an interstate
network of computerized bulletin board systems, and since it
seems well-settled  that the term "interstate  commerce" has
an extremely broad  meaning, then it  would follow that  the
FCC could  assert jurisdiction.   While  it would  logically
follow, it seems  to this  author that it  would exceed  the
probable intent of  the Congress which enacted  the Communi-
cations Act of 1934. [FN67]   

     The FCC appears to agree with  the author.  In response
to the "increasing complexity  and overlap of communications
systems in the 1970s," [FN68]  the FCC conducted a series of
hearings   which  has become  known as  the  Second Computer
Inquiry. [FN69]     The  Commission   distinguished  between
"basic" and  "enhanced" services.   Basic services act  as a
pipe for  information without  significantly altering  it--a
transparent  path.  Enhanced  services combine basic service
with some sort  of processing.  The  Commission retained its
traditional  jurisdiction  over  basic  services,  but  left
enhanced  services  essentially  unregulated.   Computerized
bulletin  board  services  were  specifically  mentioned  as
enhanced services. [FN70] 

     If it seems likely that bulletin board  systems are not
common carriers, it also seems wise.   We saw in the discus-
sion of defamation, supra, that  bulletin boards might argu-
ably  be characterized as  press.  While  the discussion was
based on access to information, it  was noted that a logical
extension  could be made.  One such likely extension is to a
privilege  of  republication.   In  1977, the  United States
Supreme  Court  denied  certiorari  to Edwards  v.  National
Audubon Society, Inc. [FN71]    In Edwards, the editor of an
Audubon  Society  magazine  characterized  scientists  using
Society data to support  the continued use of the  pesticide
DDT as "paid liars." [FN72]   The  New York Times accurately
reported the  charges.   Five scientists  sued both  Audubon
Society and  the Times.   The  Second Circuit  dismissed the
judgment against the  Times, finding a privilege  of neutral
reporting essential to the operation  of the Press Clause of
the First  Amendment. [FN73]   While the  precedential value
of "cert. denied" is of uncertain value, the decision stands
in the Second Circuit.   The courts are split  about whether
the  "neutral reporting" privilege  is valid. [FN74]    Many
have accepted it and many have refused to accept it. [FN75] 
If there is any  validity to it, however, it should apply to
bulletin boards.  The  editors of the New York  Times, after
all, had the  option (editorial discretion) not  to publish.
In contrast, inherent in the nature of the bulletin board is
immediate republication.   The  operator may  only, once  he
becomes aware of the libel, remove  it.  No editorial choice
is  exercised  immediately,  and in  the  case  of networked
systems, an intervening mail event  will cause the question-
able  matter  to  be republished  widely  before  the system
operator has the reasonable opportunity  to take any action.
At  least to the extent that  bulletin board systems facili-
tate  discussion  of matters  of  public importance,  and at
least to  the  extent that  the  Edwards privilege  is  ever
valid,  the neutral (fair)  reporting privilege should apply
to  bulletin  boards. [FN76]     This  application  of   the
neutral/fair  reporting  privilege would,  it  seems to  the
author, be a better solution to the problem of republication
than  common  carrier  recognition, as  it  would  leave the
system operator with the independence and discretion implic-
it in a hobby. [FN77] 

    Civil and Criminal Liability for Contents of Messages

     In a similar manner, system operators have been charged
with various criminal  violations based  on the contents  of
messages  left on their bulletin boards. [FN78]   One of the
earliest reported cases  involved a  Mr. Tcimpidis, who  was
charged solely because of information posted on his bulletin
board containing stolen telephone credit  card numbers.  The
exact  basis of  the  charge is  missing  from the  reviews;
however, one can surmise that it was for aiding and abetting
or some similar theory, in  that charges were later  dropped
for lack  of evidence of  knowledge or intent. [FN79]    Re-
cently, the "Sun  Devil" investigation by the  United States
Secret  Service  has  resulted in  the  seizure  of computer
equipment and at least the temporary cessation of activities
at several  bulletin board systems.  Boards  operated by Mr.
Craig Neidorf and one outside Chicago, called "JOLNET" have,
for example, ceased operations.  The JOLNET  operator, a Mr.
Rich Andrews, initiated contact with the Secret Service when
he  became  aware  of potentially  illegal  activity  on his
board.    Notwithstanding 18  U.S.C.   2703  et seq.,  which
appear to prefer solicitation of  archival copies and backup
records  of  such  systems, the  Secret  Service  seized the
actual  computer equipment  as evidence,  shutting  down the
system. [FN80] 

     Such seizures  would appear  to be  troublesome to  the
extent that a bulletin board system may fairly be said to be
some kind of a  forum provided for the public  discussion of
matters of importance. [FN81]    One  cannot foresee a  more
"chilling" effect on free speech than to be frozen to death-
-or shut down by seizure.

          Privacy Concerns and the Fourth Amendment

     The discussion above briefly mentioned that some bulle-
tin board systems had been seized, apparently without regard
to the presence of  electronic mail.  While search  and sei-
zure and  privacy  issues are  not directly  pertinent to  a
paper on mass communications law, they seem to the author to
be  inextricably  combined  in  any discussion  of  bulletin
boards.   Virtually  every bulletin  board  system  provides
facilities forsome sort ofprivate, electronic mail. [FN82] -
  One  case  in California  involved  a foundation  known as
ALCOR, which  practiced cryogenic preservation of people who
died from what they hoped would,  in the future, be a treat-
able disease.   ALCOR  came under  investigation on  charges
they had preserved some people a little hastily, essentially
a charge of some kind of homicide.  While no serious commen-
tator  has  suggested that  the  case should  not  have been
investigated, the  problem appears  to be  that the  founda-
tion's electronic  mail system  was seized with  undelivered
mail still in storage.  The system was apparently accessible
to the  public. [FN83]   ALCOR  sued under 42  U.S.C.   1983
for the  return of the  system and damages,  alleging, inter
alia, that  the government  violated the  provisions of  the
Electronic Communication Privacy Act of 1986 (ECPA). [FN84] 
A decision has not yet been reached in the case.

     The  only  other  known action  involving  the  privacy
provisions of the ECPA  is Thompson v. Predaina. [FN85]    A
user  accused  a  system operator,  inter  alia,  of causing
private messages to be made public without the permission of
the sender or intended recipient, thereby violating the act.
The complaint was  voluntarily dismissed  prior to trial  on
the merits.   Predaina would have been  an ideal opportunity
for judicial  construction of  the latest  Congressional at-
tempt to define  the privacy  protections of the  electronic
world.

     As the technological complexity of society increasingly
draws us into the electronic world, privacy issues become of
more  concern to more people.  The responsibilities and duty
of  care of a  system operator to  the users  of the system,
regarding whatever  reasonable expectation  of privacy  they
may have,  would seem to  be something each  system operator
would want  to know.   Experience in both this  class and in
the real world tells the prudent observer of the legal scene
that Congress  passing an Act  is but  the first step  in an
area filled with  First and Fourth  Amendment concerns.   It
would have been helpful for  a judicial construction of  the
ECPA, but that will of necessity wait for another time.

          There is, from  empirical data, [FN86]  a  connec-
tion between the earlier discussion of liability for defama-
tion and illegal activities and liability for privacy.  Many

From kadie Sat Oct 12 09:51:10 1991
To: cafb-mail
~Subject: Computers and Academic Freedom mailing list (batch edition)
Status: R


Computers and Academic Freedom mailing list (batch edition)
Sat Oct 12 09:50:57 EDT 1991

[For information on how to get a much smaller edited version of the
list, send email to archive-server@eff.org. Include the line:
   send acad-freedom caf
- Carl ]

In this issue:

:                                                                             

The addresses for the list are now:
	comp-academic-freedom-talk@eff.org     - for contributions to the list
		or	caf-talk@eff.org
	listserv@eff.org    - for automated additions/deletions
                (send email with the line "help" for details.)
	caf-talk-request@eff.org    - for administrivia

-------------------

sysops have  difficulty in separating the two,  and it seems
that  to   "normal" sysops  "liability is  liability."   The
distinction as to the form of  the action, and whether it is
brought by a citizen or the state, either eludes or does not
concern them.

                         Conclusion

     The ever-increasing rate of change  in the world around
us has eclipsed  the state of the law  in many ways.   As we
have progressed from  Luther's church door, to  Paine's pam-
phlet, to the supermarket bulletin board, and to the comput-
erized  BBS, the lines between mail  and press and telephony
and  public  and private  have  often become  unclear.   The
application of  traditional legal lines  of demarcation  and
tests for responsibility for defamation and criminal liabil-
ity  appears  unclear as  well.   The  computerized bulletin
board system has become a fixture  in a small but increasing
segment  of our society,  and that  society needs  the legal
system to sort out the rules so that everyone in it can play
the game on  a level playing  field--so that they both  know
what  they may reasonably  expect of others  and what others
may reasonably expect of them.

[Footnotes -cmk]

FN1.  LINDBERG, MARTIN LUTHER: JUSTIFIED BY GRACE 24 (1988)

FN2.  Id.

FN3.  The  author  remembers  well  his orientation  at  the
beginning of  the fall  semester, 1988,  and the  admonition
given by (now  assistant dean) Anne  Lange.  His  experience
since then has borne out the wisdom of her words.

FN4.  The author sees the board at Baker's all too frequent-
ly, as his meager  income outgoes to the provider  of suste-
nance.

FN5.  In the spirit of inclusive  language, should one, with
tongue  in cheek, refer  to them as  the "Precipitating Par-
ents"?  On a more serious note, to make  the sentence struc-
ture as  short and direct  as possible, and  consistent with
the  generally accepted  rules of construction  for statutes
and legal texts, we  have used the pronouns "he",  "his," in
lieu  of "he  or she," or  "his or  hers," etc.   Unless the
context  clearly  indicates  otherwise,  masculine  pronouns
should be read as inclusive.

FN6.  Pamphleteers  were  pervasive  and   almost  certainly
within the intended coverage of  the First Amendment's Press
Clause.  Lange,  The Speech and Debate  Clauses, 23 U.C.L.A.
L. REV. 77, 106 (1975).

FN7.  The terminology is far from standardized in discussing
computer bulletin board systems.  The author, in researching
this paper and  in general experience, has  experienced com-
puter  bulletin board systems  (CBBS), remote bulletin board
system (RBBS),  electronic bulletin  board system,  and just
"bulletin board system:  (BBS).  For simplicity,  this paper
will use  bulletin board, bulletin  board system, or  BBS as
the context dictates.  

FN8.  A  1985 law  review article  cited  sources indicating
there were some  1500 active bulletin  board systems in  the
United States  as of  1984; however,  the authors  indicated
some skepticism as  the source cited  15 in the Denver  area
and they personally knew  of 50-60.  Soma, Smith  & Sprague,
Legal Analysis of Electronic Bulletin Board Activities, 7 W.
NEW  ENG. L.  REV. 571,  572 n. 3  (1985).   Another article
suggests the number is between 1000 and 5000.  Note, Comput-
er Bulletin  Board Operator  Liability for  User Misuse,  54
FORDHAM L.  REV. 439, 441 n. 12 (1985).   The author is cur-
rently system operator ("sysop") of an bulletin board system
affiliated with networks known as "Fidonet," "Metronet," and
"OPCN."   The current  combined  "nodelists," or  addressing
information,  list  over  8500  independent bulletin  boards
worldwide.  Nodelist 222, Fidonet, available  electronically
and from the author.   In addition, several large commercial
networks exist.  While it is  apparently difficult to obtain
information  about their subscriber  base, one  source lists
them  as CompuServe  (500,000 +),  Dow Jones/News  Retrieval
(275,000), and GEnie (General Electric Network for  Informa-
tion  Exchange) (150,000).   Becker,  Liability of  Computer
Bulletin Board Operators for Defamation Posted by Others, 22
CONN. L. REV. 203, 204 n. 4 (1989).

FN9.  Dembart,  The  Law  Versus  Computers:  A  Confounding
Terminal Case, L.A. Times, Aug. 11, 1985, at 3, col. 1.

FN10.  "Modem" is a contraction of  two terms, modulator and
demodulator, referring to  two separate processes  that must
occur  to transmit  computerized information  over telephone
lines.  At  the present time, the modem is normally either a
small box set next to the  computer and connected by cables,
or a small printed circuit  card physically installed inside
the  PC.  In either instance  the modem must be connected to
the  telephone  system for  the  bulletin board  to operate.
Kahn,  Defamation Liability  of Computerized  Bulletin Board
Operators  and  Problems of  Proof 6  (1989) (electronically
distributed, available from the author of this paper).

FN11.  Becker, supra n. 8 at 203 n. 2.

FN12.  Becker,  supra  n.  8.   See  also,  Soma,  Smith and
Sprague, supra n. 8.

FN13.  Attached to this paper are a partial current combined
system list for  FidoNet, MetroNet and  OPCN, and a list  of
"echo"  areas, by  somewhat  cryptic but  at  the same  time
somewhat understand area  "tags," that are available  to him
as a system operator.  Also  attached is a brief description
of "echomail," and  sample printouts of some  recent discus-
sions. The  cost of  long distance  transmission is  usually
absorbed  by the system operator as part  of the cost of the
hobby.    Occasional  "pooling" arrangements  allow  for the
economical transmission between cities (several operators in
the Omaha area do this, for example).

FN14.  Note, FORDHAM L. REV., supra.

FN15.  Id.

FN16.  Id., at 439, n. 4.

FN17.  Soma, Smith and Sprague, Legal Analysis of Electronic
Bulletin board Activities, 7  W. NEW ENG. L. REV.  571, 572-
575 (1985).  See also note 19, infra.

FN18.  UPI, May  5,  1990, Computer  hacker gets  probation,
fine, LEXIS, NEXIS library, Current file.

FN19.  Westbrook, User  to user: the comms  column; Bulletin
boards  helpful  for communication,  PC  User, LEXIS,  NEXIS
library, Current file (1990).  

     Consider the following equation: Computer +  Modem
     = Illegal  Activity.   This is  the basic  formula
     used by non-expert TV and radio programme  editors
     when examining the subject of data  communications
     and it's a view which has been encouraged by a few
     pundits who're  only too  happy to  take money  to
     talk about  children playing  noughts and  crosses
     with  military computers.   This attitude seems to
     be  the  result of  a  few celebrated  cases where
     illegal activity has been brought to light involv-
     ing a hacker, his  computer and a modem.   Yet the
     same principle might be applied  to all drivers of
     Mk II Jaguars to identify  them as getaway drivers
     for bank robbers. 
     The suspicion that the  modem/computer combination
     can generate is nowhere more  apparent than in the
     public view  of the bulletin board.   To read, see
     or hear  the popular media in action, you could be
     forgiven  for thinking  that  bulletin boards  are
     used  exclusively  to  disseminate pornography  or
     recipes for Molotov cocktails.  At the very least,
     such  services  are  seen as  havens  for  spotty,
     adolescent, sex-mad anarchists rather than serious
     computer users.

Id.  Westbrook goes on to  suggest that bulletin boards have
valuable uses as sources of  information and discussion, but
that the  general public can  be forgiven for  not realizing
this, given the nature of press coverage of computer crime.

FN20.  In fact,  the Internet/Usenet system,  with which the
University of Nebraska is  affiliated, carries a "newsgroup"
somewhat  misleadingly  labelled  the "Computer  Underground
Digest," which devotes a  great deal of space to  known cur-
rent investigations and debunking rumors and myths surround-
ing them.  CuD Volumes 1.22 through 1.28, available from the
author.

FN21.  Electronic mail is  specially protected by 18  U.S.C.
   2701 et  seq., the Electronic Communications  Privacy Act
of 1986 (ECPA).   There is  no indication that the  officers
requesting  any  warrants or  the  judge or  magistrate that
issued  them paid any  attention to the  requirements of the
ECPA.   See  generally, CuD  Vol. 1.23,  available  from the
author.   A limited  discussion of  electronic mail  privacy
issues as  they interact  with bulletin  board systems  will
follow infra.

FN22.  The following  electronic note  was published  in the
newsgroup comp.dcom.telecom  (Telecommunications Digest)  on
Saturday,  August  11, 1990.    The accompanying  header and
routing control information is deliberately left in place so
one may get a  sense of the complexity and  pervasiveness of
the electronic world:

      From comp.dcom.telecom Sat Aug 11 09:47:24 1990
      Path: hoss!maverick.ksu.ksu.edu!ux1.cso.uiuc.edu!
         brutus.cs.uiuc.edu!wuarchive!cs.utexas.edu!mailrus!
         accuvax.nwu.edu!nucsrl!telecom-request
      From: colin@array.uucp (Colin Plumb)
      Newsgroups: comp.dcom.telecom
      Subject: Dial 1-800 ... For Bellsouth `Secrets'
      Message-ID: <10698@accuvax.nwu.edu>
      Date: 10 Aug 90 17:41:07 GMT
      Sender: news@accuvax.nwu.edu
      Organization: Array Systems  Computing, Inc.,  Toronto,
      Ontario,    CANADA 
      Lines: 71
      Approved: Telecom@eecs.nwu.edu
      X-Submissions-To: telecom@eecs.nwu.edu
      X-Administrivia-To: telecom-request@eecs.nwu.edu
      X-Telecom-Digest: Volume 10, Issue 558, Message 5 of 11


      {Computerworld},  August 6,  1990, Vol.  XXIV,  No. 32,
      Page 8.

      Dial 1-800...for Bellsouth `Secrets'

        BY MICHAEL ALEXANDER
                      CW STAFF
       CHICAGO --- The attorney for  Craig Neidorf, a 20-year-
      old  electronic newsletter editor,  said last week that
      he  plans  to file  a  civil lawsuit  against Bellsouth
      Corp.  as  a  result  of  the  firm's ``irresponsible''
      handling  of a case  involving the theft  of a computer
      text file from the firm.

      Federal prosecutors dismissed  charges against  Neidorf
      four days into  the trial,  after the prosecution  wit-
      nesses conceded  in cross-examination that much  of the
      information in the text was widely available.

      Neidorf,  the co-editor of ``Phrack,'' a newsletter for
      computer hackers, was accused by federal authorities of
      conspiring to steal  and publish a  text file that  de-
      tailed  the inner workings  of Bellsouth's enhanced 911
      emergency telephone  system across  none states  in the
      southeast [CW, July 30].

      ``What happened  in this  case is  that the  government
      accepted  lock,  stock,  and   barrel  everything  that
      Bellsouth    told    them   without    an   independent
      assessment.'' said Sheldon Zenner, Neidorf's attorney.

      One witness, a Bellsouth service manager,  acknowledged
      that detailed  information about the inner  workings of
      the 911 system could be purchased  from Bellsouth for a
      nominal fee using a toll-free telephone number.

      A Bellcore security  expert who was hired  by Bellsouth
      to  investigate intrusions  into  its computer  systems
      testified that the  theft of  the file went  unreported
      for nearly a year.

      Last week, a Bellsouth spokesman  said the firm's secu-
      rity experts delayed reporting  the theft because  they
      were  more intent on  monitoring and  preventing intru-
      sions into the company's computer systems.  ``There are
      only so much  resources in the data security arena, and
      we felt  that it was  more urgent to  investigate,'' he
      said.

      He also disputed  assertions that  the document was  of
      little  value. ``It is  extremely proprietary  and con-
      tained  routing information  on 911  calls through  our
      none-state [sic -cmk] territory as  well as entry points  into the
      system,'' he said.

      A quick ending:

      The case  unraveled after  Robert Riggs, a  prosecution
      witness who  had already pleaded guilty for his role in
      the theft of the document,  testified that he had acted
      alone and Neidorf had merely agreed to publish the text
      file in ``Phrack.''

      Neidorf and his  attorney agreed  to a pretrial  diver-
      sion, a  program under which the government voluntarily
      dismisses the  indictment  but could  reinstate  it  if
      Neidorf commits a similar crime within a year.

      The case has  stirred up national debate  on the rights
      of computer users in the age of electronic information.
      The Electronic  Frontier Foundation, a  civil liberties
      group  set up by Mitch Kapor, founder of Lotus Develop-
      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.



TUCoPS is optimized to look best in Firefox® on a widescreen monitor (1440x900 or better).
Site design & layout copyright © 1986-2014 AOH