Document Sample


         Submitted in Partial Fulfillment

            Of the Requirements of

             Mass Communications


              Michael H. Riddle


           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.




        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-


   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


  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

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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.


    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]


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-


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


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!!!!wuarchive!!mailrus!!nucsrl!telecom-request

   From: colin@array.uucp (Colin Plumb)

   Newsgroups: comp.dcom.telecom

   Subject: Dial 1-800 ... For Bellsouth `Secrets'

   Message-ID: <>

   Date: 10 Aug 90 17:41:07 GMT


   Organization: Array Systems Computing, Inc., Toronto,

   Ontario, CANADA

   Lines: 71




   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'


          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


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


   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.


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-

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,, 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"


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


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


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.

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


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


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