THE ELECTRONIC PAMPHLET--COMPUTER BULLETIN BOARDS AND THE LAW Submitted in Partial Fulfillment Of the Requirements of Mass Communications by Michael H. Riddle 72446.3241@compuserve.com Sysop on 1:285/27@fidonet (c) Copyright 1990, by Michael H. Riddle. All Rights Reserved. This paper may be freely distributed via electronic media provided that the entire text remains intact, including this first page,notice, and disclaimer, and further provided that full credit is given. DISCLAIMER: This paper was prepared by a law student as part of a course of study, and should not be construed to represent a legal opinion. Anyone with a need for a current legal opinion relating to this material should contact an attorney licensed to practice in their state. --- THE ELECTRONIC PAMPHLET--COMPUTER BULLETIN BOARDS AND THE LAW Introduction--Bulletin Boards Then and Now In 1517, Martin Luther nailed his 95 theses to the door of the church in Wittenberg, Germany, an act which is gener- ally considered the start of the Reformation, the Protestant religious movement (Protesting aspects of the Catholic church as it then existed). [FN1] The author remembers how outrageous it seemed to him, the first time he heard the story, that anyone would have the effrontery to nail even one, let alone 95, documents to a church door. It was only later, after much study of history and theology, that he came to learn that the church door was routinely used for this purpose. At a time before widespread publication of newspapers, before telegraph, telephone, television, or CB radio, the church door was the acknowledged location for important notes or topics of discussion. [FN2] Students at the University of Nebraska College of Law use the "kiosk" inside the main entrance to the college to pass notes to each other. Hexagonal in shape, one side of the kiosk is reserved for general announcements and bulle- tins. Sometimes the postings are as routine as announcement of a meeting; at other times, they might be a call to action to save the trees in a local park from the bulldozer. Students are cautioned, during their first formal orienta- tion at the College, to check the kiosk daily. [FN3] Just inside the door at Baker's Supermarket in LaVista, Nebraska, is a board where customers (and presumably others) may post notes about items for sale, offers of employment, and the like. Similar boards are found in other locations around town, provided either as a public service by a busi- ness, or perhaps as yet another advertising "gimmick," another way of increasing business at the store. [FN4] During the Revolution, and when the Founding Fathers [FN5] wrote the Constitution and the Bill of Rights, similar functions were often fulfilled by "pamphle- teers." Anyone with an idea and a little loose change could buy or borrow a printing press, and soon be distributing their ideas around the town. [FN6] Today, another forum is increasingly available for notices, reminders and discussions--the computer bulletin board. [FN7] Listings of items for sale, notices of meet- ings, and discussion about matters important or trivial may be found in the world of electronics as well as groceries. At one time the province of the technically and financially gifted, bulletin boards are increasing available to Every- man. [FN8] At least one commentator has directly compared the bulletin board system of today with the pamphlet of yesterday. [FN9] In the simplest form, a bulletin board is a computer, often a small personal computer (PC), connected to a tele- phone line by a device called a modem. [FN10] While large and expensive systems are possible, a person desiring to enter the bulletin board arena may do so for a total invest- ment less than $500. [FN11] At the simplest, the bulletin board system acts as a "store and forward" system. Individ- uals call the BBS one at a time, "log on" (typically using some sort of entry code and password protection to insure identity), read messages that have been left and post any messages they desire. They then log off, and the system is available to the next caller. [FN12] "Networked" systems add an additional step, one which greatly expands the nature of the forum. At pre-designated times, the BBS scans the messages to see what has been posted on the board since the last similar event, and pre- pares "mail packets" with those messages. It then calls other systems and forwards the packets to those systems, receiving in turn any mail designated for it. In this manner, messages may be entered in Lincoln or Omaha at no expense to the user, and be sent literally around the world. [FN13] Static on the Lines? While bulletin board systems may facilitate communica- tion, they have a potential for misuse as well. Several positive benefits of bulletin boards are that users may express their opinions on matters of public interest, may look for reviews of products they are considering buying, and might ask specific questions about any number of mat- ters. [FN14] Potential for abuse exists in both civil and criminal areas, particularly for defamation (libel or slan- der), theft of intellectual property (particularly software piracy and copyright violations), and theft (credit card abuse, telephone system fraud, and similar actions). [FN15] Press coverage of this type of activity inevitably refers to the use of bulletin boards, [FN16] and in the public mind all bulletin board operators and users become associated with "hackers" and "phreakers." [FN17] Recent news events covered at some length the "Internet worm" propagated by Robert Morris, which brought several national computer networks almost to a complete halt. [FN18] The press treatment of the event once again tended toward the sensa- tional, using what have come to be pejorative terms, such as "hacker," "phreaker", and the like. These reports also frequently included what could easily interpreted as deroga- tory references to bulletinboard systems ingeneral. [FN19] - The United States Secret Service has been charged with enforcement of federal laws relating to computer crime, and a recent investigation known as "Sun Devil" has received some publicity in the traditional media, and even more in the electronic fora. [FN20] In the zealous pursuit of their goal to eliminate computer crime, the Secret Service is often trampling on toes and arguably chilling the free expression of ideas. An example of what can happen occurred recently when someone illegally (meaning without authoriza- tion) entered a Bellsouth computer and downloaded (arguably "stole") documentation about the "E911" enhanced emergency communications system. (E911 is the system that calls the emergency dispatcher when someone dials 9-1-1 and automati- cally displays for the dispatcher the calling number and address, and any other information that has previously been filed, such as hazardous chemicals, invalids or small chil- dren, etc.) One Robert Biggs plead guilty to the actual theft, and a Craig Neidorf was charged along with Biggs. Neidorf apparently was not charged directly with the theft (assuming, arguendo, theft had occurred), but rather with publishing the data in an electronic newsletter. Neidorf's computer equipment, including that use for a bulletin board system, was seized, even though it contained electronic mail. [FN21] The case against Neidorf was suddenly dismissed on the fourth day, after it became apparent that nothing of value (in the sense that it was already publicly available) had been published by Neidorf. [FN22] Legal Issues Relating to Bulletin Board Systems Several legal issues remain unresolved, at least as they pertain to bulletin board systems. [FN23] This paper will survey what appear to be the most obvious ones at the moment, briefly review the law as it appears to be on the subject, and may occasionally suggest what the author advo- cates as the "proper" rule on the issue. Briefly stated, the emerging issues appear to be whether bulletin board systems are protected by either the Speech or Press Clauses of the First Amendment, and to what extent; whether the bulletin board system operators are or should be liable for illegal or actionable misdeeds of their users; what the expected duty of care should be for the system operators as a defense to such liability, and what protections might be extended to bulletin board systems, directly or indirectly through their operators, under the Fourth Amendment. This paper will discuss four areas bearing on the legal rights and responsibilities of system operators: whether a bulle- tin board system is "press" for First Amendment purposes, what rules of decision ought to apply for system operator liability for defamation originally published by users, what other liability might attach for contents of messages on the system, and some limited concerns about privacy of electron- ic mail vis-a-vis search and seizure rules. Bulletin Board Systems and the First Amendment In assessing what vicarious liability, for defamation or for illegal or illegally obtained information, system operators might have for information posted on their bulle- tin boards by users, one is drawn to a comparison with the press. While the analogy, like most analogies, breaks dow...
kopia23