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Text File | 1985-08-06 | 14KB | 203 lines

     The  following  article appeared in the recent  July,  1985  CompuServe
publication - Online Today.  The saga continues....

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                               VIDEOTEX LAW:
                        Looking At The Legalities Of
                         Electronic Communications

                                     By
                               Byron T. Scott

   It  was  a blustery mid-March day,  guaranteed to keep viewers  close  to
their warm television sets.   The clear,  blue eyes of daytime TV's favorite
talk-show host blinked at millions.
   "Do  you  know who can access a computer to find out how much is in  your
checking account?.  How many times you've been divorced?  Whether or not you
watch dirty movies?", Phil Donahue demanded.  Neither hearing, nor expecting
an answer,  he continued.   "I'm telling you...  You know what else they can
do?  They can get your credit card!"
   Communications historians may well record that video moment as pivotal in
computer-mediated communications;  the moment when the masses woke up.  Woke
up  to  the legal problems that have been baffling videotex  users  and  the
industry for a decade.
   Then again, awareness may await this summer's reruns...
   The  impact of the late winter Donahue show notwithstanding,  the general
public is increasingly aware that concerns about computer communications and
the  law are about more than precocious kids tapping secret  databases  like
electronic Hardy Boys.  Public fears about electronic raids on their privacy
may  do  more to slow videotex's acceptance than any economic  or  technical
factor.   To  data,  the industry spokesmen agree,  there are more questions
than answers.
   "Right now, I'd advise any aspiring lawyer to study the law of electronic
communications,"  comments  George  M.   Minot,  CompuServe  executive  vice
president.  "...Now there's a field you could grow old with."
   Many liken the current legal uncertainties of public and private videotex
to  the  neonatal years of radio.   "What happened there  is  that,  as  the
industry developed, certain problems became clear," notes a FCC attorney who
asked  not  to be identified.   "Then,  as worsening problems threatened  to
retard  broadcasting,  the government stepped in with things like  the  FCC.
Although,  in these days of deregulation, I wouldn't count on anything quite
so dramatic."
   While  the FCC and other such federal bodies as the Security and Exchange
Commission  and the Federal Trade Commission maintain a  watch,  events  are
leading toward some tentative legal trends, if not conclusions.
   Questions these trends hope to answer are:
     * Is unauthorized access to a videotex service a crime?
     * Is videotex-transmitted data protected as free speech?
     * Is videotex material covered by traditional shields from abuse,
       such as copyright?

LEGISLATORS SEEK SOLUTIONS
   The  spectre of privacy invasion - "They can get your credit card!" - has
stirred  legislators at both state and federal levels.   Although a  federal
computer  crime  law  is  being considered by  a  half  dozen  Congressional
committees,  none has yet emerged to replace antiquated legislation  enacted
to govern other media and correct other problems.  For example, most federal
prosecutions  would  not  have  to proceed under charges  of  "wire  fraud."
However, some legal progress has been made.
   Legislatures  of most states without relevant legislation  have  numerous
bills in their hoppers.  Significantly, many of those who had computer crime
laws are reconsidering them in the light of videotex and electronic privacy.
In Texas,  the state's senate passed on voice a "West of the Pecos" computer
crime bill worthy of Judge Roy Bean.  Texas' act provides imprisonment of up
to one year for unauthorized access and up to 10 years for damaging computer
data  or  systems.   In other states,  the effort is to provide  breadth  of
protection, as well.
   In  Ohio,  for example,  current statutes concentrate on the old image of
industrial  spies  breaking into mainframes.   Proposed revisions  are  more
modern  and  realistic,  in  effect  defining  all  data  and  data  traffic
activities as "property" that can be lost, damaged or stolen by unauthorized
persons - who will be punished.
   As with "model bills" being considered by many legislatures, the Ohio law
will now include software,  securities, credit card and banking transactions
and  most other information that moves in a digital network.   It  makes  it
clear that individuals as well as firms are protected.   Unauthorized access
specifically  includes presence in any system without the  password-holder's
permission.   The  Ohio law,  in early spring pending in the House Judiciary
and  Criminal  Justice  Committee,  defines  computer  crime  as  a  felony,
punishable  according to the degree of damage inflicted or services  stolen.
   One pivotal problem in considering videotex crime is the movement of data
across state lines.   The Videotex Industry Association "model bill" as well
as  the  Ohio  legislation,  seeks  to solve  the  dilemma:  "Where  do  you
prosecute?"  Venue, the legal term for jurisdiction, is established not only
at  the  service's mainframe,  but wherever the defrauded  customer  or  the
computer pirate have their terminals.  The intended effect is a multi-barbed
"Gotcha!"
   In  Washington,  where a dozen computer crime bills have been  considered
and  left  to  die in recent sessions,  consensus may be  developing  around
legislation  sponsored by Sen.  Patrick Leahy (D-VT).   As  senior  minority
member  of  the Senate Judiciary Committee,  Sen.  Leahy is proposing  broad
ammendments  to existing laws,  principally the National Communications  Act
and  the Wiretapping Act,  which go back to 1968.   The tactic of  ammending
tested  and  respected  laws may be a better route  than  enacting  new  and
untested  laws  just for videotex,  a spokesman for the  Committee  reasoned
recently.  In fact, the Leahy bill, sidetracked in the fall by elections and
in  the winter by deficit debates,  emerged with fresh energy in the spring,
fuled  in  part  by one of the most bizarre instances  in  videotex's  short
history.

CRIMINAL CUSTOMERS
   Unauthorized users are enough of a problem...but what happens when  legal
customers are also criminals?
   Leo  Radosta  of Detroit was a paid-up customer of The  Source,  a  large
public videotex service based in McLean,  VA.  Like many videotex customers,
he  was  an active user of electronic mail.   Without  warning,  The  Source
received a subpoena from a federal grand jury,  seeking to look at Rodosta's
electronic  mail.   The  customer,  it was alleged,  was the "kingpin" of  a
cocaine  ring  who  was  using videotex  to  communicate  with  dealers  and
smugglers in New York, Florida, Texas, Colorado and California.
   At  the request,  the videotex service's lawyers filed a brief,  claiming
the service could not give up a customer's private transactions, criminal or
not,  without  a warrant.   "Not so," replied the feds.   The data were  not
subject  to the protections of telephone conversations or  even  first-class
mail, a counter brief contended.  Because backup magnetic tapes were made of
all  data  on  the  system - a standard procedure in case of  power  loss  -
Rodosta's electronic mail became "third-party record."
   Contended Joel Shere,  United States Attorney for Eastern Michigan:  "The
government  has  the  right  to subpoena  third-party  records  without  the
necessity  of  obtaining a search warrant just as we are  able  to  subpoena
corporate records or bank records."  Who was right?  Could a standard safety
procedure,  intended to aid customers, destroy their expectation of privacy?
That, as they say in the courts, remains "a moot question."
   Before  a  federal judge could rule on the subpoena's  legality,  Rodosta
pleaded guilty to drug trafficking and was sentenced to 10 years in  prison.
The issue remained unsettled;  the experience was unsettling.   The American
Civil  Liberties Union cried that,  if wiretapping and mail interceptions do
not apply,  data transmission becomes unsafe for everyone.   An official  of
the Electronic Mail Association commented more mildly,  "There is apparantly
a hole in the law."
   The  Radosta  case provided new fodder for hearings before  Sen.  Leahy's
subcommittee.   Both  Attorney General Edwin Meese and FBI Director  William
Webster  promised  to  review the federal policies  toward  electronic  data
transmissions.   Neither  would  lend  immediate  support  to  strengthening
privacy protections, however.
   If,  however,  as  an executive of the Information  Industry  Association
testified,   "legal   protections   must   be  transparant  to   what   form
communication  takes," what about  older,  Constitutional  protections?   Is
videotex  protected  by freedom of speech or by freedom of  the  press?   To
date,  there have been no legal decisions on those questions,  either.   But
there was another "almost" - this one in California.

THE "MODEM FREEDOM CASE"
   There  are dozens of special interest forums on public videotex  services
and  uncounted  hundreds of bulletin boards operated by computer  hobbyists.
Tom  Tcimpidis had one of the latter,  "the Mog-Ur," operating from his  San
Fernando Valley home.   Last summer,  police raided his home and seized  all
his  equipment.   Tcimpidis  was charged with telephone  fraud.   The  great
"Modem Freedom Case" was launched.
   Acting  on  a  tip,  police had found an AT&T credit card  number  posted
anonymously  on the Mog-Ur board.   Tcimpidis contended that he didn't  know
the  number was there until police and Pacific Bell informed him of it  - by
serving  a  search warrant.   If Freedom of Speech is worn  with  electronic
pride  anywhere  in  the United States  today,  that  place  is  California.
Computer  hobbyists,  legislators  and lawyers arose in Tcimpidis'  defense.
One  legislator  threatened to ammend California's constitution  to  protect
computer hobbyists.  But again, the case never got to trial.
   In  February,  charges  were dropped against Tcimpidis  - who  has  since
changed  his  bulletin  board to a subscription  service.   The  prosecution
admitted it could not prove a connection between the accused and the  posted
credit  card  number.   "This  is a victory for freedom of speech  over  Big
Brother   telephone  company,"  declared  Charles  Lindner,   attorney   for
Ticimpidis and himself a computer networker.  "I think the telephone company
sees this form of communications as a threat...(and will) stifle it as  much
as it possibly can."
   Ironically,   a   bill   subsequently  introduced  into  the   California
legislature asks for penalties to be imposed on bulletin board operators who
do  not monitor the communications of users.   The responsibility of  larger
public services for illegal actions remains an untested question.
   A  remaining  major  legal problem  involves  videotex  transmissions  as
property.   Do the laws of copyright that apply to print-on-paper also apply
to electrons traveling through space?   The U. S. Copyright Act,  amended in
the  1970's,  does not mention copyright.   However,  videotex services  are
proceeding  as  if the protection does exist.   All major  public  services,
including  CompuServe,  The  Source and the Dow Jones  Information  Service,
include the circled "c" at the top of original stories and information.  "It
may  be  some  time  before this thing is  thoroughly  tested,"  says  James
Ambrosio,  a  top editor of the Dow Jones service,  "but in the meantime  we
intend to protect our property in the traditional way."
   This includes warning anyone who copies and reprints text, in any medium,
that they are infringing on private property.  Some bulletin board and forum
leaders  have  unwittingly  copied material from the electronic  version  of
'Online Today'.   The reaction is a stern warning and monitoring for further
violations, according to Editor Doug Branstetter.
   The  assumption  that  videotex is covered by  copyright  also  is  being
taken by Sen.  Leahy of VT in his hearings.  An appropriate amendment to the
copyright act is expected to make that explicit.   Meanwhile,  proponents of
videotex  copyright point to the recent ruling by a Nashville federal  judge
protecting computer programs.   U. S. District Court Judge Thomas A. Wiseman
ruled  that "ideas,  organization and structure" are protected by copyright,
whether  in written or electronic form.   His opinion declared a  commercial
statistical program, modified by Vanderbilt University to run on a different
type  of  computer,  was copyright infringement.   "The underlying  idea  of
copyright is as valid as it ever was," comments Robert  Weissman,  president
of  Dun  &  Bradstreet  Corp.,  "...perhaps even more so  with  the  greatly
increased importance of information."
   As  the  videotex  industry  grows into  its  second  decade,  the  legal
questions far outnumber the answers.....