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Murdoch University Electronic Journal of Law |
| Author: | David J Loundy* |
| Issue: | Volume 1, Number 3 (September 1994) |
TABLE OF CONTENTS
I. Introduction
II. Computer Information Systems
Defined
A. Bulletin Board Systems
B. Teletext and Videotex or Videotext
C. Information Distribution Systems
D. Networks
III. Issues Involved
V. Current Regulatory Environment
IV. Legal Analogies
A. Defamation
B. Speech Advocating Lawless Action
C. Fighting Words
D. Child Pornography
E. Computer Crime
F. Computer Fraud
G. Unauthorized Use of Communications Services
H. Viruses
I. Protection From Hackers
VI. Privacy
A. Pre-Electronic Communication Privacy Act of
1986
B. Electronic Communications Privacy Act of
1986
C. Access to Stored Communications
D. An Apparent Exception for Federal Records
E. Privacy Protection Act of 1980
VII. Obscene and Indecent Material
A.
Obscenity
B. Indecent
Speech
VIII. Copyright Issues
A. Basics of Copyrights
B. Copyrighted Text
C. Copyrighted Software
D. Copyrighted Pictures
E. Copyrighted Sound
IX. Liability for Computer Information
System Content
A. Information System as Press
B. Information System as Republisher/Disseminator
C. Information System as Common Carrier
D. Information System as Traditional Mail
E. Information System as Traditional Public
Forum
F. Information System as Traditional Bulletin
Board
G. Information System as Broadcaster
X. Suggestions for Regulation
I. INTRODUCTION
"Over the last 50 years, the people of the developed world have begun to cross
into a landscape unlike any which humanity has experienced before. It is
a region without physical shape or form.
It exists, like a standing wave, in the vast web of our electronic
communication systems. It consists
of electron states, microwaves, magnetic fields, light pulses and thought
itself."...
"It is familiar to most people as the "place" in which a
long-distance telephone conversation takes place. But it is also the repository for all digital
or electronically transferred information, and, as such, it is the venue
for most of what is now commerce, industry, and broad-scale human interaction. William Gibson called this Platonic realm
"Cyberspace," a name which has some currency among its present
inhabitants."...
"Whatever it is eventually called, it is the homeland of the information Age,
the place where the future is destined to dwell."[1]
"Computer information systems," as the term is used in this paper,
refers to a variety of computer services that, together, make up
"Cyberspace." Cyberspace is the realm of digital data. Its shores and rivers are the computer
memories and telephone networks that connect computers all over the
world. Cyberspace is a hidden universe
behind the automatic teller machines, telephones, and WESTLAW terminals
which many of us take for granted.
It is also a way for computer users all over the world to interact
with each other instantaneously. At
ever increasing rates, people are beginning to see the advantages of this
new electronic medium and incorporate travels into Cyberspace as a regular
part of their lives.[2] However, the growth of electronic communication
and data manipulation has not been matched by an equal growth in
understanding on the part of legislatures, the judiciary, or the bar.
This paper examines the current regulatory structure in the United States governing
a few of the "Empires of Cyberspace," such as bulletin board systems,
electronic databases, file servers, networks and the like. Different
legal analogies that may apply will be illustrated, and some of their
strengths, weaknesses and alternatives will be analyzed. We will begin by looking at different
types of computer information systems, and then the major legal issues
surrounding computer information systems will be surveyed in brief.[3]
Next, the different legal analogies which could be applied to computer
information systems will be examined.
These different analogies provide an understanding of how courts
have seen various communication technologies, and how more traditional
technologies are similar to computer information systems. Liability for improper activities -
both defining what is improper and who can be held responsible - has been
determined by the analogy the courts decide to apply. Finally, an evaluation will be made of where
the law affecting computer information systems now stands, and how it
should be developed.
II. COMPUTER INFORMATION SYSTEMS
DEFINED
A. Bulletin Board Systems
Often referred to simply as a BBS, a computer bulletin board system is the computerized
equivalent to the bulletin boards commonly found in the workplace, schools
and the like. Instead of hanging on a
wall covered with notes pinned up with thumbtacks, computer bulletin
boards exist inside the memory of a computer system.[4] Rather than
walking up to a bulletin board and reading notes other people have left or
sticking up notes of his or her own, the BBS user connects his or her
personal computer to the " host" computer,[5] usually via a
telephone line.[6] Once connected to the host computer, a user can read
the notes (also referred to as messages or posts) of other users or type
in his or her own messages to be read by other users. These Computer Bulletin Boards are referred
to as "systems" because they often provide additional services
or several separate "areas" for messages related to different
topics.[7]
Bulletin board systems can be classified in a number of ways. Some are commercial BBSs run for
profit, and some provide free access.
One way to classify them is by the number of users the BBS can
support simultaneously. The
majority of BBSs run by hobbyists are single-user boards which means they
can only be used by one person at a time.
But some bulletin boards are able to support many users at the same
time, often hundreds of users at once.
Another way to differentiate between BBSs is by means of access:
some are available only by direct dial, other BBSs are available through a
network.[8]
There are a number of different things bulletin board systems allow one to do. As their name implies, their primary
function is as a place to post messages and read messages posted by
others. Whatever the user's interests,
there is probably a BBS to cat er to it.
However, like any communications forum, this can raise some serious
First Amendment concerns over some of the potential uses, such as
availability of pornographic material, defamation, etc.
Another use for bulletin board systems is the sending of electronic mail, or
E-Mail, as it is commonly called.
Electronic mail is a message that is sent from one computer user to
another, occurring either between users on the same computer, or between
users on different computers connected together in a network. Electronic mail is different from regular
mail in three important ways.
First, E-mail is provided by private parties and, thus, is not
subject to government control under the postal laws.[9] However, it is
under the control of the System Operator (often called the SYSOP) of the
bulletin board system. This gives rise
to the second issue - privacy.
Unlike the U.S. mail, electronic mail is almost always examinable
by someone other than the sender and the receiver.[10] By necessity, the
communications provider may not only have access to all mail sent through
the computer system, but may also have to keep copies (or
"backups") in case of system failure.[11] Third, E-mail is
interactive in nature and can involve almost instantaneous communication,
more like a telephone than regular mail,[12] so much so that regular users
of E-mail often refer to the U.S. mail as "snail mail."
Another service many bulletin board systems make available is the uploading
and downloading of files.[13] A BBS providing a section of files for its
users to download, can distribute almost any type of computer file. This may consist of text, software,
pictures, or even sounds. Multiple user bulletin board systems are also
frequently used for their "chat" features, allowing a user to
talk to other users who are on-line (connected to the host computer) at
the same time.[14]
B. Teletext and Videotex or Videotext
Another kind of computer information system is Teletext,[15] a one-way distribution
system, generally run over a cable television system.[16] It sends out a
continually repeating set of information screens.[17] By using a decoder,
a user can select which screen he or she wants.[18] The decoder then
"grabs" the requested screen and displays it as it cycles by.[19] Since
Teletext is only a one-way service, a user can only read the information
the service has available for his or her reading. There is no way for the user to contribute his or her own
input to the system.
More advanced than Teletext is videotex [20] (often called videotext).[21] Videotex
is a two-way service which usually uses a personal computer as a terminal.[22]
When provided via a telephone, videotex is basically the same as any other
computer information system discussed in this paper, so the terms
"videotex" and "computer information system" are used synonymously
for ease of discussion.
C. Information Distribution Systems
Computers are used frequently for distributing information of various types. E-Mail, mentioned above, is one type of
information distributed among users of a computer system or between computers
connected to a common network.
Another common type of information distribution system is the
database.[23] These services allow the user to enter a variety of "search
terms" to look through the information the service has collected.[24]
Another type of information distribution system is the "file
server."[25] A file server (or just "server") is a storage
device, such as a disk drive or CD ROM, hooked up to a computer network,
which lets any computer connected to it access the files contained on the
server.[26] These files may consist of virtually anything, ranging from
software to news articles distributed by a "news server." While file servers may be found as part of
another computer information system, the server itself is used only f or
storing and retrieving files.[27]
Other network based information distribution services include the menu driven
"gopher" server, WAIS (Wide Area Information Server), and the World Wide
Web (WWW). A gopher server provides a
standard interface to access diverse information sources on different
parts of a network [28]. WAIS is a
natural language search system for searching through diverse forms of information
stored in a large database or across computer networks.[29] The World Wide
Web is another method of accessing material on a computer network which
works by following hypertext links.[30] Hypertext links are, for example,
terms in a document which when selected call up other documents, (or
sounds, pictures, or other materials) that are related to the selected
term.[31] From these relate d documents, links can be followed to yet more
documents related to the second set, and so on.
This paper will focus on file servers and databases, as the other network services
mentioned are largely just advanced forms of accessing information stored
on a file server or in a database.
D. Networks
A network is a series of computers, connected often by special types of telephone
wires.[32] Many networks are conduits used to call up a remote computer in
order to make use of that computer's resources from a remote personal
computer or terminal.[33] Many networks allow a much broader range of uses
such as sending E-mail and more interactive forms of communication between
machines,[34] transferring computer files, and also providing the same
remote access and use that the simpler networks allow.[35]
Some of these networks are so sophisticated and far-reaching that they provide
an ideal communications medium for the computer literate. They can be used not only for personal
E-mail, but they are also used for a number of special kinds of electronic
publishing.[36]
III. ISSUES INVOLVED
Computer information systems present a whole slew of legal issues. Whenever
a new form of communication emerges, there is a concern that, along with
legitimate users will come some abusers.
Just as a bulletin board system can be used for political debate,
it can also be used as an outlet for defamation. How should this be treated?
Who is liable? Is it the
user who originally posted the defamation, or the system operator who controls
and provides the forum? Currently,
these are hotly debated issues.
Whenever a new communications medium develops, there is a risk that it will
be used to deliver material which society frowns upon, such as obscene or
indecent data. Computer information
systems allow the distribution of this material in the forms of text ,
picture, and sound.
One major use for computer information systems is transferring files; in fact,
that is the whole purpose for services such as file servers. Legal issues arise when these transfers
contain copyrighted material for example, either text, pictures, sounds,
or computer software which violates copyright law.
A growing threat to computer users is the computer virus. The Computer Virus Industry Association
reports that in 1988, nearly 90,000 personal computers were affected by
computer viruses.[37] Viruses can be distributed via computer information
systems, both consciously and unconsciously. They can be put into a system by someone intending to cause
harm, or they can be innocently transferred by a user who has an infected
disk.[38]
Privacy is another issue for users and system operators of computer information
systems. With society becoming
increasingly computerized, people need to be made aware of how secure
their stored data and electronic mail really is. The Fourth Amendment to the United States Constitution
reads: "The right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched and the persons or
things to be seized."[39] Yet, how does this Amendment apply to
Cyberspace? Cyberspace is a vague,
ethereal place with no readily identifiable boundaries, wh ere a
"seizure" may not result in the loss of anything tangible and may not even
be noticed.
In all of these cases, questions arise as to who is liable. If SYSOPs are not made aware of the
legal issues they may face in running a computer system, they may either
fail to reduce or eliminate harm when it is within their power to do so,
or they may unnecessarily restrict the services they provide out of fear
of liability.
IV. LEGAL ANALOGIES
Liability for illegal activities in Cyberspace is affected by how the particular
computer information service is viewed.
Some services allow one entity to deliver its message to a large
number of receivers. In this regard
the service acts like a publish er.
Some theorists already refer to computer networks as "the
printing presses of the 21st century."[40] Many publishers use BBSs
to supplement their printed editions either by providing additional
stories or by providing computer information services on a BBS.[41] In
fact, more than 2,700 newspapers are experimenting with some sort of
electronic venture.[42] However, other services are more like common
carriers than publishers. Networks just
pass data from one computer to another -they do not gather an d edit
data. Still other services are
more akin to broadcasting than common carriage. This similarity exists because computer services can be
provided by sending data over the airwaves, thus providing the same
services available from computers networked together by wire. Computer services can also be used to
allow many entities to deliver their messages simultaneously to many other
entities in a public debate style setting.
In this way, computer information systems are likened to
traditional public fora, such as street corners or community bulletin
boards.
None of these analogies is especially useful taken individually. Each is accurate in describing some
situations, but lacking in describing others. There is a tendency to look
at a service and give it a label, and then regulate it based on its
label. This labelling works well in
some instances; but, when a service has a number of communication options,
such as a BBS that provides a series of bulletin boards, EPmail, and a
chat feature, and that makes available electronic periodicals in the BBS's
file sys tem, one analogy is insufficient. To regulate computer information systems properly, lawyers,
judges, and juries need to understand computer information systems and how
they work.
V. CURRENT REGULATORY ENVIRONMENT
The current regulatory environment governing computer information systems is
somewhat confused because of the multiplicity of the means which can be employed
in regulating a wide variety of dissimilar services. The Federal Communications Commission, which regulates
broadcasters and common carriers providing electronic data, considers
computer information systems to be "enhanced" services, and,
therefore, computer information systems are not regulated by the
F.C.C.[43] However, some specific aspects of computer information systems
are governed by existing case law and statutes.
Let us start with a hypothetical situation.
The Data Playground is a large, full service bulletin board
system. In the BBS's message system, one
of the fora, called the Sewer, is set aside for the users as a place to
blow off some steam, and express their anger at whatever they feel like complaining
about. Samantha Sysop, the bulletin board operator, feels such a forum is
necessary. She feels that without it,
frustrated users will leave unpleasant messages in the other fora which
are meant for rational discussions of serious topics. By providing the Sewer, users who get upset
with other users or with life in general can "take their problem to the
Sewer." Because she is unsure of
any liability for posts in the Sewer which get too heated, she posts a
disclaimer, which can be seen the first time a user posts in or reads the
Sewer, which states that the SYSOP disclaims all liability for anything
that is said in the Sewer. Samantha Sysop
reads the posts left in the Sewer, and once in a while posts a mess age
there herself. One day a user, Sam
Slammer, leaves the following message in the Sewer:
"From: Sam Slammer
I am sick and tired of logging onto this damned bulletin board and seeing that
damn user Dora Defamed here. She is
always here. However, at least if
she is here it means that she is not still at home beating her young daughter. In fact, her daughter is too good looking to
be stuck with a mother like Dora.
She should be stuck with someone like me, after all, I really like
young girls, and having sex with her would be a real catch. (If anyone
would like to see the films of the last little girl I had sex with, leave
me mail) Anyway, Dora: it is a wonder that kid isn't brain damaged, seeing
as you are so badly warped. I would
really like to do society a favor and kill you before you get the chance
to beat any more children. In
fact, if anyone is near the computer where Dora is connected to this BBS
from, I urge you to go over to her and kill her. Do us all a favor."
This hypothetical post raises a number of issues. In one post there is potentially defamatory speech, speech
advocating lawless action, fighting words, and an admission and
solicitation of child pornography.
A. Defamation
Defamation can occur on a computer information system in a number of forms:
posts on a bulletin board system, like the one in the Sam Slammer hypothetical
can be defamatory, as can electronic periodicals; file servers and
databases can distribute defamatory material; E-mail can contain
defamatory statements. Defamation can
even be distributed in the form of a scanned photograph.[44] But what is
defamation, and what risks and obligations does it present to a system
operator?
Defamation occurs in two forms - libel and slander. The difference between these two forms of defamation is
often not apparent, based on a common sense approach, rather it is solely
a matter of form and "no respectable authority has ever attempted to
justify the distinction on principle."[45] With the rise of new forms
of technology which confuse the distinction between libel and slander,
many courts have advocated the elimination of the distinction.[46] Speech
on a computer information system has more of the characteristics of libel
than slander. Most courts have
argued, based on libel cases, that messages appearing on computer information
systems are libel and not slander; often judges used the generic term
"defamation."[47]
Slander is publication in a transitory form - speech, for example, is slander.[48]
Libel, on the other hand, is embodied in a physical, longer lasting form,
or "by any other form of communication that has the potentially
harmful qualities characteristic of written or printed words."[49]
Written or printed words are considered more harmful than spoken words
because they are deemed more premeditated and deliberate. For example,
Sam Slammer had to sit down at a keyboard and compose his post; it is not
a matter of a comment carelessly made in a fit of anger. Printed words
also last longer, because they are put in a form in which they can serve
to remind auditors of the defamation, while the spoken word is gone once
uttered.[50] Had Sam Slammer accused Dora Defamed of child abuse in
person, the statement would be fleeting; on the BBS it is stored for
viewing by any user who decides to read what posts have been left in the
Sewer. For days, weeks, or months
people can read Sam's statement unless Samantha Sysop removes it. Any user can save a copy of the post on his
or her own computer, and can distribute it, verbatim, to anyone else, with
Sam's name right at the top. Text on a
computer screen shares more traits with libel than with slander. Computer text appears as printed words,
and it is often more premeditated than spoken words. Computer text can be called up off of a disk as many times
as is needed. The message can even
be printed out, and the text can be more widely circulated than the same
words wh en they are spoken. In its
barest form, libel is the publication of a false, defamatory and
unprivileged statement to a third person.[51] "Defamatory"
communication is defined as communication that tends to harm the
reputation of another so "as to lower him [or her] in the estimation
of the community or to deter third persons from associating or dealing
with him [or her]."[52] Actual harm to reputation is not necessary
for a statement to be defamatory, and the statement need not actually
result in a third person's refusal to deal with the object of the statement;
rather the words used must merely be likely to have such an effect.[53]
For this reason, if the person defamed already looks so bad in the eyes of
the community that his or her reputation could not be made worse, or if
the statements are made by someone who has no credibility, there will not
be a strong case for defamation.[54] "Community" does not refer
to the entire community, but rather to a "substantial and respectable
minority" of the community.[55] Even more specifically, the community
is not necessarily seen as the community at large, but rather as the
"relevant" community.[56] This means, for example, that one could
post a defamatory message on a bulletin board system defaming another user
and be subject to a libel suit, even though only other BBS users see the
post.
In the hypothetical, we don't know whether Sam's accusations of child beating
are true. If they are, Sam would have a
defense against a charge of libel.
The comment is being "published" to any other BBS user who reads
the message Sam has left publicly, and as already discussed, the computer
message has the same harmful qualities as a message written and distributed
on paper. In fact, Sam's comments are
potentially reaching a larger audience than Sam could have reached by
simply posting a notice on a bulletin board in the local computer
center. The remark about child abuse
has the potential for lowering people's estimation of Dora, and could
easily encourage people to avoid associating with her. Even if people do not avoid Dora
because of the remark, in a defamation suit it is sufficient that the
statements have the potential to have that effect, and here they clearly
do.
The community at issue here is not the world at large, but rather a substantial
and respectable minority of the "relevant" community. Bulletin
board systems can give rise to a close knit group of users. Here, she is
being attacked in a public forum in front of the whole community of users. This raises another issue: Can a person sue
for defamation that occurred to a fictitious name or a persona that
appears on a computer? If
"Dora Defamed" was not the BBS user's real name, could the real
user sue Sam Slammer for defaming the user's "Dora" persona on the BBS? In a bulletin board community, unless users
know each other in real life away from the computer, the only impression
one user gets of another is from how he or she appears on the computer
screen. The user in real life may
not even be the same sex as the person he or she portrays on the bulletin
board system. On the BBS, people only
know and associate with Dora; not the real person behind the name. When Dora is defamed, in essence, so is
the person behind the computer representation of Dora. The user is defamed in the eyes of the
users behind all of the other BBS personalities that read Sam's post. It should not matter if Dora Defamed is
not the user's real identity-a defamation action should still be allowed. The last issue is whether Dora is being
defamed in front of at least a "substantial and respectable"
minority of the relevant community. This hinges on who reads the Sewer
forum. If the Sewer is widely read, a defamation
suit will be more likely to succeed than if the Sewer is largely ignored.
There is one case, from Australia, which held that speech over a computer "bulletin
board" was actionable in a libel suit.[57] This case was a default
judgment resulting from messages sent over the DIALx science anthropology
computer bulletin board, a discussion group available world wide and
subscribed to by some 23,000 anthropology students and academics.[58] The
court found that a number of the statements made were capable of a
defamatory meaning, the statements were published throughout academic circ
les around the world, the statements were likely to be further repeated,
gaining in impact in the process, and that the statements would have a
detrimental impact on the plaintiff's standing in the international
academic circles in which his reputation wa s based.[59] Due to his
reputational and psychological injury, the court found he was deserving of
an award of AU$40,000.[60]
In the United States, another case is currently being pressed claiming defamation
via computer information system. It
involves remarks made over the Prodigy service on a financial discussion
group.[61] In this case, Peter DeNigris is being sued by MEDphone over
disparaging remarks he made regarding MEDphone and its products in
approximately two dozen notes posted over the course of three months [62].
Because defamation involves speech, defamation raises serious First Amendment
concerns. Just because speech is
defamatory, does not mean that it is left unprotected. Analysis is based on the party or parties
privy to the defamation. In our
hypothetical , the relevant parties are Sam and Dora. Constitutional
protection was first found for some types of defamation in *New York Times
v. Sullivan*.[63] This case involved an advertisement taken out in a
newspaper expressing grievances with the treatment of b lacks in
Alabama.[64] An elected city commissioner sued, claiming that the
statements made in the advertisement defamed him and that the
advertisement contained some inaccuracies.[65] Justice Brennan argued that
the case should be considered "against the background of a profound
national commitment to the principle that debate on public issues should
be uninhibited, robust, and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and public
officials."[66] The court held that, because one of the main purposes
of the First Amendment was to preserve debate and critical analysis of the
affairs of elected officials, any censorship of that speech would be
detrimental to society.[67] Because of this, the court said libel laws
should be relaxed where the speech pertains to the affairs of elected
officials.[68] Likewise, due to the importance of being able to examine
the worthiness of public officials, the court felt that speech critical of
officials should also be less open to attack on grounds of falsity.[69]
False speech that is made known can be investigated, but true speech that
the critic worries may be false and may result in a libel suit, will
remain undisseminated.[70] Because of the importance of monitoring elected
officials, the court held that allowing speech that would aid in the
monitoring of elected officials' conduct was more important than
protecting officials from potential harm resulting from defamatory
speech.[71] A balance between o pen debate and freedom from defamation was
struck by establishing an "actual malice" standard of liability
for the publisher.[72] "Actual malice" is a term of art with a specific
meaning in the publishing context. As the court stated:
"The constitutional guarantees require, we think, a federal rule that prohibits
a public official from recovering damages for a defamatory falsehood
relating to his [or her] official conduct unless he [or she] proves that
the statement was made with "actual malice" -- that is, with knowledge
that it was false or with reckless disregard of whether it was false or
not."[73]
This standard applies to electronic publishing as clearly as it applies to print
or speech. SYSOPs and users are freed
from liability for defamation carried on computer information systems, as
it applies to public officials, so long as the material is no t allowed to
remain when the SYSOP or user knows of its falsity or has reckless
disregard for its truth. Dora, as far as we know, is not a public
official. If Dora were a persona
on the bulletin board system, and not the user's actual name, and if there
is no way for the average user to associate the persona with the real
person, then even if "Dora" were defamed and the real user *was* a public
official, it would be questionable as to whether the public official
privilege would apply. In this
situation, the rationale behind the privilege would not be relevant to the
actual facts. Statements about Dora
do not reflect on the actual user's abilities to perform his or her official
job. If, however, the public official
can be linked to the Dora persona, then the basis for privileging
statements about public officials does apply to the situation, and Sam
Slammer's statement may be privileged, presuming no actual malice was
intended.
The *New York Times* standard was expanded in two important cases, *Curtis Publishing
Co. v. Butts*,[74] and its companion case, *Associated Press v. Walker*.[75]
Both cases involved defamation of people who did not fit under the
"public official" heading , but who were "public
figures." As discussed in the
concurrence, some people, even though they are not part of the government,
are nonetheless sufficiently influential to affect matters of important
public concern.[76] The Court subsequently has defined public figures as
"[t]hose who, by reason of the notoriety of their achievements or the
vigor and success with which they seek the public's attention, are
properly classed as public figures ... ."[77] Because these people
have influence in our governance , just as public officials do, the same
"actual malice" standard should apply to such public
figures.[78] Here, as in the case of public officials, we don't really
know who Dora Defamed is. If she is a
public figure, Sam's child abuse claim may be privileged; if she is not,
he may be liable.
Another major case defining the constitutional protection of defamation is *Gertz
v. Robert Welch, Inc*.[79] In *Gertz*, a magazine published an article
accusing a lawyer of being a "Communist-fronter" and a "Marxist."[80]
The article accused the plaintiff of plotting against the police.[81] The
plaintiff was a lawyer who played a role in the trial of a police officer
who was charged with shooting a boy.[82] The lawyer sued for
defamation. The publisher's defense was
based on another exception to defamation law that the court had carved out
in *Rosenbloom v. Metromedia, Inc*.[83] *Rosenbloom* extended the *New
York Times* standard to include not just public officials and public
figures, but also private figures who were actively involved in matters of
public concern.[84] The *Gertz* court held that this expansion went too
far,[85] and the court overruled *Rosenbloom*.[86] The court in *Gertz*
acknowledged that the press should not be held strictly liable for false
factual assertions where matters of public interest were concerned.[87]
Strict liability would serve to chill the publisher's speech by leading to
self censorship where facts are in doubt.[88] This First Amendment
interest was balanced against the individual's interest in being
compensated for defamatory falsehood.[89] The court reasoned that private
individuals were deserving of more protection than public officials and
public figures because private persons do not have the same access to
channels of communication, and they have not voluntarily exposed
themselves to the public spotlight.[90] The court held that "so long
as they do not impose liability without fault, the States may define for
themselves the appropriate standard of liability for a publisher or
broadcaster of defamatory falsehood injurious to a private
individual."[91] Courts have not made it very difficult for private
people to sue for defamation where there is no matter of public concern at
issue; in one of the more famous defamation cases, *Dun & Bradstreet,
Inc. v. Greenmoss Builders, Inc.*,[92] Dun & Bradstreet was held
liable for a credit report made from inaccurate records contained in a
database.[93] The court argued that statements on matters of no public concern,
especially when solely motivated by profit, did not deserve sufficient
First Amendment protection to outweigh the individual's interest in suing
for defamation.[94]
In our hypothetical, we must look to the subject of Sam Slammer's defamatory
comment to see if it is a matter of public concern. Sam is accusing Dora of "beating her kid." While child abuse may be a matter of public
concern, whether Dora is such an abuser is not likely a matter of public
concern. Just as people's inabilities
to pay their debts can be a matter of public concern, as was found in the
*Dun & Bradstreet* case,[95] the ability of one particular company to
pay its debts is not necessarily a matter of public concern. Child abuse is not the issue in this hypothetical;
Dora Defamed's potential child abuse is the issue.
The press has been found to have other privileges as a result of the kind of
news the press is reporting. One such
privilege, is for fair report, or "neutral reportage,"[96]
(which is not an issue in our hypothetical). This isolates a reporter
from defamatory statements that he or she is reporting.[97] The reasoning
behind this is that the fact that some statements were made is a matter of
public interest, especially around sensitive issues, and therefore the
public interest is best served by allowing t he press to inform people of
these statements without the risk of liability.[98] Neutral reporting is
privileged, but if the reporter is found not to have lived up to the
"actual malice" standard (knowing or careless disregard for the
truth), his or her report will not be considered neutral and therefore the
fair report privilege will not apply.
Statements of opinion are also privileged.[99] Protection of opinion is, of
necessity, not absolute otherwise "a writer could escape liability ... simply
by using, explicitly or implicitly, the words `I think.'"[100] Sam Slammer
cannot defend himself by saying, "Well, I *think* Dora beats her daughter." The court in *Cianci v. New Times Publishing
Co*.[101] succinctly laid out the limits of the opinion privilege:
"(1) that a pejorative statement of opinion concerning a public figure generally
is constitutionally protected ... no matter how vigorously expressed; (2)
that this principle applies even when the statement includes a term which
could refer to criminal conduct if the term could not reasonably be so
understood in context; but (3) that the principle does not cover a charge
which could reasonably be understood as imputing specific criminal or
other wrongful acts."[102]
In the hypothetical, Sam made an outright accusation that Dora Defamed committed
a criminal act. Even if he had stated
that he believes that she beats her daughter, unless the statement is
clearly one interpretable as an opinion, he still is likely to be held
liable for his remark.
In sum, what this means for computer information systems, whether speech on
a bulletin board, text in an electronic journal, or in any of the other forms
of electronic publication, is that liability may result if the message is
libelous. It may not result in
liability if the defamation concerns public figures, public officials, or
matters of public interest. Communications that defame a user may not
constitute defamation to the community at large, but the statements may
still give rise to liability if i t lowers the opinion of the user in the
eyes of the rest of the bulletin board users.
B. Speech Advocating Lawless Action
The First Amendment states that "Congress shall make no law ... abridging the
freedom of speech, or of the press."[103] The First Amendment is one of
the most important guarantees in the Bill of Rights, because speech is essential
for securing other right s.[104] While the right of free speech has been
challenged by the emergence of each new medium of communication, the right
of free speech still applies to the new forms of communication, although
it is, at times, more restrictive.[105] An example of such a restriction
is the regulation of radio and television by the Federal Communications
Commission.[106] The rationale for F.C.C. governance is based on spectrum
scarcity. Currently, this is not a real
issue with computer information systems, but with the rise of packet radio
and wireless networks which transmit computer data through the
airwaves,[107] the F.C.C. may choose to regulate some aspects of computer
information systems. Some people
advocate that, with changes in technology, distinctions between different
forms of media, such as between electronic and print media, should be
eliminated; instead, one all-encompassing standard should be used.[108] No
matter what the standard employed, some forms of speech are currently not
allowed on the local street corner or on the local computer screen. In our Sam Slammer hypothetical, questions arise
as to whether his message contains some of this speech which is inappropriate
for public consumption.
One type of speech not permitted is advocacy of lawless action, as laid out
in *Brandenburg v. Ohio*.[109] The court in *Brandenburg* held that the
guarantees of free speech and free press do not forbid a state from proscribing
advocacy of the use of force or of law violation "where such advocacy
is directed to inciting or producing imminent lawless action and is likely
to incite or produce such action."[110] Sam threatened to kill Dora,
and he urged others to kill her as well.
An important distinction i s made between mere advocacy and
incitement to imminent lawless action -the first is protected speech,
while the second is not. This distinction is
quite important, yet can be blurry, in a computer context. On a bulletin board system, for
instance, messages may be read by a user weeks after they have been
posted. It is hard to imagine such
"stale" messages as advocating *imminent* lawless action. In our hypothetical, Sam encourages
anyone near the computer Dora is using to go kill her. A user who reads the post hours later,
may no longer have the opportunity to take the requested action, even if
so inclined. Dora may be, for example,
at home (beating her daughter?), and no longer at that computer. The action was advocated, but other
users will not be incited to carry out the action because the act would
not be possible at the time. An
information system with a chat feature, which allows users to talk nearly
instantaneously to one another, is, however, altogether different. With such a "chat" feature,
it would be possible to make a *Brandenburg* incitement threat.
C. Fighting Words
Another kind of speech not given First Amendment protection is "fighting words." Fighting words are "those which by
their very utterance inflict injury or tend to incite an immediate breach
of the peace.[111] In *Chaplinsky v. State of New Hampshire*, the court
held that fighting words (as well as lewd, obscene, profane, and libelous
language) "are no essential part of any exposition of ideas, and are
of such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in order
and morality."[112] The court further defined fighting words as words
that have a direct tendency to provoke acts of violence from the
individual to whom the remarks are addressed, as judged not by what the
addressee believes, but rather by what a common person of average
intelligence would be provoked into fighting.[113] A message posted on a
bulletin board or sent by E-mail could contain fighting words. Dora is
being accused of being a child abuser, and in the message someone offers
to sexually abuse her young daughter.
There is no imminence requirement in *Chaplinsky* as there is in
*Brandenburg*.[114] Fighting words can be considered delivered to the addressee
when the message is read. Dora will
become enraged when she reads Sam's message. When Sam left the message has little bearing on when Dora
will be ready to fight. While it is
hard to fight with the message sender when he or she may not be nearby or
even in the same country, that does not preclude some forms of
"fighting." Of course, if the
sender of the fighting words is nearby, actual fighting could occur. If the sender of the message is on a
computer network, an angered recipient could "fight" by trying
to tamper with or otherwise damage the sender's computer account. If Sam had written his post about Samantha
Sysop instead of Dora, he could find himself unable to access the bulletin
board system, or he may find that his copy of his master's thesis which he
was word processing is suddenly missing from his computer account.
A statutory example of the fighting words doctrine is the prohibition against
sending threats to kidnap, injure or extort anything from another person.[115]
For example, Section 875 (b) of the U.S. Code reads:
"(b) Whoever, with intent to extort from any person, firm association,
or corporation, any money or other thing of value, transmits in interstate
or foreign commerce any communication containing any threat to kidnap any
person or any threat to injure the person of another, shall be fined not
more than $5,000 or imprisoned not more than twenty years, or
both."[116]
This section was recently applied to convict a college freshman who sent an
E-mail message to President Clinton threatening that "One of these days,
I'm going to come to Washington and blow your little head off. I have a bunch of guns, I can do
it."[117] The note also threatened Hillary Rodham Clinton and the
Clintons' daughter Chelsea.[118] The statutory section used to convict the
freshman in this case does not make any distinctions between the means of
transportation for the message. As a result,
it can be easily applied to users of electronic mail.
It is possible that a more adventuresome prosecutor could employ another statute
in the case of threats made against the President. Section 871, which covers specifically threats against the
President, Vice-President, and certain other officers of the United
States, states that:
"(a) Whoever knowingly and wilfully deposits for conveyance in the mail or
for delivery from any post office or by any letter carrier any letter,
paper, writing, print, missive, or document containing any threat to take
the life of, to kidnap, or to inflict bodily harm upon the President of
the United States . . . shall be fined not more than $1,000 or imprisoned
not more than five years, or both."[119]
If a computer network can be considered "any letter carrier" and an
E-mail message "any letter, writing, print, missive, or
document," then this statute may be applicable to E-mailed threats as
well.
D. Child Pornography
Other areas of content are regulated on computer information systems. One is child pornography. *New York v.
Ferber*[120] held that states can prohibit the depiction of minors engaged
in sexual conduct. The *Ferber* court gave five reasons for its
holding. First, the legislative
judgment, that using children as subjects of pornography could be harmful
to their physical and psychological well-being, easily passes muster under
the First Amendment.[121] Second, application of the *Miller* standard for obscenity
(discussed infra) is not a satisfactory solution to the problem of child
pornography.[122] Third, the financial gain involved in selling and
advertising child pornography provides incentive to produce such material
- and such activity is prohibited throughout the United States.[123]
Fourth, the value of permitting minors to perform/appear in lewd
exhibitions is negligible at best.[124] Finally, classifying child pornography
as a form of expression outside the protection of the First Amendment is
not incompatible with earlier court decisions.[125] The court said,
"[T]he distribution of photographs and films depicting sexual activity
by juveniles is intrinsically related to the sexual abuse of children
..."[126] and is therefore within the state's interest and power to
prohibit. The Federal government has
explicitly addressed child pornography as it pertains to computer
communication.[127] Section 2252 of Title 18 of the U.S. Code forbids
knowing foreign or interstate transportation or reception by any means
including, for example, visual depictions of minors engaged in sexually
explicit conduct which have been converted into a computer-readable
form.[128] Recent international investigations into illegal
child-pornography distribution via computer network have resulted in
search warrants being issued to U.S. Customs agents in at least 15
states.[129]
Pictures are easily converted into a computer-readable form. Once in such a form, they can be
distributed, interstate or internationally, over a computer information
system. Pictures are put into a
computer by a process called "scanning" or "digitizing.
"[130] Scanning is accomplished by dividing a picture up into little
tiny elements called pixels.[131] The equivalent can be seen by looking
very closely at a television screen or at a photograph printed in a
newspaper. The computer examines each
of these dots, or pixels, and measures its brightness; the computer does
this with every pixel. The picture
is then represented by a series of numbers that correspond to the
brightness and location of each pixel.
These numbers can be stored as a file for access on a bulletin
board system or file server or can be transferred over a network.[132]
Computers do not differentiate between "innocuous" pictures and
pictures that are pornographic. A
piece of child pornography can be scanned and distributed by file server,
bulletin board, or through E-mail just like any other computer file. If Sam Slammer had received a response from someone
interested in seeing the pictures of the last time he had sex with a
child, the pictures could easily be scanned into a computer-readable form
and distributed over a BBS or computer network. While a computer may no t differentiate between subject
matter of pictures, the law does. Persons responsible for distributing
child pornography could be prosecuted, and such a suit could result in
$50,000 or more in fines and damages.[133] If Sam Slammer did try to
distribute the pictures he made of the last time he had sex with a minor,
his distribution of those pictures over a computer information system
could result in a prosecution for child abuse.
Another issue raised by section 2252 is possession of pornographic material. Anyone who "knowingly possesses 3 or
more books, magazines, periodicals, films, video tapes, or other matter
which contain any visual depiction [of child pornography] that has been
mailed, or has been shipped or transported in interstate or foreign
commerce, or which was produced using materials which have been mailed or
so shipped or transported, by means including computer"[134] can be
fined and imprisoned for up to five year s.[135] While the requirement of
knowledge may insulate some computer information systems such as networks,
it clearly does not protect computer users who knowingly traffic in
pornographic material stored in computer files. Thus, if Sam were distributing pornographic pictures in and out
of his computer account, he could be charged under section 2252 with transporting
material used in child pornography. He
would probably need to be caught with three pictures in his account at the
time, but it is likely t hat a prosecutor could ask a System Operator to
look through any back-ups of the computer data which was in Sam's account
at an earlier time. Typically, a
System Operator will make a backup copy of all of the data stored on a
computer system. This is do ne so that if
the computer should malfunction, the information can be restored by use of
this backup. Backups are often kept for a while before being erased, in
essence freezing all of the users' accounts as they were at a time in the
past. If pictures were also found in the backups, a claim could be made
that Sam was in possession of these pictures as well. This would be an easy claim to make if
Sam had the ability to ask the SYSOP to recover any of the files that are
on these back-ups, but which are no longer in his actual account. Based on the public policy against child
pornography, it is likely that an attempt would be made in order to hold
Sam responsible for the knowing possession of any files that were formerly
in his account which could still be recovered from the System Operator's
backups of Sam's data. However, if
such a claim were to be attempted, it would also need to be shown that Sam
knew of the accessibility of these backups, since the statute requires the
*knowing* possession of the pictures.[136] As to Samantha Sysop's
liability, unless she knew what was stored in Sam's account, it is
unlikely that she would be held liable for having child pornography stored
on her computer system. Section 2252,
as quoted above, contains a knowledge requirement. If Samantha Sysop did not know what was in
Sam's account, she would not meet that knowledge requirement. If she had reason to know that Sam had
pictures of child pornography in his account, but intentionally turned her
back, she may be considered to have constructive knowledge of the presence
of the pornographic material on her system, and therefore she could be
charged with the knowing possession of the material. It is not likely to make a difference that
the material is in Sam's account; Sam's account is still on Samantha's
computer system which she is responsible for maintaining in a legal
manner.
Child pornographers, or pedophiles, may use bulletin board systems and E-mail
for more than just storing and transporting pictures. There has been some publicity over bulletin boards being
used by pedophiles to contact each other.[137] Law enforcement us e of
bulletin board systems to track down pedophiles has not resulted in
prosecutions of System Operators, but there have been convictions of BBS
users who have arranged to make "snuff films" through contacts
they have made over a computer.[138]
E. Computer Crime
Some areas of "computer crime" are regulated.[139] Computer crime is
an issue which computer information system operators should be aware of,
as they may be on the receiving end at some point. The term "computer crime" covers
a number of offenses,[140] such as: the unauthorized accessing of a computer
system;[141] the unauthorized accessing of a computer to gain certain
kinds of information (such as defense information or financial records);[142]
accessing a computer and removing, damaging, or preventing access to data
without authorization;[143] trafficking in stolen computer passwords;[144]
spreading computer viruses;[145] and a number of other related
offenses.[146] All of these are activities which are often referred to as
"hacking."[147]
F. Computer Fraud
The first federal computer crime law, entitled the Counterfeit Access Device
and Computer Fraud and Abuse Act of 1984, was passed in October of 1984.[148]
"[T]he Act made it a felony knowingly to access a computer without authorization,
or in excess of authorization, in order to obtain classified United States
defense or foreign relations information with the intent or reason to
believe that such information would be used to harm the United States or
to advantage a foreign nation."[149]
Access to obtain information from financial records of a financial institution
or in a consumer file of a credit reporting agency was also outlawed.[150]
Access to use, destroy, modify or disclose information found in a computer
system, (as well as to pre vent authorized use of any computer used for
government business if such a use would interfere with the government's
use of the computer) was also made illegal.[151] The 1984 Act had several
shortcomings, and was revised in The Computer Fraud and Abuse Ac t of
1986.[152] The 1986 Act added three new crimes - a computer fraud
offense,[153] modeled after federal mail and wire fraud statutes;[154] an
offense for the alteration, damage or destruction of information contained
in a "federal interest computer;"[155] and an offense for
trafficking in computer passwords under some circumstances.[156] Even the
knowing and intentional possession of a sufficient amount of counterfeit
or unauthorized "access devices" is illegal.[157] This statute
has been interpreted to cover computer passwords "which may be used
to access computers to wrongfully obtain things of value, such as
telephone and credit card services."[158]
The Computer Fraud and Abuse Act presents a powerful weapon for SYSOPs whose
computers have been violated by hackers.
The first person charged with violating the Act,[159] Robert T.
Morris Jr., was charged with releasing a "worm" onto a section
of the Internet computer network,[160] causing numerous government and
university computers to either "crash" or become
"catatonic."[161] Morris is the son of the Chief Scientist at the National
Security Agency's National Computer Security Center.[162] His father is
also a former researcher at AT&T's Bell Laboratories where he worked
on the original UNIX operating system.[163] UNIX is the operating system
that many mainframe computers use.
Morris claims that the purpose of his worm program was to
demonstrate security defects and the inadequacies of network security, not
to cause harm.[164] However, due to a small error in his worm program, it
got out of control and caused numerous computers to require maintenance to
eliminate the worm at costs ranging from $200 t o $53,000.[165] District
Judge Munson read the Computer Fraud and Abuse Act, as it appeared at the
time, largely as defining a strict liability crime. The relevant language applied to someone
who:
"(5) intentionally accesses a Federal interest computer without authorization,
and by means of one or more instances of such conduct alters, damages, or
destroys information in any such Federal interest computer, or prevents
authorized use of any such computer or information, and thereby -
(A) causes loss ... of a value aggregating $1,000 or more ....[166] Judge Munson's
interpretation is that this language requires intent only to access the
computer, not intent to cause actual damage."[167]
On appeal, Munson's reading was affirmed by the Court of Appeals,[168] and the
Supreme Court refused to hear further appeals.[169]
Morris' lawyer, Thomas Guidoboni, described the statute as "perilously vague"
because it treats intruders who do not cause any harm just as severely as
computer terrorists.[170] While the Judge's interpretation of the statute
makes it a more powerful weapon in a prosecutor's corner, Guidoboni argues
that Munson's interpretation violates the sense of fairness that underlies
the U.S. criminal justice system, which almost always differentiates
between people who intend to cause harm and those who do not.[171 ] No one
seems to argue that what Morris did was *right*, but many do not agree
that he should be charged with a felony although he was convicted.[172]
The jury in the Morris case indicated that the most difficult question was whether
Morris' access to the Internet was unauthorized even though defense
counsel pointed out that 2 million subscribers had the same access.[173]
This section was recently clarified in the Computer Abuse Amendments of
1994[174] The section is re-written, and these amendments broaden the
scope of the protection offered in section 1030 (a) (5) (A) in order to
close a loophole contained in the earlier Act.
"[I]ntentionally accesses a Federal interest computer" is
no longer used, and instead the section applies to anyone who
"through means of a computer used in interstate commerce or
communications, knowingly causes the transmission of a program,
information, code, or command to a computer or computer system
...."[175] As amended, the section now protects not only Federal interest
computers, but it also covers privately owned computer systems, used in
interstate commerce or communication, but which may be affected by someone
acting through means of a computer located within the same state as the
affected computer. The amendments also
remove the "access" requirement from the statute. Instead, a specific intent to perform certain
acts which may constitute direct or indirect access are put into the
statute.[176] Significantly, the statute also adds a requirement that there
be either a specific intent or reckless disregard as to whether the transmission
will cause damage or withhold or deny use of a "computer, computer
system, network, information, data, or program" in excess of the user's
authorization.[177] These changes should help to prevent access and intent
questions raised by the Morris incident.
Two other changes which the Computer Abuse Amendments Act of 1994 make is to
allow for civil remedies caused by a violation of section 1030,[178] and
it provides specific protection for actions which modify or impair information
or computers used in medical examination or treatment.[179]
G. Unauthorized Use of Communications
Services
One of the favorite targets of computer hackers is the telephone company. Telephone
systems are susceptible to computer hackers' illegal use. By breaking into the telephone
company's computer, hackers can then place free long distance calls to
other computers.[180] They can also break into telephone companies'
computers and get lists of telephone credit card numbers.[181] Trafficking
of stolen credit card numbers and other kinds of telecommunications fraud
costs long distance carriers about $1.2 billion annually.[182]
Distribution of fraudulently procured long distance codes is often
accomplished over bulletin board systems, or by publication in electronic
journals put out by hackers over computer networks.[183] The major
protection for the telephone companies is found in section 1343 of the
Mail Fraud Chapter of the U.S. Code.[184] This section prohibits the use
of wires, radio or television in order to fraudulently deprive a party of
money or property.[185] This statute has been held to include fraudulent
use of telephone services.[186] Presumably, this statute may also cover
fraudulent theft of computer services when the computer is accessed by
wire. Computer information systems that
knowingly distribute information aiding in wire fraud could be charged
with conspiracy to violate section 1346 of the Mail Fraud Chapter,[187]
which specifically covers schemes to defraud.[188] Some state laws exist
to punish theft of local telephone service or publication of telephone
access codes.[189]
H. Viruses
As pointed out in the introduction, computer viruses are increasingly of concern
- both for operators of computer information systems, as well as for users
of the systems. But what is a
virus? A virus refers to any sort
of destructive computer program, though the term is usually reserved for
the most dangerous ones.[190] Computer virus crime involves an intent to
cause damage, "akin to vandalism on a small scale, or terrorism on a grand
scale."[191] Viruses can spread through networked computers or by s haring
disks between computers.[192] Viruses cause damage by either attacking
another file or by simply filling up the computer's memory or by using up
the computer's processor power.[193] There are a number of different types
of viruses, but one of the f actors common to most of them is that they
all copy themselves (or parts of themselves).[194] Viruses are, in
essence, self-replicating.
Also discussed earlier was a "pseudo-virus," called a worm. People in the computer industry do not
agree on the distinctions between worms and viruses.[195] Regardless, a
worm is a program specifically designed to move through networks.[196] A
worm may have constructive purposes, such as to find machines with free
resources that could be more efficiently used, but usually a worm is used
to disable or slow down computers. More specifically,
worms are defined as, "computer virus programs ... [which] propagate
on a computer network without the aid of an unwitting human accomplice. These programs move of their own volition
based upon stored knowledge of the network structure."[197]
Another type of virus is the "Trojan Horse."[198] These are viruses
which hide inside another seemingly harmless program.[199] Once the Trojan
Horse program is used on the computer system, the virus spreads.[200] The
virus type which has gained the most fame recently has been the Time Bomb,
which is a delayed action virus of some type.[201] This type of virus has
gained notoriety as a result of the Michelangelo virus. A virus designed to erase the hard
drives of people using IBM compatible computers on t he artist's birthday,
Michelangelo was so prevalent, it was even distributed accidentally by
some software publishers when the software developers' computers became
infected.[202]
One concern many have about statutes dealing with computer viruses is the problem
that the statutes need some kind of intent requirement.[203] Without some
sort of intent requirement, virus statutes may be sufficiently overbroad
so as to cover defective computer programs.[204]
What legal remedies are available for virus attacks? Distributing a virus affecting computers used substantially
by the government or financial institutions is a federal crime under the
Computer Fraud and Abuse Act.[205] If a virus also involves unauthorized
access to an electronic communications system involving interstate
commerce, the Electronic Communications Privacy Act may come into
play.[206] Most states have statutes that make it a crime to intentionally
interfere with a computer system.[207] The se statutes will often cover
viruses as well as other forms of computer crime. State statutes generally work by affecting
any of ten different areas:[208]
1. Expanded definitions of "property" to include computer data.[209]
2. Prohibiting unlawful destruction of computer files.[210] 3.
Prohibiting use of a computer to commit, aid or abet commission of a
crime.[211] 4. Creating crimes against intellectual property.[212] 5.
Prohibiting knowing or unauthorized use of a computer or computer services.[213]
6. Prohibiting unauthorized copying of computer data.[214] 7.
Prohibiting the prevention of authorized use.[215] 8. Prohibiting unlawful
insertion of material into a computer or network.[216] 9. Creating
crimes like "Voyeurism"- Unauthorized entry into a computer
system just to see what is there.[217] 10. "Taking possession"
of or exerting control of a computer or software.[218]
SYSOPs must also worry about being liable to their users as a result of viruses
which cause a disruption in service.
Service outages caused by viruses or by shutdowns to prevent the
spreading of viruses could result in a breach of contract where continua l
service is guaranteed; however, contract provisions could provide for
excuse or deferral of obligation in the event of disruption of service by
a virus.
Similarly, SYSOPs are open to tort suits caused by negligent virus control.[219]
"[A SYSOP] might still be found liable on the ground that, in its
role as operator of a computer system or network, it failed to use due
care to prevent foreseeable damage, to warn of potential dangers, or to
take reasonable steps to limit or control the damage once the dangers were
realized."[220] The nature of "care" still has not been defined
by court or statute.[221] But still, it is likely that a court would find that
a provider is liable for failure to take precautions against viruses when
precautions are likely to be needed. SYSOPs are also likely to be held
liable for not treating files they know are infected. Taking precautions against viruses would be likely to reduce
the chances or degree of liability.
I. Protection from Hackers
System Operators need to worry about damage caused by hackers as well as damage
caused by viruses. While hackers are
liable for the damage they cause, SYSOPs may find themselves on the receiving
end of a tort suit for being negligent in securing their computer
information system. For a SYSOP to
be found negligent, there must first be a duty of care to the user who is
injured by the hacker.[222] There must then be a breach of that duty [223]
- the SYSOP must display conduct "which falls below the standard
established by law for the protection of others against unreasonable risk
of harm."[224] Simply put, the SYSOP must do what is generally
expected of someone in his or her position in order to protect users from
problems a normal user would expect to be protected against. Events that
the SYSOP could not have prevented - or foreseen and planned for - will
not result in liability.[225] A SYSOP's duty "may be defined as a
duty to select and implement security provisions, to monitor their effectiveness,
and t o maintain the provisions in accordance with changing security
needs."[226] SYSOPs should be aware of the type of information stored
in their systems, what kind of security is needed for the services they
provide, and what users are authorized to use what data and which services. SYSOPs also have a duty to explain to each
user the extent of his or her authorization to use the computer
information service.[227]
The same analysis applies to operator-caused problems. If the SYSOP accidentally deletes data
belonging to a user or negligently maintains the computer system,
resulting in damage, he or she would be liable to the user to the same
extent as he or she would be from hacker damage that occurred due to
negligence.
VI. PRIVACY
Privacy has been a concern of computer information system providers from the
very beginning. With the speed, power,
accessibility, and storage capacity provided by computers comes tremendous
potential to infringe on people's privacy. It is imperative that users of services such as electronic
mail understand how these services work, i.e., how private the users'
communications really are, and who may have access to the users' "personal"
E-mail. The same is true for stored
computer files. Just as importantly, System Operators should be aware of
what restrictions and requirements exist to maintain users' privacy
expectations.
A. Pre-Electronic Communications
Privacy Act of 1986
One of the most significant cases establishing privacy for electronic communications
is *Katz v. United States*.[228] *Katz* involved the use of an electronic
listening device (or "bug") mounted on the outside of a public
telephone booth.[229] The government (who placed the bug) assumed that,
because the bug did not actually penetrate the walls of the booth, and was
not actually a "wire tap," there was no invasion of privacy.[230] However,
Defendant argued that the bug was an unlawful search and seizure i n
violation of the Fourth Amendment.[231] The court held that "the Fourth
Amendment protects people, not places.
What a person knowingly exposes to the public, even in his own home
or office, is not a subject of Fourth Amendment protection. [citations
omitted] But what he seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected."[232]
The decision in this case is also understood to say that if a person does
not have a *reasonable* expectation of privacy, there is, in fact, no
Fourth Amendment protection.[233] The person must have a subjective
expectation of privacy, and to be reasonable, it must be an expectation
that society is willing to recognize as reasonable.[234] For example, most
people have a reasonable expectation that calls made from inside a closed
telephone booth will be private.
For computer users, this means that, because the computer operator
has control over the system and can read any messages, the user cannot
reasonably protect his or h er privacy.
If there is no reasonable expectation of privacy, there can be no
violation of privacy, and, therefore, no Fourth Amendment claim.[235]
Statutory protection of the right to privacy was originally provided by the
Federal Wiretap Statute.[236] However, this statute affected only "wire
communication," which is limited to "aural [voice] acquisition."[237]
In *United States v. Seidlitz*,[238] the court held that interception of
computer transmission is not an "aural acquisition" and,
therefore, the Wiretap Act did not provide protection.[239] Even if the
Act did cover transmission, it still does not cover stored computer data.[240]
This does not result in significant or comprehensive protection of E-mail
or stored data.
B. Electronic Communications Privacy
Act of 1986
Prior to the passage of the Electronic Communications Privacy Act, communications
between two persons were subject to widely disparate legal treatment
depending on whether the message was carried by regular mail, electronic
mail, an analog phone line, a cellular phone, or some other form of
electronic communication system. This
technology-dependent legal approach turned the Fourth Amendment's
protection on its head. The Supreme
Court had said that the Constitution protects people, not places, but the
Wiretap Act did not adequately protect all personal communications;
rather, it extended legal protection only to communications carried by
some technologies.[241]
The Federal Wiretap Act was updated by the Electronic Communications Privacy
Act of 1986.[242] The Electronic Communications Privacy Act deals specifically
with the interception and disclosure of interstate [243] electronic
communications [244] , and functions as the major sword and shield
protecting E-mail. It works both to
guarantee the privacy of E-mail and also to provide an outlet for
prosecuting anyone who will not respect that privacy. The statute provides in part that "any
person who (a) intention ally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to intercept any wire,
oral, or electronic communication"[245] shall be fined or
imprisoned.[246] The intentional disclosure or use of the contents of any
wire, oral, or electronic communication that is known or could reasonably
be known to have been intercepted in violation of the statute is
prohibited.[247] This largely guarantees the privacy of E-mail as well as
data transfers over a network or telephone line going to or from a
computer information system. In essence, E-mail cannot legally be read
except by the sender or the receiver even if someone else actually
intercepted the message. Further disclosure
or use of the message contents by any party, other than the message sender
and its intended recipient, is prohibited if the intercepting party knows
or has reason to know that the message was illegally intercepted.
Section 2 of the Electronic Communications Privacy Act [248] provides an exception
for SYSOPs and their employees to the extent necessary to manage properly
the computer information system: It
shall not be unlawful under this chapter for an operator of a switchboard,
or an officer, employee, or agent of a provider of wire or electronic
communication service, whose facilities are used in the transmission of a
wire communication, to intercept, disclose, or use that communication in
the normal course of his employment while engaged in any activity which is
a necessary incident to the rendition of his service or to the protection
of rights or property of the provider of that service, except that a
provider of wire communication service to the public shall not utilize
service observing or random monitoring except for mechanical or service
quality control checks.[249]
"Electronic Communication System" is defined as "any wire,
radio, electromagnetic, photooptical or photoelectronic facilities for the transmission
of electronic communications, and any computer facilities or related
electronic equipment for the electronic storage of such communications."[250]
Further exceptions are made for SYSOPs of these systems when the
originator or addressee of the message gives consent;[251] when the
message is being given to another service provider to be further forwarded
towards its destination;[252] where the message is inadvertently obtained
by the SYSOP; and appears to pertain to a crime;[253] when the divulgence
is being made to a law enforcement agency;[254] or where the message is
configured so as to be readily accessible t o the public.[255] It is worth
noting that this section also applies to broadcast communications, as long
as they are in a form not readily accessible to the general public (with
some exceptions).[256] This will probably cover the up-and-coming
technologies of radio-WANS (Wide Area Networks-computer networks which
link computers by radio transmission rather than wires), cellular modems,
and also packet radio. These technologies are especially likely to be
covered by the statute if data is transmitted using some sort of
encryption scheme.[257]
For law enforcement agencies to intercept electronic communications, they must
first obtain a search warrant by following the procedure laid out in section
2518 of this Act.[258] The statute does not prohibit the use of pen
registers or trap and trace dev ices.[259] The warrant requirement makes
it harder for law enforcement officials to get at the contents of the
communications, but does not substantially impede efforts to find out who
is calling the computer information system.
C. Access to Stored Communications
Section 2511 of the Electronic Communications Privacy Act concerns the interception
of computer communications. Section
2701 of the Act prohibits unlawful access to communications which are
being stored on a computer.[260] The section reads, in part, "whoever
-- (1) intentionally accesses without authorization a facility through
which an electronic communication service is provided; or (2) intentionally
exceeds an authorization to access that facility; and thereby obtains,
alters, or prevents authorized access to a wire or electronic
communication while it is in electronic storage in such system"[261]
shall be subject to fines and/or imprisonment.[262] Like section 2511,
this section includes provisions prohibiting the divulgence of the stored
messages.[263] Importantly, while this statute allows law enforcement
agencies to gain access to stored communications, subject to a valid
search warrant,[264] it does specifically allow the government to permit
the system operator to first make backup copies of stored computer data,
so that the electronic communications may be preserved for use outside of
the investigation.[265] Such a statute is needed because the government
often takes the stored data to sort through during the course of its
investigation, as wa s the case in *Steve Jackson Games, Inc. v. United
States Secret Service*.[266] In this case, the Secret Service raided a
publisher and seized its bulletin board system, electronic mail and
all. The court held that the government
had to go through the procedures established by section 2701 et seq.,
covering stored wire and electronic communications, in order to discover
properly the contents of the electronic mail on the BBS.[267] The court
said that the evidence of good faith reliance on what the Secret Service
believed to be a valid search warrant was insufficient.[268] The government
*knew* that the computer had private electronic communications stored on
it, and therefore the only means they could legally use to gain access to
those communications wa s by compliance with the Act, and not by seizing
the BBS.[269] The Steve Jackson Games Case was also valuable for showing
the interplay between protection against interception of electronic
communication [270] and access to stored communication.[271] Judge Sparks
held, in essence, that taking a whole computer is not a n "interception"
as contemplated by section 2510 et seq., especially in light of the
protection of stored communication by section 1701 et seq. He analogized
the situation to the seizure of a tape recording of a telephone
conversation and said that the " aural acquisition" occurs when the
tape is made, not each time the tape is played back by the police.[272]
This interpretation is being appealed on the grounds that since the
messages had been sent, and not yet received, they were intercepted-just
as if someone had picked up and carried off a blue postal service mailbox
from the side of the street.[273] The argument is that the Judge's
requirement that the message actually be transversing the wire when the
interception occurs is too narrow a reading of the term "interception."[274]
D. An Apparent Exception for Federal
Records
A fairly recent case presents an apparent exception to the Electronic Communications
Privacy Act.[275] In *Armstrong v. Executive Office of the President*,[276]
while not mentioning the Electronic Communications Privacy Act, the court
required certain electronic mail and stored data to be saved and made
available for the National Archives.[277] While electronic communications
are normally protected under the Electronic Communications Privacy Act,
the Federal Records Act [278] requires that:
"all ... machine readable materials, or other documentary materials, regardless
of physical form or characteristics, made or received by an agency of the
United States under Federal law or in connection with the transaction of
public business and preserved or appropriated for preservation by that
agency ... as evidence of the organization, functions, policies,
decisions, procedures, operations, or other activities of the Government
or because of the informational value of the data in them [be
preserved]."[279]
The court held that the actual computer records must be saved, not just paper
copies of the electronically mailed notes, because the computer records
contain more information than printouts.[280] Printed copies of the
messages contain the text of the note s, but only the computer records contain
information such as who received the E-mail messages and when the communication
was received.[281] A similar possible exception to the privacy of E-mail
is the Presidential Records Act,[282] which requires that all records
classified by the Act as "Presidential Records"[283] be preserved
for historical researchers. However,
the only case to apply this statute to Presidential E-mail held that the
Presidential Records Act impliedly precludes judicial review of the
President's compliance with the Act.[284]
E. Privacy Protection Act of 1980
It is also possible that computer information systems will be protected under
the Privacy Protection Act of 1980.[285] The Privacy Protection Act immunizes
from law enforcement search and seizure any "work product materials
possessed by a person reasonably believed to have a purpose to disseminate
to the public a newspaper, book, broadcast, or other similar form of
public communication, in or affecting interstate commerce."[286] This
statute was passed to overturn the decision in *Zurcher v. Stanford Daily*,[287]
a case which held that a newspaper office could be searched, even when no
one working at the paper was suspected of a crime.[288] The only
exceptions to the law's prohibition on searches of publishers are the following:
probable cause to believe that the person possessing the materials has
committed or is committing the crime to which the materials relate,[289] or
the immediate seizure is necessary to prevent the death or serious injury
to a human being.[290] A computer information system could f all under
this statute when it is being used in the aid of a print publisher, such
as when the service is used in a publisher's office or to transmit
materials to a publisher.[291] More importantly for the System Operator,
based on the list of types of "publishers" covered by this statute,
electronic publishers should fall directly under this section.
The first case that attempted to apply this statute to electronic publishers
was the *Steve Jackson Games* case, mentioned in the preceding section. It is a good case study in law enforcement
violations of electronic data privacy. Steve Jackson Games is a small publisher
of fantasy role-playing games in Texas.[292] The company also ran a BBS to gain
customer feedback on the company's games.[293] The Secret Service took all
of the company's computers, both their regular business computers and the
one on which they were running the company's BBS (private electronic mail
etc.).[294] They also took all of the copies of their latest game, GURPS
Cyberpunk, which one of the Secret Service agents referred to as "a
handbook for computer crime."[295] The raid by t he Secret Service
caused the company to temporarily shut down;[296] Steve Jackson Games also
had to lay off half its employees.[297] The release of the game was
delayed for months, since the Government took all of the word processing
disks as well as all of the printed drafts of the game.[298] The
Electronic Frontier Foundation, which provided legal counsel for Steve Jackson,
likened the Secret Service's action to an indiscriminant seizure of all of
a business's filing cabinets and printing presses.[299] Steve Jackson
Games was raided because one of its employees ran a BBS out of his home-one
out of a possible several thousand around the country that distributed the
electronic journal "Phrack," in which a stolen telephone company
document was published.[300] The document contained information which was
publicly available in other forms.[301] The employee was also accused of
being a part of a fraud scheme-the fraud being the explanation in a two
line message what Kermit is-a publicly available communications protocol.[302]
The employee was also co-SYSOP of the bulletin board system at Steve
Jackson Games.[303] The case held that at the time of the raid, the Secret
Service did not know that Steve Jackson Games was a publisher (even though
they should have), as the Privacy Protection Act [304] requires, though
they did know shortly after.[305] Judge Sparks said the continued refusal
to return the publisher's work product, once the Secret Service had been
informed that Steve Jackson Games was a publisher, amounted to a violation
of the Act.[306] In the raid, the Secret Service seized a number of Steve
Jackson's computers, and a number of papers.[307] As mentioned, this
included the company's BBS, which contained public comments on newspaper
articles submitted for review, public announcements, and other public and
private communications.[308]
While the judge did find a violation of the Privacy Protection Act,[309] he
did not specify which items led to the violation. The violation could have been the seizure of the papers, the
computers used for word processing, or the BBS. Thus, the question still remains unanswered as to whether
the seizure of the BBS alone, which was being used to generate work
product for the publisher, would have amounted to a violation of the Act. Importantly, other users of the BBS who had
posted public comments about Steve Jackson's Games were also plaintiffs in
the case. They were not allowed
recovery based on the Privacy Protection Act.[310] Therefore, either the
individual message posters were not considered to be publishers themselves
(only perhaps authors of works published in electronic form by Steve
Jackson Games' BBS) or their messages were not considered to be work product
subject to protection.
VII. OBSCENE AND INDECENT
MATERIAL
Computer information systems can contain obscene or indecent material in the
form of text files, pictures, or sounds (such as the sampled recording of
an indecent or obscene text). Different
degrees of liability depend on which legal analogy is applied t o computer
information systems. Differences in regulation based on medium are a
result of differing First Amendment concerns.[311]
A. Obscenity
The constitutional definition of "obscenity," as a term of art,[312]
was solidified in *Roth v. United States*.[313] The *Roth* definition asks
if the material deals with sex in a manner appealing to prurient interests.[314]
This standard was further explained in *Miller v. California*,[315] a case
which explored the constitutionality of a state statute prohibiting the
mailing of unsolicited sexually explicit material.[316] The court
expressed the test for obscenity as:
"whether (a) the average person, applying community standards would find
that the work, taken as a whole, appeals to the prurient interest, (b)
whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and (c)
whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value."[317]
The first two prongs of this test have been held to be issues left to local
juries, while the last prong is to be determined by the court.[318] Courts
have been unwilling to find a national standard for obscenity, and have
held that a carrier of obscenity must be wary of differences in definition
between the states.[319] This has profound implications for computer
information systems which have a national reach. It means SYSOPs must be aware of not only one standard of
obscenity, but fifty. (More if the
service has international users.) SYSOPs must be aware of the different
standards because the Constitution's protection of free speech does not
extend to obscenity, and states are free to make laws severely restricting
its availability, especially to children.[320] Although states can
regulate the availability of obscene material, they cannot forbid the mere
possession of it in the home.[321] The justification for this is based on
privacy.[322] In the now famous words of Justice Marshall in *Stanley
v. Georgia*,[323]
Whatever may be the justifications for other statutes regarding obscenity, we
do not think they reach the privacy of one's home. If the First Amendment means anything, it means that a State
has no business telling a man, sitting alone in his own house, w hat books
he may read, or what films he may watch.
Our whole constitutional heritage rebels at the thought of giving
government the power to control men's minds.[324]
Stanley has been interpreted as establishing a "zone of privacy"
about one's home.[325] Many computer information system users are
connected to the system by modem from their homes. Because of this, any
pornographic material they have stored on their home computers is
protected from government regulation.[326] However, connecting to a remote
computer information system entails moving obscene material in and out of
this zone of privacy, and therefore may not be insulated from state legislation.[327]
Support for this argument comes from *U.S. v. Orito*[328] which held that
Congress has the authority to prevent obscene material from entering the
stream of commerce, either by public or private carrier.[329] While a
person's disk drive on his or her computer is analogous to his or her home
library, connecting to a computer information system can be seen as
analogous to going out to a bookstore.[330]
*Stanley*[331] may protect a person's private library, but "[c]ommercial exploitation
of depictions, descriptions, or exhibitions of obscene conduct on
commercial premises open to the adult public falls within a State's broad
power to regulate commerce and protect the public environment."[332]
B. Indecent Speech
Speech which is not considered obscene may qualify as indecent. In *F.C.C. v. Pacifica Foundation,
Inc.*, the court held that indecent speech is protected by the First
Amendment, unlike obscene and pornographic material, though it can still
be regulated where there is a sufficient governmental interest.[333]
Indecent language is that which "describes, in terms patently
offensive as measured by community standards ... sexual or excretory
activities and organs ..."[334] This language comes from *F.C.C. v. Pacifica Foundation, Inc.*,[335] a
broadcasting case which upheld the channeling of indecent language into
time periods when it was not as likely that children would be in the
audience. Discussion of indecent speech
will be continued in the analysis of t he different legal analogies that
may apply to computer information systems.
VIII. COPYRIGHT ISSUES
A. Basics of Copyrights
Text, pictures, sounds, software - all of these can be distributed by computer
information systems, and all can be copyrighted. The Constitution guarantees Congress the power to
"promote the Progress of Science and Useful Arts, by securing for
limited Times to Authors and Inventors the exclusive right to their
respective Writings and Discoveries."[336] This power is exercised in
the form of the Copyright Act, Title 17 of the U.S. Code.[337] Section 102
of the Copyright Act allows protection of "original works of
authorship fixed in any tangible medium of expression, now known or later
developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or
device."[338] The statute lists several types of works as
illustrations of types of works which qualify for copyright protection.[339]
Relevant to computer information systems, the list includes literary
works; pictorial, graphic, and sculptural works; motion pictures and other
audiovisual works; and sound recordings.[340] The "now known or later
developed" language allows expansion of copyright coverage to meet
any new means of expression, such as those available over a computer
information system.[341] In fact, the notes accompanying this cod e
section acknowledge that copyright protection applies to a work "whether embodied
in a physical object in written, printed, photographic, sculptural,
punched, magnetic, or any other stable form."[342] The element of
fixation is important in the copyright statute; a work which is not fixed
is not covered by the statute, and any possible protection must come from
local common law.[343] This can lead to some strange results. A live concert cannot be copyrighted
under this statute, but if the performer records the concert while he or
she performs, the concert is then copyrighted.[344] For computer information
systems, this implies that conversations occurring over a computer or
network which are not stored on a disk [345] are unprotected by the
Copyright Ac t, but if any party to the conversation, or the system
operator, stores the messages, it is then possible that some elements of
the conversation are copyrighted.
Copyright protection extends to works of authorship; it does not extend to ideas,
processes, concepts, inventions and the like.[346] Distinguishing between
works of authorship and processes can at times result in some subtle
distinctions. An example of t his is
computer typefaces, or fonts (which can often be found available for
downloading on file servers or bulletin board systems). There are two major kinds of type faces, bit-mapped
and postscript. Bit-mapped fonts are
composed of data describing where points are drawn in order to make out
the shape of the letter.[347] Postscript fonts, on the other hand, consist
of a computer program which describes the outline of the letter.[348]
Digital typefaces are not considered copyrightable, because they are seen
as just a copy of the underlying letter design, a process for drawing a
representation of a letter, and thus bit-mapped fonts are not
copyrightable.[349] Postscript fonts are seen as computer programs-the
program is a work of authorship, it just so happens to draw letters, and
they have been held to be copyrightable.[350] The Copyright Act gives the
copyright holder exclusive rights to his or her works.[351] This allows the
author to reproduce, perform, display, or create derivative works as he or
she pleases, and to do so to the exclusion of all others.[352] This means
a computer information system can distribute only material that is either
not copyrighted, or for which the SYSOP has permission to copy. This presents no problem for material
the system operator acquires personally, but two problems exist regarding
material that users upload to the computer system. First, even if the SYSOP sees that the
material a user has uploaded is copyrighted, how is the SYSOP to know that
permission has not been granted by the copyright holder? Second, copyright notices can be removed
by the person posting copyrighted material, in which case the SYSOP may
have no way to know if the data is copyrighted. A SYSOP cannot just ignore a suspicion that a work is
copyrighted, because such an act could lead to the conclusion that the
SYSOP was a contributor to the copyright infringement by allowing the
computer file to be distributed on his or her system.[353] There is no
intent or knowledge requirement to find a copyright violation. Copyright
infringement is a strict liability crime.
Intent is only a factor in calculating damages. When a work is copied, even if the
person making the copy does not know or have reason to know, that the work
is copyrighted, an infringement may still be found.[354] Even subconscious
copying has been held to be an infringement.[355]
One protection the Copyright Act gives to a computer information system is a
compilation copyright. A compilation
copyright gives the SYSOP a copyright on the data contained in the
computer information system as a whole.[356] This does not give the SYSOP
a copyright to the individual copyrighted elements carried on the system,
but it does allow a copyright for the way the material is organized.[357]
An example of this would be the electronic journal composed from articles
submitted by users. The compile r
of the journal would not own a copyright to the individual articles, but
he or she would own a copyright in those elements which are original to
the compiler, for example, to the arrangement of the articles which makes
up the periodical as a whole.[358] A bulletin board system could
presumably also copyright its entire message base.
As mentioned, the Copyright Act gives an author the exclusive rights to make
copies of his or her works, as well as create derivative works.[359] This
includes copies in computer readable form.[360] Thus, scanned pictures,
digitized sounds, machine readable texts, and computer programs are all
subject to an author's copyright. Any
attempt to turn original material into one of these computer-readable
forms without the author's permission (and unless the copy falls under one
of the exceptions in sections 1 07-120) is a violation of the author's
copyright.
With decreasing costs of data storage, and increasing access to computer networks,
comes an increase in the number of computer archives. These computer archives store various types of data which
can be searched by the archive user.
The archive site can be searched, and the information can be copied
by anyone with sufficient access to the archive. This ease with which information can be accessed and duplicated
has some profound copyright implications.[361] I will use as an example a
"lyric server," an archive that stores lyrics to songs by
assorted artists. Other types of information
that can be distributed will be discussed shortly.
In my lyric server example, if someone is sitting down with an album jacket
and typing the lyrics into the computer for distribution in the archive,
the translation of the lyrics from the album jacket to a computer text
file constitutes an unauthorized copy.
Similarly, if someone else types in the file and a System Operator
then puts the file into the archive for distribution, the SYSOP has
violated the author's right to make and distribute copies of his or her
work.[362]
Once the file is in the archive for distribution, every time the information
is copied, there may be a copyright violation.
There is a difference here between copying and viewing. As mentioned, the Copyright Act
protects against unauthorized copying of a work. The Act defines a copy as a fixation "from which the
work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device."[363] Thus, if
someone connects to the computer information system and just peruses the
archive, if the information is not "downloaded," "screen
captured," or otherwise recorded on computer disk, tape, or printout,
then no fixation is made and thus, no copy.
However, while the archive user may not be making a copy, if the
archive is publicly accessibld, viewing some types of files may possibly
constitute a public performance or display [364] of the copyrighted work,
which are also protected rights.[365] To infringe these display and
performance rights, it should be necessary that the computer information
system makes the copyrighted work available in a manner so that the work
is immediately shown, recited, rendered, played or the like directly to
the user. To not require this
immediate accessibility would be to confuse the right to distribute copies
with the right to display or perform a work.
By allowing the transmission of raw data, the System Operator is
making available a public place in which to copy, not display, the
work. Without some activity beyond
merely transmitting the work in a raw data form, to hold a SYSOP liable
for violating a display right would be analogous to holding a place-such
as a library, a newsstand, or a waiting room, or any other place which has
copyrighted works available to the public-liable for violating the copyright
holder's display or performance rights.[366] Whether the unauthorized
archiving of a copyrighted work or whether further copying of a protected
work by the archive user constitutes a violation of section 106 of the
Copyright Act is also determined by whether the copying falls under one of
the Act's exceptions. The two relevant
exceptions are the "fair use" provision [367] and the "reproduction
by libraries and archives" provision.[368] [F]air use was traditionally
a means of promoting educational and critical uses. Fair use, then, is an exception to the general rule that the
public's interest in a large body of intellectual products coincides with
the author's interest in exclusive control of his work, and it is decided
in each case as a matter of equity ... ."[369]
The fair use provision contains a list of uses that are presumed to be acceptable
uses of copyrighted works, and a list of four factors that must be taken
into account to determine if the use constitutes a fair use of the work. The list includes use for criticism,
comment, news reporting, teaching, scholarship, or research.[380] This
list may provide some guidance as to what constitutes legal use for the
*user* of a computer information system, but not for the *provider* of the
archive. The archive user may be
safe in copying song lyrics from the lyric server if he or she is using
the lyrics for the purpose of commentary, for example, but the SYSOP who
provides the service may not have the same defense.
The four factors to be applied in deciding whether the use of a copyrighted
work in each case constitutes fair use are:
(1) the purpose and character of the use, including whether such use is of
commercial nature or is for nonprofit purposes; (2) the nature of the
copyrighted work; (3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and (4) the effect of
the use upon the potential market for or the value of the copyrighted
work.[371]
Applying these factors to the System Operator's liability for a lyric server,
the character of the use depends on whether access to the lyrics is
available for free, or as a profit making venture. The nature of the work is song lyrics, likely intended for
commercial sale. The amount used,
is the entire lyrics to each copyrighted song.[372] A use of the copyrighted
work which makes the original obsolete will obviously be more likely to be
found an unfair use than a use which brings more notoriety to the
original. And finally, placing
copyrighted lyrics on a publicly accessible computer information system
may have a profound impact on the potential market for the computerized
distribution of lyrics, depending upon the potential number of users of
the lyric server. The impact on a potential
market is potentially substantial. For
example, in a case where Playboy sued a BBS for distributing scanned
images from Playboy's magazine, the BBS was found to be taking in $3
million a year, which Playboy might be able to make off of its own
proposed electronic service.[373]
The other possible exception to the copyright holder's exclusive rights is section
108 which deals with copying by libraries and archives.[374] Unlike the
section 107 fair use provision, which in this case is more aimed at the
end user, section 108 is aim ed more at the information provider. Section 108 allows the archive itself to
reproduce or distribute no more than one copy or phonorecord of a work,
and as long as the archive is available to the public or to researchers
not affiliated with the library or archive, the archive does not get
direct or indirect profit from making or distributing the copy, and the
copy contains a notice of copyright.[375] It is reasonable to argue that
when the user requests a host computer to send a text file containing the
lyrics to a specific song, the archive is making this type of copy.
Section 108 allows the user to request copies of "no more than one
article or other contribution to a copyrighted collection or periodical
issue, or ... a small part of any other copyrighted work"[376] as
long as the copy becomes the property of the user, the archive has no
notice that the copy is to be used for anything other than study,
scholarship, or research, and as long as the archive displays prominently
"at the place where orders are accepted, and includes on its order
form, a warning of copyright in accordance with requirements that the
Register of Copyrights shall prescribe by regulation."[377] This requirement
of the posting of copyright notice would clearly apply to the lyric
server, just as it does to a library photocopier. Even if a passive computer system is held to
be more like a self-serve copier, and the SYSOP plays no part in the
copying by the user, if the archive is made available so that copying may
occur, the system operator is still subject to a copyright infringement
claim if the "reproducing equipment" does not bear a notice that
any copies made may be subject to copyright law.[378]
To summarize with the lyric server example, while a system operator may not
be liable for the use to which users put any copyrighted text they copy
off of the computer information system, the SYSOP still must be wary of
some obstacles. Copyright notice must
be provided, and, specifically, the notice that is prescribed by the
Register of Copyrights may require that each file have its own copyright
notice. Access to the archive must be fairly open. The archive must not directly or indirectly
profit from distributing the copyrighted works. Potentially the biggest hurdle is that care must be taken in
assembling the archive so that any materials that need to be converted
into a computer-readable form are converted without violating the author's
section 106 rights.[379]
B. Copyrighted Text
Copyrighted text can appear on computer information systems as either files
in a file server or database; or it can appear in an E-mail message or
post on a BBS; or it can be worked into an E-journal. The most obvious place to find copyrighted text is on
information systems such as LEXIS/NEXIS, WESTLAW and Dialog. Textual material, such as electronically stored
journals, gets a fairly straightforward copyright analysis; the hardest
job for a SYSOP may be discovering what text is copyrighted. Once infringing text is discovered, the
SYSOP must remove it, or risk being held as a conspirator in the copyright
infringement.[380]
C. Copyrighted Software
Bulletin board systems, network file servers, and main-frame computers that
use FTP (File Transfer Protocol) all offer the opportunity to copy software. The Software Publisher's Association (SPA)
offers the opportunity to be on the receiving end of a law suit if any of
that copied software is copyrighted.[381] The SPA is a group established
by a number of software publishers in order to cut down on software
piracy.[382] The SPA monitors bulletin board systems for distribution of
copyrighted software.[383] They warn SYSOPs that they will be monitored,
giving the SYSOP the opportunity to remove any software he or she does not
have the right to distribute.[384] The SPA also examines office computers
for unlicensed software.[385] Violators are asked to remove illegally held software,
purchase legally licensed copies, and pay a fine equal to the amount of
the purchase price of the software package.[386] Compliance with the SPA
requirements saves the offender the additional cost of a lawsuit.[387]
Noncompliance will result in a lawsuit filed by the SPA.[388]
As mentioned, not all copying of copyrighted software is illegal. Two exceptions are worth noting. One is for the making of backup copies. The Copyright Act allows a copy of
legally licensed software to be made if such a copy is needed to use the
software.[389] The Act also allows a copy to be made for archival
purposes, as long as the copy is destroyed "in the event that
continued possession of the computer program should cease to be rightful."[390]
The other exception is shareware.
Shareware is a popular method of software publishing which allows a
software programmer to distribute his or her work without all of the
marketing costs, often via a computer information system.[391] A user can
call up a BBS, download software, and try it out for a while. If the user likes the software, he or
she sends the programmer a shareware fee.
The difference between shareware and public domain software is that
public-domain software is freely distributed with the consent of the copyright
owner, while shareware is not distributed without restriction - use of
shareware beyond a reasonable trial period (often specified in the
documentation distributed with the software) without payment of the
shareware fee is a violation of copyright law.[392]
Crackdowns on software pirates are becoming more visible in the recent past,
both in the United States and internationally.
In May of 1994, the Italian police raided 119 SYSOPs who had
computers on the Fidonet network.[393] The SYSOPs were all under suspicion
of being software pirates. The
prosecutor in charge of the investigation said that "[s]oftware
piracy has become a national sport in Italy."[394]
In the U.S., David Lamacchia was indicted in April of 1994 on one felony count
of conspiring to commit wire fraud, based on his running two bulletin
board systems on a computer at M.I.T. for distributing pirated software.[395]
He was not charged with computer fraud or with software piracy. Instead he was charged under a statute used
to outlaw interstate fraud schemes via telephone wires.[396] This case
will test whether a SYSOP can be held liable for simply running a system
which is substantially devoted to illegal activity, namely software theft,
even though the SYSOP does not physically do any of the software copying
and does not derive a profit from the activity.
One recent cases has held a SYSOP can be held liable for copyright infringement
where he played a part in the distribution of copyrighted software via his
BBS.[397] At issue in *Sega*, was a members-only bulletin board system
used to distribute copyrighted video games.[398] Access was given either
in exchange for money, for supplying copyrighted games, or to the
defendant's customers who had bought devices used to read the software off
of the original game cartridges.[399] The court held that the defendant
knew and encouraged the use of his system for the copying of Sega's
copyrighted works.[400] The court held that unauthorized copies of the
videogames were made every time a game was uploaded to or downloaded from
the bulletin board,[401] and that once downloaded, other copies were then
made by the BBS users.[402] This additional copying was facilitated and
encouraged by the BBS administration, and "[o]ne who, with knowledge of
the infringing activity, induces, causes or materially contributes to the
in fringing conduct of another,' may be held liable as a contributory infringer."[403]
The court dismissed the defendant's fair use argument, by pointing out how
each of the fair use factors weighed against the defendant's use being a
fair one (and also pointing out that in order to employ the fair use
exception, one must possess a legal copy to start with).[404]
Importantly, the *Sega* court found that the distribution of copyrighted video
game software also amounted to both a violation of Sega's trademark rights
and to unfair competition under the federal trademark law.[405] The court
stated that every time a game was downloaded and subsequently played Sega's
trademark was used (as well as being used in the file descriptors of the
games stored on the BBS).[406] These downloaded games then enter the
stream of commerce, potentially causing confusion as to their origin.[407]
This deprives Sega of revenue, makes available (in the case of some of the
BBS files) confidential pre-release versions of some of the games, and
makes available games without proper packaging and instructions.[408] All
of which damages Sega's business and reputation in violation of the
Trademark Act.[409]
D. Copyrighted Pictures
As mentioned earlier,[410] pictures can be scanned into a computer and stored.
Pictures can also be drawn directly on a computer by means of graphics
software. A hybrid of the two is also
possible - pictures can be scanned, and once scanned, they can be further
altered with image processing software.[411] All of these forms are
covered by the Copyright Act.[412] Pictures created on the computer using
graphics or "paint box" software are in an original
copyrightable form.[413] Images that are scanned are in violation of the
original copyright holder's rights, unless permission to distribute the
scanned image has been obtained.[414] In fact, even the unauthorized
initial scan made of a copyrighted work is in violation of the copyright,
even without further distribution.[415] As one author said, "[t]he
law is quite straightforward; a copy is a copy, period. There is no wording that differentiates
among images produced by scanners, by photocopiers, or by crocheting them
into toilet seat covers."[416] Images which are scanned that are not
copyrighted, such as works on which the copyright has already
expired,[417] do not violate the Copyright Act, and, if sufficient
creativity is contributed in the scanning process, the images may be
eligible for copyright protection in their own right.[418] If a scan of a
copyrighted picture is then altered into a new image, the modified version
likely still falls under the original copyright.[419] It therefore enjoys
no protection on its own, and copyright release must be obtained from the
holder of the copyright in order to distribute the image (or to modify it
in the first place).[420]
Once again, one of the most difficult tasks for a system operator is determining
which images are copyrighted. The
Copyright Act provides an author with the right to have his or her name
associated with his or her own work, as well as the right to have h is or
her name disassociated with a mutilation of his or her work, (along with
the right to prevent such mutilations in the first place).[421] Based on
these rights, a SYSOP should be especially careful of images which appear
to be doctored. Many of the larger
computer information services settle the dilemma over establishing
copyright status by allowing the images under the assumption that no one
will mistake a scanned copy for an original, and that therefore no one is
being hurt.[422] This argument has no basis in the law of copyrights. The Copyright Act gives the author the right
to make copies of his or her work, and this includes bad copies.[423]
Also, the claim that no damage is being done is an unreasonably narrow
view. The copyright holder, and
not the public, is allowed exclusive control of the channels through which
his or her work reaches the market.[424]
Computerized images present a whole new market for an artist's work, and widespread,
unauthorized distribution can destroy the potential to disseminate the
work in the computer market - a right clearly given to the author of the
work. Some computer information
services also defend the possibility that some of their stored images are
provided on the basis of the "fair use"[425] exception.[426]
Relying on fair use is also not a very realistic position to take. One artist found some of his work scanned
and available on a BBS, only after he was told of its presence by a
friend. The artist's name and copyright notice had been cropped off. By the time the artist protested, 240
people had downloaded his images.[427] Such wide infringement into a
potentially new market for the artist is not likely to be found by a court
to constitute "fair" use. For
a SYSOP to be free from liability, the only thing he or she can do is to
make sure the image is either not protected by copyright, or that the use
of the image has been approved by the copyright holder.
The above analysis was put to the test in *Playboy Enterprises, Inc. v. Frena*.[428]
In this case, a BBS made available scanned images from Playboy
magazine. The System Operator claims
that he did not place any of these scanned images on his system.[429] The
court stated that copying can be inferred where the defendant had access
to the copyrighted work, where the alleged infringing work (the scanned
pictures) are substantially similar to the copyrighted work, and where one
of the statutory rights guaranteed to the copyright owner is impaired by
the SYSOP's actions.[430] In the case of scans made directly from a magazine
publishing over 3.4 million copies each month in the United States, the
first two elements of the test were easily met.[431] Even though Frena
stated that he did not put the copies on his system, the court held that
the statutory right of exclusive distribution was violated because
"Frena supplied a product containing unauthorized copies of a
copyrighted work."[432] Frena argued that any copies of Playboy's
pictures constituted fair use.
Employing the four fair use factors (see supra), the court held
that 1. Frena's use was clearly commercial and would likely produce
future harm to Playboy's market; 2. the copyrighted works are works
of fiction or fantasy-entertainment rather than factual works; 3. the pictures copied from each magazine
constituted an essential part of the copyrighted work (the magazine); and
4. the effect of copying the Plaintiff's work would be detrimental to the
potential market of the copyrighted work.[433]
As the *Sega* case held in the software context, the *Frena* court found that
the System Operator's use of the Plaintiff's trademarked works violated
Playboy's trademark rights [434], and constituted unfair competition.[435]
E. Copyrighted Sound
Following a similar analysis to that of copyrighted pictures, copyrighted sounds
can also be distributed by computer information system. This may take the form of sounds and
music converted into digital form, or it may take the form of MIDI
files.[436] The first lawsuit involving the copying and performing of
music files from a computer information system has recently been filed by
Franklin Music Corp. against CompuServe.[437] In this case, Franklin
claims that CompuServe allowed people to download MIDI files of music to
which it holds the rights, resulting in nearly 700 instances of copyright
infringement.[438] CompuServe claims they only provided access to
databases maintained by other companies, and that the other companies
should be responsible for any royalties.[439] Once this case is decided,
it will help clarify the issue of SYSOP liability for these files, as the
Plaintiff is specifically going after the distribution medium, as opposed
to the users who are actually downloading the files. Reportedly 140 other
music publishers are ready to join in and turn the suit into a class
action.[440]
IX. LIABILITY FOR COMPUTER
INFORMATION SYSTEM CONTENT
In order to determine who is liable for illegal activity of the kind so far
discussed, it is necessary to know how computer information systems are
viewed by the law. Computer information
systems may be seen by the law as analogous to one of the other
communications media, such as newspapers or common carriers, or they may
be seen as unique media. Specific legislation geared towards the computer
media has already been discussed. However, the law still leaves some
issues unre{olved. To resolve
suchissues, it is necessary to understand how other media are regulated,
and how computer information systems are similar to or different from
those media.
In all cases where the law would hold a party guilty for actions carried out
on a computer information system, this paper assumes that the SYSOP is liable
if he or she is the initial cause of that violation because the law, by its
terms, would clearly apply to the system operator. The primary question at issue here is the extent of a
SYSOP's liability for illegal conduct conducted by the users of the
computer information system.
A. Information System as Press
Many services on a computer information system are similar to those of print
publishers. Just as there are magazines
and newspapers, there are electronic periodicals. Just as there are street corner
pamphleteers, so are there E-mail activists. Just as First Amendment privileges apply to the print media,
so, one can argue, they should apply to the electronic press. Often the only practical difference between
print media and electronic media is paper. In fact, with electronic word processing and page layout
programs used by most print publishers, even printed periodicals at one
stage exist in the same form as electronic journals do when they are
published.
Even bulletin board operators sometimes see themselves as being analogous to
print publishers. Prodigy is an example
of a service that sees itself as a publisher. In fact, Prodigy refers to the people who screen messages posted
in their conferences as " editors" and not censors, and Prodigy claims
all of them have journalism backgrounds.[441] Both Prodigy and the local
newspaper take "articles" by "authors" and
"publish" them in their respective media for the consumption of
their "subscribers."
There are two types of publishers, primary and secondary. A primary publisher is presumed to play
a part in the creative process of creating the message which is then
disseminated.[442] Primary publishers are what one generally thinks of
when thinking of publishers. Prodigy claims to be such a publisher. While the Constitution provides some protection
to the editor's judgment as to what to print,[443] the protection is not complete. All of the restrictions on content discussed
earlier apply to publishers-advocacy of lawless action, child pornography,
obscenity, defamation, etc. The
SYSOP, as an electronic publisher, shares the same liability as a print
publisher would, for example, the *New York Times*[444] "actual
malice" standard for defamation, and a "knowing" standard
as required by the statutes forbidding the transportation of material
involved in child pornography.[445] The publisher is generally held to
know what is being published because he or she has editorial control over
the material that is published.
The question then becomes, is knowledge enough to result in liability? This
is determined by the actual crime with which the publisher is charged. Defamation generally requires the publisher
to have published the defamation with "knowing or reckless disregard
for the truth."[446] For a SYSOP, at least a "know or have
reason to know" standard would be necessary. A publisher generally knows he or she is
publishing, as well as what is being published. A SYSOP for a large computer information system with a lot
of users may not be able to keep track of all of the electronic journals
and messages on bulletin boards which are being run on his or her
system. While a SYSOP may have the same
editorial control that a print publisher has, the sheer size may
effectively prohibit actual editorial control over what is being published
over the computer system. For this reason, it would be unfair to hold a
SYSOP to a standard that requires less than a "knowing or reason to
know" standard.
An argument for this minimum requirement is supported by some cases, for example,
those which do not allow the publisher to be held liable for everything in
his or her periodical, such as the safety of products sold by their
advertisers.[447] As the court in *Yuhas v. Mudge* held,
"[t]o impose the [duty to check the truth of the claims of all of their advertisers]
upon publishers of nationally circulated magazines, newspapers and other
publications would not only be impractical and unrealistic, but would have
a staggering adverse effect on the commercial world and our economic system. For the law to permit such exposure to those
in the publishing business ... would open the doors to 'liability in an
indeterminate amount for an indeterminate time, to an indeterminate class.'"[448]
The converse of *Yuhas v. Mudge* also supports this proposition. In *Braun v. Soldier of Fortune
Magazine, Inc*.[449] a magazine was held liable for the results of running
a personal services advertisement for, what turned to be, an
assassin.[450] The court said the publisher knew of the likelihood that
criminal activity would result from an ad such as the one at issue, as
many newspaper and magazine articles had linked past *Soldier of Fortune*
personal services ads with criminal convictions.[451] The t est the court
used was "whether the burden on the defendant of adopting adequate
precautions is less than the probability of harm from the defendant's
unmodified conduct multiplied by the gravity of the injury that might
result from the defendant's unmodified conduct."[452] Employing this
test, the court said the proper balance should hold the publisher liable
when "the advertisement on its face would have alerted a reasonably prudent
publisher of the clearly identifiable unreasonable risk of harm to the
public that the advertisements posed."[453] The court, in accord with *Yuhas
v. Mudge*, said that the publisher's First Amendment concerns should be
protected by not requiring the publisher to actually investigate the
advertisements, and to only impose liability where a reasonably prudent
publisher would determine that an ad "on its face" posed "a clearly
identifiable unreasonable risk that the offer in the ad is one to commit a
serious violent crime."[454]
Operators of large systems are quick to support the view that the job of monitoring
every communication on their systems would be a prohibitively large
task.[455] If a "know or have reason to know" standard were applied to
computer information systems, of fending material reported to a SYSOP would
have to be dealt with under threat of liability. Also, any offending material discovered by the SYSOP would
need to be removed. A SYSOP also
could not avoid monitoring for improper content, knowing such content is
present, and then later claim ignorance.
However, holding a SYSOP responsible even for material that he or
she did not know was on the computer system would require a much larger
time commitment on the part of the SYSOP or the hiring of staff to
supervise the activities taking place on the computer system. Most small hobbyists running bulletin board systems
would not be able to support this additional commitment and would be
forced to cease operating out of fear of liability. Larger commercial services would have to either increase
costs to the users or decide that providing some services are no longer
worth the expense. The net result would
be a contracting of the number of outlets for free expression by means of
computer. By requiring at least a
"reason to know" standard, a balance can be struck-the service
can be provided, but a SYSOP could not hide his or her head in the sand to
avoid liability. Any problem brought to
the SYSOP's attention would have to be addressed; any problem the SYSOP discovered
would also need to be taken care of; and any problem likely to be present
could not be ignored by the SYSOP.
A secondary publisher is someone who is involved in the publication process,
such as a press operator, mail carrier, or radio and television engineer,
who usually does not know when a statement he or she transmits is
defamatory and is usually not in a position to prevent the harm-a secondary
publisher generally has no control over the content of the message, unlike
a primary publisher.[456] Unless the secondary publishers know or have reason
to know of the defamatory nature of the material they are transmitting,
they are free from liability for defamation.[457] Secondary publishers are
often treated synonymously with republishers which are discussed in the
next section.
B. Information System as
Republisher/Disseminator
A republisher, or disseminator, is defined as "someone who circulates, sells,
or otherwise deals in the physical embodiment of the published material."[458]
Some computer information systems are like republishers because all they
do is make available file s, just like a book seller or library makes
texts available. A librarian cannot be
expected to read every book in the library, just as the system operator of
a service may not be able to read every text file stored on the computer
system. File servers and data
bases can be large enough to store complete texts of books and
periodicals, as users of services such as WESTLAW and LEXIS/NEXIS are well
aware. Computer information systems can
also contain massive quantities of software, E-mail and electronic
journals, all stored ready for users to peruse like a library book. One of
the characteristics of secondary publishers; is that they are
"presumed, by definition, to be ignorant of the defamatory nature of
the matter published or to be unable to modify the defamatory message in
order to prevent the harm."[459]
The case that first established the immunity from liability for distributors,
breaking the common law tradition, was *Smith v. California*.[460] *Smith*
involved a bookseller who was convicted of violating a statute that made
it illegal to deal in obscene materials. The lower court held violators
of the statute strictly liable.
However, the court held that a law which holds a bookseller strictly
liable for the contents of the books he or she sells is
unconstitutional. Justice Brennan
stated his reasons as follows:
"For if the bookseller is criminally liable without knowledge of the contents
... he will tend to restrict the books he sells to the ones he has
inspected; and thus the State will have imposed a restriction upon the distribution
of constitutionally protected as well as obscene literature. It has been
well observed of a statute construed as dispensing with any requirement of
scienter that: 'Every bookseller would
be placed under an obligation to make himself aware of the contents of
every book in his shop . It would
be unreasonable to demand so near an approach to omniscience.' And the
bookseller's burden would become the public's burden ... . The bookseller's limitation in the
amount of reading material with which he could familiarize himself, and
his timidity in the face of absolute criminal liability, thus would tend
to restrict the public's access to forms of the printed word which the
State could not constitutionally suppress directly."[461]
While this case did not determine the degree of liability appropriate for a
bookseller, it did find that strict liability was too restrictive.[462] Later
courts, however, were willing to set a minimum standard of liability, and
that standard was set to a "know or have reason to know" standard.[463]
In addition, secondary publishers are not required to investigate the
contents of the messages they are delivering in order to avoid
liability.[464] So far, one court has applied the *Smith*[465] analysis to
computer information systems. *Cubby, Inc. v. CompuServe, Inc.*[466] is a
major decision supporting the analogy of the computer information system
as a republisher or disseminator of media.
CompuServe was one of the first public computer information
systems, founded in 1969 as a time-sharing system by H&R Block in
order to make use of some of its surplus computer facilities.[467]
CompuServe is now so large that it contracts out its editorial control of
various discussion groups to other companies, who maintain the forum in
accordance with CompuServe's general guidelines.[468] The groups
maintaining the forums are similar to print publishers-they take articles
submitted by users and then publish t hem, exerting editorial control over
the material where necessary.
CompuServe works, in essence, like an electronic book store. CompuServe sells to its users the
materials that the discussion groups publish.
In *Cubby*, one of the forums uploaded and made available an
on-line publication which defamed the plaintiff.[469] CompuServe had no
opportunity to review the periodical's contents before it was made
available to CompuServe's subscribers.[470] District Judge Leisure held
that, since CompuServe had no editorial control over the periodical, and
CompuServe did not know or have reason to know of the defamation contained
in the periodical, CompuServe was in essence "an electronic,
for-profit library."[471] Like a bookstore or library, CompuServe had
the option to carry or not to carry the periodical, but once the decision
was made CompuServe had no editorial control over the periodical. The court recognized the function of technology
and admitted that a computer database is the functional equivalent to a
news distributor or a public library, and therefore, so as not to impede
the flow of information, the same "know or have reason to know"
standard should apply.[472]
This holding has a number of profound implications for the law governing computer
information systems. First, it
establishes a clear determination of SYSOP liability: where the SYSOP does
not exert editorial control, and does not know or have reason to k now of
the dissemination of offensive material, he or she cannot be held
liable. This also implies that once a SYSOP
is made aware, or has reason to believe, that the computer system is being
used for illegal purposes, he or she is obligated to remedy the situation
under penalty of liability. It also
implies that a SYSOP can reduce potential liability by avoiding awareness
of message content on his or her system, limited by the "reason to
know" element-a SYSOP could not, however, escape liability by
sticking his or her head in the sand while knowing that the computer
information system was likely being used for illicit purposes. The scope of this holding is arguably broad,
especially since the court relied on an obscenity case to determine a
defamation issue. This means that
the same standard may now apply in both defamation and obscenity cases
involving computer systems whose operators do not exert editorial
control.[473] However, the decision also may be limited to systems so
large that the System Operator could not monitor the entire system's
content.
C. Information System as Common
Carrier
Network transmissions, E-mail, and some other features of a computer information
systems such as "chat" features all work in a way similar to a common
carrier. A common carrier is a service
that:
"is [of] a quasi-public character, which arises out of the undertaking 'to carry
for all people indifferently ... .'
This does not mean that the particular services offered must
practically be available to the entire public; a specialized carrier whose
service is of possible use to only a fraction of the population may
nonetheless be a common carrier if he [or she] holds himself [or herself]
out to serve indifferently all potential users."[474]
Importantly, a computer information system need not be classified according
to only one communications analogy - a system can act at times like a
publisher, and at times like a common carrier. A service is defined as a
common carrier when it acts as such based on the way it conducts its activities.[475]
Common carriers have generally been considered secondary publishers,[476] and
as such, have traditionally functioned under a reduced standard of liability.[477]
That standard is, once again, a "know or have reason to know"
standard of liability.[478] This standard has been widely adopted and
applied to the electronic communications media: from telegraph,[479] to
telephone,[480] and even to options such as telephone answering services.[481]
There are a number of reasons for applying a knowing standard to a common
carrier.
One reason is efficiency; service providers would not be able to do their job
transmitting as well if they also had to monitor content.[482] Another reason
is fairness; common carrier operators are not trained in what is libelous
and what is not, and, eve n if they were, they would have to make many
decisions at a quick rate-not a fair burden to place on the common carrier.[483]
And a third reason is privacy; by removing a need for common carriers to
monitor content of transmissions, the likelihood is incr eased that
transmissions will be held private. A
"know or have reason to know" standard makes a lot of sense for
computer networks, as all of the above interests would be served by
regulating a network as a common carrier.
Like a common carrier, computer networks carry data from one computer to another
with no regard for the information being transferred. Data that is transferred over a computer network often
consists of electronic mail passively being forwarded from an ac count on
a sending machine to an account on a receiving machine. Network traffic may also contain confidential
documents being passed from computer to computer. Even faxes may be sent by E-mail to distant fax machines to
then be sent out over the teleph one system as a local call.[484] Support
for a "knowing" standard is gained from the Electronic
Communications Privacy Act of 1986[485] which statutorily applies this
standard to the interception and use of intercepted E-mail and network
communications. For a SYSOP to be
liable for a user's illegal use of the system, the SYSOP would have to
know or guess that the illegal use was going on, and he or she would then
be under an obligation to prevent such a use.
It is worth mentioning at this point that not all communications over a common
carrier are unregulated. There are some
uses of electronic common carriers which are forbidden: an example is
obscenity by phone. A recent issue
with the growth of 900 teleph one numbers has been "dial-a-porn," where
people can call a number and hear sexually oriented messages. The use of a telephone to convey
obscene, indecent, or harassing messages is outlawed.[486] An exception is
made for indecent telephone messages, so long as provisions are used to
prevent minors from receiving these indecent messages.[487] Allowable
safeguards include: scrambling messages so they cannot be understood
without a descrambler, issuing a password by mail with age verification,
or requiring a credit card number before transmission of the message.[488]
While this statute applies only to communication over a telephone, it does
not distinguish between aural and data communications. Without making this distinction, the statute
may also cover connecting to a bulletin board system or other service
which provides indecent material.
If this statute were applied to computer information systems, as it
is applied to dial-a-porn, SYSOPs would have to employ one of the same
means of preventing access t o minors, and would have to make sure that
the service offered met the standards of constitutionally protected
indecency and that it did not cross the line into prohibited
obscenity.[489]
As discussed earlier, there is no national standard for obscenity. A SYSOP would have to be careful not to
break the obscenity laws in any state to which the computer information
system reached. With the ease of access
of a computer information system b y means of a long distance telephone
call, this would make computer information systems subject to the
obscenity laws of every state. It is
not hard to see how computer porn services should be subject to regulation
in the same form as dial-a-porn.
With a computer's ability to transmit images and sounds as well as
text, the justification for regulating computer distributed indecent or
obscene material is equal to or greater than the justification for
regulating standard audio dial-a-porn.
The distribution means is essentially the same-a wire connection
from the sender to the receiver. In the case of dial-a-porn, this wire is
a telephone line. In the case of material
transmitted by computer, the wire is either a telephone line or a network
connection. This similarity, in
essence, is what one court has recently found and used to convict two
system operators.[490]
Using two statutes similar to the one just mentioned covering transmitting obscenity
by telephone,[491] a court in Tennessee has recently found two SYSOPs guilty
of violating a statute outlawing the transportation of obscene material in
interstate or foreign commerce,[492] and one that outlaws transporting
obscene material via common carrier.[493] In the case,[494] a postal
inspector in Tennessee ordered sexually explicit materials from the SYSOPs
by way of their California bulletin board system.[495] Some of the
material was delivered by UPS (a common carrier), and some was delivered
by modem via the telephone system (also a common carrier).[496] A jury in
Memphis found the material to be pornographic, and the SYSOPs were
convicted on eleven counts of distributing pornography in violation of the
two statutes.[497] This case is potentially very important for system
operators. Although there is no national
obscenity standard, there is potential liability anywhere in the nation
(or world) for the SYSOP who does not either, 1. limit access to people
from locations where material stored on the computer information system
might be found obscene or 2. make sure that any material accessible would
not be found obscene from anywhere in which the information may b e
accessed. Simply put, this case made explicit the current state of
liability for obscene material-a SYSOP must either avoid distributing questionable material,
restrict access to people from more restrictive communities, or risk being
held accountable to the courts anywhere were there is a telephone or
network connection. As one court put it
(in a defamation context): Through
the use of computers, corporations can now transact business and
communicate with individuals in several states simultaneously. Unlike communication by mail or telephone,
messages sent through computers are available to the recipient and anyone
else who may be watching. Thus,
while modern technology has made nationwide commercial transactions
simpler and more feasible, even for small businesses, it must broaden
correspondingly the permissible scope of jurisdiction exercised by the
courts.[498]
D. Information System as
Traditional Mail
Since a major use for computer information systems is sending E-mail, it is
only sensible to compare such a use to the U.S. mail. The U.S. mail is a type of common carrier mandated expressly
by the Constitution.[499] U.S. mail, or "snail mail" is governed
by a statute which gives "regular" mail the same kind of privacy
that the Electronic Communications Privacy Act [500] gives E-mail. The postal service act punishes
"[w]hoever takes any letter ... out of any post office or any authorized depository
for mail matter, or from any mail carrier, or which has been in any post
office or authorized depository, or in the custody of any letter or mail
carrier, before it has bee n delivered to the person to whom it was
directed, with design to obstruct the correspondence, or to pry into the
business or secrets of another, or opens, secretes, embezzles, or destroys
the same ... "[501]
This statute has the same effect as the statutes specifically geared towards
electronic communications - it protects both mail in transmission,[502] as
well as mail being stored for the recipient.[503] Just as the Electronic
Communications Privacy Act protects stored communications in the form of
an E-mail recipient's "mail box,"[504] so does the postal
service protect a "snail mail" recipient's mail box.[505] U.S.
mail recipients have certain protections which E-mail recipients may also
create for themselves. U.S. mail recipients can ask the post office to
block mail from particular senders who are distributing what the receiver
sees as sexually offensive mail.[506] However, the reason for this
protection from unpleasant U.S. mail - based on notions of trespass [507]
- could easily apply to E-mail and network communications as well. In the
case of electronic mail, a computer program could be set up to automatically
reject incoming mail from certain senders.
A program could also be used to search through the text of an
incoming message and reject any message which contained certain terms
which would indicate that the message's contents were something which the
receiver did not want to see.
The same similarity analysis between E-mail and the U.S. Mail would work to
preserve an advertiser's right to send out E-mail for commercial purposes,
just as commercial U.S. mail enjoys some Constitutional protection.[508]
The one significant bar to the creation of a large junk E-mail industry is
access. The U.S. mail is a true common
carrier and as such they do not prohibit material based on advertising
content. E-mail in many contexts
may appear to be a common carrier, but if it is sent over a company's
computer system, for instance, there may be no way for an advertiser to
gain access to the company's E-mail system.
Similarly, large networks, such as the Internet, exist for
educational purposes. While network authorities do not censor E-mail, in
keeping the network in line with the definition of a common carrier, a
user could still report a company which was trying to advertise over the
network. Since the Internet is not
meant to be used for profit making purposes, an offending company reported
b y a user could be denied access privileges to the network.
E. Information System as Traditional
Public Forum
For centuries, when people had ideas to communicate, they did so in public fora,
such as parks, streets and sidewalks, and the local town square. These
areas are usually owned by the government.
In many ways, computer information systems, such as bullet in board
systems, are becoming the new public fora.[509] These are mostly operated
by individual citizens and corporations.
The First Amendment [510] (and the Fourteenth Amendment [511]) to the U.S. Constitution
prohibits the government from restricting content based speech, or even
expressive conduct because of the ideas expressed.[512] Governments can
proscribe speech based on some of its aspects, such as obscenity and
fighting words, but not on the basis of viewpoint.[513] The government may
also impose reasonable time, place and manner restrictions on speech, as
long as they are "justified" and the restrictions do not refer
to the content of the regulated speech.[514] The law governing speech
restrictions pertaining to state owned fora, or fora with sufficient
government entanglement to constitute state-action, presumably should
follow these First Amendment established principles. This has traditionally left government owned publicly
accessible locations as places in which to engage in free speech activity,
a right generally not enjoyed on private property. Of particular concern to the SYSOPs of privately
run computer information systems, are the limits imposed on control of
speech occurring on private property held open for public use. "Ownership
does not always mean absolute dominion.
The more an owner, for his advantage, opens up his property for use
by the public in general, the more do his rights become circumscribed by
the statutory and constitutional rights of those who use it."[ 515]
*Marsh* held that a woman could not be prevented from passing out leaflets
in a town shopping district which was freely open to the public.[516] What
made this situation unusual was that the town in which the woman wanted to
pass out her leaflets (Chickasaw, Alabama) was then owned by the Gulf
Shipping Corporation.[517] The court held that, because the privately
owned town provided all of the services and facilities that would normally
be provided by a publicly owned town-such as streets and sewers and the like-and
because the company-owned town was otherwise indistinguishable from any
other town, the company must also provide for the First Amendment right of
the people who wanted to use the "public" areas in their normal fashion.[518]
*Marsh* has be en interpreted expansively, and has been extended to
shopping centers.[519] In *Logan Valley*, the Supreme Court held that a
shopping mall is just like the business district of a company town- both
are open to the community and to those passing through, an d both serve
the same purpose.[520] The Court held that "the State may not delegate
the power, through the use of its trespass laws, wholly to exclude those
members of the public wishing to exercise their First Amendment rights on
the premises in a manner and for a purpose generally consonant with the
use to which this property is actually put."[521] *Marsh* and *Logan
Valley* suggest that, if a SYSOP makes his or her system wide open to
anyone for any purpose, anyone who wishes to express himself or hers elf
on the system may not be censored based on content, just as the government
could not restrict speech on content-based grounds. The more the SYSOP
limits use of the system, the more weight the SYSOP's ownership interest will
have over the user's First Amendment rights.
These cases were not all the Supreme Court had to say on the issue, however. In *Lloyd Corporation, Ltd. v. Tanner*[522],
another shopping center case, the Supreme Court held that, when there is
another outlet for speech, not on private property, to be heard, a
landowner does not need to provide its own private property for the
speaker.[523] The Court noted that *Marsh* held only that where
"private interests were substituting for and performing the customary
functions of government, First Amendment free doms could not be denied
where exercised in the customary manner... ."[524] This decision was
refined yet further in *Hudgens v. N.L.R.B.*[525], which held that *Marsh*
applies only to cases where privately owned property has taken on *all* of
the attrib utes of a town-such as residential buildings, streets, a system
of sewers, a sewage disposal plant, and a "business block."[526]
The Court held that the only way a speaker's First Amendment rights may
trump the property rights of the owner of, say, a shop ping center, is
when that shopping center is the functional equivalent to an entire town,
complete with the above listed services.[527] *Hudgens* reflects the
current state of private forum law. However, using a traditional private
forum model, with this "functional equivalent to the entire
town" standard in place, regardless of the extent to which a
communications system takes on the aspects of a "community," and
no matter how open the system is , until the Supreme Court fundamentally
changes its analysis, a user only has speech rights at the sufferance of
the System Operator.[528] If the computer information system was the
functional equivalent to a town, the user may have greater First Amendment
rights, but since computer information systems do not provide a system of
sewers and streets, the system operator retains control over how speech is
exercised on his or her system. This is
especially likely to be true where the System Operator requires a service
contract before access to the system is given. In this case, not only is the SYSOP not providing the
required sewage treatment plants and residential buildings, but the system
is also arguably not even open to the public.
F. Information System as Traditional
Bulletin Board
For centuries courts have been looking at liability for notices posted on bulletin
boards, bathroom walls, sides of buildings, and wherever else defamatory
material can be posted. In the past few
hundred years there has been little debate about proprietor liability for
the content of the "bulletin boards" under its control. The law of Great Britain, as parent to
the U.S. legal system, is illustrative.
The English Star Chamber in *Halliwood's Case* (1601) held that
"if one finds a libel, and would keep himself out of danger, if it be
composed against a private man, the finder may either burn it or deliver
it to a magistrate."[529] A fairly modern case (1937) which is cited
more frequently in this country is *Byrne v. Deane*. This case involved a poem, placed on the
wall of a private golf club, which was alleged to be defamatory of one of
the club's members.[530] Judge Hilbery held that the owners of the club
could be held liable as republishers of the defamation.[531] He based this
conclusion on the fact that the club owners had complete control of the
walls of the club;[532] they had seen the poem;[533] they could have
removed it;[534] and yet they did not.[535] In the words of Judge Greer,
"by allowing the defamatory statement ... to rest upon their wall and
not to remove it, with the knowledge that they must have had that by not
removing it it would be read by people to whom it would convey such
meaning as it had, were taking part in the publication of it."[536]
Courts in this country have made rulings on the posting of defamatory
material since at least 1883.
*Woodling v. Knickerbocker*[537] involved two placards left on a table
at a furniture dealer, one which read, "[t]his was taken from Dr. Woodling
as he would not pay for it; for sale at a bargain,"[538] and the other
which read, "Moral: Beware of dead-beats."[539] The court found for the
plaintiff, holding that regardless of who left the sign, anyone who allowed
or encouraged its placement, or who had authority to remove the sign after
it was placed, could be held liable for its publication.[540] Importantly,
the court also discussed the liability of one of the furniture store
owners who had not seen the defamation.[541] The court said that she could
not be held liable for her partner's nonfeasance in removing the sign
because there was no way to imply that she had given him authority to act
as a publisher of defamatory material, and this was beyond the scope of
their business.[542] This situation was contrasted with that of a business
involved in publishing or selling books or magazines.[543] In the case of
a publisher or seller, all of the partners are to be regarded as having
given authority to the other partners in deciding what to publish or sell,
and therefore all of the partners are to be held liable for
defamation.[544] This implies that a SYSOP who either does not monitor the
content of publicly accessible parts of the system under his or her control,
or a SYSOP or computer information system owner who delegates such
responsibility may still be held liable for defamatory material. *Fogg v. Boston & L. R. Co.*[545]
supports this theory. In this
case, a newspaper article defaming a ticket broker was posted in the defendant's
railway office.[546] The court held that a jury could properly have found
that the defendant, by way of its a gents, had knowledge of what was
posted in its office.[547] Also, by not having it removed in a timely
manner the company could be construed as having endorsed or ratified the
posting of the defamatory article, even if it had not been responsible for
its posting in the first place.[548]
*Hellar v. Bianco* is a case in which the proprietor of an establishment was
originally unaware of the defamation, and this case raised the issue as to
what constituted a reasonable time to remove defamatory posts once a proprietor
is made aware of their existence.[549] *Hellar* involved "libelous
matter indicating that appellant was an unchaste woman who indulged in
illicit amatory ventures"[550] which was scrawled on a men's room
wall of a tavern.[551] After the woman who was the subject of the note beg
an getting calls about the graffiti, the bartender was asked to have the
message removed.[552] Later that evening, when it was not removed, the
tavern owner was charged with republication of the libel.[553] The court
held that republication occurred when the bartender knew of the libel, and
had an opportunity to remove it, but did not do so.[554] In this set of
circumstances, a short period of time was sufficient to constitute
republication. A longer period of time
was found not to constitute republication in *Tacket v. General Motors
Corp*.[555] Tacket involved a defamatory sign posted in a GM factory.[556]
The court said that it was conceivable that it could take three days to
remove a sign because of the speed at which large bureaucracies work.[557]
The court did say that a second sign which had been posted for seven or
eight months was different and that a lengthy time of posting without
removal could be found by a jury to be republication by implied
ratification.[558]
A more recent case, *Scott v. Hull*,[559] appears, at first glance, to hold
in a manner contrary to these earlier cases.
In *Scott*, graffiti defaming the plaintiff was written on the side
of a building.[560] The plaintiff told the defendant about the graffiti
and asked that it be removed; the defendant refused.[561] The court held
that the building owners were not liable as republishers, and they were
under no duty to remove the graffiti.[562] The reasoning behind this
decision is that the viewing of the graffiti was not at the invitation of
the owners - as it was in the earlier cases.[563] In *Scott v. Hull*, the
graffiti was on the outside of the defendant's building.[564] It was
placed there by strangers and read by strangers.[565] The defamation was
not put there by an act of the defendant, and the court refused to find
liability for nonfeasance in this instance.[566] In *Hellar*,[567] the
defamation was "published" in the restroom on the defendant's
premises. The graffiti was placed there by
invitees of the defendant,[568] and was read by other invitees.[569] *Byrne
v. Deane*,[570] *Woodling v. Knickerbocker*,[571] and *Tacket v. General
Motors Corp*.[572] are similar to Hellar. The same was true in *Fogg v.
Boston & L. R. Co.*,[573] except there the defamation was even related
to the defendant's business.
Invitee analysis of defamation raises two issues involving computer information
systems. First, can someone post "outside" of a computer? An example of this might be someone who
defames someone by electronic mail sent from one user on a computer to
sever al others. If the injured party sued
the operator of a bulletin board which also runs on that computer, the
invitee analysis would indicate that the BBS operator could not be held
liable. This would make sense assuming
the BBS SYSOP has nothing to do with the electronic mail, and has no
control over the mail system. Although the offending message is on the
same computer as the bulletin board system, the mail does not appear on
the computer at the request of the BBS operator, unlike a post left by a
user invited to use the BBS. Messages sent by E-mail would go beyond the
scope of the BBS's invitation; therefore it would be unreasonable to hold
the bulletin board operator liable as responsibility would fall on the
operator of the mail system. If, however, the BBS operator had been given
the power to remove an offending message left anywhere on the computer
system, then an agency argument would say that the BBS SYSOP has the duty
to remove the offending message, or have someone else do it. This is similar to the case of graffiti
in a bar - a bartender could not easily claim immunity from a defamation
charge with the argument that removing graffiti was not the job of a the
bartender. If the bartender is not
hired to clean, the bartender could at least inform someone who was,
rather than leave the defamatory graffiti in place.
The second issue the invitee analysis raises is messages posted by someone who
is clearly not an invitee, for instance, a computer hacker who is essentially
a trespasser. In this situation, a
SYSOP should likely be required to remove any defamatory messages left by
a hacker under the same reasoning as the above cited cases. These cases all assume that the writing
was left by an invitee raising the presumption that the SYSOP is aware of
the message, so just because defamatory messages are left by a trespasser
does not mean the SYSOP or building owner should be any less liable if
they know of the message, have the opportunity to remove it, and yet do
not do so.
G. Information System as Broadcaster
With the rise of packet radio and radio WANS (wireless networks), the analogy
of a computer information system as broadcaster is also of growing importance. Authority to govern broadcasting is given to
the F.C.C. under the Communications Act of 1934.[574 ] The justification
for content regulation over the airwaves is "spectrum
scarcity." There are only so many
radio and television stations that can be on the air at once. "Without
government control, the medium would be of little use because of the
cacophony of competing voices, none of which could be clearly and predictably
heard."[575] In order to preserve the "market place of ideas" from
monopolization, the F.C.C. governs the use of the airwaves to preserve the
rights of viewers and listeners to be in formed.[576] An equal concern is
to protect children from inappropriate material; this is especially true
because of radio and television's special reach - they can even bring
indecent messages to those children too young to read.[577] Radio and
television are given special treatment, including the "channeling"
of constitutionally protected speech, because:
1. children have access to radios and in many cases are unsupervised by
parents; 2. radio receivers are in the home, a place where people's
privacy interest is entitled to extra deference; 3. unconsenting
adults may tune in a station without any warning that offensive language
is being or will be broadcast; and 4. there is a scarcity of spectrum
space, the use of which the government must therefore license in the
public interest.[578]
These facts allow the F.C.C. to promulgate rules to channel constitutionally
protected "indecent" speech to times of the day when children
are not as likely to be in the listening audience, but the F.C.C. may not
altogether prohibit indecent speech.[579] The four factors justifying
channeling of speech do not work very well when applied to wired computer
communication, such as computer information systems. No spectrum scarcity issue is involved when calling a
computer information system. Any
indecent material available via computer must be actively sought, as there
is a reduced risk of having the telephone ring and being spontaneously
assaulted by a computer spewing lewd data.[580] While computers, like
radio receivers, are in the home, it takes an active effort to obtain
indecent material via computer, so the risks of accidental exposure to
such material at issue in the broadcasting situation are just not
present. Finally, although children do
have unsupervised access to computers, they also may have some potential unsupervised
access to dial-a-porn and cable television.
Neither dial-a-porn nor cable are restricted as severely as broadcasting. As far as the four factors justifying
channeling of indecent speech applying to wireless data transmission
(packet radio, radio-WAN), the element of spectrum scarcity comes back
into play, giving the F.C.C. more of a reason to regulate computer
communications sent via the airwaves.
However, it is less likely that offensive material will
accidentally be received, since data being broadcast may be encrypted in
order to avoid its unauthorized interception by minors.
As well as channeling indecent speech, the other exceptions and guarantees of
free speech that apply to publishers also apply to broadcasters. For instance, a broadcaster does not
have the right to make defamatory statements with knowing or reckless
disregard for the truth.[581]
Cable television and cable audio signals are governed in a similar fashion to
regular broadcasting. These services
are seen as an "ancillary" services to broadcasting, and
therefore fall under the F.C.C.'s authority.[582] Like computer information
system s, but unlike broadcasting, cable television must be actively
brought into the home. Because of this, cable television traditionally
was not seen as being as "pervasive" as broadcasting, and
therefore the *Pacifica*[583] obscenity standard traditionally was not
extended to cable.[584] Recent cable television regulation, however,
acknowledges the growth of cable, which now reaches nearly sixty per cent
of all television households.[585] The Communications Act of 1934[586]
allowed a cable franchising authority to prohibit or restrict any service
that "in the judgment of the franchising authority is obscene, or is
in conflict with community standards in that it is lewd, lascivious,
filthy, or indecent or is otherwise unprotected by the Constitution of the
United States." The 1992
amendments to the Communications Act allow a cable operator to establish a
policy of excluding "programming that the cable operator reasonably
believes describes or depicts sexual or excretory activities or organs in
a patently offensive manner as measured by contemporary community standards."[587]
Thus, this standard taken from *Pacifica* now can be applied to cable
television. The new amendments require
the F.C.C. to create regulations to channel indecent material onto a
single cable channel which must then be blocked out unless requested in
writing by the subscriber, thus preventing access by minors.[588] Also,
analogous to the postal service statutes, the new cable regulations add a
provision for service users to have the ser vice provider block out
unsolicited sexually explicit materials on request.[589] Because wired
computer networks are more like cable, cable provides a better analogy
than broadcasting. In fact, as
mentioned earlier, teletext services are usually provided over cable
television.
The use of computers over the air waves is currently limited, but it promises
to increase in the future as technology advances. In any case, because computer data can be easily encrypted,
radio networks do not share the same need for content restrictions that
broadcasters require. While cable
television is a better analogy for traditional computer information systems
than is broadcasting, some of the other regulatory schemes still fit computer
information systems more tightly. This
is because computer information systems do not provide the same sorts of
services as cable television.
Rather, computers are used as the common carriers, bulletin boards,
and electronic presses that have already been discussed.
X. SUGGESTIONS FOR REGULATION
Now that the current regulatory environment of computer information systems
has been discussed, we are left wondering how well the regulations function
to control Cyberspace. Many people fear
that the current law does not effectively protect the rights o f voyagers
through Cyberspace. This has given rise to groups such as Computer
Professionals for Social Responsibility [590] and the Electronic Frontier
Foundation.[591] Groups such as these work to increase access to
technology for the general masses; to help legislatures understand what it
is they are regulating; to help aid in the passing of responsible,
workable, laws; and, where necessary, to help defend people whose rights
are being violated because of legislation which does not properly cover
computer information systems. Constitutional law professor Laurence Tribe
has even proposed a new amendment to the U. S. Constitution to protect
individuals from such violations of their rights. His proposed amendment reads:
"This Constitution's protections for the freedoms of speech, press, petition,
and assembly, and its protections against unreasonable searches and
seizures and the deprivation of life, liberty, or property without due process
of law, shall be construed as fully applicable without regard to the
technological method or medium through which information content is generated,
stored, altered, transmitted, or controlled."[592]
This amendment would serve to ensure that the speech and privacy right that
we currently enjoy in other media would be applied to electronic communications
as well. An amendment such as this
would hopefully avoid incidents like the raid on Steve Jackson Games. This amendment would serve to guarantee
that a computer bulletin board publishing the contemporary editor's
message would enjoy the same constitutional protection as the print
publisher's printing press. This is
particularly important as electronic publishing and electronic document
delivery become the norm, rather than the exception.[593]
Some authors focus more on how liability should be assessed and damages determined
in a new medium which offers the opportunity for violation of rights on an
instantaneous, global scale. For
example, one author believes that SYSOPs should be at least jointly liable
with the poster of the offending material.[594] He argues that the average
subscriber to a BBS does not have the resources to compensate adequately
for injuries caused by the potentially widespread reach of offending
material.[595] Also, it may not even be able to discover the reach of
offending material.[596] Copyrighted material could be spread from
computer to computer all over the world after just one file transfer.[597]
Others want to simplify the issue of system operator liability by holding the
SYSOP liable, in addition to the original poster, as a means of compensating
victims and deterring computer crime.[598] These people argue that SYSOPs
should be liable for content because they are easier to track down than
the users who posted the offending material, and also, by holding them
liable, SYSOPs are more likely to work at deterring others from the use of
their service for inappropriate purposes.
What is necessary to regulate computer information system content and system
operator liability is, first and foremost, an understanding of the technology. The law is a slow evolving, tradition-bound
beast. Computers are an upstart
technology pioneered by people who do things like create viruses to let
loose on their friends in order to hone their programming skills.[599] If
judges, juries, lawyers and legislators do not understand current
technology, the technology will have changed before the law catches up to
it. Many of our current laws will work
well if adapted to computer information systems. The Electronic Communications Privacy Act of 1986[600] works
well to regulate electronic mail because it is modeled after the statute
that governs the U.S. mail.[601] For
many people, these new communications fora are direct replacements for the
ones that they represent; therefore they should be regulated like the ones
they represent. This may entail
using several different regulatory schemes, but this should not be too
difficult to employ by people who understand the technology at issue -
simply regulate E-mail like U.S. mail, regulate networks like common
carriers, etc. It would not be
difficult to employ the correct legal analogy if the computer information
service at issue is looked at from the point of view of the user. Where novel legislation is needed is in
defining terms to be used in the developing law, and in filling in any
gaps. An example is trespassing. If someone hacks into a computer sys
tem, is he or she breaking and entering, or is the situation more
analogous to someone making a prank telephone call?
Tribe's proposed Constitutional amendment is similar to a modern day spelling
out of a natural law concept. The law
already exists, so it should be assumed that the Constitution covers all
technologies equally, including Cyberspace. In theory an amendment to the Constitution is not necessary;
however, a new amendment would leave no doubts and would make for
streamlined judicial decisions. As
computer information systems grow in popularity and scope, older media
will pass away. New laws will have to
be added, and old laws will have to evolve to conform with the specific demands
of the new media. A growing imperative
will also be international coordination of laws. "The point is that pretty soon you'll have no more idea
of what computer you are using than you have of where your electricity is
generated when you turn on the light."[602] For a dial-up accessible
BBS or a networked computer information system, access can be had from
anywhere there is a network connection or a telephone. Often, there is little or no easy way
to determine in which state or country the computer you are using is
located. In our interconnected society,
there may not even be a clear way to establish which sovereign's laws will apply. International cooperation will become
essential in resolving matters such as conflicts of laws if the legal
environment is to be truly clear and understandable to guide the behavior
of System Operators.
ENDNOTES
+ Copyright 1992-1994 by David Loundy All Rights Reserved
1. Mitchell Kapor & John P. Barlow, *Across the Electronic Frontier*, July
10, 1990, available over Internet, by anonymous FTP, at FTP.EFF.ORG
(Electronic Frontier Foundation).
* The author has a J.D. from the University of Iowa Law School and has a B.A.
in Telecommunications from Purdue University.
He has been active in the use and administration of computer
bulletin board systems for a number of years. The author would like to thank Christina King Loundy, Professor Nicholas
Johnson, Bellanca Fletcher, and Vallerie Salerno for their assistance
during the writing of this paper. This
paper is an updated and revised version of the paper "E-Law: Legal
Issues Affecting Computer Information Systems and System Operator
Liability" which appeared in Volume 3, Number 1, of the Albany Law
Journal of Science and Technology.
2. For example, in 1987 there
were approximately 6,000 bulletin board systems in the United States. In 1992 this amount was up to approximately
45,000 in the U.S. alone. See Jack
Rickard, *Home-Grown BB$*, WIRED, 1.4, Sept./Oct., 1993.
3. Each of the legal issues could
be discussed in papers at least this large, so only the most important
aspects will be covered. 4. To
run a computer bulletin board system, three things are needed beginning
with a computer. Bulletin board systems
can be run on virtually any size computer, from a small personal computer
costing a few hundred dollars, to a large mainframe computer affordable only to large corporations
and universities. In addition to the
computer, bulletin board software is also needed, which is obtainable
either commercially or free.
Finally, you need a way for people (usually called
"users" in computer jargon)
to access your bulletin board. This is accomplished via a modem or
by connection to a computer network.
5. A host computer is the
computer on which the bulletin board software runs and which stores the
messages left by users of the BBS.
6. Connection via a telephone
line may be accomplished by a modem, a device which converts computer data
to an audio signal which can then be transferred over a standard telephone
wire where it is received by another computer, also equipped with a
modem, which then converts the signal
back into a form comprehensible to the receiving computer. More and more
often computers may be found connected together in a network, such as computers
in a lab at a university, or office computers which share resources.
7. These "areas" may be
referred to by a variety of names, such as forums, special interest groups
(SIGs), conferences, rooms, newsgroups, etc.
8. Because of the way a BBS is
accessed, some easily have national or international reach. The international aspects of computer information
systems are largely beyond the scope of this paper, though with the
increasingly international reach of telecommunications it is crucial to
keep in mind that some computer systems may be used by people in other
countries as easily as they may be used by people in their home
countries. This international reach of
telecommunications has a potentially profound impact on United States law and System Operator liability. Bulletin
board systems originally started on a small scale, used by local computer
"hackers" to exchange information among themselves. The term
"hacker" is used in a number of different ways. It was originally used
to refer to someone who uses his or her
computer knowledge to break into other computer systems. See Eric
C. Jensen, *An Electronic Soapbox: Computer Bulletin Boards and the First
Amendment*, 39 FED. COM. L.J. 217 n.50 (1987). With the rise of national
and international computer networks, BBSs
are becoming more accessible to the general populace not just for
local users, but also for users all over the world. Some countries already
provide their citizens easy access to state-endorsed computer information
systems. The world leader has been Franc e, which has provided its
"Minitel" service since 1982. Wallys W. Conhaim, *Maturing
French Videotext becomes Key International Business Tool*,
9 INFO. TODAY 28 (1992). Minitel has grown to a system of about six million
terminals as of the end of 1991, and it includes access to over 16,000
information services. Carol Wilson, *The Myths and Magic of Minitel;
France's Minitel Videotex Service*, TELEPHONY, Dec. 2,
1991, at 52, 52. 9. Robert W.
Kastenmeier et al., *Communications Privacy: A Legislative Perspective*,
1989 WIS. L. REV. 715, 727.
10. Id.
11. Id.
12. Id.
13. Downloading entails transferring files from the computer on which the
BBS runs to the user's computer, and uploading is the reverse.
14. This operates as a way to get information more directly from other people
and even to meet new friends. In fact,
for some people a BBS is a major social outlet, allowing communication on
equal terms without first impressions being formed by physical appearances. Some people have even decided to get married to other users,
solely based on the messages they have exchanged. John Johnston, *Looking for Log-On
Love*, Gannett News Service, Mar. 25, 1992, available in LEXIS, Nexis
Library, Current file. Others are not
looking for information or casual conversation, but rather for "net
sex." Chat features can be
used much like telephone 900 number dial-a-porn services. Before cracking
down on them, the French Minitel system determined that sex oriented
messages constituted nearly 20 percent of the usage of its conferencing
system. John Markoff, *The Nation; The
Latest Technology Fuels the Oldest of Drives*, N.Y. TIMES, Mar. 22, 1992,
s. 4, at 5.
15. See generally Richard N. Neustadt, *Symposium: Legal Issues in Electronic
Publishing: 1. Background -- The Technology*, 36 FED. COM L.J. 149 (1984).
16. Id.
17. Id.
18. Id.
19. Id.
20. Id.
21. The final "t" is often left off because on many computers, filenames
are limited to eight characters. See *A
Glossary of Computer Technology Terms*, AM. BANKER, Oct. 25, 1989, at 10 [hereinafter
*Glossary*].
22. *Neustadt*, supra note 14, at 149.
23. Examples include WESTLAW, LEXIS, DIALOG, ERIC, and the local library's
card catalog.
24. Some of these services are quite large, and may contain the whole text
of books and periodicals, though some may contain only citations requiring
the user to look elsewhere to find the actual material desired. These
services differ significantly in their degree of complexity-for example,
in the types of search terms they will allow.
25. See MACUSER, June 1991, at 134.
26. See *Glossary*, supra note 21.
27. On large networks, such as the Internet, there are even databases called
"archies," which index file servers available all over the network.
They have small descriptions of available software, and give a listing of
what machines on the network have the file available. Alan Emtage, *What
Is 'Archie'*, EFFECTOR ONLINE, Oct. 18, 1991, available over Internet, by
anonymous FTP, at FTP.EFF.ORG
(Electronic Frontier Foundation)(Vol. 1, No. 12). 28. DAM C. ENGST,
INTERNET STARTER KIT 104 (1993)
29. Id. at 100-101.
30. Id. at 107.
31. Id.
32. CHRISTOPHER CONDON & YALE COMPUTER CENTER, BITNET USERHELP, 1988. Available
over Bitnet by sending the command "get bitnet userhelp" to NETSERV@BITNIC.
Id.
33. Some of the major examples of networks are Tymnet, Sprintnet, and specifically
for WESTLAW and LEXIS users there is Westnet and Meadnet.
34. An example of such interactive communication is the UNIX
"Talk" command which allows a person to talk instantaneously
with a remote user. Both users can
type simultaneously; one user's text appears on the top of his or her
computer screen while the other user's text appears on the bottom.
35. Some examples of these more full-service type networks include the Internet,
Bitnet, and ARPANET.
36. One such special use is the electronic forum, basically an automated
mailing list. A message is sent to a
"LISTSERVER" where it is then automatically distributed to other
people on its electronic mailing list.
A LISTSERVER is an automated computer m ailing program running out
of a computer account. Mail is sent to
the account; the LISTSERVER then redistributes the message. The people on the list then receive the
message as E-mail. They can respond by
sending a reply back to the LISTSERVER which then distributes that message
to its list, which includes the first message sender. This works, in effect, like a group of
people standing around discussing a topic, though some people are left
behind in the discussion if they do not log on to read their m ail
regularly. CONDON & YALE COMPUTER
CENTER, supra, note 27. A similar
type of electronic publication is the electronic digest; a message is sent
to the LISTSERVER, but, instead of being automatically sent out, it is
held. A "moderator" then
sorts through and edits the material for distribution to the people on the digest's
mailing list. Id. The most formal type of electronic publishing
is the Electronic magazine or journal, often called the E-journal. These are "real" magazines, just
like print magazines, but they are distributed electronically, rather than
in hard copy. Id.
37. Dawn Stover, *Viruses, Worms, Trojans, and Bombs; Computer "Infections"*,
POPULAR SCI., Sept. 1989, at 59.
38. Id. Some people consider them such a threat that Lloyd's of London even
offers an insurance policy that specifically covers viruses. Id.
39. U.S. CONST. amend. IV.
40. M.I.T. Professor Ithiel de Sola Pool, quoted in John Markoff, *Some
Computer Conversation Is Changing Human Contact*, N.Y. TIMES, May 13,
1990, s. 1, at 1.
41. See generally *'Fred The Computer'; Electronic Newspaper Services Seen
as 'Ad-Ons'*, COMM. DAILY, Apr. 10, 1990, at 4. 42. Electric Word*, WIRED, 2.07, July, 1994, at 30.
43. Second Computer Inquiry 61 F.C.C.2d 103 (1976) (Amendment of Section
64.702 of the Commission's Rules and Regulations, Notice of Inquiry and
Proposed Rulemaking). See also Second Computer Inquiry, 77 F.C.C.2d 384,
420-21 (1980) (Final Decision) (The talks directly discuss BBSs as
enhanced services.).
44. See Gregory G. Sarno, Annotation, *Libel and Slander: Defamation by
Photograph*, 52 A.L.R. 4th 488, 495 (1987).
45. RESTATEMENT (SECOND) OF TORTS s. 568 cmt. b (1989).
46. Id.
47. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. 472 U.S.
749 (1985). 48. RESTATEMENT (SECOND) OF TORTS s. 568(2).
49. Id. s. 568(1).
50. See Tidmore v. Mills, 32 So. 2d 769, 774 (Ala. Ct. App.), cert. denied,
32 So. 2d 782 (Ala. 1947).
51. RESTATEMENT (SECOND) OF TORTS s. 558 (1989).
52. Id. s. 559.
53. Id. s. 559 cmt. d.
54. Id.
55. Id. s. 569 cmt. e.
56. See, e.g., Ben-Oliel v. Press Publishing Co., 167 N.E. 432 (N.Y.
1929). This case involved a newspaper article on Palestinian art and custom
which was mistakenly credited to the plaintiff, an expert in the
field. The article contained a number
of inaccuracies that, while still impressive to the lay reader, would embarrass
the plaintiff among other experts.
57. Rindos v. Hardwick, Supreme Court of Western Australia, unreported,
March 31, 1994, 1994 /1993, SCLN #940164 .
58. Id.
59. Id.
60. Id.
61. Lance Rose, *When Modems Squawk, Wall Street Listens*, WIRED, 1.3, July/August,
1993, at 30.
62. Joshua Quittner, *Bulletin Board Libel? Company Says Prodigy User Posted Lies*, NEWSDAY, March 30,
1993 at 37.
63. New York Times v. Sullivan, 376 U.S. 254 (1964).
64. Id. at 256.
65. Id.
66. Id. at 270.
67. Id. at 279.
68. Id.
69. Id.
70. Id.
71. Id.
72. Id. at 279-80.
73. Id.
74. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), aff'g 351 F.2d
702 (5th Cir. 1965), reh'g denied, 389 U.S. 889 (1967). 75. Associated Press v. Walker, 388
U.S. 130 (1967), rev'g 393 S.W.2d 671 (Tex. Civ. App. 1965), reh'g denied,
389 U.S. 889 (1967).
76. See 388 U.S. at 164 (Warren, C.J., concurring).
77. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). See infra text
accompanying notes 75-87.
78. 418 U.S. at 343.
79. Id. at 323.
80. Id.
81. Id. at 326.
82. Id.
83. See Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). 84. Id. at 31-32.
85. 418 U.S. at 345.
86. Id. at 346.
87. Id. at 340.
88. Id.
89. Id. at 341.
90. Id. at 344.
91. Id. at 347.
92. 472 U.S. at 749 (involving a suit for defamation because of a false
credit report).
93. Id.; cf. Thompson v. San Antonio Retail Merchants Ass'n, 682 F.2d.
509 (5th Cir. 1982).
94. 472 U.S. at 761-62.
95. Id.
96. See, Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d. Cir.
1977). See also Time, Inc. v. Pape, 401 U.S. 279, reh'g denied,
401 U.S. 1015 (1971) (Newspaper's coverage of a government report which,
due to inaccuracies, defamed a public official, could not result in
liability unless the newspaper published the story with actual malice);
Beary v. West Publishing Co., 763 F.2d 66 (2d Cir.
1985) (holding a publisher that exactly reprinted a court opinion was absolutely
privileged for any defamatory comments in the court opinion).
97. 763 F.2d at 68.
98. 556 F.2d at 119.
99. See, e.g., Greenbelt Coop. Publishing Ass'n v. Bresler, 398 U.S. 6 (1970).
100. Cianci v. New York Times Publishing Co., 636 F.2d 54, 64 (1980).
101. Id.
102. Id. (referring to Greenbelt Coop. Letter Carriers v. Austin, 418 U.S.
264 (1974); Gertz v. Robert Welsh 418 U.S. 323 (1974); Buckley v. Littell,
539 F2d 882, cert. denied, 429 U.S. 1062 (1977); Rinaldi v. Holt, Rinehart
& Winston, Inc., 366 N.E.2d 12 99 (N.Y.), cert. denied,
434 U.S. 969 (1977)) (The court in Cianci held the privilege inapplicable
to a situation in which the plaintiff was clearly accused of committing a
criminal act.). 103. U.S. CONST. amend.
I.
104. *Legal Overview: The Electronic Frontier and the Bill of Rights*, available
over Internet, by anonymous FTP, at FTP.EFF.ORG (Electronic Frontier
Foundation).
105. Id.
106. Hereinafter F.C.C.
107. Matt Kramer, *Wireless Communication Net: Dream Come True; Wireless
Distributed Area Networks The Wide View*, P.C. WEEK, Mar. 5,
1990, at 51, 51.
108. Harvey Silverglate, *Legal Overview, The Electronic Frontier and the
Bill of Rights*,available over Internet, by anonymous FTP, at FTP.EFF.ORG
(Electronic Frontier Foundation).
109. Brandenburg v. Ohio, 395 U.S. 444 (1969).
110. Id. at 447.
111. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942).
112. Id.
113. Id. at 573.
114. Compare Id. with 395 U.S. at 446.
115. 18 U.S.C. s.871 et seq.
116. 18 U.S.C. s.875 (b).
117. *In Jail for E-Mail*, WIRED, 2.10, October, 1994, at 33. 118. Id.
119. 18 U.S.C. s.871.
120. New York v. Ferber, 458 U.S. 747 (1982).
121. Id. at 756-57 (citing Globe Newspaper Co. v. Superior Court, 457 U.S.
596, 607 (1982)).
122. Id. at 759 (citing Miller v. California, 413 U.S. 15, reh'g denied,
414 U.S. 881 (1973)).
123. Id. at 761.
124. Id. at 762.
125. Id. at 763.
126. Id. at 759.
127. See 18 U.S.C. s. 2252 (1978).
128. Id. s. 2252(a)(1).
129. U.S. Customs Closes Network Transmitting Pornography*, GLOBAL TELECOM
REPORT, March 22, 1993.
130. See Lois F. Lunin, *An Overview of Electronic Image Information*,
OPTICAL INFO. SYSS., May 1990.
131. Id.
132. Id.
133. See 18 U.S.C. s. 2255(a) (1986).
134. s. 2252(a)(4)(B).
135. Id. s. 2252(b).
136. s.2252(a)(4)(B).
137. See, Jim Doyle, *FBI Probing Child Porn On Computers: Fremont Man Complains
of Illicit Mail*, SAN FRANCISCO CHRON., Dec. 5, 1991 at A23. See also,
Robert F. Howe, *Va. Man Pleads Guilty in Child Sex Film Plot; Computer
Ads Led to Youth Volunteer's Arrest*, WASH. POST., Nov.
30, 1989, at C1.; Robert L. Jackson, *Child Molesters Use Electronic Networks;
Computer-Crime Sleuths Go Undercover*, L.A. TIMES, Oct. 1,
1989, at 20.
138. See United States v. Lambey, 949 F.2d 133 (1991), United States v.
DePew, 751 F. Supp. 1195 (E.D. Va. 1990).
139. Note, *Addressing the New Hazards of the High Technology Workplace*,
104 HARV. L. REV. 1898, 1913 (1991).
140. Id. at 1898.
141. See 949 F.2d 133; Jensen, supra note 8, at 222.
142. See 949 F.2d 133; Note, supra note 132, at 1898; Jensen, supra note
8, at 222.
143. See 949 F.2d 133; Note, supra note 132, at 1898; Jensen supra note
8, at 222.
144. Note, supra note 132, at 1899; Jensen, supra note 8, at 222. 145. See
United States v. Morris, 928 F.2d 505 (2d Cir.), cert. denied, 112 S. Ct.
72 (1991).
146. Jensen, supra note 8, at 222.
147. Id. Purists argue that the
term "cracking" be used where a destructive intent is present,
while "hacking" is used in the exploratory sense. For the sake of convenience only, the term "hacking"
will be used here to refer to both types of activities.
148. Dodd S. Griffith, *The Computer Fraud and Abuse Act of 1986: A Measured
Response to a Growing Problem*, 43 VAND. L. REV. 453, 455 (1990).
149. Id. at 460.
150. Id.
151. Id.
152. The Computer Fraud and Abuse Act of 1986, 18 U.S.C. s. 1030 (1988).
153. Griffith, supra note 141, at 474.
154. Id.
155. 18 U.S.C. s. 1030.
156. 18 U.S.C. s. 1029.
157. Id.
158. United States v. Fernandez, 1993 WL 88197 (S.D.N.Y, 1993). 159. United
States v. Morris, 928 F.2d 504 (2d Cir.), cert. denied, 112 S. Ct. 72
(1991).
160. Id.; Nicholas Martin, *Revenge of the Nerds; The Real Problem with
Computer Viruses Isn't Genius Programmers, It's Careless Ones*, PSYCHOL.
TODAY, Jan. 1989, at 21.
161. 928 F.2d. at 506.
162. Robin Nelson, *Viruses, Pests, and Politics: State of the Art*,
20 COMPUTER & COMM. DECISIONS, Dec. 1989, at 40, 40. 163. Id.
164. 928 F.2d. at 504.
165. Id. at 506.
166. 8 U.S.C. s. 1030(a)(5)(A).
167. 928 F.2d at 506-07.
168. 328 F2d. 504 (1991).
169. 112 S. Ct. at 72.
170. Thomas A. Guidoboni, *What's Wrong with the Computer Crime Statute?;
Defense and Prosecution Agree the 1986 Computer Fraud and Abuse Act is
Flawed but Differ on How to Fix It*, COMPUTERWORLD, Feb.
17, 1992, at 33, 33.
171. Id.
172. Mike Godwin, *Editorial: Amendments Would Undue Damage of Morris Decision*,
EFFECTOR ONLINE, Oct. 18, 1991, available over Internet, by anonymous FTP,
at FTP.EFF.ORG (Electronic Frontier Foundation).
173. David F. Geneson, *Recent Developments in the Investigation and Prosecution
of Computer Crime*, 301 PLI/Pat 45, at 2. The difficulty arises from the
fact that Morris had authorized access to some computers but not others,
presenting the question whet her Morris' actions amounted to unauthorized
access or whether his actions exceeded authorized access. 928 F.2d at 510.
174. Computer Abuse Amendments of 1994, Pub. L. No. 103-322, s.290001, (September
13, 1994).
175. Id, s.290001 (b).
176. Id.
177. Id.
178. Id.
179. Id.
180. Cindy Skrzycki, *Thieves Tap Phone Access Codes to Ring Up Illegal
Calls*, WASH. POST, Sept. 2, 1991, s. 1 at A1.
181. Id.
182. Id.
183. Id.
184. Fraud by Wire, Radio, or Television, 18 U.S.C. s. 1343 (1992).
185. Id.
186. See, e.g., Brandon v. United States, 382 F.2d 607 (10th Cir.
1967).
187. 18 U.S.C. s. 1346.
188. Id.
189. See, e.g., State v. Northwest Passage, Inc., 585 P.2d 794 (Wash.
1978) (en banc).
190. See, e.g., Daniel J. Kluth, *The Computer Virus Threat: A Survey of
Current Criminal Statutes*, 13 HAMLINE L. REV. 297 (1990).
191. Id.
192. David R. Johnson et al., *Computer Viruses: Legal and Policy Issues
Facing Colleges and Universities*. 54 EDUC. L. REP. (West) 761 (Sept. 14,
1989).
193. Id. at 762.
194. Id.
195. Eric Allman, *Worming My Way; November 1988 Internet Worm*, UNIX REV.,
January 1989, at 74.
196. Kluth, supra note 183, at 298.
197. Id. at note 14.
198. See Stover, supra note 32.
199. Id.
200. Kluth, supra note 183, at 298.
201. See Stover, supra note 32.
202. *Electronic Mail Software Provider Reports Virus Contamination*,
UPI, Feb. 3, 1992, available in LEXIS, Nexis Library, UPI File.
203. See Kluth, supra note 183.
204. Id.
205. 18 U.S.C. s. 1030 (1984).
206. Electronic Communications Privacy Act of 1986, 18 U.S.C. s.2510 (1984).
207. Johnson et al., supra note 178, at 764. See Anne W. Branscomb, *Rogue
Computer Programs and Computer Rogues: Tailoring the Punishment to Fit the
Crime*, 16 RUTGERS COMPUTER TECH. L.J. 1, 30-31, 61 (1990).
208. Branscomb, supra note 200, at 32.
209. Id.
210. Id. at 33.
211. Id.
212. Id. at 34.
213. Id.
214. Id. at 35.
215. Id.
216. Id.
217. Id. at 36.
218. Id. at 37.
219. See Johnson et al., supra, note 185, at 764, 766.
220. Id. at 766.
221. Id.
222. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS s.30(1),
at 164 (5th ed. 1984).
223. Id. s. 30(2), at 164.
224. Id. s. 31, at 169.
225. Id. s. 29, at 162.
226. Cheryl S. Massingale & A. Faye Borthick, *Risk Allocation for Computer
System Security Breaches: Potential Liability for Providers of Computer
Services*, 12 W. NEW ENG. L. REV. 167, 187 (1990).
227. Id. at 188-89.
228. Katz v. United States, 389 U.S. 347 (1967).
229. Id. at 348.
230. Id. at 351.
231. Id.
232. Id.
233. See, e.g., Oliver v. U.S. 466 U.S. 170 (1984).
234. See 389 U.S. at 347; See also California v. Ciraolo 476 U.S. 207, reh'g
denied, 478 U.S. 1014 (1986).
235. See Ruel Hernandez, *Computer Electronic Mail and Privacy*, available
over Internet, by anonymous FTP, at FTP.EFF.ORG (Electronic Frontier
Foundation).
236. 18 U.S.C. s. 2510 (1968).
237. See Hernandez, supra note 228.
238. United States v. Seidlitz, 589 F.2d 152 (4th Cir. 1978), cert. denied,
441 U.S. 922 (1979).
239. Id. at 157.
240. See Hernandez, supra note 228.
241. Robert W. Kastenmeier et al., supra note 9, at 720 (citations omitted).
242. Electronic Communications Privacy Act of 1986, 18 U.S.C. s.2510 (1968).
243. Id. s. 2510(12).
244. 18 U.S.C. s. 2511.
245. Id. s. 2511(1)(a).
246. Id. s. 2511(4).
247. Id. s. 2511(1)(c).
248. Id. s. 2511(2)(a)(i).
249. Id.
250. Id. s. 2510(14).
251. Id. s. 2511(3)(b)(ii).
252. Id. s. 2511(3)(b)(iii).
253. Id. s. 2511(3)(b)(iv).
254. Id. s. 2511(3)(b)(iv).
255. Id. s. 2511(3)(b)(i).
256. Id. s. 2511.
257. Encryption is in essence a coding of the data so it cannot be understood
by anyone without the equipment or knowledge necessary to decode the
transmission.
258. 18 U.S.C. s. 2518 (1968).
259. Id. s. 2511(2)(h)(i). A pen register is a device which records the
telephone numbers called *from* a specific telephone; a trap and trace
device records the phone originating calls *to* a specific telephone.
260. Id. s. 2701.
261 .Id. s. 2701(a).
262. Id.!s. 2701(b).
263. Id. s. 2702.
264. See id. s. 2703.
265. Id. s. 2703(a)
266. Steve Jackson Games, Inc. v. United States Secret Serv., 816 F. Supp.
432 (W.D. TEX. 1993).
267. Id. at 434.
268.!Id. at 443.
269. Id. at 442-43.
270. Id.; 18 U.S.C. s. 2510.
271. 816 F. Supp. at 442-43.
272. 816 F. Supp. at 441-42; 18 U.S.C. s. 2701.
273. See the file, *sjg_appeal.brief*, available over Internet, by anonymous
FTP, at FTP.EFF.ORG (Electronic Frontier Foundation). 274. Id.
275. See 18 U.S.C. s. 2511 (1968).
276. Armstrong v. Executive Office of the President, 810 F. Supp 335 (D.C.
Cir. 1993).
277. Id. at 348.
278. Federal Records Act, 44 U.S.C. s.s. 2101-2118, 2901-2910,
3101-3107, 3301-3324.
279. Id. s. 3301.
280. 810 F. Supp. at 342, 343.
281. Id. at 341.
282. 44 U.S.C. s. 2201.
283. Section 2201(2) of the Act defines a Presidential record as: documentary materials ... created or
received by the President, his immediate staff, or a unit or individual in
the Executive Office of the President whose function is to advise and
assist the President, in the course of conducting activities which
relate to or have an affect upon
the carrying out of the constitutional, statutory, or other official or
ceremonial duties of the President.
284. Armstrong v. Bush, 924 F.2d. 282, 290 (D.C. Cir. 1991). 285. Privacy Protection Act of 1980, 42
U.S.C. s. 2000aa (1980). 286. Id. s. 2000aa(a).
287. Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
288. Id. at 549.
289. 42 U.S.C. s.2000aa(a)(1).
290. Id. s.2000aa (a)(2).
291. For example., journalists reporting from a war zone can use a laptop
computer and a satellite telephone to transmit an article to an E-mail
service, where the article can then be sent to the publisher. See,
*Electric Word*, WIRED, 1.6, Dec., 1993
a t 27. 292. Mitchell Kaypor, *Civil Liberties in Cyberspace; Computers,
Networks and Public Policy*, SCI. AM., Sept. 1991, 158, 158. 293. Id.
294. Steve Jackson Games, Inc. v. United States Secret Serv., 816 F. Supp.
432, 439 (W.D. Tex. 1993).
295. Id. at 439-40.
296. Id. at 438.
297. Id.
298. *Legal Case Summary*, May 10, 1990, available over Internet, by anonymous
FTP, at FTP.EFF.ORG (Electronic Frontier Foundation). 299. Id.
300. 816 F. Supp. at 436.
301. United States v. Riggs, 743 F. Supp. 556 (N.D. Ill. 1990). 302. *Special
Issue: Search Affidavit for Steve Jackson Games*, COMPUTER UNDERGROUND
DIG., Nov. 13, 1990, available over Internet, by anonymous FTP, at
FTP.EFF.ORG (Electronic Frontier Foundation). 303. 816 F. Supp. at 436.
304. 42 U.S.C. s. 2000aa.
305. 816 F. Supp. at 437.
306. Id.
307. Id.
308. Id. at 439-40.
309. Id. at 441.
310. Id.
311. See, e.g., F.C.C. v. Pacifica Foundation, 438 U.S. 726, reh'g denied,
439 U.S. 883 (1978).
312. The term "obscene material" is used synonymously with "pornographic
material." See Miller v. California, 413 U.S. 15, n.2, reh'g denied,
414 U.S. 881 (1973).
313. Roth v. United States, 354 U.S. 476 (1957).
314. Id. at 487.
315. 413 U.S. at 15.
316. Id.
317. Id. at 24.
318. Pope v. Illinois, 481 U.S. 497, 500 (1987) (citing Smith v. United
States, 431 U.S. 291 (1977)).
319. Hamling v. United States, 418 U.S. 87 (1974).
320. See, e.g., 413 U.S. 15; Kois v. Wisconsin, 408 U.S. 2219 (1972).
321. Stanley v. Georgia, 394 U.S. 557 (1969).
322. Id. at 565.
323. Id.
324. Id.
325. Jensen, supra note 8.
326. Note that an exception would be made for child pornography, See discussion
supra part III.D.
327. Jensen, supra note 8.
328. U.S. v. Orito, 413 U.S. 139 (1973).
329. Id. at 143.
330. See Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y.
1991).
331. 394 U.S. at 565.
332. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68-69, reh'g denied,
414 U.S. 881 (1973).
333. 438 U.S. at 726.
334. Id. at 732.
335. Id. at 726-27.
336. U.S. CONST. art. I, s. 8, cl. 8.
337. Copyright Act of 1947, 17 U.S.C. s. 101 (1947).
338. Id. s. 102(a).
339. Id. s. 101.
340. Id. s. 102(a) Other categories include musical works, dramatic works,
pantomimes and choreographic works, and architectural works. Id.
341. See s. 101 (Historical and Statutory Notes).
342. Id.
343. Id.
344. Id.
345. Data which is not stored on a disk is kept in a computer's
"RAM" (Random Access Memory). RAM is a volatile information
store where the computer keeps the information it is actively processing.
When the computer is turned off, all of this data is lost ; thus, anything stored
in RAM is missing the required element of "fixation."
346. Id. s. 102(b).
347. See Charles Von Simon, *Page Turns in Copyright Law with Adobe Typeface
Ruling*, COMPUTERWORLD, Feb. 5, 1990, at 120.
348. Id.
349. See *Adobe Successfully Registers Copyright Claim for Font Program*,
COMPUTER LAWYER, Feb. 1990, at 26.
350. Von Simon, supra note 340.
351. Copyright Act of 1947, 17 U.S.C. s. 106 (1947).
352. Id.
353. See Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc.,
256 F. Supp. 399 (S.D.N.Y. 1966).
354. De Acosta v. Brown, 146 F.2d 408 (2d Cir. 1944).
355. Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp.
177 (S.D.N.Y. 1976).
356. 17 U.S.C. s. 103.
357. Id.
358. Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 111 S.Ct.
1282 (1991).
359. 17 U.S.C. s. 106.
360. 17 U.S.C. s. 101.
361. Some of these issues will need to be addressed in the near future thanks
to a portion of the High Performance Computing Act of 1991 (15 U.S.C.
s.5512) which mandates the creation of a national research and education
computing network (NREN). This section
also requires that the network "have accounting mechanisms which
allow users or groups of users to be charged for their usage of
copyrighted materials available over the Network and, where appropriate
and technically feasible, for their usage of the Network." 15 U.S.C.
s. 5512 (c) (6).
362. 17 U.S.C. s.s. 106(1), (3).
363. 17 U.S.C. s. 101.
364. Id.
365. 17 U.S.C. s. 106.
366. Unfortunately, one court has made exactly this mistake. See Playboy Enterprises, Inc. v. Frena,
839 F. Supp. 1552, 1556 (M.D. Fla.
1993).
367. 17 U.S.C. s. 107.
368. 17 U.S.C. s. 108.
369. Bruce J. McGiverin, Note, *Digital Sound Sampling, Copyright and Publicity:
Protecting Against the Electronic Appropriation of Sounds*,
87 COLUM. L. REV. 1723, 1736 (1987) (citations omitted). 370. 17 U.S.C.
s. 107.
371. Id.
372. While the use of the entire song's lyrics weighs heavily against the
use being a fair use,, the Supreme Court has held that use of the entire
work can be a fair use. See Sony Corp. of Am. v. Universal City Studios,
Inc., 464 U.S. 417 (1984).
373. Electric Word*, WIRED, 1.1, Premiere Issue, 1993, at 24. 374. 17 U.S.C. s. 108.
375. 17 U.S.C. s. 108(a).
376. 17 U.S.C. s. 108(d).
377. Id.
378. 17 U.S.C. s. 108(f)(1).
379. See 17 U.S.C. s. 106.
380. See Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc.,
256 F. Supp. 523 (S.D.N.Y. 1966).
381. Janet Mason, *Crackdown on Software Pirates; Industry Watchdogs Renew
Efforts to Curb Illegal Copying*, COMPUTERWORLD, Feb. 5, 1990, at 107.
382. Id.
383. Id.
384. Id.
385. Id.
386. Id.
387. Id.
388. Id.
389. 17 U.S.C. s. 117(1).
390. Id. s. 117(2).
391. Steve Givens, *Sharing Shareware: Non-Traditional Marketing Relies
on Honor System*, ST. LOUIS BUS. J., July 1, 1991, s. 2 at 1B.
392. Id.
393. David Pescovitz, *Hacker Crackdown, Italian Style*, WIRED, 2.08, August
1994 at 29.
394. Id.
395. See *lamacchia_case.docs* file, available over Internet, by anonymous
FTP, at FTP.EFF.ORG (Electronic Frontier Foundation). 396. Id.
397. Sega Enterprises v. Maphia, _F. Supp. _ (N.D. Cal. 1994) (March
28, 1994) 1994 U.S. Dist. LEXIS 5266, 1994 WL 378641 (C93-4262) [hereinafter
*Sega*].
398. Id. at 7.
399. Id. at 6. One of the
defendants sold "copiers" which are devices used to read the
software off of a game cartridge for saving to a floppy disk, or for
playing software from a disk on one of Sega's game consoles.
400. Id. at 7.
401. Id. at 17.
402. Id.
403. Id. at 18 (citing Casella v. Morris, 820 F.2d 362, 365 (11th Cir.
1987)).
404. Id. at 20-23.
405. 15 U.S.C. s. 1051 et seq.
406. *Sega*, supra note 390 at 9.
407. Id. at 24.
408. Id. at 26.
409. Id.
410. See supra text accompanying notes 121-23.
411. Legal aspects of the doctoring of photographs are beyond the scope
of this paper - for a good discussion of such issues, see Benjamin Seecof,
*Scanning into the Future of Copyrightable Images: Computer-Based Image
Processing Poses a Present Threat*, 5
HIGH TECH. L.J. 371 (1990).
412. 17 U.S.C. s. 102(a)(5).
413. Id. s. 102(a).
414. Id. s. 101 (defining a copy); Id. s. 106 (Section 106 gives the copyright
holder exclusive rights to make copies and derivative works of his or her
creation.).
415. Id. s. 101.
416. Ezra Shapiro, *More on Copyright; Digitizing of Copyrighted Images*,
MACWEEK, Oct. 11, 1988, at 27.
417. 17 U.S.C. s. 302 (applying to works created after Jan. 1, 1978, provides
that a copyright shall expire 50 years after the death of the author of
the work).
418. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1984)
(holding that photographs are copyrightable by virtue of the creativity
that goes into arranging the subject elements and photographic variables
into a distinct picture).
419. 17 U.S.C. s. 106; See Gracen v. Bradford Exch., 698 F. 2d. 300, (7th
Cir. 1983); cf. Copyright Registration for Colorized Versions of Black and
White Motion Pictures, 37 C.F.R. 202 (1987). 420. Id. s.
106A.
421. Id.
422. Ezra Shapiro, *Copywrongs on Consumer Info Networks? Posting of Scanned
Images on Electronic Services Infringes Copyrights*, MACWEEK, Aug. 30,
1988, at 20.
423. 17 U.S.C. s. 106.
424. Franklin Mint Corp. v. National Wildlife Art Exch., 575 F.2d 62 (3d
Cir. 1978); See also Zaccini v. Scripps-Howard Broadcasting Co.,
433 U.S. 562 (1977) (involved TV station covering the plaintiff's entire
act (human cannonball), depriving the plaint iff of a chance to sell
tickets to the television viewers, since they had already seen his act).
425. 17 U.S.C. s. 107.
426. Shapiro, supra note 415.
427. Liz Horton, *Electronic Ethics of Photography; Use of Images in Desktop
Publishing*, FOLIO: THE MAG. FOR MAG. MGMT., Jan. 1990, at 71.
428. 839 F. Supp. 1552 (M.D. Fla. 1993) [hereinafter, *Frena*]. 429. Id.
at 1554.
430. Id. at 1556.
431. Id.
432. Id.
433. Id. at 1558.
434. Id. at 1561.
435. Id. at 1562. This part of
the court's holding is questionable, as the Judge infers activity to the Defendant
which the defendant denies engaging in.
Since the case involves a motion for summary judgement requested by
Playboy, the Judge is required to draw all
inferences in the light most favorable
to the nonmovant. The judge
obviously did not do this if he inferred activity which the Defendant
denies engaging in. Id. at 1555, 1562. 436. MIDI stands for Musical
Instrument Digital Interface, and is used for recording computer data for
playing back electronic instruments.
See, BRUCE BARTLET, INTRODUCTION TO PROFESSIONAL RECORDING
TECHNIQUES 276-277 (1987).
437. Edward R. Silverman, *Legal Beat*, WIRED, 2.07, July, 1994 at 32.
438. Id.
439. Id.
440. Id.
441. Mitchell Kapor, *A Day in the Life of Prodigy*, EFFECTOR ONLINE, available
over Internet, by anonymous FTP, at FTP.EFF.ORG (Electronic Frontier
Foundation) (Vol. 1, No. 5).
442. Robert Charles, *Computer Bulletin Boards and Defamation: Who Should
be Liable? Under What Standard?*, 2 J.L. & TECH 121, 131 (1987).
443. U.S. CONST. amend. I.
444. New York Times v. United States, 403 U.S. 713 (1971). 445. 18 U.S.C.
s. 2252.
446. 403 U.S. at 713.
447. See, e.g., Yuhas v. Mudge, 322 A.2d 824, 825 (N.J. Super. Ct. App.
Div. 1974).
448. Id.
449. 968 F. 2d. 1110 (11th Cir. 1992) cert denied 122 L.Ed 173, 113 S.Ct.
1028 (1993).
450. The advertisement read:
"GUN FOR HIRE: 37 year old professional mercenary desires
jobs. Vietnam Veteran. Discrete [sic] and very private. Body guard, courier, and other special
skills. All jobs considered. ..."
Id., at 1112.
451. Id.
452. Id at 1115 citing United States v. Carroll Towing Co., 159 F. 2d.
169 (2nd Cir. 1947).
453. Id. at 1115.
454. Id. at 1118. To point out
the difficulty with this test, one of the three Justices dissented because
although he agreed with the court's test, he found the particular ad
ambiguous. Id. at 1122. 455. *Information
Policy, Computer Communications Networks Face Identity Crisis over Their
Legal Status*, DAILY REP. FOR EXECUTIVES, Feb. 26, 1991, at A-6.
456. Joseph P. Thornton, et al., *Symposium: Legal Issues in Electronic
Publishing: 5. Libel*, 36 FED. COM. L.J. 178, 179 (1984).
457. See RESTATEMENT (SECOND) OF TORTS s. 581 (1989).
458. Jensen, supra note 8, at 3.
459. Charles, supra note 435 , at 131.
460. Smith v. California, 361 U.S. 147 (1959), reh'g denied, 361 U.S.
950 (1960).
461. Id. at 153 (citation omitted).
462. Id. at 155.
463. Seton v. American News Co., 133 F. Supp. 591 (N.D. Fla. 1955); cf.
Manual Enters., Inc. v. Day, 370 U.S. 478 (1962).
464. 133 F. Supp. at 593.
465. 361 U.S. at 950.
466. 776 F. Supp. at 135.
467. Clifford Carlsen, *Wide Area Bulletin Boards Emerge as Method of Corporate
Communications*, SAN FRANCISCO BUS. TIMES, Mar. 15, 1991, at
15.
468. 776 F. Supp. at 137.
469. Id. at 138.
470. Id.
471. Id. at 140.
472. Id.
473. *The Compuserve Case: A Step Forward in First Amendment Protection
for Online Services*, EFFECTOR ONLINE, Jan. 7, 1992, available over
Internet, by anonymous FTP, at FTP.EFF.ORG (Electronic Frontier
Foundation) (Vol. 2, No. 3).
474. National Ass'n of Regulatory Util. Commrs v. F.C.C., 533 F.2d
601, 608 (1976).
475. Id. at 608.
476. E.g., Von Meysenbug v. Western Union Tel. Co., 54 F. Supp 100 (S.D.
Fla. 1944); Mason v. Western Union Tel. Co., 52 Cal. App. 3d
429, (1975).
477. RESTATEMENT (SECOND) OF TORTS s. 612 (1989).
478. Id. s. 581.
479. 54 F. Supp at 100; Western Union Tel. Co. v. Lesesne, 182 F.2d
135 (4th Cir. 1950); O'Brien v. Western Union Tel. Co., 113 F.2d 539 (1st
Cir. 1940).
480. Anderson v. New York Tel. Co., 320 N.E.2d 647 (N.Y. 1974). 481. People
v. Lauria, 251 Cal. App. 2d 471 (1967).
482. Charles, supra note 435, at 143.
483. Id. at 123.
484. See, *Electric Word*, WIRED, 1.4, Sept./Oct., 1993, at 26-31, discussing
a project using the Internet's global decentralized structure as an
"Experiment in Remote Printing."
485. Electronic Communications Privacy Act of 1986, 18 U.S.C. s.2510.
486. 47 U.S.C. s. 223.
487. 47 C.F.R. s. 64.201
488. Id.
489. See Sable Communications v. F.C.C., 492 U.S. 115 (1989). 490. See coverage, for e.g., in David
Loundy, *Whose Standards? Whose Community?*,
CHICAGO DAILY LAW BULLETIN, AUGUST 1, 1994, at 5.
491. Supra, note 479.
492. 18 U.S.C. s.1465.
493. 18 U.S.C. s.1462.
494. See supra, note 483.
495. Id.
496. Id.
497. Id.
498. California Software, Inc. v. Reliability Research, Inc., 631 F. Supp.
1356 (C.D. Cal. 1986).
499. U.S. CONST. art. I, s. 8.
500. 18 U.S.C. s. 2510.
501. Mail, 18 U.S.C. s. 1702.
502. Compare s. 1702 with E-mail, 18 U.S.C. s. 2510.
503. Compare s. 1702 with s. 2511.
504. s. 2511.
505. s. 1702; See also United States Postal Serv. v. Council of Greenburgh
Civic Ass'n, 453 U.S. 114 (1981).
506. Rowan v. United States Postal Dep't, 397 U.S. 728 (1970). 507. Id. at 737.
508. Bolger v. Young Drug Prods. Corp., 463 U.S. 60 (1983). 509. See, e.g., Edward J. Naughton,
Note, *Is Cyberspace a Public Forum? Computer Bulletin Boards, Free
Speech, and State Action*, 81 GEO. L.J.
409 (1992).
510. U.S. CONST. amend. I.
511. U.S. CONST. amend. XIV
512. See, e.g., R. A. V. v. City of St. Paul Minn., 112 S. Ct. 2538 (1992).
513. Id., at 2544.
514. Id. (citing Ward v. Rock Against Racism, 491 U.S. 781 (1989)).
515. Marsh v. State of Alabama, 326 U.S. 501, 66 S. Ct. 276, 278 (1946)
[hereinafter *Marsh*].
516. Id.
517. Id.
518. Id.
519. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc.,
391 U.S. 308, 88 S.Ct. 1601 (1968) [hereinafter Logan Valley].
520. Id. at 1608.
521. Id. at 1609.
522. 7 U.S. 551, 33 L.Ed.2d. 131, 92 S.Ct. 2219 (1972).
523. Id.
524. Id. at 2225.
525. 424 U.S. 507, 96 S.Ct. 1029 (1976) [hereinafter *Hudgens*]. 526. Id.
at 1035.
527. Id. at 1036-1037.
528. It is worth pointing out that individual states can provide greater
speech protection than is provided for by U.S. Constitution. For example, California has a constitutional
provision which has been held to permit individuals to exercise free
speech and petition rights on the
property of privately owned shopping centers to which the public is
invited. See Pruneyard Shopping Center
v. Robins,
447 U.S. 75, 100 S.Ct. 2035 (1980).
529. As quoted in Byrne v. Deane,
1 K.B. 818, 824 (Eng. C.A. 1937). 530. Id. at 818. The case finally held
against the plaintiff on the grounds that the message was not defamatory.
Id.
531. Id. at 820.
532. Id. at 821.
533. Id. at 838.
534. Id.
535. Id.
536. Id.
537. Woodling v. Knickerbocker, 17 N.W. 387 (Minn. 1883). 538. Id.
539. Id.
540. Id.
541. Id.
542. Id.
543. Id.
544. Id.
545. Fogg v. Boston & L. R. Co., 20 N.E. 109 (Mass. 1889). 546. Id.
547. Id. at 110.
548. Id.
549. Hellar v. Bianco, 244 P.2d 757 (Cal. Ct. App. 1952). 550. Id. at
758.
551. Id.
552. Id. at 759.
553. Id.
554. Id.
555. Tacket v. General Motors Corp., 836 F.2d 1042 (7th Cir. 1987).
556. Id. at 1043-34.
557. Id. at 1047.
558. Id.
559. Scott v. Hull, 259 N.E. 160 (Ohio Ct. App. 1970).
560. Id. at 160.
561. Id. at 161.
562. Id. at 162.
563. Id.
564. Id. at 160.
565. Id.
566. Id. at 162.
567. 244 P.2d at 757.
568. Id.
569. Id.
570. 1 K.B. at 818.
571. 17 N.W. at 387.
572. 836 F.2d at 1042.
573. 20 N.E. at 109.
574. Communications Act of 1934, 47 U.S.C. s. 301.
575. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 376 (1969).
576. Id. at 390.
577. F.C.C. v. Pacifica Foundation, Inc., 438 U.S. 726, reh'g denied,
439 U.S. 883 (1978).
578. Id. at 731.
579. Action for Children's Television v. F.C.C., 932 F.2d. 1504 (D.C. Cir),
reh'g denied, 1991 U.S. App. LEXIS 25527, reh'g denied 1991 U.S. App.
LEXIS 25425 (1991) (en banc).
580. It is possible for telemarketers to use computers for phone solicitation;
it is similarly possible for an individual to prompt a computer to make
lewd or obscene phone calls.
581. Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wyo. 1976).
582. Mail, 47 U.S.C. s. 151; See also United States v. Midwest Video Corp.,
406 U.S. 649 (1972).
583. 438 U.S. at 726.
584. Community Television, Inc. v. Roy City, 555 F. Supp. 1164 (D. Utah
1982); Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985). 585. Cable Television Consumer Protection and Competition
Act of 1992, Pub. L. No. 102-385, s. 2(3), 106 Stat. 1460.
586. 47 U.S.C. s. 532(h).
587. Cable Television Consumer Protection Act of 1992, s.10(a)(2).
588. Id. s. 10(b).
589. Id. s. 15.
590. Katy Ring, *Computer Professionals for Social Responsibility Seeks
to Change Lay Preconceptions*, COMPUGRAM INT'L, Oct. 9, 1990.
591. John P. Barlow, *Crime and Puzzlement: In Advance of the Law on the
Electronic Frontier; Cyberspace*, WHOLE EARTH REV., Sept. 22,
1990, at 44.
592. *Laurence Tribe Proposed Constitutional Amendment*, available over
Internet, by anonymous FTP, at FTP.EFF.ORG (Electronic Frontier Foundation).
593. See generally John Browning, *Libraries Without Walls for Books Without
Pages*, WIRED, 1.1, Premiere Issue, 1993, at 65, discussing the
Bibliotheque de France's digital scanning of "100,000 great works of
the 20th century as chosen by a committee of
notable French citizens."
594. See generally Charles, supra note 435.
595. Id.
596. Id.
597. Id.
598. Johnathan Gilbert, *Computer Bulletin Board Operator Liability for
User Misuse*, 54 FORDHAM L. REV. 439, 441 (1985).
599. See Branscomb, supra note 200, at 7-11.
600. 18 U.S.C. s. 2511.
601. 18 U.S.C. s. 1702.
602. Danny Hillis, *Kay + Hillis*, WIRED, 2.01, Jan., 1994, at 103.