From telecom@eecs.nwu.edu Wed Sep 5 00:35:22 1990 Received: from hub.eecs.nwu.edu by gaak.LCS.MIT.EDU via TCP with SMTP id AA11469; Wed, 5 Sep 90 00:35:06 EDT Resent-Message-Id: <9009050435.AA11469@gaak.LCS.MIT.EDU> Received: from hoss.unl.edu by delta.eecs.nwu.edu id aa25986; 4 Sep 90 11:23 CDT Received: by hoss.unl.edu; Tue, 4 Sep 90 11:31:20 cdt Date: Tue, 4 Sep 90 11:31:20 cdt From: "Michael H. Riddle" To: telecom@eecs.nwu.edu Subject: Electronic Pamphlet Message-Id: <9009041123.aa25986@delta.eecs.nwu.edu> Resent-Date: Tue, 4 Sep 90 23:29:33 CDT Resent-From: telecom@eecs.nwu.edu Resent-To: ptownson@gaak.LCS.MIT.EDU Status: RO 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 FN1. LINDBERG, MARTIN LUTHER: JUSTIFIED BY GRACE 24 (1988) FN2. Id. 1 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 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. 2 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 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 3 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 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. 4 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, 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). 5 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- 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. 6 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 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. 7 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 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. 8 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] 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. 9 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 10 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, none-state 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. 11 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 12 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 FN24. Legi-Tech, Inc., v. Keiper, 766 F.2d 728 (2d Cir. 1985). FN25. Id. 13 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 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. 14 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, 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). 15 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 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). 16 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 & 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). 17 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 FN42. 472 U.S. 749. FN43. Gertz. FN44. Dun & Bradstreet. 18 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 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. 19 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 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. 20 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 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. 21 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 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). 22 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 23 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 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. 24 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 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. 25 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 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. 26 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 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. 27 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] 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. 28 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. 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). 29 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 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. 30 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] 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. 31 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 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. 32 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 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 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. 33 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. 34