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This paper first appeared in the Albany Law Journal of Science and
Technology, Volume 3, Number 1. Care has been taken so that each
printed page has been indicated in this file (by strings of 70 "="
signs, which can be search/replaced with page breaks in most word
processors), this way the paper may be cited without the need to track
down an official printed copy. (The only thing lost should be the
itallics and the small caps.)
This paper may be freely distributed under the following conditions:
1. It must be distributed without alteration.
2. It may not be distributed for a direct profit.
3. This paper is being distributed as postcard-ware. If you find it
informative or useful, please drop a note to the author and tell him
how you got a hold of this paper.
David Loundy
465 Pleasant Ave.
Highland Park, IL 60035
This paper is not intended to constitute legal advice pertaining to any
particular factual situation.. If you have a problem, or are seeking
advice as to how to avoid one, see an attorney to discuss your specific
situation.
======================================================================
E-LAW: LEGAL ISSUES AFFECTING COMPUTER INFORMATION SYSTEMS AND
SYSTEM OPERATOR LIABILITY[FN+]
David J. Loundy[FN*]
TABLE OF CONTENTS
I. Introduction.................................... 81
II. Computer Information Systems Defined............ 82
A. Bulletin Board Systems....................... 82
B. Teletext and Videotex or Videotext........... 85
C. Information Distribution Systems............. 85
D. Networks..................................... 86
E. Issues Involved.............................. 87
F. Legal Analogies.............................. 88
III. Current Regulatory Environment.................. 89
A. Defamation................................... 90
B. Speech Advocating Lawless Action............. 98
C. Fighting Words............................... 100
D. Child Pornography............................ 101
E. Computer Crime............................... 104
F. Computer Fraud............................... 105
G. Unauthorized Use of Communications Services.. 107
H. Viruses...................................... 108
I. Protection From Hackers...................... 111
IV. Privacy......................................... 112
A. Pre-Electronic Communication Privacy Act of
1986. .................................... 112
B. Electronic Communications Privacy Act of 1986 113
--------------------------
[FN+] Copyright 1992-1993 by David Loundy All Rights Reserved
[FN*] 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, and served on the Law School Computer Committee.
The author would like to thank Christina King and Professor Nicholas
Johnson for their assistance during the writing of this paper.
======================================================================
80 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
C. Access to Stored Communications............. 116
D. An Apparent Exception for Federal Records... 117
E. Privacy Protection Act of 1980.............. 118
V. Obscene and Indecent Material.................. 121
A. Obscenity................................... 121
B. Indecent Speech............................. 123
VI. Copyright Issues............................... 124
A. Basics of Copyrights........................ 124
B. Copyrighted Text............................ 130
C. Copyrighted Software........................ 130
D. Copyrighted Pictures........................ 132
VII. Liability for Computer Information System Content 134
A. Information System as Press................. 135
B. Information System as Republisher/
Disseminator............................... 138
C. Information System as Common Carrier........ 140
D. Information System as Traditional Mail...... 143
E. Information System as Traditional Bulletin
Board...................................... 145
F. Information System as Broadcaster........... 149
VIII. Suggestions for Regulation..................... 152
======================================================================
81 E-Law Copyright 1992-1993 by David Loundy
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.[FN1]
"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. 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
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
--------------------------
[FN1] 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).
======================================================================
82 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
computer information systems will
be surveyed in brief.[FN2] 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 <20> both defining what is
improper and who can be held responsible <20> 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.[FN3] 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,[FN4] usually via a telephone line.[FN5] Once connected
to the host computer, a user can read the notes (also referred to
as
--------------------------
[FN2] Each of the legal issues could be discussed in papers at least
this large, so only the most important aspects will be covered.
[FN3] 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.
[FN4] A host computer is the computer on which the bulletin board
software runs and which stores the messages left by users of the BBS.
[FN5] 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.
======================================================================
83 E-Law Copyright 1992-1993 by David Loundy
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.[FN6]
Bulletin board systems can be classified in a number of ways.
One way to classify them is by the number of users BBSs 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 upwards of fifty 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.[FN7]
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 cater 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
--------------------------
[FN6] These "areas" may be referred to by a variety of names, such as
forums, special interest groups (SIGs), conferences, rooms,
newsgroups, etc.
[FN7] Because of the way a BBS is accessed, some easily have national
or international reach. The international aspects of computer
information systems are beyond the scope of this paper, though
with the increasingly international reach of telecommunications it
is important 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.
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 France,
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.
======================================================================
84 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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.[FN8]
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 <20> privacy. Unlike the U.S. mail, electronic mail
is almost always examinable by someone other than the sender and
the receiver.[FN9] 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.[FN10] Third, E-mail is interactive in nature and can involve
almost instantaneous communication, more like a telephone than
regular mail,[FN11] 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.[FN12] 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.[FN13]
--------------------------
[FN8] Robert W. Kastenmeier et al., Communications Privacy: A
Legislative Perspective, 1989 WIS. L. REV. 715, 727.
[FN9] Id.
[FN10] Id.
[FN11] Id.
[FN12] Downloading entails transferring files from the computer on
which the BBS runs to the user's computer, and uploading is the reverse.
[FN13] 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, Currnt 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, <20> 4, at 5.
======================================================================
85 E-Law Copyright 1992-1993 by David Loundy
B. Teletext and Videotex or Videotext
Another kind of computer information system is Teletext,[FN14] a
one-way distribution system, generally run over a cable television
system.[FN15] It sends out a continually repeating set of information
screens.[FN16] By using a decoder, a user can select which screen he
or she wants.[FN17] The decoder then "grabs" the requested screen and
displays it as it cycles by.[FN18] 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[FN19] (often called
videotext).[FN20] Videotex is a two-way service which usually uses a
personal computer as a terminal.[FN21] 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. One common type of information distribution system
is the database.[FN22] These services allow the user to enter a
variety of "search terms" to look through the information the
service has collected.[FN23]
Another type of information distribution system is the "file
--------------------------
[FN14] See generally Richard N. Neustadt, Symposium: Legal Issues in
Electronic Publishing: 1. Background -- The Technology, 36 FED. COM
L.J. 149 (1984).
[FN15] Id.
[FN16] Id.
[FN17] Id.
[FN18] Id.
[FN19] Id.
[FN20] 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].
[FN21] Neustadt, supra note 14, at 149.
[FN22] Examples include WESTLAW, LEXIS, DIALOG, ERIC, and the local
library's card catalog.
[FN23] 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<74>for example, in the types of search terms
they will allow.
======================================================================
86 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
server."[FN24] 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.[FN25] 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 for
storing and retrieving files.[FN26]
D. Networks
A network is a series of computers, connected often by
special types of telephone wires.[FN27] 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.[FN28] Many networks allow a much broader range of uses such
as sending E-mail and more interactive forms of communication
between machines,[FN29] transferring computer files, and also
providing the same remote access and use that the simpler networks
allow.[FN30]
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.[FN31]
--------------------------
[FN24] See MACUSER, June 1991, at 134.
[FN25] See Glossary, supra note 20.
[FN26] 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).
[FN27] CHRISTOPHER CONDON & YALE COMPUTER CENTER, BITNET USERHELP, 1988.
Available over Bitnet by sending the command "get bitnet userhelp"
to NETSERV@BITNIC. Id.
[FN28] Some of the major examples of networks are Tymnet, Sprintnet,
and specifically for WESTLAW and LEXIS users there is Westnet and
Meadnet.
[FN29] 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.
[FN30] Some examples of these more full-service type networks include
the Internet, Bitnet, and ARPANET.
[FN31] 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
mailing 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 mail
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.
======================================================================
87 E-Law Copyright 1992-1993 by David Loundy
E. 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.[FN32]
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.[FN33]
Privacy is another issue for users and system operators of
--------------------------
[FN32] Dawn Stover, Viruses, Worms, Trojans, and Bombs; Computer
"Infections", POPULAR SCI., Sept. 1989, at 59.
[FN33] Id. Some people consider them such a threat that Lloyd's of
London even offers an insurance policy that specifically covers
viruses. Id.
======================================================================
88 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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."[FN34] Yet, how does
this Amendment apply to Cyberspace. Cyberspace is a vague,
ethereal place with no readily identifiable boundaries, where 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.
F. 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 publisher.
Some theorists already refer to computer networks as "the printing
presses of the 21st century."[FN35] Many publishers use BBSs to
supplement their printed editions either by providing additional
stories or by providing computer information services on a BBS.[FN36]
However, other services are more like common carriers than
publishers. Networks just pass data from one computer to another
<EFBFBD>they do not gather and 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
--------------------------
[FN34] U.S. CONST. amend. IV.
[FN35] 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, <20> 1, at 1.
[FN36] See generally 'Fred The Computer'; Electronic Newspaper
Services Seen as 'Ad-Ons', COMM. DAILY, Apr. 10, 1990, at 4.
======================================================================
89 E-Law Copyright 1992-1993 by David Loundy
allow many entities to deliver their messages
simultaneously to many other entities. 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 labeling 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, E-mail, and a chat feature,
and that makes available electronic periodicals in the BBS's file
system, one analogy is insufficient. To regulate computer
information systems properly, lawyers, judges, and juries need to
understand computer information systems and how they work.
III. 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.[FN37] 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."
--------------------------
[FN37] 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.).
======================================================================
90 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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 message 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.[FN38] But
what is defamation, and what risks and obligations does it present
to a system operator?
Defamation occurs in two forms <20> 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
--------------------------
[FN38] See Gregory G. Sarno, Annotation, Libel and Slander: Defamation
by Photograph, 52 A.L.R. 4th 488, 495 (1987).
======================================================================
91 E-Law Copyright 1992-1993 by David Loundy
form and "no respectable authority has ever attempted to
justify the distinction on principle."[FN39] 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.[FN40] 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."[FN41]
Slander is publication in a transitory form <20> speech, for
example, is slander.[FN42] 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."[FN43] 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.[FN44] 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 pre-meditated 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 when they are
spoken.
In its barest form, libel is the publication of a false,
defamatory
--------------------------
[FN39] RESTATEMENT (SECOND) OF TORTS <20> 568 cmt. b (1989).
[FN40] Id.
[FN41] See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
472 U.S. 749 (1985).
[FN42] RESTATEMENT (SECOND) OF TORTS <20> 568(2).
[FN43] Id. <20> 568(1).
[FN44] See Tidmore v. Mills, 32 So. 2d 769, 774 (Ala. Ct. App.), cert.
denied, 32 So. 2d 782 (Ala. 1947).
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92 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
and unprivileged statement to a third person.[FN45]
"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]."[FN46] 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.[FN47] 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.[FN48] "Community"
does not refer to the entire community, but rather to a
"substantial and respectable minority" of the community.[FN49] Even
more specifically, the community is not necessarily seen as the
community at large, but rather as the "relevant" community.[FN50]
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
--------------------------
[FN45] RESTATEMENT (SECOND) OF TORTS <20> 558 (1989).
[FN46] Id. <20> 559.
[FN47] Id. <20> 559 cmt. d.
[FN48] Id.
[FN49] Id. <20> 569 cmt. e.
[FN50] 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.
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93 E-Law Copyright 1992-1993 by David Loundy
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.
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.[FN51] This case involved an advertisement taken out in a
newspaper expressing grievances with the treatment of blacks in
Alabama.[FN52] An elected city commissioner sued, claiming that the
statements made in the advertisement defamed him and that the
advertisement contained some inaccuracies.[FN53] Justice Brennan
argued that the case should be considered "against the background
--------------------------
[FN51] New York Times v. Sullivan, 376 U.S. 254 (1964).
[FN52] Id. at 256.
[FN53] Id.
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94 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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."[FN54]
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.[FN55] Because of this, the court said
libel laws should be relaxed where the speech pertains to the
affairs of elected officials.[FN56] 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.[FN57] 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.[FN58] 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.[FN59] A balance between open debate and freedom
from defamation was struck by establishing an "actual malice"
standard of liability for the publisher.[FN60] "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.[FN61]
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 not
allowed to remain when the SYSOP or user knows of its falsity or
has reckless
--------------------------
[FN54] Id. at 270.
[FN55] Id. at 279.
[FN56] Id.
[FN57] Id.
[FN58] Id.
[FN59] Id.
[FN60] Id. at 279-80.
[FN61] Id.
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95 E-Law Copyright 1992-1993 by David Loundy
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,[FN62] and its companion case,
Associated Press v. Walker.[FN63] 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.[FN64] 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 ...
."[FN65] Because these people have influence in our governance, just
as public officials do, the same "actual malice" standard should
apply to such public figures.[FN66] 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.[FN67] In Gertz, a magazine
published an article accusing a lawyer of being a "Communist-
fronter" and a "Marxist."[FN68] The article accused the plaintiff of
plotting
--------------------------
[FN62] 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).
[FN63] 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).
[FN64] See 388 U.S. at 164 (Warren, C.J., concurring).
[FN65] Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). See
infra text accompanying notes 67-79.
[FN66] 418 U.S. at 343.
[FN67] Id. at 323.
[FN68] Id.
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96 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
against the police.[FN69] The plaintiff was a lawyer who
played a role in the trial of a police officer who was charged
with shooting a boy.[FN70] 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.[FN71] 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.[FN72] The Gertz court held that this expansion went too
far,[FN73] and the court overruled Rosenbloom.[FN74] 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.[FN75] Strict liability would serve to chill the
publisher's speech by leading to self censorship where facts are
in doubt.[FN76] This First Amendment interest was balanced against
the individual's interest in being compensated for defamatory
falsehood.[FN77] 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.[FN78] 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."[FN79] 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.,[FN80] Dun
& Bradstreet was held liable for a credit report made from
inaccurate records contained in a database.[FN81] The court argued
that statements on
--------------------------
[FN69] Id. at 326.
[FN70] Id.
[FN71] See Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).
[FN72] Id. at 31-32.
[FN73] 418 U.S. at 345.
[FN74] Id. at 346.
[FN75] Id. at 340.
[FN76] Id.
[FN77] Id. at 341.
[FN78] Id. at 344.
[FN79] Id. at 347.
[FN80] 472 U.S. at 749 (involving a suit for defamation because of a
false credit report).
[FN81] Id.; cf. Thompson v. San Antonio Retail Merchants Ass'n, 682
F.2d. 509 (5th Cir. 1982).
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97 E-Law Copyright 1992-1993 by David Loundy
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.[FN82]
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,[FN83] 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,"[FN84] (which is not an issue
in our hypothetical). This isolates a reporter from defamatory
statements that he or she is reporting.[FN85] 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 the press
to inform people of these statements without the risk of
liability.[FN86] 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.[FN87] Protection of
opinion is, of necessity, not absolute otherwise "a writer could
escape liability ... simply by using, explicitly or implicitly,
the words `I think.'"[FN88] Sam Slammer cannot defend himself by
saying, "Well, I think Dora beats her daughter." The court in
Cianci v. New Times
--------------------------
[FN82] 472 U.S. at 761-62.
[FN83] Id.
[FN84] See, Edwards v. National Audubon Soc'y, 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).
[FN85]763 F.2d at 68.
[FN86] 556 F.2d at 119.
[FN87] See, e.g., Greenbelt Coop. Publishing Ass'n v. Bresler, 398
U.S. 6 (1970).
[FN88] Cianci v. New York Times Publishing Co., 636 F.2d 54, 64 (1980)
======================================================================
98 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
Publishing Co.[FN89] 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 reasona-
bly be understood as imputing specific criminal or other wrongful
acts.[FN90]
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 it
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."[FN91] The
First Amendment is one of the most important guarantees in the
Bill of Rights, because speech is essential for securing other
rights.[FN92]
--------------------------
[FN89] Id.
[FN90] 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 1299
(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.).
[FN91] U.S. CONST. amend. I.
[FN92] Legal Overview: The Electronic Frontier and the Bill of Rights,
available over Internet, by anonymous FTP, at FTP.EFF.ORG
(Electronic Frontier Foundation).
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99 E-Law Copyright 1992-1993 by David Loundy
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.[FN93] An example of such
a restriction is the regulation of radio and television by the
Federal Communications Commission.[FN94] 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,[FN95] 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.[FN96] 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.[FN97] 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."[FN98] Sam threatened to kill Dora,
and he urged others to kill her as well. An important distinction
is made between mere advocacy and incitement to imminent lawless
action <20>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
--------------------------
[FN93] Id.
[FN94] Hereinafter F.C.C.
[FN95] Matt Kramer, Wireless Communication Net: Dream Come True;
Wireless Distributed Area Networks The Wide View, P.C. WEEK, Mar.
5, 1990, at 51, 51.
[FN96] 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).
[FN97] Brandenburg v. Ohio, 395 U.S. 444 (1969).
[FN98] Id. at 447.
======================================================================
100 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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.[FN99] 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."[FN100] 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.[FN101] 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.[FN102] 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
--------------------------
[FN99] Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942).
[FN100] Id.
[FN101] Id. at 573.
[FN102] Compare id. with 395 U.S. at 446.
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101 E-Law Copyright 1992-1993 by David Loundy
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.
D. Child Pornography
Other areas of content are regulated on computer information
systems. One is child pornography. New York v. Ferber[FN103] 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.[FN104] Second, application of the Miller standard for
obscenity (discussed infra) is not a satisfactory solution to the
problem of child pornography.[FN105] Third, the financial gain
involved in selling and advertising child pornography provides
incentive to produce such material <20> and such activity is
prohibited throughout the United States.[FN106] Fourth, the value of
permitting minors to perform/appear in lewd exhibitions is
negligible at best.[FN107] Finally, classifying child pornography as a
form of expression outside the protection of the First Amendment
is not incompatible with earlier court decisions.[FN108] The court
said, "[T]he distribution of photographs and films depicting
sexual activity by juveniles is intrinsically related to the
sexual abuse of children ..."[FN109] 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.[FN110] Section 2252 of Title 18 of the U.S. Code
forbids knowing foreign or interstate transportation or reception
by any means
--------------------------
[FN103] New York v. Ferber, 458 U.S. 747 (1982).
[FN104] Id. at 756-57 (citing Globe Newspaper Co. v. Superior Court,
457 U.S. 596, 607 (1982)).
[FN105] Id. at 759 (citing Miller v. California, 413 U.S. 15, reh'g
denied, 414 U.S. 881 (1973)).
[FN106] Id. at 761.
[FN107] Id. at 762.
[FN108] Id. at 763.
[FN109] Id. at 759.
[FN110] See 18 U.S.C. <20> 2252 (1978).
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102 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
including, for example, visual depictions of minors
engaged in sexually explicit conduct which have been converted
into a computer-readable form.[FN111] Pictures are easily converted
into a computer-readable form. Once in such a form, they can be
distributed, interstate, over a computer information system.
Pictures are put into a computer by a process called "scanning" or
"digitizing."[FN112] Scanning is accomplished by dividing a picture up
into little tiny elements called pixels.[FN113] 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.[FN114]
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
not differentiate between subject matter of pictures, the law
does. Persons responsible for distributing child pornography could
be prosecuted for child abuse, and such a suit could result in
$50,000 or more in fines and damages.[FN115] 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
--------------------------
[FN111] Id. <20> 2252(a)(1).
[FN112] See Lois F. Lunin, An Overview of Electronic Image Information,
OPTICAL INFO. SYSS., May 1990.
[FN113] Id.
[FN114] Id.
[FN115] See 18 U.S.C. <20> 2255(a) (1986).
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103 E-Law Copyright 1992-1993 by David Loundy
have been mailed or so shipped or transported, by means including
computer"[FN116] can be fined and imprisoned for up to five
years.[FN117]
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 that 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 done 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 to hold
Sam responsible for the knowing possession of any files that were
formerly in his account that could still be recovered from the
system operator's backups of Sam's data. 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
--------------------------
[FN116] <20> 2252(a)(4)(B).
[FN117] Id. <20> 2252(b).
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104 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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.[FN118] Law enforcement use
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.[FN119]
E. Computer Crime
Some areas of "computer crime" are regulated.[FN120] 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,[FN121]
such as: the unauthorized accessing of a computer system;[FN122] the
unauthorized accessing of a computer to gain certain kinds of
information (such as defense information or financial records);[FN123]
accessing a computer and removing, damaging, or preventing access
to data without authorization;[FN124] trafficking in stolen computer
passwords;[FN125] spreading computer viruses;[FN126] and a number of
other related offenses.[FN127] All of these are activities which are
often referred to as "hacking."[FN128]
--------------------------
[FN118] 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.
[FN119] See United States v. Lambey, 949 F.2d 133 (1991).
[FN120] Note, Addressing the New Hazards of the High Technology
Workplace, 104 HARV. L. REV. 1898, 1913 (1991).
[FN121] Id. at 1898.
[FN122] See 949 F.2d 133; Jensen, supra note 7, at 222.
[FN123] See 949 F.2d 133; Note, supra note 120, at 1898; Jensen, supra
note 7, at 222.
[FN124] See 949 F.2d 133; Note, supra note 120, at 1898; Jensen supra
note 7, at 222.
[FN125] Note, supra note 120, at 1899; Jensen, supra note 7, at 222.
[FN126] See United States v. Morris, 928 F.2d 505 (2d Cir.), cert.
denied, 112 S. Ct. 72 (1991).
[FN127] Jensen, supra note 7, at 222.
[FN128] Id.
======================================================================
105 E-Law Copyright 1992-1993 by David Loundy
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.[FN129]
[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.[FN130]
Access to obtain information from financial records of a financial
institution or in a consumer file of a credit reporting agency was
also outlawed.[Fn131] Access to use, destroy, modify or disclose
information found in a computer system, (as well as to prevent
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.[FN132] The 1984 Act had several
shortcomings, and was revised in The Computer Fraud and Abuse Act
of 1986.[FN133] The 1986 Act added three new crimes <20> a computer fraud
offense,[FN134] modeled after federal mail and wire fraud
statutes;[FN135]
an offense for the alteration, damage or destruction of
information contained in a "federal interest computer;"[FN136] and an
offense for trafficking in computer passwords under some
circumstances.[FN137]
This Computer Fraud and Abuse Act presents a powerful weapon
for SYSOPs whose computers have been violated by hackers. It was
made even more powerful by the first person charged with its
violation.[Fn138] Robert T. Morris Jr. was charged with releasing a
"worm" onto a section of the Internet computer network,[FN139] causing
numerous government and university computers to either
--------------------------
[FN129] 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).
[FN130] Id. at 460.
[FN131] Id.
[FN132] Id.
[FN133] The Computer Fraud and Abuse Act of 1986, 18 U.S.C. <20> 1030
(1988).
[FN134] Griffith, supra note 129, at 474.
[FN135] Id.
[FN136] Id.
[FN137] Id.
[FN138] United States v. Morris, 928 F.2d 504 (2d Cir.), cert. denied,
112 S. Ct. 72 (1991).
[FN139] 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.
======================================================================
106 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
"crash" or become "catatonic."[FN140] Morris is the son of the Chief
Scientist at the National Security Agency's National Computer Security
Center.[FN141] His father is also a former researcher at AT&T's Bell
Laboratories where he worked on the original UNIX operating
system.[FN142] 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.[FN143] 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 to $53,000.[FN144] District Judge Munson read
the Computer Fraud and Abuse Act largely as defining a strict
liability crime. The relevant language applies 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 ....[FN145]
Judge Munson's interpretation is that this language requires
intent only to access the computer, not intent to cause actual
damage.[FN146] On appeal, Munson's reading was affirmed by the Court
of Appeals,[FN147] and the Supreme Court refused to hear further
appeals.[FN148]
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.[FN149] 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.
--------------------------
[FN140] 928 F.2d. at 506.
[FN141] Robin Nelson, Viruses, Pests, and Politics: State of the Art,
20 COMPUTER & COMM. DECISIONS, Dec. 1989, at 40, 40.
[FN142] Id.
[FN143] 928 F.2d. at 504.
[FN144] Id. at 506.
[FN145] 18 U.S.C. <20> 1030(a)(5)(A).
[FN146] 928 F.2d at 506-07.
[FN147] 328 F2d. 504 (1991).
[FN148] 112 S. Ct. at 72.
[FN149] 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.
======================================================================
107 E-Law Copyright 1992-1993 by David Loundy
criminal justice system, which almost always differentiates
between people who intend to cause harm and those who do not.[FN150]
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.[FN151]
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.[FN152] The jury's difficulty
in resolving this issue is indicative of a lack of understanding
of how computer networks work.[FN153]
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.[FN154] They can also break into telephone companies'
computers and get lists of telephone credit card numbers.[FN155]
Trafficking of stolen credit card numbers and other kinds of
telecommunications fraud costs long distance carriers about $1.2
billion annually.[FN156] 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.[FN157] The major protection for the telephone
companies is found in section 1343 of the Mail Fraud Chapter of
the U.S. Code.[FN158] This section prohibits the use of wires, radio
or television in order to fraudulently deprive a party of money or
--------------------------
[FN150] Id.
[FN151] 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).
[FN152] 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 whether
Morris' actions amounted to unauthorized access or whether his
actions exceeded authorized access. 928 F.2d at 510.
[FN153] Geneson, supra note 152, at 2.
[FN154] Cindy Skrzycki, Thieves Tap Phone Access Codes to Ring Up
Illegal Calls, WASH. POST, Sept. 2, 1991, <20> 1 at A1.
[FN155] Id.
[FN156] Id.
[FN157] Id.
[FN158] Fraud by Wire, Radio, or Television, 18 U.S.C. <20> 1343 (1992).
======================================================================
108 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
property.[FN159] This statute has been held to include fraudulent use
of telephone services.[FN160] 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,[FN161]
which specifically covers schemes to defraud.[FN162] Some state laws
exist to punish theft of local telephone service or publication of
telephone access codes.[FN163]
H. Viruses
As pointed out in the introduction, computer viruses are
increasingly of concern <20> 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.[FN164] Computer virus crime involves an intent to
cause damage, "akin to vandalism on a small scale, or terrorism on
a grand scale."[FN165] Viruses can spread through networked computers
or by sharing disks between computers.[FN166] 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.[FN167] There are a number of different types of viruses, but
one of the factors common to most of them is that they all copy
themselves (or parts of themselves).[FN168] 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.[FN169] Regardless, a worm is a program
--------------------------
[FN159] Id.
[FN160] See, e.g., Brandon v. United States, 382 F.2d 607 (10th Cir.
1967).
[FN161] 18 U.S.C. <20> 1346.
[FN162] Id.
[FN163] See, e.g., State v. Northwest Passage, Inc., 585 P.2d 794
(Wash. 1978) (en banc).
[FN164] See, e.g., Daniel J. Kluth, The Computer Virus Threat: A Survey
of Current Criminal Statutes, 13 HAMLINE L. REV. 297 (1990).
[FN165] Id.
[FN166] David R. Johnson et al., Computer Viruses: Legal and Policy
Issues Facing Colleges and Universities. 54 EDUC. L. REP. (West)
761 (Sept. 14, 1989).
[FN167] Id. at 762.
[FN168] Id.
[FN169] Eric Allman, Worming My Way; November 1988 Internet Worm, UNIX
REV., January 1989, at 74.
======================================================================
109 E-Law Copyright 1992-1993 by David Loundy
specifically designed to move through networks.[FN170] 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."[FN171]
Another type of virus is the "Trojan Horse."[FN172] These are
viruses which hide inside another seemingly harmless program.[FN173]
Once the Trojan Horse program is used on the computer system, the
virus spreads.[FN174] The virus type which has gained the most fame
recently has been the Time Bomb, which is a delayed action virus
of some type.[FN175] 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 the
artist's birthday, Michelangelo was so prevalent, it was even
distributed accidentally by some software publishers when the
software developers' computers became infected.[FN176]
One concern many have about statutes dealing with computer
viruses is the problem that the statutes need some kind of intent
requirement.[FN177] Without some sort of intent requirement, virus
statutes may be sufficiently overbroad so as to cover defective
computer programs.[FN178]
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.[FN179] If a virus also involves
unauthorized access to an electronic communications system
involving interstate commerce, the Electronic Communications
Privacy Act may come into play.[FN180] Most states have statutes that
make it a crime to
--------------------------
[FN170] Kluth, supra note 164, at 298.
[FN171] Id. at note 14.
[FN172] See Stover, supra note 32.
[FN173] Id.
[FN174] Kluth, supra note 164, at 298.
[FN175] See Stover, supra note 32.
[FN176] Electronic Mail Software Provider Reports Virus Contamination,
UPI, Feb. 3, 1992, available in LEXIS, Nexis Library, UPI File.
[FN177] See Kluth, supra note 164.
[FN178] Id.
[FN179] 18 U.S.C. <20> 1030 (1984).
[FN180] Electronic Communications Privacy Act of 1986, 18 U.S.C. <20>2510
(1984).
======================================================================
110 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
intentionally interfere with a computer
system.[FN181] These statutes will often cover viruses as well as
other forms of computer crime. State statutes generally work by
affecting any of ten different areas:[FN182]
1. Expanded definitions of "property" to include computer
data.[FN183]
2. Prohibiting unlawful destruction of computer files.[FN184]
3. Prohibiting use of a computer to commit, aid or abet
commission of a crime.[FN185]
4. Creating crimes against intellectual property.[FN186]
5. Prohibiting knowing or unauthorized use of a computer or
computer services.[FN187]
6. Prohibiting unauthorized copying of computer data.[FN188]
7. Prohibiting the prevention of authorized use.[FN189]
8. Prohibiting unlawful insertion of material into a computer
or network.[FN190]
9. Creating crimes like "Voyeurism"<22> Unauthorized entry into
a computer system just to see what is there.[FN191]
10. "Taking possession" of or exerting control of a computer
or software.[FN192]
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 continual
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.[FN193] "[A SYSOP] might still be found liable on the
--------------------------
[FN181] Johnson et al., supra note 166, 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).
[FN182] Branscomb, supra note 181, at 32.
[FN183] Id.
[FN184] Id. at 33.
[FN185] Id.
[FN186] Id. at 34.
[FN187] Id.
[FN188] Id. at 35.
[FN189] Id.
[FN190] Id.
[FN191] Id. at 36.
[FN192] Id. at 37.
[FN193] See Johnson et al., supra, note 166, at 764, 766.
======================================================================
111 E-Law Copyright 1992-1993 by David Loundy
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."[FN194] The
nature of "care" still has not been defined by court or
statute.[FN195] 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.[FN196] There must then be a breach of that duty[FN197] <20> the
SYSOP must display conduct "which falls below the standard established
by law for the protection of others against unreasonable risk of
harm."[FN198] 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 <20> or foreseen and
planned for <20> will not result in liability.[FN199] A SYSOP's duty "may
be defined as a duty to select and implement security provisions,
to monitor their effectiveness, and to maintain the provisions in
accordance with changing security needs."[FN200] 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.
--------------------------
[FN194] Id. at 766.
[FN195] Id.
[FN196] W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS
<EFBFBD>30(1), at 164 (5th ed. 1984).
[FN197] Id. <20> 30(2), at 164.
[FN198] Id. <20> 31, at 169.
[FN199] Id. <20> 29, at 162.
[FN200] 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).
======================================================================
112 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
SYSOPs also have a duty to explain to each user the extent of his or her
authorization to use the computer information service.[FN201]
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.
IV. 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.[FN202] Katz
involved the use of an electronic listening device (or "bug")
mounted on the outside of a public telephone booth.[FN203] 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.[FN204]
However, Defendant argued that the bug was an unlawful search and
seizure in violation of the Fourth Amendment.[FN205] 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 constitu-
--------------------------
[FN201] Id. at 188-89.
[FN202] Katz v. United States, 389 U.S. 347 (1967).
[FN203] Id. at 348.
[FN204] Id. at 351.
[FN205] Id.
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113 E-Law Copyright 1992-1993 by David Loundy
tionally protected."[FN206] 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.[FN207] 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.[FN208] 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 her privacy. If there is no reasonable expectation of privacy,
there can be no violation of privacy, and, therefore, no Fourth
Amendment claim.[FN209]
Statutory protection of the right to privacy was originally
provided by the Federal Wiretap Statute.[FN210] However, this statute
affected only "wire communication," which is limited to "aural
[voice] acquisition."[FN211] In United States v. Seidlitz,[FN212] the
court held that interception of computer transmission is not an
"aural acquisition" and, therefore, the Wiretap Act did not
provide protection.[FN213] Even if the Act did cover transmission, it
still does not cover stored computer data.[FN214] 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 Amend-
--------------------------
[FN206] Id.
[FN207] See, e.g., Oliver v. U.S. 466 U.S. 170 (1984).
[FN208] See 389 U.S. at 347; see also California v. Ciraolo 476 U.S.
207, reh'g denied, 478 U.S. 1014 (1986).
[FN209] See Ruel Hernandez, Computer Electronic Mail and Privacy,
available over Internet, by anonymous FTP, at FTP.EFF.ORG
(Electronic Frontier Foundation).
[FN210] 18 U.S.C. <20> 2510 (1968).
[FN211] See Hernandez, supra note 209.
[FN212] United States v. Seidlitz, 589 F.2d 152 (4th Cir. 1978), cert.
denied, 441 U.S. 922 (1979).
[FN213] Id. at 157.
[FN214] See Hernandez, supra note 209.
======================================================================
114 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
ment'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.[FN215]
The Federal Wiretap Act was updated by the Electronic
Communications Privacy Act of 1986.[FN216] The Electronic
Communications Privacy Act deals specifically with the
interception and disclosure of interstate[FN217] electronic
communications[FN218], 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) intentionally intercepts, endeavors to intercept,
or procures any other person to intercept or endeavor to intercept
any wire, oral, or electronic communication"[FN219] shall be fined or
imprisoned.[FN220] 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.[FN221] 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[FN222]
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
--------------------------
[FN215] Robert W. Kastenmeier et al., supra note 8, at 720 (citations
omitted).
[FN216] Electronic Communications Privacy Act of 1986, 18 U.S.C. <20>2510
(1968).
[FN217] Id. <20> 2510(12).
[FN218] 18 U.S.C. <20> 2511.
[FN219] Id. <20> 2511(1)(a).
[FN220] Id. <20> 2511(4).
[FN221] Id. <20> 2511(1)(c).
[FN222] Id. <20> 2511(2)(a)(i).
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115 E-Law Copyright 1992-1993 by David Loundy
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.[FN223]
"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."[FN224] Further exceptions are made
for SYSOPs of these systems when the originator or addressee of
the message gives consent;[FN225] when the message is being given to
another service provider to be further forwarded towards its
destination;[FN226] where the message is inadvertently obtained by the
SYSOP; and appears to pertain to a crime;[FN227] when the divulgence
is being made to a law enforcement agency;[FN228] or where the message
is configured so as to be readily accessible to the public.[FN229] 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).[FN230] This
will probably cover the up-and-coming technologies of radio-WANS
(Wide Area Networks<6B>computer networks which link computers by
radio transmission rather than wires), 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.[FN231]
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.[FN232]
The statute does not prohibit the use of pen registers or trap and
trace devices.[FN233] The
--------------------------
[FN223] Id.
[FN224] Id. <20> 2510(14).
[FN225] Id. <20> 2511(3)(b)(ii).
[FN226] Id. <20> 2511(3)(b)(iii).
[FN227] Id. <20> 2511(3)(b)(iv).
[FN228] Id. <20> 2511(3)(b)(iv).
[FN229] Id. <20> 2511(3)(b)(i).
[FN230] Id. <20> 2511.
[FN231] 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.
[FN232] 18 U.S.C. <20> 2518 (1968).
[FN233] Id. <20> 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.
======================================================================
116 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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.[FN234] 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"[FN235] shall be subject to fines
and/or imprisonment, or both.[FN236] Like section 2511, this section
includes provisions prohibiting the divulgence of the stored
messages.[FN237] Importantly, while this statute allows law
enforcement agencies to gain access to stored communications,
subject to a valid search warrant,[FN238] 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.[FN239] Such a statute is needed because the government
often takes the stored data to sort through during the course of
its investigation, as was the case in Steve Jackson Games, Inc. v.
United States Secret Service.[FN240] 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
--------------------------
[FN234] Id. <20> 2701.
[FN235] Id. <20> 2701(a).
[FN236] Id. <20> 2701(b).
[FN237] Id. <20> 2702.
[FN238] See id. <20> 2703.
[FN239] Id. <20> 2703(a)
[FN240] Steve Jackson Games, Inc. v. United States Secret Serv., 816
F. Supp. 432 (W.D. TEX. 1993).
======================================================================
117 E-Law Copyright 1992-1993 by David Loundy
properly the contents of the electronic mail on the
BBS.[FN241] The court said that the evidence of good faith reliance
on what the Secret Service believed to be a valid search warrant
was insufficient.[FN242] 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 was by compliance with the Act, and not by seizing
the BBS.[FN243]
The Steve Jackson Games Case was also valuable for showing
the interplay between protection against interception of
electronic communication[FN244] and access to stored
communication.[FN245] Judge Sparks held, in essence, that taking a
whole computer is not an "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.[FN246] This
interpretation of an intellectually complex concept[FN247] makes
sense when the two code sections are read together.
D. An Apparent Exception for Federal Records
A recent case presents an apparent exception to the
Electronic Communications Privacy Act.[FN248] In Armstrong v.
Executive Office of the President,[FN249] 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.[FN250] While electronic communications are
normally
--------------------------
[FN241] Id. at 434.
[FN242] Id. at 443.
[FN243] Id. at 442-43.
[FN244] Id.; 18 U.S.C. <20> 2510.
[FN245] 816 F. Supp. at 442-43.
[FN246] 816 F. Supp. at 441-42; 18 U.S.C. <20> 2701.
[FN247] Stored communications may be intercepted in some sense because
the message writer may have sent the E-mail, but it has not yet
been read by the recipient. Also, messages being sent from one BBS
user to another on bulletin board systems which support multiple
users simultaneously may never be stored on the computer. By
reading the two sections as complimentary, the complexities should
be accounted for - communications not covered by <20> 2510 should be
covered by <20> 2701 and vise versa.
[FN248] See 18 U.S.C. <20> 2511 (1968).
[FN249] Armstrong v. Executive Office of the President, 810 F. Supp
335 (D.C. Cir. 1993).
[FN250] Id. at 348.
======================================================================
118 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
protected under the Electronic Communications Privacy
Act, the Federal Records Act[FN251] 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].[FN252]
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.[FN253]
Printed copies of the messages contain the text of the notes, but
only the computer records contain information such as who received
the E-mail messages and when the communication was received.[FN254]
A similar possible exception to the privacy of E-mail is the
Presidential Records Act,[FN255] which requires that all records
classified by the Act as "Presidential Records"[FN256] 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.[FN257]
E. Privacy Protection Act of 1980
It is also possible that computer information systems will be
--------------------------
[FN251] Federal Records Act, 44 U.S.C. <20><> 2101-2118, 2901-2910, 3101-
3107, 3301-3324.
[FN252] Id. <20> 3301.
[FN253] 810 F. Supp. at 342, 343.
[FN254] Id. at 341.
[FN255] 44 U.S.C. <20> 2201.
[FN256] 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.
Id.
[FN257] Armstrong v. Bush, 924 F.2d. 282, 290 (D.C. Cir. 1991).
======================================================================
119 E-Law Copyright 1992-1993 by David Loundy
protected under the Privacy Protection Act of 1980.[FN258] 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."[FN259] This
statute was passed to overturn the decision in Zurcher v. Stanford
Daily,[FN260] a case which held that a newspaper office could be
searched, even when no one working at the paper was suspected of a
crime.[FN261] 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,[FN262] or the
immediate seizure is necessary to prevent the death or serious
injury to a human being.[FN263] Based on the list of types of
"publishers" covered by this statute, electronic publishers should
fall 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.[FN264] The company also ran a BBS to gain customer feedback on
the company's games.[FN265] 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.).[FN266] 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."[FN267]
The raid by the Secret Service caused the company to temporarily
shut down;[FN268] Steve Jackson Games also had to lay off half its
employees.[FN269] The release of
--------------------------
[FN258] Privacy Protection Act of 1980, 42 U.S.C. <20> 2000aa (1980).
[FN259] Id. <20> 2000aa(a).
[FN260] Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
[FN261] Id. at 549.
[FN262] 42 U.S.C. <20>2000aa(a)(1).
[FN263] Id. <20>2000aa (a)(2).
[FN264] Mitchell Kaypor, Civil Liberties in Cyberspace; Computers,
Networks and Public Policy, SCI. AM., Sept. 1991, 158, 158.
[FN265] Id.
[FN266] Steve Jackson Games, Inc. v. United States Secret Serv., 816
F. Supp. 432, 439 (W.D. Tex. 1993).
[FN267] Id. at 439-40.
[FN268] Id. at 438.
[FN269] Id.
======================================================================
120 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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.[FN270] 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.[FN271] Steve Jackson Games was raided because one of its
employees ran a BBS out of his home <20> 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.[FN272] The document contained information
which was publicly available in other forms.[FN273] The employee was
also accused of being a part of a fraud scheme <20> the fraud being
the explanation in a two line message what Kermit is <20>a publicly
available communications protocol.[FN274] The employee was also co-
SYSOP of the bulletin board system at Steve Jackson Games.[FN275]
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[FN276]
requires, though they did know shortly after.[FN277] 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.[FN278] In the
raid, the Secret Service seized a number of Steve Jackson's
computers, and a number of papers.[FN279] 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.[FN280]
While the judge did find a violation of the Privacy
Protection Act,[FN281] he did not specify which items led to the
violation. The vio-
--------------------------
[FN270] Legal Case Summary, May 10, 1990, available over Internet, by
anonymous FTP, at FTP.EFF.ORG (Electronic Frontier Foundation).
[FN271] Id.
[FN272] 816 F. Supp. at 436.
[FN273] United States v. Riggs, 743 F. Supp. 556 (N.D. Ill. 1990).
[FN274] 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).
[FN275] 816 F. Supp. at 436.
[FN276] 42 U.S.C. <20> 2000aa.
[FN277] 816 F. Supp. at 437.
[FN278] Id.
[FN279] Id.
[FN280] Id. at 439-40.
[FN281] Id. at 441.
======================================================================
121 E-Law Copyright 1992-1993 by David Loundy
lation 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.[FN282]
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.
V. 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 to
computer information systems. Differences in regulation based on
medium are a result of differing First Amendment concerns.[FN283]
A. Obscenity
The constitutional definition of "obscenity," as a term of
art,[FN284] was solidified in Roth v. United States.[FN285] The Roth
definition asks if the material deals with sex in a manner
appealing to prurient interests.[FN286] This standard was further
explained in Miller v. California,[FN287] a case which explored the
constitutionality of a state statute prohibiting the mailing of
unsolicited sexually explicit material.[FN288] The court expressed
the test for obscenity as:
whether (a) the average person, applying community
standards
--------------------------
[FN282] Id.
[FN283] See, e.g., F.C.C. v. Pacifica Foundation, 438 U.S. 726, reh'g
denied, 439 U.S. 883 (1978).
[FN284] 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).
[FN285] Roth v. United States, 354 U.S. 476 (1957).
[FN286] Id. at 487.
[FN287] 413 U.S. at 15.
[FN288] Id.
======================================================================
122 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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.[FN289]
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.[FN290] 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.[FN291] 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. 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.[FN292] Although states can regulate the availability of
obscene material, they cannot forbid the mere possession of it in
the home.[FN293] The justification for this is based on privacy.[FN294]
In the now famous words of Justice Marshall in Stanley v.
Georgia,[FN295]
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, what 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.[FN296]
Stanley has been interpreted as establishing a "zone of privacy"
about one's home.[FN297] 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.[FN298] However,
--------------------------
[FN289] Id. at 24.
[FN290] Pope v. Illinois, 481 U.S. 497, 500 (1987) (citing Smith v.
United States, 431 U.S. 291 (1977)).
[FN291] Hamling v. United States, 418 U.S. 87 (1974).
[FN292] See, e.g., 413 U.S. 15; Kois v. Wisconsin, 408 U.S. 2219
(1972).
[FN293] Stanley v. Georgia, 394 U.S. 557 (1969).
[FN294] Id. at 565.
[FN295] Id.
[FN296] Id.
[FN297] Jensen, supra note 7.
[FN298] Note that an exception would be made for child pornography,
see discussion supra part III.D.
======================================================================
123 E-Law Copyright 1992-1993 by David Loundy
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.[FN299] Support for this
argument comes from U.S. v. Orito[FN300] which held that Congress has
the authority to prevent obscene material from entering the stream
of commerce, either by public or private carrier.[FN301] 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.[FN302] Stanley[FN303]
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."[FN304]
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.[FN305]
Indecent language is that which "describes, in terms patently
offensive as measured by community standards ... sexual or
excretory activities and organs ..."[FN306] This language comes from
F.C.C. v. Pacifica Foundation, Inc.,[FN307] 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
the different legal analogies that may apply to computer
information systems.
--------------------------
[FN299] Jensen, supra note 7.
[FN300] U.S. v. Orito, 413 U.S. 139 (1973).
[FN301] Id. at 143.
[FN302] See Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135
(S.D.N.Y. 1991).
[FN303] 394 U.S. at 565.
[FN304] Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68-69, reh'g
denied, 414 U.S. 881 (1973).
[FN305] 438 U.S. at 726.
[FN306] Id. at 732.
[FN307] Id. at 726-27.
======================================================================
124 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
VI. Copyright Issues
A. Basics of Copyrights
Text, pictures, sounds, software <20> 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."[FN308] This power is
exercised in the form of the Copyright Act, Title 17 of the U.S.
Code.[FN309] 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."[FN310] The statute lists
several types of works as illustrations of types of works which
qualify for copyright protection.[FN311] Relevant to computer
information systems, the list includes literary works; pictorial,
graphic, and sculptural works; motion pictures and other
audiovisual works; and sound recordings.[FN312] 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.[FN313] In fact, the notes accompanying
this code 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."[FN314] 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.[FN315]
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 can then be
copyrighted.[FN316] For computer information systems,
--------------------------
[FN308] U.S. CONST. art. I, <20> 8, cl. 8.
[FN309] Copyright Act of 1947, 17 U.S.C. <20> 101 (1947).
[FN310] Id. <20> 102(a).
[FN311] Id. <20> 101.
[FN312] Id. <20> 102(a) Other categories include musical works, dramatic
works, pantomimes and choreographic works, and architectural works. Id.
[FN313] See <20> 101 (Historical and Statutory Notes).
[FN314] Id.
[FN315] Id.
[FN316] Id.
======================================================================
125 E-Law Copyright 1992-1993 by David Loundy
this implies that conversations occurring over a computer or network
which are not stored on a disk[FN317] are unprotected by the Copyright
Act, but if any party to the conversation, or the system operator,
stores the messages, it is then possible to copyright some elements of
the conversation.
Copyright protection extends to works of authorship; it does
not extend to ideas, processes, concepts, inventions and the
like.[FN318] Distinguishing between works of authorship and processes
can at times result in some subtle distinctions. An example of
this 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.[FN319]
Postscript fonts, on the other hand, consist of a computer program
which describes the outline of the letter.[FN320] 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.[FN321] Postscript fonts are seen as computer programs<6D>
the program is a work of authorship, it just so happens to draw
letters, and they have been held to be copyrightable.[FN322]
The Copyright Act gives the copyright holder exclusive rights
to his or her works.[FN323] 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.[FN324] 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
--------------------------
[FN317] 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."
[FN318] Id. <20> 102(b).
[FN319] See Charles Von Simon, Page Turns in Copyright Law with Adobe
Typeface Ruling, COMPUTERWORLD, Feb. 5, 1990, at 120.
[FN320] Id.
[FN321] See Adobe Successfully Registers Copyright Claim for Font
Program, COMPUTER LAWYER, Feb. 1990, at 26.
[FN322] Von Simon, supra note 319.
[FN323] Copyright Act of 1947, 17 U.S.C. <20> 106 (1947).
[FN324] Id.
======================================================================
126 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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
participant in the copyright infringement by allowing the computer
file to be distributed on his or her system.[FN325] There is no
intent or knowledge requirement to find a copyright violation.
Copyright infringement is a strict liability crime. 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.[FN326] Even subconscious copying has been held to be
an infringement.[FN327]
One protection the Copyright Act gives to a computer
information system is a compilation copyright. A compilationn
copyright gives the SYSOP a copyright on the data contained in the
computer information system as a whole.[FN328] 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.[FN329] An example of this would be the
electronic journal composed from articles submitted by users. The
compiler 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.[FN330] 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.[FN331] This includes copies in computer readable
form.[FN332] Thus, scanned pictures, digitized sounds, machine
readable texts,
--------------------------
[FN325] See Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc.,
256 F. Supp. 399 (S.D.N.Y. 1966).
[FN326] De Acosta v. Brown, 146 F.2d 408 (2d Cir. 1944).
[FN327] Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F.
Supp. 177 (S.D.N.Y. 1976).
[FN328] 17 U.S.C. <20> 103.
[FN329] Id.
[FN330] Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 111
S.Ct. 1282 (1991).
[FN331] 17 U.S.C. <20> 106.
[FN332] 17 U.S.C. <20> 101.
======================================================================
127 E-Law Copyright 1992-1993 by David Loundy
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
107-120) 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. 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.[FN333]
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."[FN334] 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 accessible viewing some types of files may constitute a
public performance or display[FN335] of the copyrighted work, which
are also protected rights.[FN336]
--------------------------
[FN333] 17 U.S.C. <20><> 106(1), (3).
[FN334] 17 U.S.C. <20> 101
[FN335] Id.
[FN336] 17 U.S.C. <20> 106
======================================================================
128 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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[FN337] and the "reproduction by libraries and archives"
provision.[FN338]
[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 ... ."[FN339]
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.[FN340] 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.[FN341]
Applying these factors to the System Operator's liability for a lyric
server, the character of the use depends on whether access to the
--------------------------
[FN337] 17 U.S.C. <20> 107.
[FN338] 17 U.S.C. <20> 108.
[FN339] 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).
[FN340] 17 U.S.C. <20> 107.
[FN341] Id.
======================================================================
129 E-Law Copyright 1992-1993 by David Loundy
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.[FN342] 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 other possible exception to the copyright holder's
exclusive rights is section 108 which deals with copying by
libraries and archives.[FN343] Unlike the section 107 fair use
provision, which in this case is more aimed at the end user,
section 108 is aimed 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.[FN344] 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"[FN345] 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."[FN346] 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
--------------------------
[FN342] 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).
[FN343] 17 U.S.C. <20> 108.
[FN344] 17 U.S.C. <20> 108(a).
[FN345] 17 U.S.C. <20> 108(d).
[FN346] Id.
======================================================================
130 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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.[FN347]
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.[FN348]
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.[FN349]
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
--------------------------
[FN347] 17 U.S.C. <20> 108(f)(1).
[FN348] See 17 U.S.C. <20> 106.
[FN349] See Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc.,
256 F. Supp. 523 (S.D.N.Y. 1966).
======================================================================
131 E-Law Copyright 1992-1993 by David Loundy
lawsuit if any of that copied software is copyrighted.[FN350] The SPA
is a group established by a number of software publishers in order
to cut down on software piracy.[FN351] The SPA monitors bulletin
board systems for distribution of copyrighted software.[FN352] 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.[FN353] The SPA also examines office computers
for unlicensed software.[FN354]
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.[FN355]
Compliance with the SPA requirements saves the offender the
additional cost of a lawsuit.[FN356] Noncompliance will result in a
lawsuit filed by the SPA.[FN357]
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.[FN358] 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."[FN359] 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.[FN360] 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 <20> use of
shareware beyond a reasonable trial period (often specified in the
documentation distributed with the
--------------------------
[FN350] Janet Mason, Crackdown on Software Pirates; Industry Watchdogs
Renew Efforts to Curb Illegal Copying, COMPUTERWORLD, Feb. 5, 1990,
at 107.
[FN351] Id.
[FN352] Id.
[FN353] Id.
[FN354] Id.
[FN355] Id.
[FN356] Id.
[FN357] Id.
[FN358] 17 U.S.C. <20> 117(1).
[FN359] Id. <20> 117(2).
[FN360] Steve Givens, Sharing Shareware: Non-Traditional Marketing
Relies on Honor System, ST. LOUIS BUS. J., July 1, 1991, <20> 2 at 1B.
======================================================================
132 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
software) without payment of
the shareware fee is a violation of copyright law.[FN361]
D. Copyrighted Pictures
As mentioned earlier,[FN362] 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 <20> pictures can be scanned, and once scanned, they
can be further altered with image processing software.[FN363] All of
these forms are covered by the Copyright Act.[FN364] Pictures created
on the computer using graphics or "paint box" software are in an
original copyrightable form.[FN365] Images that are scanned are in
violation of the original copyright holder's rights, unless
permission to distribute the scanned image has been obtained.[FN366]
In fact, even the unauthorized initial scan made of a copyrighted
work is in violation of the copyright, even without further
distribution.[FN367] 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."[FN368]
Images which are scanned that are not copyrighted, such as works
on which the copyright has already expired,[FN369] 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.[FN370] If a scan of a copyrighted
picture is then altered into a new image, the modified version
likely still falls
--------------------------
[FN361] Id.
[FN362] See supra text accompanying notes 114-16.
[FN363] Legal aspects of the doctoring of photographs are beyond the
scope of this paper <20> 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).
[FN364] 17 U.S.C. <20> 102(a)(5).
[FN365] Id. <20> 102(a).
[FN366] Id. <20> 101 (defining a copy); id. <20> 106 (Section 106 gives the
copyright holder exclusive rights to make copies and derivative
works of his or her creation.).
[FN367] Id. <20> 101.
[FN368] Ezra Shapiro, More on Copyright; Digitizing of Copyrighted
Images, MACWEEK, Oct. 11, 1988, at 27.
[FN369] 17 U.S.C. <20> 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).
[FN370] 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).
======================================================================
133 E-Law Copyright 1992-1993 by David Loundy
under the original copyright.[FN371] 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).[FN372]
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 his or her name disassociated with a mutilation of his or her
work, (along with the right to prevent such mutilations in the
first place).[FN373] 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.[FN374] 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.[FN375] 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.[FN376]
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 <20> 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"[FN377]
--------------------------
[FN371] 17 U.S.C. <20> 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).
[FN372] Id. <20> 106A.
[FN373] Id.
[FN374] Ezra Shapiro, Copywrongs on Consumer Info Networks? Posting of
Scanned Images on Electronic Services Infringes Copyrights,
MACWEEK, Aug. 30, 1988, at 20.
[FN375] 17 U.S.C. <20> 106.
[FN376] 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 plaintiff
of a chance to sell tickets to the television viewers, since they
had already seen his act).
[FN377] 17 U.S.C. <20> 107.
======================================================================
134 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
exception.[FN378] 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.[FN379] 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 applies to sampled sounds, as well as
images, stored in a computer information system; though for sounds
it is even more difficult to determine what material is being
distributed in violation of the copyright laws. In addition, if
there is a false attribution as to the origin of the work and an
element of unfairness or deception, unauthorized use of
copyrighted material on a computer information system may
constitute the tort of unfair competition.[FN380] Unauthorized use
where "a plaintiff believes that the defendant, at little or no
cost, has appropriated what the plaintiff considers the
plaintiff's own commercially valuable property" may constitute a
subset of unfair competition-misappropriation.[FN381]
VII. 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 unresolved. To resolve such
issues, it is necessary to understand how other media are
regulated, and how computer information systems are similar to or
different from those media.
--------------------------
[FN378] Shapiro, supra note 374.
[FN379] Liz Horton, Electronic Ethics of Photography; Use of Images in
Desktop Publishing, FOLIO: THE MAG. FOR MAG. MGMT., Jan. 1990, at 71.
[FN380] Thomas C. Moglovkin, Note, Original Digital: No More Free
Samples, 64 S. CAL. L. REV. 135, 163 (1990).
[FN381] Id. at 165.
======================================================================
135 E-Law Copyright 1992-1993 by David Loundy
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.[FN382] 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.[FN383]
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,[FN384] the protection is not complete. All of the
restrictions on content discussed earlier apply to publishers
<EFBFBD>advocacy of lawless
--------------------------
[FN382] 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).
[FN383] Robert Charles, Computer Bulletin Boards and Defamation: Who
Should be Liable? Under What Standard?, 2 J.L. & TECH 121, 131 (1987).
[FN384] U.S. CONST. amend. I.
======================================================================
136 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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[FN385] "actual malice" standard for defamation, and a
"knowing" standard as required by the statutes forbidding the
transportation of material involved in child pornography.[FN386] 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."[FN387] 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.[FN388] 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."[FN389]
--------------------------
[FN385] New York Times v. United States, 403 U.S. 713 (1971).
[FN386] 18 U.S.C. <20> 2252.
[FN387] 403 U.S. at 713.
[FN388] See, e.g., Yuhas v. Mudge, 322 A.2d 824, 825 (N.J. Super. Ct.
App. Div. 1974).
[FN389] Id.
======================================================================
137 E-Law Copyright 1992-1993 by David Loundy
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.[FN390] If a "know or have reason to know"
standard were applied to computer information systems, offending
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 <20> 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 <20> a secondary publisher generally
has no control over the content of the message, unlike a primary
publisher.[FN391] 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.[FN392]
Secondary publishers are often treated synonymously with
republishers which are discussed in the next section.
--------------------------
[FN390] Information Policy, Computer Communications Networks Face
Identity Crisis over Their Legal Status, DAILY REP. FOR EXECUTIVES,
Feb. 26, 1991, at A-6.
[FN391] Joseph P. Thornton, et al., Symposium: Legal Issues in
Electronic Publishing: 5. Libel, 36 FED. COM. L.J. 178, 179 (1984).
[FN392] See RESTATEMENT (SECOND) OF TORTS <20> 581 (1989).
======================================================================
138 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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."[FN393] Some computer information systems
are like republishers because all they do is make available files,
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."[FN394]
The case that first established the immunity from liability
for distributors, breaking the common law tradition, was Smith v.
California.[FN395] 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
--------------------------
[FN393] Jensen, supra note 7, at 3.
[FN394] Charles, supra note 383, at 131.
[FN395] Smith v. California, 361 U.S. 147 (1959), reh'g denied, 361
U.S. 950 (1960).
======================================================================
139 E-Law Copyright 1992-1993 by David Loundy
liability, thus
would tend to restrict the public's access to forms of the
printed word which the State could not constitutionally
suppress directly.[FN396]
While this case did not determine the degree of liability
appropriate for a bookseller, it did find that strict liability
was too restrictive.[FN397] 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.[FN398] In addition,
secondary publishers are not required to investigate the contents
of the messages they are delivering in order to avoid
liability.[FN399]
Recently, a court has applied the Smith[FN400] analysis to
computer information systems. Cubby, Inc. v. CompuServe, Inc.[FN401]
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.[FN402]
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.[FN403] The groups maintaining the forums are similar to
print publishers <20> they take articles submitted by users and then
publish them, 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.[FN404] CompuServe had no opportunity to review the
periodical's contents before it was made available to CompuServe's
subscribers.[FN405] 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
--------------------------
[FN396] Id. at 153 (citation omitted).
[FN397] Id. at 155.
[FN398] Seton v. American News Co., 133 F. Supp. 591 (N.D. Fla. 1955);
cf. Manual Enters., Inc. v. Day, 370 U.S. 478 (1962).
[FN399] 133 F. Supp. at 593.
[FN400] 361 U.S. at 950.
[FN401] 776 F. Supp. at 135.
[FN402] Clifford Carlsen, Wide Area Bulletin Boards Emerge as Method
of Corporate Communications, SAN FRANCISCO BUS. TIMES, Mar. 15, 1991,
at 15.
[FN403] 776 F. Supp. at 137.
[FN404] Id. at 138.
[FN405] Id.
======================================================================
140 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
contained in the periodical, CompuServe was in essence "an
electronic, for-profit library."[FN406] 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.[FN407]
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 know
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 <20> 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.[FN408]
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
--------------------------
[FN406] Id. at 140.
[FN407] Id.
[FN408] 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).
======================================================================
141 E-Law Copyright 1992-1993 by David Loundy
"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.[FN409]
Importantly, a computer information system need not be classified
according to only one communications analogy <20> 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.[FN410]
Common carriers have generally been considered secondary
publishers,[FN411] and as such, have traditionally functioned under a
reduced standard of liability.[FN412] That standard is, once again, a
"know or have reason to know" standard of liability.[FN413] This
standard has been widely adopted and applied to the electronic
communications media: from telegraph,[FN414] to telephone,[FN415] and
even to options such as telephone answering services.[FN416] 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.[FN417] Another reason is fairness; common carrier operators
are not trained in what is libelous and what is not, and, even if
they were, they would have to make many decisions at a quick rate
<EFBFBD> not a fair burden to place on the common carrier.[FN418] And a
third reason is privacy; by removing a need for common carriers to
monitor content of transmissions, the likelihood is increased 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
--------------------------
[FN409] National Ass'n of Regulatory Util. Comm'rs v. F.C.C., 533 F.2d
601, 608 (1976).
[FN410] Id. at 608.
[FN411] 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).
[FN412] RESTATEMENT (SECOND) OF TORTS <20> 612 (1989).
[FN413] Id. <20> 581.
[FN414] 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).
[FN415] Anderson v. New York Tel. Co., 320 N.E.2d 647 (N.Y. 1974).
[FN416] People v. Lauria, 251 Cal. App. 2d 471 (1967).
[FN417] Charles, supra note 383, at 143.
[FN418] Id. at 123.
======================================================================
142 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
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 being forwarded from an account
on a sending machine to an account on a receiving machine. Network
traffic may also contain confidential documents being passed from
computer to computer. Support for a "knowing" standard is gained
from the Electronic Communications Privacy Act of 1986[FN419] 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 telephone 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.[FN420] An exception is made for indecent telephone
messages, so long as provisions are used to prevent minors from
receiving these indecent messages.[FN421] 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.[FN422] 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 to 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.[FN423]
--------------------------
[FN419] Electronic Communications Privacy Act of 1986, 18 U.S.C.
<EFBFBD>2510.
[FN420] 47 U.S.C. <20> 223.
[FN421] 47 C.F.R. <20> 64.201
[FN422] Id.
[FN423] See Sable Communications v. F.C.C., 492 U.S. 115 (1989).
======================================================================
143 E-Law Copyright 1992-1993 by David Loundy
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 by 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.
In both cases, the material being transmitted to the caller is the
same: for dial-a-porn the material is transmitted aurally; for
computer porn it is transmitted over a computer screen visually.
With a computer's ability to transmit images and sounds as well as
text, the justification for regulating computer distributed
indecent material is equal to or greater than the justification
for regulating standard audio dial-a-porn. The regulations on
dial-a-porn could simply be applied in a computer context. The
distribution means is essentially the same <20> 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. The means of preventing access by minors could also be
made the same, regardless of the means of access; a password, a
credit card, or age verification by mail could still be required
to access the service.
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.[FN424] 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[FN425] 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 been 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
--------------------------
[FN424] U.S. CONST. art. I, <20> 8.
[FN425] 18 U.S.C. <20> 2510.
======================================================================
144 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
opens, secretes, embezzles, or destroys the same ... .[FN426]
This statute has the same effect as the statutes specifically
geared towards electronic communications <20> it protects both mail
in transmission,[FN427] as well as mail being stored for the
recipient.[FN428] Just as the Electronic Communications Privacy Act
protects stored communications in the form of an E-mail
recipient's "mail box,"[FN429] so does the postal service protect a
"snail mail" recipient's mail box.[FN430] 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.[FN431] However, the reason
for this protection from unpleasant U.S. mail <20> based on notions
of trespass[FN432] <20> 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.[FN433] 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
--------------------------
[FN426] Mail, 18 U.S.C. <20> 1702.
[FN427] Compare <20> 1702 with E-mail, 18 U.S.C. <20> 2510.
[FN428] Compare <20> 1702 with <20> 2511.
[FN429] <20> 2511.
[FN430] <20> 1702; see also United States Postal Serv. v. Council of
Greenburgh Civic Ass'n, 453 U.S. 114 (1981).
[FN431] Rowan v. United States Postal Dep't, 397 U.S. 728 (1970).
[FN432] Id. at 737.
[FN433] Bolger v. Young Drug Prods. Corp., 463 U.S. 60 (1983).
======================================================================
145 E-Law Copyright 1992-1993 by David Loundy
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 by a user could be denied access privileges
to the network.
E. 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."[FN434] 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.[FN435] Judge Hilbery
held that the owners of the club could be held liable as
republishers of the defamation.[FN436] He based this conclusion on
the fact that the club owners had complete control of the walls of
the club;[FN437] they had seen the poem;[FN438] they could have removed
it;[FN439] and yet they did not.[FN440] 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."[FN441]
Courts in this country have made rulings on the posting of
defamatory material since at least 1883. Woodling v.
Knickerbocker[FN442] involved two placards left on a table at a
furniture dealer,
--------------------------
[FN434] As quoted in Byrne v. Deane, 1 K.B. 818, 824 (Eng. C.A. 1937).
[FN435] Id. at 818. The case finally held against the plaintiff on the
grounds that the message was not defamatory. Id.
[FN436] Id. at 820.
[FN437] Id. at 821.
[FN438] Id. at 838.
[FN439] Id.
[FN440] Id.
[FN441] Id.
[FN442] Woodling v. Knickerbocker, 17 N.W. 387 (Minn. 1883).
======================================================================
146 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
one which read, "[t]his was taken from Dr.
Woodling as he would not pay for it; for sale at a bargain,"[FN443]
and the other which read, "Moral: Beware of dead-beats."[FN444] 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.[FN445] Importantly, the court also
discussed the liability of one of the furniture store owners who
had not seen the defamation.[FN446] 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.[FN447] This situation was contrasted
with that of a business involved in publishing or selling books or
magazines.[FN448] 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.[FN449] 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.[FN450] supports this theory. In this
case, a newspaper article defaming a ticket broker was posted in
the defendant's railway office.[FN451] The court held that a jury
could properly have found that the defendant, by way of its
agents, had knowledge of what was posted in its office.[FN452] 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.[FN453]
Hellar v. Bianco is a case in which the proprietor of an
establish-
--------------------------
[FN443] Id.
[FN444] Id.
[FN445] Id.
[FN446] Id.
[FN447] Id.
[FN448] Id.
[FN449] Id.
[FN450] Fogg v. Boston & L. R. Co., 20 N.E. 109 (Mass. 1889).
[FN451] Id.
[FN452] Id. at 110.
[FN453] Id.
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147 E-Law Copyright 1992-1993 by David Loundy
ment 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.[FN454] Hellar involved "libelous matter indicating that
appellant was an unchaste woman who indulged in illicit amatory
ventures"[FN455] which was scrawled on a men's room wall of a
tavern.[FN456] After the woman who was the subject of the note began
getting calls about the graffiti, the bartender was asked to have
the message removed.[FN457] Later that evening, when it was not
removed, the tavern owner was charged with republication of the
libel.[FN458] 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.[FN459] 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.[FN460] Tacket
involved a defamatory sign posted in a GM factory.[FN461] 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.[FN462] 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.[FN463]
A more recent case, Scott v. Hull,[FN464] 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.[FN465] The plaintiff told the defendant about the
graffiti and asked that it be removed; the defendant refused.[FN466]
The court held that the building owners were not liable as
republishers, and they were under no duty to remove the
graffiti.[FN467] The reasoning behind this decision is
--------------------------
[FN454] Hellar v. Bianco, 244 P.2d 757 (Cal. Ct. App. 1952).
[FN455] Id. at 758.
[FN456] Id.
[FN457] Id. at 759.
[FN458] Id.
[FN459] Id.
[FN460] Tacket v. General Motors Corp., 836 F.2d 1042 (7th Cir. 1987).
[FN461] Id. at 1043-34.
[FN462] Id. at 1047.
[FN463] Id.
[FN464] Scott v. Hull, 259 N.E. 160 (Ohio Ct. App. 1970).
[FN465] Id. at 160.
[FN466] Id. at 161.
[FN467] Id. at 162.
======================================================================
148 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
that the viewing of the graffiti was not at the invitation of the
owners <20> as it was in the earlier cases.[FN468]
In Scott v. Hull, the graffiti was on the outside of the
defendant's building.[FN469] It was placed there by strangers and
read by strangers.[FN470] The defamation was not put there by an act
of the defendant, and the court refused to find liability for
nonfeasance in this instance.[FN471] In Hellar,[FN472] the defamation
was "published" in the restroom on the defendant's premises. The
graffiti was placed there by invitees of the defendant,[FN473] and
was read by other invitees.[FN474] Byrne v. Deane,[FN475] Woodling v.
Knickerbocker,[FN476] and Tacket v. General Motors Corp.[FN477] are
similar to Hellar. The same was true in Fogg v. Boston & L. R.
Co.,[FN478] 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
several 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 of-
--------------------------
[FN468] Id.
[FN469] Id. at 160.
[FN470] Id.
[FN471] Id. at 162.
[FN472] 244 P.2d at 757.
[FN473] Id.
[FN474] Id.
[FN475] 1 K.B. at 818.
[FN476] 17 N.W. at 387.
[FN477] 836 F.2d at 1042.
[FN478] 20 N.E. at 109.
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149 E-Law Copyright 1992-1993 by David Loundy
fending message, or have someone else do it. This is
similar to the case of graffiti in a bar <20> 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.
F. 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.[FN479] 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."[FN480] 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
informed.[FN481] An equal concern is to protect children from
inappropriate material; this is especially true because of radio
and television's special reach <20> they can even bring indecent
messages to those children too young to read.[FN482] Radio and
television are given special treatment, including the "channeling"
of constitu-
--------------------------
[FN479] Communications Act of 1934, 47 U.S.C. <20> 301.
[FN480] Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 376 (1969).
[FN481] Id. at 390.
[FN482] F.C.C. v. Pacifica Foundation, Inc., 438 U.S. 726, reh'g
denied, 439 U.S. 883 (1978).
======================================================================
150 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
tionally 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.[FN483]
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.[FN484]
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.[FN485] 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
--------------------------
[FN483] Id. at 731.
[FN484] 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).
[FN485] 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.
======================================================================
151 E-Law Copyright 1992-1993 by David Loundy
guarantees of free speech that apply to publishers apply to
broadcasters. For instance, a broadcaster does not have the right
to make defamatory statements with knowing or reckless disregard
for the truth.[FN486]
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.[FN487] Like computer information
systems, 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[FN488] obscenity standard
traditionally was not extended to cable.[FN489] Recent cable
television regulation, however, acknowledges the growth of cable,
which now reaches nearly sixty per cent of all television
households.[FN490] The Communications Act of 1934[FN491] 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."[FN492] 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.[FN493]
Also, analogous to the postal service statutes, the new cable
regulations add a provision for service users to have the service
provider block out unsolicited sexually explicit materials on
re-
--------------------------
[FN486] Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wyo. 1976).
[FN487] Mail, 47 U.S.C. <20> 151; see also United States v. Midwest Video
Corp., 406 U.S. 649 (1972).
[FN488] 438 U.S. at 726.
[FN489] Community Television, Inc. v. Roy City, 555 F. Supp. 1164 (D.
Utah 1982); Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985).
[FN490] Cable Television Consumer Protection and Competition Act of
1992, Pub. L. No. 102-385, <20> 2(3), 106 Stat. 1460.
[FN491] 47 U.S.C. <20> 532(h).
[FN492] Cable Television Consumer Protection Act of 1992, <20>10(a)(2).
[FN493] Id. <20> 10(b).
======================================================================
152 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
quest.[FN494] 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.
VIII. 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
of voyagers through Cyberspace. This has given rise to groups such
as Computer Professionals for Social Responsibility[FN495] and the
Electronic Frontier Foundation.[FN496] 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 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
--------------------------
[FN494] Id. <20> 15.
[FN495] Katy Ring, Computer Professionals for Social Responsibility
Seeks to Change Lay Preconceptions, COMPUGRAM INT'L, Oct. 9, 1990.
[FN496] John P. Barlow, Crime and Puzzlement: In Advance of the Law on
the Electronic Frontier; Cyberspace, WHOLE EARTH REV., Sept. 22,
1990, at 44.
======================================================================
153 E-Law Copyright 1992-1993 by David Loundy
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.[FN497]
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
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.
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.[FN498] 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.[FN499] Also, it may not even be able to discover the reach
of offending material.[FN500] Copyrighted material could be spread
from computer to computer all over the world after just one file
transfer.[FN501]
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.[FN502] 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,
tradi-
--------------------------
[FN497] Laurence Tribe Proposed Constitutional Amendment, available
over Internet, by anonymous FTP, at FTP.EFF.ORG (Electronic
Frontier Foundation).
[FN498] See generally Charles, supra note 383.
[FN499] Id.
[FN500] Id.
[FN501] Id.
[FN502] Johnathan Gilbert, Computer Bulletin Board Operator Liability
for User Misuse, 54 FORDHAM L. REV. 439, 441 (1985).
======================================================================
154 ALB. L. J. SCI. & TECH. [Vol. 3 1993]
tion-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.[FN503] 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[FN504] works well to regulate
electronic mail because it is modeled after the statute that
governs the U.S. mail.[FN505] 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 <20> 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. An example is
trespassing. If someone hacks into a computer system, 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. The structure already exists to
regulate the new technology, because, in essence, the new
technology is just a new incarnation of the old.
--------------------------
[FN503] See Branscomb, supra note 181, at 7-11.
[FN504] 18 U.S.C. <20> 2511.
[FN505] 18 U.S.C. <20> 1702.
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