A CLASS LIKE NONE OTHER: HOW THE TRADITIONAL MEDIA CLASSIFICATIONS FAIL TO PROTECT IN THE ELECTRONIC FRONTIER by Jonathan Bell August 4, 1993 Mass Communications Law and Ethics Dwight Teeter - Summer 1993 Imagine the mass communications functions of publisher, distributor, broadcaster, advertiser and utility rolled into one and you might find that the beast before you is being operated out of your own home -- or at least that of a friend or neighbor. The computer bulletin board (BBS) offers a variety of services to its users: shopping, electronic mail, public discussion of hot topics, free software, free advice, news. All that may sound idealistic but it is here. The only thing endangering BBS' and their system operators' (sysops') ability to run them is a legal system unclear and uneducated about the First Amendment held dearly by those who keep them going, whether they are the users or the operators. Exactly where BBS' stand in the legal structure has not been definitively decided by anyone. Getting sysops to agree has yet to be accomplished, users see things differently and lawyers and government often have views widely divergent from the thoughts of the other two. The simple fact that the proper status of bulletin boards has yet to be answered reasonably opens up the dire need for a new media classification system. No one sees eye to eye, and assurances that the right thing will always be done do not work. Professor Laurence Tribe is an advocate of an amendment to the U.S. Constitution guaranteeing First Amendment protection for Americans regardless of the technical means by which we disseminate our views.1 His proposal is an admirable step to solving the problems of BBS'. It is not the only one as these problems suggest: Discussions on computer bulletin boards and information systems vary greatly. Topics cover everything imaginable and then some: general politics, vegetarianism, religion, UFOs, software, technology, movies, television, writing, law, aviation, chocolate and soap operas.2 No discussion area, or conference, is immune from wild and freewheeling talk that at one time or another will inevitably fall from lively talk into abusive, childish and defamatory personal attacks, otherwise known as a flame war. Unfortunately for those who like to participate in computer discussions, these issues come up much too often. Technical conferences wherein users seem to be headed on the path of an operating system war (DOS, Windows v. Macintosh, NT v. OS/2, UNIX v. VMS) quickly find the heavy hand of the moderator resting upon their shoulder.3 Or in the case of social issues, avoiding arguments over the rights and wrongs of homosexuality would probably be hopeless.4 And the evils of liberalism or conservatism is a sure bet as well. In one instance an argument developed among participants of the ILink network's Opinion conference. What began as a conversation over civil rights for gays turned into questioning the legal nature of state sodomy laws, gay marriages, etc.5 Eventually one user, a former gay activist, decided to appease other participants and explain in detail what homosexuals (the men at least) do in bed.6 Not unsurprisingly a parent chimed in to note that his preteen son had access to the material on his own. He threatened to sue ILink and anyone else he could think of, presumably on the grounds that the material -- graphic sexuality and profane language -- was inappropriate for minors.7 That unfortunately was not all. The conference took a turn against the activist because of what eventually bore out as his rude, indignant, even childish behavior. The activist took the ensuing debate against him as anti-gay, when in fact they were decidedly "anti-Gary." Even the conference moderator, well known on the network as a lesbian, could find no way to support his allegations. The activist eventually won himself a "vacation" from the ILink Opinion conference for violating network user guidelines.8 Any casual look at electronic systems should reveal to an observer that the common user knows not one wit about copyright law. Users routinely post copyrighted material, whether it be an article from The New York Times,9 news briefs from Prodigy10 or the full text from magazine articles.11 People seem to think that "fair use" means reprinting much, if not all, of an article with no additional commentary to solicit comments,12 or that reprinting is permissible so long as the copyright notice is intact.13 Generally, publishers are not likely to care, although repeated copying from a single source may result in a stiff word or two from a representative.14 The Berne Convention is misunderstood sometimes to mean that mere quoting of copyrighted material is illegal without permission.15 Some users have managed to find themselves committing acts akin to sexual harassment simply by continuing a thread, titled "Galactic Breasts," that female readers found offensive.16 The topic began as worthy comment and criticism of Star Trek: The Next Generation, which began its first season placing Marina Sirtis in a costume which displayed a great deal of cleavage.17 In the absence of a visible moderator, the discussion turned from borderline sexual harassment to name calling to claims of discriminatory treatment and accusations that other users had lied about the goings-on of the "discussion."18 These problems tend to crop up often. Unlike the traditional media classifications, there is often no one to screen what passes through the system before material that is defamatory, obscene, infringing or harassing reaches participants. Sysops generally do not have the time to monitor everything on their own boards: Dealing with hardware and software glitches, managing file directories, weeding out pirated software and scanned images from Penthouse, and still maintaining a day job and domestic necessities takes time from what is usually a hobby. In cases where messages will leave the local bulletin board and "echo"19 across the country or to other countries, selective removal of messages by local sysops can lead to fragmentation of discussions where some people have seen certain messages and others have not.20 Theoretically, a user might log in one day to see replies to replies of a message which were deleted before they reached the board he uses.21 Even if the resources to screen every message before posting it to the board were possible, a sysop would likely be falling prey to censorship, much as if a broadcaster used a delay device to ward off libel suits when a caller to a talk radio show could not refrain from using specific words or simply chose to say something that was conjecture or simply not true. In the 1976 case Adams v. Frontier Broadcasting Co.,22 the Wyoming Supreme Court held that screening calls to a talk show subverts a broadcaster's own First Amendment principles: "... broadcasters, to protect themselves from judgments for damages, would feel compelled to adopt and regularly use one of the tools of censorship, an electronic delay system. While using such a system a broadcaster would be charged with the responsibility of concluding that some comments should be edited or not broadcast at all. Furthermore, we must recognize the possibility that the requirement for the use of such equipment might, on occasion, tempt the broadcaster to screen out the comments of those with whom the broadcaster ... did not agree and then broadcast only the comments of those with whom the broadcaster did agree."23 Forcing callers to adhere to the broadcaster's views essentially destroys the purpose of open debate. Electronic systems are wide open to debate based solely on their existence and the invitation of the operators to friends and the public to join in. No one should be forced to agree, and no one will agree. Disputes are common and expected. But with free expression comes the danger of overstepping the bounds of the First Amendment: obscenity, distributing material not appropriate for minors, defamation,24 copyright infringement, and more. The level of ignorance and lack of courtesy or taste on computer networks is astounding. Though not the heart of electronic discourse, the problems exist enough to pose a problem for sysops, moderators and network administrators. Traditional media classifications carry varying levels of responsibility and liability. What the law considers grounds for court action against a broadcaster might have no bearing to a newspaper publisher. A library or bookstore would likely have even less responsibility. Unfortunately, computer information systems and bulletin boards fit none of the classic molds nicely. In some ways they are nothing more than distributors, but in others they actively behave as publishers. In the case of the echo networks mentioned above, they behave to some degree as republishers, although responsibility for removing or lessening the damage of problematic material is shifted.25 Users who have found the rules of electronic networks restrictive sometimes advocate the common carrier principle.26 Such a standard has been denounced as an intrusion on the rights of owners to operate their private property as they desire27 and impractical28; impractical because as a common carrier, they would then be obligated to carry everything posted to the boards. This might be fine if computer operators had an unlimited supply of disk space and money. They do not. Many systems are operated as a hobby with no fees charged of users. Sysops foot the bill to shuttle information around a volunteer network.29 Under those restrictions, moderators attempt to maintain as high a signal to noise ratio as they possibly can, cutting off chitchat, directing off-topic conversations to a more appropriate venue, ending disputes and attacks before they turn into virtual brawls or a flame war with no end in sight. Evidence of what happens when th...
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