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From: "Michael H. Riddle" <riddle@hoss.unl.edu>
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Subject: Electronic Pamphlet
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Status: RO
THE ELECTRONIC PAMPHLET--COMPUTER
BULLETIN BOARDS AND THE LAW
Submitted in Partial Fulfillment
Of the Requirements of
Mass Communications
by
Michael H. Riddle
72446.3241@compuserve.com
Sysop on 1:285/27@fidonet
(c) Copyright 1990, by Michael H. Riddle. All Rights Reserved.
This paper may be freely distributed via electronic media
provided that the entire text remains intact, including this
first page,notice, and disclaimer, and further provided that
full credit is given.
DISCLAIMER: This paper was prepared by a law student as part
of a course of study, and should not be construed to represent a
legal opinion. Anyone with a need for a current legal opinion
relating to this material should contact an attorney licensed
to practice in their state.
THE ELECTRONIC PAMPHLET--COMPUTER
BULLETIN BOARDS AND THE LAW
Introduction--Bulletin Boards Then and Now
In 1517, Martin Luther nailed his 95 theses to the door
of the church in Wittenberg, Germany, an act which is gener-
ally considered the start of the Reformation, the Protestant
religious movement (Protesting aspects of the Catholic
church as it then existed). [FN1] The author remembers how
outrageous it seemed to him, the first time he heard the
story, that anyone would have the effrontery to nail even
one, let alone 95, documents to a church door. It was only
later, after much study of history and theology, that he
came to learn that the church door was routinely used for
this purpose. At a time before widespread publication of
newspapers, before telegraph, telephone, television, or CB
radio, the church door was the acknowledged location for
important notes or topics of discussion. [FN2]
Students at the University of Nebraska College of Law
use the "kiosk" inside the main entrance to the college to
pass notes to each other. Hexagonal in shape, one side of
the kiosk is reserved for general announcements and bulle-
tins. Sometimes the postings are as routine as announcement
of a meeting; at other times, they might be a call to action
FN1. LINDBERG, MARTIN LUTHER: JUSTIFIED BY GRACE 24 (1988)
FN2. Id.
1
to save the trees in a local park from the bulldozer.
Students are cautioned, during their first formal orienta-
tion at the College, to check the kiosk daily. [FN3]
Just inside the door at Baker's Supermarket in LaVista,
Nebraska, is a board where customers (and presumably others)
may post notes about items for sale, offers of employment,
and the like. Similar boards are found in other locations
around town, provided either as a public service by a busi-
ness, or perhaps as yet another advertising "gimmick,"
another way of increasing business at the store. [FN4]
During the Revolution, and when the Founding
Fathers [FN5] wrote the Constitution and the Bill of
Rights, similar functions were often fulfilled by "pamphle-
teers." Anyone with an idea and a little loose change could
FN3. The author remembers well his orientation at the
beginning of the fall semester, 1988, and the admonition
given by (now assistant dean) Anne Lange. His experience
since then has borne out the wisdom of her words.
FN4. The author sees the board at Baker's all too frequent-
ly, as his meager income outgoes to the provider of suste-
nance.
FN5. In the spirit of inclusive language, should one, with
tongue in cheek, refer to them as the "Precipitating Par-
ents"? On a more serious note, to make the sentence struc-
ture as short and direct as possible, and consistent with
the generally accepted rules of construction for statutes
and legal texts, we have used the pronouns "he", "his," in
lieu of "he or she," or "his or hers," etc. Unless the
context clearly indicates otherwise, masculine pronouns
should be read as inclusive.
2
buy or borrow a printing press, and soon be distributing
their ideas around the town. [FN6]
Today, another forum is increasingly available for
notices, reminders and discussions--the computer bulletin
board. [FN7] Listings of items for sale, notices of meet-
ings, and discussion about matters important or trivial may
be found in the world of electronics as well as groceries.
At one time the province of the technically and financially
gifted, bulletin boards are increasing available to Every-
man. [FN8] At least one commentator has directly compared
FN6. Pamphleteers were pervasive and almost certainly
within the intended coverage of the First Amendment's Press
Clause. Lange, The Speech and Debate Clauses, 23 U.C.L.A.
L. REV. 77, 106 (1975).
FN7. The terminology is far from standardized in discussing
computer bulletin board systems. The author, in researching
this paper and in general experience, has experienced com-
puter bulletin board systems (CBBS), remote bulletin board
system (RBBS), electronic bulletin board system, and just
"bulletin board system: (BBS). For simplicity, this paper
will use bulletin board, bulletin board system, or BBS as
the context dictates.
FN8. A 1985 law review article cited sources indicating
there were some 1500 active bulletin board systems in the
United States as of 1984; however, the authors indicated
some skepticism as the source cited 15 in the Denver area
and they personally knew of 50-60. Soma, Smith & Sprague,
Legal Analysis of Electronic Bulletin Board Activities, 7 W.
NEW ENG. L. REV. 571, 572 n. 3 (1985). Another article
suggests the number is between 1000 and 5000. Note, Comput-
er Bulletin Board Operator Liability for User Misuse, 54
FORDHAM L. REV. 439, 441 n. 12 (1985). The author is cur-
rently system operator ("sysop") of an bulletin board system
affiliated with networks known as "Fidonet," "Metronet," and
"OPCN." The current combined "nodelists," or addressing
information, list over 8500 independent bulletin boards
worldwide. Nodelist 222, Fidonet, available electronically
and from the author. In addition, several large commercial
networks exist. While it is apparently difficult to obtain
3
the bulletin board system of today with the pamphlet of
yesterday. [FN9]
In the simplest form, a bulletin board is a computer,
often a small personal computer (PC), connected to a tele-
phone line by a device called a modem. [FN10] While large
and expensive systems are possible, a person desiring to
enter the bulletin board arena may do so for a total invest-
ment less than $500. [FN11] At the simplest, the bulletin
board system acts as a "store and forward" system. Individ-
uals call the BBS one at a time, "log on" (typically using
some sort of entry code and password protection to insure
identity), read messages that have been left and post any
information about their subscriber base, one source lists
them as CompuServe (500,000 +), Dow Jones/News Retrieval
(275,000), and GEnie (General Electric Network for Informa-
tion Exchange) (150,000). Becker, Liability of Computer
Bulletin Board Operators for Defamation Posted by Others, 22
CONN. L. REV. 203, 204 n. 4 (1989).
FN9. Dembart, The Law Versus Computers: A Confounding
Terminal Case, L.A. Times, Aug. 11, 1985, at 3, col. 1.
FN10. "Modem" is a contraction of two terms, modulator and
demodulator, referring to two separate processes that must
occur to transmit computerized information over telephone
lines. At the present time, the modem is normally either a
small box set next to the computer and connected by cables,
or a small printed circuit card physically installed inside
the PC. In either instance the modem must be connected to
the telephone system for the bulletin board to operate.
Kahn, Defamation Liability of Computerized Bulletin Board
Operators and Problems of Proof 6 (1989) (electronically
distributed, available from the author of this paper).
FN11. Becker, supra n. 8 at 203 n. 2.
4
messages they desire. They then log off, and the system is
available to the next caller. [FN12]
"Networked" systems add an additional step, one which
greatly expands the nature of the forum. At pre-designated
times, the BBS scans the messages to see what has been
posted on the board since the last similar event, and pre-
pares "mail packets" with those messages. It then calls
other systems and forwards the packets to those systems,
receiving in turn any mail designated for it. In this
manner, messages may be entered in Lincoln or Omaha at no
expense to the user, and be sent literally around the
world. [FN13]
Static on the Lines?
While bulletin board systems may facilitate communica-
tion, they have a potential for misuse as well. Several
positive benefits of bulletin boards are that users may
express their opinions on matters of public interest, may
look for reviews of products they are considering buying,
FN12. Becker, supra n. 8. See also, Soma, Smith and
Sprague, supra n. 8.
FN13. Attached to this paper are a partial current combined
system list for FidoNet, MetroNet and OPCN, and a list of
"echo" areas, by somewhat cryptic but at the same time
somewhat understand area "tags," that are available to him
as a system operator. Also attached is a brief description
of "echomail," and sample printouts of some recent discus-
sions. The cost of long distance transmission is usually
absorbed by the system operator as part of the cost of the
hobby. Occasional "pooling" arrangements allow for the
economical transmission between cities (several operators in
the Omaha area do this, for example).
5
and might ask specific questions about any number of mat-
ters. [FN14] Potential for abuse exists in both civil and
criminal areas, particularly for defamation (libel or slan-
der), theft of intellectual property (particularly software
piracy and copyright violations), and theft (credit card
abuse, telephone system fraud, and similar actions). [FN15]
Press coverage of this type of activity inevitably refers to
the use of bulletin boards, [FN16] and in the public mind
all bulletin board operators and users become associated
with "hackers" and "phreakers." [FN17] Recent news events
covered at some length the "Internet worm" propagated by
Robert Morris, which brought several national computer
networks almost to a complete halt. [FN18] The press
treatment of the event once again tended toward the sensa-
tional, using what have come to be pejorative terms, such as
"hacker," "phreaker", and the like. These reports also
frequently included what could easily interpreted as deroga-
FN14. Note, FORDHAM L. REV., supra.
FN15. Id.
FN16. Id., at 439, n. 4.
FN17. Soma, Smith and Sprague, Legal Analysis of Electronic
Bulletin board Activities, 7 W. NEW ENG. L. REV. 571, 572-
575 (1985). See also note 19, infra.
FN18. UPI, May 5, 1990, Computer hacker gets probation,
fine, LEXIS, NEXIS library, Current file.
6
tory references to bulletinboard systems ingeneral. [FN19] -
The United States Secret Service has been charged with
enforcement of federal laws relating to computer crime, and
a recent investigation known as "Sun Devil" has received
some publicity in the traditional media, and even more in
FN19. Westbrook, User to user: the comms column; Bulletin
boards helpful for communication, PC User, LEXIS, NEXIS
library, Current file (1990).
Consider the following equation: Computer + Modem
= Illegal Activity. This is the basic formula
used by non-expert TV and radio programme editors
when examining the subject of data communications
and it's a view which has been encouraged by a few
pundits who're only too happy to take money to
talk about children playing noughts and crosses
with military computers. This attitude seems to
be the result of a few celebrated cases where
illegal activity has been brought to light involv-
ing a hacker, his computer and a modem. Yet the
same principle might be applied to all drivers of
Mk II Jaguars to identify them as getaway drivers
for bank robbers.
The suspicion that the modem/computer combination
can generate is nowhere more apparent than in the
public view of the bulletin board. To read, see
or hear the popular media in action, you could be
forgiven for thinking that bulletin boards are
used exclusively to disseminate pornography or
recipes for Molotov cocktails. At the very least,
such services are seen as havens for spotty,
adolescent, sex-mad anarchists rather than serious
computer users.
Id. Westbrook goes on to suggest that bulletin boards have
valuable uses as sources of information and discussion, but
that the general public can be forgiven for not realizing
this, given the nature of press coverage of computer crime.
7
the electronic fora. [FN20] In the zealous pursuit of
their goal to eliminate computer crime, the Secret Service
is often trampling on toes and arguably chilling the free
expression of ideas. An example of what can happen occurred
recently when someone illegally (meaning without authoriza-
tion) entered a Bellsouth computer and downloaded (arguably
"stole") documentation about the "E911" enhanced emergency
communications system. (E911 is the system that calls the
emergency dispatcher when someone dials 9-1-1 and automati-
cally displays for the dispatcher the calling number and
address, and any other information that has previously been
filed, such as hazardous chemicals, invalids or small chil-
dren, etc.) One Robert Biggs plead guilty to the actual
theft, and a Craig Neidorf was charged along with Biggs.
Neidorf apparently was not charged directly with the theft
(assuming, arguendo, theft had occurred), but rather with
publishing the data in an electronic newsletter. Neidorf's
computer equipment, including that use for a bulletin board
FN20. In fact, the Internet/Usenet system, with which the
University of Nebraska is affiliated, carries a "newsgroup"
somewhat misleadingly labelled the "Computer Underground
Digest," which devotes a great deal of space to known cur-
rent investigations and debunking rumors and myths surround-
ing them. CuD Volumes 1.22 through 1.28, available from the
author.
8
system, was seized, even though it contained electronic
mail. [FN21]
The case against Neidorf was suddenly dismissed on the
fourth day, after it became apparent that nothing of value
(in the sense that it was already publicly available) had
been published by Neidorf. [FN22]
FN21. Electronic mail is specially protected by 18 U.S.C.
2701 et seq., the Electronic Communications Privacy Act
of 1986 (ECPA). There is no indication that the officers
requesting any warrants or the judge or magistrate that
issued them paid any attention to the requirements of the
ECPA. See generally, CuD Vol. 1.23, available from the
author. A limited discussion of electronic mail privacy
issues as they interact with bulletin board systems will
follow infra.
FN22. The following electronic note was published in the
newsgroup comp.dcom.telecom (Telecommunications Digest) on
Saturday, August 11, 1990. The accompanying header and
routing control information is deliberately left in place so
one may get a sense of the complexity and pervasiveness of
the electronic world:
From comp.dcom.telecom Sat Aug 11 09:47:24 1990
Path: hoss!maverick.ksu.ksu.edu!ux1.cso.uiuc.edu!
brutus.cs.uiuc.edu!wuarchive!cs.utexas.edu!mailrus!
accuvax.nwu.edu!nucsrl!telecom-request
From: colin@array.uucp (Colin Plumb)
Newsgroups: comp.dcom.telecom
Subject: Dial 1-800 ... For Bellsouth `Secrets'
Message-ID: <10698@accuvax.nwu.edu>
Date: 10 Aug 90 17:41:07 GMT
Sender: news@accuvax.nwu.edu
Organization: Array Systems Computing, Inc., Toronto,
Ontario, CANADA
Lines: 71
Approved: Telecom@eecs.nwu.edu
X-Submissions-To: telecom@eecs.nwu.edu
X-Administrivia-To: telecom-request@eecs.nwu.edu
X-Telecom-Digest: Volume 10, Issue 558, Message 5 of 11
{Computerworld}, August 6, 1990, Vol. XXIV, No. 32,
Page 8.
9
Dial 1-800...for Bellsouth `Secrets'
BY MICHAEL ALEXANDER
CW STAFF
CHICAGO --- The attorney for Craig Neidorf, a 20-year-
old electronic newsletter editor, said last week that
he plans to file a civil lawsuit against Bellsouth
Corp. as a result of the firm's ``irresponsible''
handling of a case involving the theft of a computer
text file from the firm.
Federal prosecutors dismissed charges against Neidorf
four days into the trial, after the prosecution wit-
nesses conceded in cross-examination that much of the
information in the text was widely available.
Neidorf, the co-editor of ``Phrack,'' a newsletter for
computer hackers, was accused by federal authorities of
conspiring to steal and publish a text file that de-
tailed the inner workings of Bellsouth's enhanced 911
emergency telephone system across none states in the
southeast [CW, July 30].
``What happened in this case is that the government
accepted lock, stock, and barrel everything that
Bellsouth told them without an independent
assessment.'' said Sheldon Zenner, Neidorf's attorney.
One witness, a Bellsouth service manager, acknowledged
that detailed information about the inner workings of
the 911 system could be purchased from Bellsouth for a
nominal fee using a toll-free telephone number.
A Bellcore security expert who was hired by Bellsouth
to investigate intrusions into its computer systems
testified that the theft of the file went unreported
for nearly a year.
Last week, a Bellsouth spokesman said the firm's secu-
rity experts delayed reporting the theft because they
were more intent on monitoring and preventing intru-
sions into the company's computer systems. ``There are
only so much resources in the data security arena, and
we felt that it was more urgent to investigate,'' he
said.
He also disputed assertions that the document was of
little value. ``It is extremely proprietary and con-
tained routing information on 911 calls through our
10
Legal Issues Relating to Bulletin Board Systems
Several legal issues remain unresolved, at least as
they pertain to bulletin board systems. [FN23] This paper
will survey what appear to be the most obvious ones at the
moment, briefly review the law as it appears to be on the
subject, and may occasionally suggest what the author advo-
cates as the "proper" rule on the issue. Briefly stated,
none-state territory as well as entry points into the
system,'' he said.
A quick ending:
The case unraveled after Robert Riggs, a prosecution
witness who had already pleaded guilty for his role in
the theft of the document, testified that he had acted
alone and Neidorf had merely agreed to publish the text
file in ``Phrack.''
Neidorf and his attorney agreed to a pretrial diver-
sion, a program under which the government voluntarily
dismisses the indictment but could reinstate it if
Neidorf commits a similar crime within a year.
The case has stirred up national debate on the rights
of computer users in the age of electronic information.
The Electronic Frontier Foundation, a civil liberties
group set up by Mitch Kapor, founder of Lotus Develop-
ment Corp., may participate in the filing of a lawsuit
against Bellsouth, and Terry Gross, an attorney at the
New York law firm of Rabinowitz Boudin Standard Krinsky
& Lieberman.
``The Electronic Frontier Foundation is concerned by
the
irresponsibility of Bellsouth of claiming from the
outset that this was confidential information when it
should have known that it was not,'' Gross said.
FN23. The unsettled state of the law may be discovered by
reviewing the current writing on the subject, at least some
of which is listed in note 28, infra.
11
the emerging issues appear to be whether bulletin board
systems are protected by either the Speech or Press Clauses
of the First Amendment, and to what extent; whether the
bulletin board system operators are or should be liable for
illegal or actionable misdeeds of their users; what the
expected duty of care should be for the system operators as
a defense to such liability, and what protections might be
extended to bulletin board systems, directly or indirectly
through their operators, under the Fourth Amendment. This
paper will discuss four areas bearing on the legal rights
and responsibilities of system operators: whether a bulle-
tin board system is "press" for First Amendment purposes,
what rules of decision ought to apply for system operator
liability for defamation originally published by users, what
other liability might attach for contents of messages on the
system, and some limited concerns about privacy of electron-
ic mail vis-a-vis search and seizure rules.
Bulletin Board Systems and the First Amendment
In assessing what vicarious liability, for defamation
or for illegal or illegally obtained information, system
operators might have for information posted on their bulle-
tin boards by users, one is drawn to a comparison with the
press. While the analogy, like most analogies, breaks down
at some point, it is still helpful. At least one reported
decision has held that electronic information storage and
12
retrieval systems may in some circumstances be considered
"press." [FN24]
Access to Information
In Legi-Tech, Inc., v. Keiper, [FN25] a computerized
legislative information retrieval service was denied access
to a state-owned computer database of legislative materials.
In deciding for Legi-Tech, the court treated the service as
if it were a form of press, in that it existed to collect
and disseminate information about issues of public impor-
tance and interest. While Legi-Tech did not directly ad-
dress a bulletin board system, at least not in the sense
that the term is generally used, the comparison is clear
when the bulletin board system contains message areas of
public discussion in traditional areas of public concern,
such as government, politics, and laws. At least one com-
mentator, citing Legi-Tech, has concluded that for some
FN24. Legi-Tech, Inc., v. Keiper, 766 F.2d 728 (2d Cir.
1985).
FN25. Id.
13
purposes [FN26] bulletins boards should be considered
press. [FN27]
Liability for Defamation
Deciding that a bulletin board system is "press" for
some purposes begs the question, what does it mean about
anything? One of the more common concerns among system
operators appears to be vicarious liability for libels
published by users. [FN28] While the seminal modern case
FN26. The narrow holding in Legi-Tech was that an electron-
ic information and retrieval service is "press" for the
purpose of access to government information. The commenta-
tor extends this holding from information retrieval to
bulletin boards, and suggests that it would extend at least
as far as defamation actions. He then appears to abandon
this line, as he reads Dun & Bradstreet, note 30, infra, and
accompanying text, as negating the need for such a distinc-
tion.
FN27. Comment, An Electronic Soapbox: Computer Bulletin
Boards and the First Amendment, 39 FED. COMM. L.J. 217
(1987) (authored by Eric L. Jensen).
FN28. The Jensen article, supra note 27, for example pays a
great deal of attention to the libel question. Liability
for defamation is also discussed in Soma, Smith & Sprague,
Legal Analysis of Electronic Bulletin Board Activities, 7 W.
NEW ENG. L. REV. 571 (1985); Becker, The Liability of Com-
puter Bulletin Board Operators for Defamation Posted by
Others, 22 CONN. L. REV. 203 (1989); and Comment, Computer
Bulletin Board Operator Liability for User Misuse, 54
FORDHAM L. REV. 439 (1985). The subject is frequently
discussed within the framework of bulletin board systems,
particularly in those message areas devoted to system opera-
tors, and at least one paper on the subject is electronical-
ly distributed: Kahn, Defamation Liability of Computerized
Bulletin Board Operators and Problems of Proof (1989),
available by anonymous ftp from the archives of the Internet
Telecommunications Digest, lcs.mit.edu, directory telecom-
archives, as sysop.libel.liability. It is also available
from the author of this paper.
14
discussing liability of the press for libel, New York Times
v. Sullivan, [FN29] might suggest a stringent standard for
press liability, more recent cases call that into question.
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., [FN30]
might fairly be read to suggest there is no difference, in
the libel context, between press and non-press, but rather
the true distinction is between what is and is not a matter
of public concern worthy of heightened protection. Such an
interpretation would arguably be consistent with the interim
case of Robert Welch, Inc., v. Gertz, [FN31] which also
appeared to rest its holding on a public-private distinc-
tion.
Assuming, arguendo, that the New York Times v. Sulli-
van [FN32] decision established a special level of protec-
tion for the press, then the BBS operator clearly would
benefit from the extension of such a privilege. At the time
the message is entered by the user, the operator has no
knowledge whatsoever of the contents of the message, and
therefore cannot know it to be false. Later, when the
operator sees the message, the operator might arguably have
a duty to remove it if it were blatantly false; otherwise,
FN29. New York Times v. Sullivan, 376 U.S. 254 (1964).
FN30. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
105 S. Ct. 2939 (1985).
FN31. Robert Welch, Inc., v. Gertz, 418 U.S. 323 (1974).
FN32. 376 U.S. 254 (1964).
15
the issue would appear to become when failure to remove or
challenge a message would be "reckless disregard of whether
it was false or not." [FN33] In considering the question,
one might expect normally to find dispositive the holding in
St. Amant v. Thompson [FN34] that failure to investigate,
without more, could not establish reckless disregard for the
truth. [FN35]
The astute reader recognizes, of course, that the New
York Times holding concerned statements about public offi-
cials. The commentary found on bulletin boards certainly
talks about politics and public officials. [FN36] The
question remains, however, about private parties. Robert
Welch, Inc., v. Gertz [FN37] is generally cited as the
decision next addressing the subject. In Gertz, an attorney
had representing police officer's family in a murder inves-
tigation. The defendant made false statements about the
FN33. Id.
FN34. 390 U.S. 727 (1968). In St. Amant, a candidate read
on television statements received from a union official that
had been made under oath. The court found that the candi-
date's failure to investigate the statements' truth was not
reckless disregard for the purpose of "New York Times"
malice.
FN35. There "must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious
doubts as to the truth of his publication." 390 U.S. 727
(1968).
FN36. See generally, the samples from the POLITICS and
SERIOUS SIDE echoes attached at the end of this paper.
FN37. 418 U.S. 323 (1974).
16
attorney in its monthly publication American Opinion. The
judge having ruled the attorney was not a public figure, the
jury returned a plaintiff's verdict for $50,000. The trial
judge later reconsidered his ruling, and entered a judgment
not withstanding the verdict on the theory that a discussion
about a matter of public concern deserved protection. The
issue on appeal appeared to be whether the attorney was a
public figure, not whether the issue was of public concern.
The Court ruled that the fact he was not a public figure
controlled. He had not "thrust himself into the vortex of
this public issue, nor did he engage the public's attention
in an attempt to influence the outcome." The Court then held
that as long as liability was not imposed without some basis
of fault, the states could write their own rules for "pri-
vate" libels. [FN38]
If New York Times [FN39] established a new standard of
"malice" for press publishing on public matters, and
Gertz [FN40] refused to extend that standard to private
parties, even when matters of public concern might be at
stake, then what about Dun & Bradstreet? [FN41] Dun &
FN38. The case was remanded for retrial, as the jury had
found liability without fault being established and had
awarded $50,000 without proof of damages. Id.
FN39. 376 U.S. 254.
FN40. 418 U.S. 323.
FN41. 472 U.S. 749 (1985).
17
Bradstreet, a private credit-reporting firm, published false
information about Greenmoss Builders, suggesting Greenmoss
had filed bankruptcy when in fact it was an Greenmoss em-
ployee who had filed. The Vermont Supreme Court found Gertz
inapplicable to nonmedia defamation actions, and sustained
damages to Greenmoss. The Supreme Court affirmed, but on a
different basis not involving a distinction between media
and nonmedia. The plurality opinion suggested that the
crucial distinction was whether the speech involved a "pub-
lic issue," "public speech," or an "issue of public con-
cern." While Gertz did not clearly draw the distinction, it
was clear to the plurality from the facts of Gertz that such
a limitation was implied. [FN42]
As applied to bulletin board systems, it would appear
then that if the BBS is press, New York Times malice would
be the rule for defamation involving public issues or public
officials. As long as the defamation was by one user about
another user, the defamed party could be held to have delib-
erately "thrust himself into the vortex of this public
issue" in an "attempt to influence the outcome." [FN43]
That the issue was of public concern [FN44] could fairly be
implied from the fact of discussion on a public message
FN42. 472 U.S. 749.
FN43. Gertz.
FN44. Dun & Bradstreet.
18
base, subject to rebuttal. Of course, the possibility
always exists that a user inserted a defamatory statement
into a void, [FN45] in which case the system operator would
arguably at least have a duty to remove the offending state-
ment, absent a privilege to republish. [FN46]
One of the difficulties in discussing the defamation
issue lies in distinguishing the system operator as "vic-
tim," i.e., the innocent republisher of a defamation, from
the system operator as initial defamer. The operator may
be, but usually is not, the original publisher of an alleged
defamation. [FN47] The system operator is more generally a
republisher of information and, like the bookseller in Smith
v. California, [FN48] may not fairly be held to know in
advance the contents of messages left on the bulletin board,
let alone whether they are true or false. [FN49] In Smith,
the issue was whether the bookseller, absent knowledge of
the contents, could be held liable for obscene material in
his store. The Court held that he could not. "Every book-
seller would be placed under an obligation to make himself
aware of the contents of every book in his shop. It would
FN45. Dare I say, "amorphous void?"
FN46. See generally,the discussionof republication,notes 57
- 77, infra, and accompanying text.
FN47. See generally, Jensen, supra note 27.
FN48. Smith v. California, 361 U.S. 147 (1959).
FN49. See both Jensen and Soma, supra note 28.
19
be altogether unreasonable to demand so near an approach to
omniscience...." [FN50] One must be careful, however, when
discussing the impact of Smith. At least one commentator
has suggested that the typical application of Smith is that,
in the totality of the circumstances surrounding an "adult"
bookstore, the bookseller can be inferred to know the con-
tents of his merchandise. [FN51] One could suggest that
the factual situation would be critical in the context of a
bulletin board system.
In manner similar to the Smith bookseller, the system
operator is not aware of the contents of a message at the
moment it is posted. While most system operators review the
contents of most messages left on their bulletin boards most
of the time, it is not always practical to do so, and to the
extent that the discussion centers on issues of obvious
public importance, such prescreening implicates serious
First Amendment concerns regarding censorship and chilling
debate on issues of public importance. [FN52]
While it is not reasonable to expect system operators
to be aware of the contents of every message, particularly
FN50. Smith v. California, 361 U.S. at 153-4.
FN51. Interview with Professor John Snowden, University of
Nebraska College of Law, August 4, 1990.
FN52. See Comment, Computer Bulletin Board Operator Liabil-
ity for User Misuse, 54 FORDHAM L. REV. 439, 447-9 (1985).
Attached at the end of this paper is a sample of the debates
recently carried in message echoes available in the Omaha
area.
20
as it is posted, the question still remains of what duty
they owe once they become aware of an offending message.
Courts interpreting Smith [FN53] generally have applied
some element of scienter. Once system operators are aware
that offending messages have been posted on the board, they
arguably have a duty to remove the message. [FN54] Proof
of scienter might arguably be shown by the totality of the
circumstances surrounding the operation, such as limited
access, extensive password protection, or previous pattern
of abuse. [FN55]
Such a pattern might be shown if a bulletin board
system has, for example, 16 message areas, 15 of which are
generally available to the public at large, but one of which
is "hidden" and available only to close friends and associ-
ates of the system operator. Such a restricted sub-area
("sub"), if used for questionable activities, might more
easily be distinguishable from the generally accessible
subs. The operator, by exercising the control necessary to
keep the sub restricted and to grant access to the "chosen
FN53. Smith v. California, 361 U.S. 147 (1959).
FN54. United States v. Mishkin, 317 F.2d 634 (2d Cir.),
cert denied, 375 U.S. 827 (1963).
FN55. In Gold v. United States, 378 F.2d 588 (9th Cir.
1967), the defendant knew the detailed shipping identifica-
tion of the parcel in question; in United States v. Mishkin,
317 F.2d 634 (2d Cir.), cert denied, 375 U.S. 827 (1963),
the defendant was held to have scienter of obscene contents
based on the clandestine nature of the transaction.
21
few," could arguably be inferred to have personal knowledge
of the questionable activities. [FN56]
A question also arises about whether the system opera-
tors might be able to claim a privilege of republication.
The primary privilege normally mentioned in bulletin board
circles is that of the common carrier. The Restatement
(Second) of Torts acknowledges a privilege for a common
carrier to republish a defamation if the "public utility
[is] under a duty to transmit messages...." [FN57] A
careful examination suggests that a common carrier privi-
lege, however, is neither warranted nor wise. In National
Ass'n of Reg. Util. Comm'rs v. F.C.C., [FN58] the court
FN56. The hypothetical becomes real in the electronic
world. "Dr. Ripco" operated a bulletin board in Chicago,
one which included electronic mail (see generally, the
limited discussion of electronic mail, infra), which in-
cluded a restricted access sub called "phone phun." The
Secret Service recently executed a search warrant and seized
his system in an ongoing investigation, the details of which
have not yet been released. While Dr. Ripco has not yet
been charged, he relates the existence of the "phone phun"
sub was prominent when he was interrogated at the time of
the search and seizure. CuD, Vol. 1.28 (1990), distributed
electronically and available from the author. While Dr.
Ripco's knowledge, if any, was about illegal activities, one
can easily see a similar argument being made about libel.
If system operators carefully control access to an area, or
if the operators frequently participate in the discussion
where a libel is committed, then activities of the operator
could lead to a presumption of knowledge of the libel and
liability at least for failure to promptly remove, absent
some privilege. See the discussion of a possible Edwards
privilege, infra.
FN57. RESTATEMENT (SECOND) OF TORTS 612 (1977).
FN58. 533 F.2d 601 (D.C. Cir. 1976).
22
formulated a two-part test that would appear to apply to
bulletin boards and one which they could arguably pass. The
case involved cable television. The coaxial cable installed
for distribution of cable television is capable of carrying
signals in the reverse direction. FCC regulations required
such a reverse channel to be available. The FCC originally
had not completely foreclosed state and local regulation of
the reverse channel. When it acted to preempt such regula-
tion, the plaintiffs in this action sued to void the preemp-
tion. The court ruled that the reverse channel was an
intrastate common carrier, holding that to be a common
carrier an entity must first provide indifferent service to
all who request it. Many bulletin board systems will nor-
mally accept as a user anyone who applies, and many more
accept anyone who applies whose registration information is
not facially false; e.g., anyone who might provide a name
listed in the applicable telephone directory at the number
provided. Second, the system must be such that the custom-
ers can transmit information of their own choice. In the
case of the bulletin board system, by definition the infor-
mation is of the customer's own choice. The difficulty with
this approach, probably fatal if ever adjudicated, is that
no one has yet suggested a duty of bulletin board operators
to transmit any or all messages submitted to them, or even
23
to open their boards to the public. [FN59] Most bulletin
board systems, after all, are run as a hobby at a
loss. [FN60] It would be an absurd result to decide that
merely by operating a bulletin board system as a hobby, that
an operator mustprovide service to anyonewho asked. [FN61] -
Additionally, most system operators reserve the right to
edit or delete questionable messages, an action certainly
incompatible with the requirement that on a common carrier,
the information be of the customer's own choice. [FN62]
(Such a reservation of rights, however, is entirely consis-
tent with the editorial discretion inherent in a Press
Clause model, as is the discretion concerning which few
echoes or message areas, out of the extensive possibilities,
should be carried on the system. [FN63] ) In addition, the
bulletin board is not a common carrier as that term has been
FN59. See Jensen, supra note 27, at 251.
FN60. See Soma, Smith & Sprague, supra n. 8.
FN61. "The Restatement privilege recognizes `that a [common
carrier], which with very limited exceptions extends its
facilities to all users, has exhibited no actual or implied
"malice" when it merely refuses to censor a particular
communication.'" 39 FED. COMM. L.J. 217 at 250, n. 173,
citing Anderson v. New York Telephone Co., 42 A.D.2d 151,
345 N.Y.S.2d 745 (1973) (dissenting opinion), rev'd 35
N.Y.2d 746, 361 N.Y.S.2d 913 (1974) (emphasis added). See
also note 59, supra.
FN62. 553 F.2d 601.
FN63. See generally, the listing attached to this paper of
message echo areas available to system operators in the
Omaha, Nebraska, vicinity.
24
interpreted by the FCC, and the courts will normally give
"great deference" to the interpretation given by the admin-
istrative agency. [FN64] The Federal Communications Com-
mission is authorized to regulate interstate commerce by
wire or radio. [FN65] Since bulletin board systems operate
by connection to the interstate telephone system, and since
many of them actually are connected [FN66] to an interstate
network of computerized bulletin board systems, and since it
seems well-settled that the term "interstate commerce" has
an extremely broad meaning, then it would follow that the
FCC could assert jurisdiction. While it would logically
follow, it seems to this author that it would exceed the
probable intent of the Congress which enacted the Communi-
cations Act of 1934. [FN67]
The FCC appears to agree with the author. In response
to the "increasing complexity and overlap of communications
systems in the 1970s," [FN68] the FCC conducted a series of
FN64. Notwithstanding the ultimate holding adverse to the
FCC, the court in National Ass'n of Reg. Util. Comm'rs v.
F.C.C. went to some lengths to acknowledge the principle,
and then to distinguish it on the facts in the case at bar.
553 F.2d 601.
FN65. 47 U.S.C. 151 (1982).
FN66. They are connected in the logical sense, if not the
physical sense, as computer theorists use the terms.
FN67. June 19, 1934, c. 652, 48 Stat. 1064.
FN68. Comment, An Electronic Soapbox: Computer Bulletin
Boards and the First Amendment, 39 FED. COMM. L.J. 217, 220.
25
hearings which has become known as the Second Computer
Inquiry. [FN69] The Commission distinguished between
"basic" and "enhanced" services. Basic services act as a
pipe for information without significantly altering it--a
transparent path. Enhanced services combine basic service
with some sort of processing. The Commission retained its
traditional jurisdiction over basic services, but left
enhanced services essentially unregulated. Computerized
bulletin board services were specifically mentioned as
enhanced services. [FN70]
If it seems likely that bulletin board systems are not
common carriers, it also seems wise. We saw in the discus-
sion of defamation, supra, that bulletin boards might argu-
ably be characterized as press. While the discussion was
based on access to information, it was noted that a logical
extension could be made. One such likely extension is to a
privilege of republication. In 1977, the United States
Supreme Court denied certiorari to Edwards v. National
FN69. Second Computer Inquiry, Final Decision, 77 F.C.C.2d
384, 47 R.R.2d 669 (1980), reconsidered 84 F.C.C.2d 512, 50
R.R.2d 629 (1981), aff'd sub nom. Computer and Communica-
tions Indus. Assn'n v. F.C.C., 693 F.2d 198 (D.C. Cir.
1982), cert. den., 461 U.S. 938 (1983).
FN70. "In an enhanced service the content of the informa-
tion need not be changed and may simply involve subscribed
interaction with stored information. Many enhanced services
feature voice or data storage and retrieval applications,
such as in a 'mail box' service." Id. at 421.
26
Audubon Society, Inc. [FN71] In Edwards, the editor of an
Audubon Society magazine characterized scientists using
Society data to support the continued use of the pesticide
DDT as "paid liars." [FN72] The New York Times accurately
reported the charges. Five scientists sued both Audubon
Society and the Times. The Second Circuit dismissed the
judgment against the Times, finding a privilege of neutral
reporting essential to the operation of the Press Clause of
the First Amendment. [FN73] While the precedential value
of "cert. denied" is of uncertain value, the decision stands
in the Second Circuit. The courts are split about whether
the "neutral reporting" privilege is valid. [FN74] Many
have accepted it and many have refused to accept it. [FN75]
If there is any validity to it, however, it should apply to
bulletin boards. The editors of the New York Times, after
FN71. 556 F.2d 113 (2d Cir. 1977), cert. den. sub nom.
Edwards v. New York Times Co., 434 U.S. 1002 (1977).
FN72. The pesticide DDT had been criticized as harmful to
many kinds of wildlife, particularly following the publica-
tion of Rachel Carson's book Silent Spring. The National
Audubon Society had for many years conducted periodic bird
counts. The counts could be interpreted to show that,
contrary to the anti-DDT concerns, bird life was increasing.
The Audubon Society felt that statistical reasons, not
actual wildlife increases, were responsible for the anoma-
lous count data and opposed the use of its data to support
DDT. 556 F.2d 113.
FN73. Id.
FN74. Magnetti, "In the End the Truth Will Out" . . . Or
Will It?, 52 MISS. L. REV. 299, 329-331 (1987).
FN75. Id.
27
all, had the option (editorial discretion) not to publish.
In contrast, inherent in the nature of the bulletin board is
immediate republication. The operator may only, once he
becomes aware of the libel, remove it. No editorial choice
is exercised immediately, and in the case of networked
systems, an intervening mail event will cause the question-
able matter to be republished widely before the system
operator has the reasonable opportunity to take any action.
At least to the extent that bulletin board systems facili-
tate discussion of matters of public importance, and at
least to the extent that the Edwards privilege is ever
valid, the neutral (fair) reporting privilege should apply
to bulletin boards. [FN76] This application of the
neutral/fair reporting privilege would, it seems to the
author, be a better solution to the problem of republication
than common carrier recognition, as it would leave the
system operator with the independence and discretion implic-
it in a hobby. [FN77]
FN76. The privilege of fair reporting, after all, should at
the minimum include the actual words of the original author,
nothing more and nothing less being said, which is exactly
what the bulletin board republishes.
FN77. The question would arise of what judgment was exer-
cised if anyone could post a message. The judgment arguably
would in the first instance be the exercise of discretion in
awarding access to the system. See Soma, Smith & Sprague,
supra. The final exercise of judgment would be when the
editor/system operator removed or left in place a potential-
ly offending message. Removal would be the exercise of
editorial judgment, leaving in place an exercise of neutral-
ly reporting what the individual already had said.
28
Civil and Criminal Liability for Contents of Messages
In a similar manner, system operators have been charged
with various criminal violations based on the contents of
messages left on their bulletin boards. [FN78] One of the
earliest reported cases involved a Mr. Tcimpidis, who was
charged solely because of information posted on his bulletin
board containing stolen telephone credit card numbers. The
exact basis of the charge is missing from the reviews;
however, one can surmise that it was for aiding and abetting
or some similar theory, in that charges were later dropped
for lack of evidence of knowledge or intent. [FN79] Re-
cently, the "Sun Devil" investigation by the United States
Secret Service has resulted in the seizure of computer
equipment and at least the temporary cessation of activities
at several bulletin board systems. Boards operated by Mr.
FN78. A Mr. Len Rose was recently indicted for the theft of
American Telephone and Telegraph Company software detailing
the operation of the "E911" emergency telephone system.
Several other individuals were charged because the software,
either without their knowledge, or with their knowledge but
without their knowing it was stolen, was stored or trans-
mitted by their systems. (This is the same theft where Mr.
Biggs was convicted. See n. 21, supra, and accompanying
text.) A final decision has not been reached in Mr. Rose's
case. A copy of the Rose indictment is available from the
author. Various versions of the other charges are available
in issues of the Computer Underground Digest available from
the author.
FN79. Soma, Smith & Sprague, Legal Analysis of Electronic
Bulletin Board Activities, 7 W. NEW ENG. L. REV. 571, 605
(1985).
29
Craig Neidorf and one outside Chicago, called "JOLNET" have,
for example, ceased operations. The JOLNET operator, a Mr.
Rich Andrews, initiated contact with the Secret Service when
he became aware of potentially illegal activity on his
board. Notwithstanding 18 U.S.C. 2703 et seq., which
appear to prefer solicitation of archival copies and backup
records of such systems, the Secret Service seized the
actual computer equipment as evidence, shutting down the
system. [FN80]
Such seizures would appear to be troublesome to the
extent that a bulletin board system may fairly be said to be
some kind of a forum provided for the public discussion of
matters of importance. [FN81] One cannot foresee a more
"chilling" effect on free speech than to be frozen to death-
-or shut down by seizure.
Privacy Concerns and the Fourth Amendment
The discussion above briefly mentioned that some bulle-
tin board systems had been seized, apparently without regard
FN80. Computer Underground Digest, various electronic
editions, available from the author. The parallel to a
pamphleteer would be the seizure of his printing press.
Particularly troublesome is that the warrants, apparently,
did not specify seizure of the electronic mail stored on the
system. An action is pending in a California case.
FN81. Public importance might not be the only First Amend-
ment concern--the Speech Clause, on its face, does not limit
itself to public importance--but would be applicable to most
bulletin board systems with which the author is familiar.
30
to the presence of electronic mail. While search and sei-
zure and privacy issues are not directly pertinent to a
paper on mass communications law, they seem to the author to
be inextricably combined in any discussion of bulletin
boards. Virtually every bulletin board system provides
facilities forsome sort ofprivate, electronic mail. [FN82] -
One case in California involved a foundation known as
ALCOR, which practiced cryogenic preservation of people who
died from what they hoped would, in the future, be a treat-
able disease. ALCOR came under investigation on charges
they had preserved some people a little hastily, essentially
a charge of some kind of homicide. While no serious commen-
tator has suggested that the case should not have been
investigated, the problem appears to be that the founda-
tion's electronic mail system was seized with undelivered
mail still in storage. The system was apparently accessible
to the public. [FN83] ALCOR sued under 42 U.S.C. 1983
for the return of the system and damages, alleging, inter
alia, that the government violated the provisions of the
Electronic Communication Privacy Act of 1986 (ECPA). [FN84]
FN82. Hernandez, ECPA and Online Computer Privacy, 41 FED.
COMM. L.J. 17 (1989).
FN83. Copies of most of the pleadings to date in the ALCOR
case are available from the author.
FN84. The relevant portions of the Electronic Communica-
tions Privacy Act as recorded in the United States Code are
set out in an attachment to this paper.
31
A decision has not yet been reached in the case.
The only other known action involving the privacy
provisions of the ECPA is Thompson v. Predaina. [FN85] A
user accused a system operator, inter alia, of causing
private messages to be made public without the permission of
the sender or intended recipient, thereby violating the act.
The complaint was voluntarily dismissed prior to trial on
the merits. Predaina would have been an ideal opportunity
for judicial construction of the latest Congressional at-
tempt to define the privacy protections of the electronic
world.
As the technological complexity of society increasingly
draws us into the electronic world, privacy issues become of
more concern to more people. The responsibilities and duty
of care of a system operator to the users of the system,
regarding whatever reasonable expectation of privacy they
may have, would seem to be something each system operator
would want to know. Experience in both this class and in
the real world tells the prudent observer of the legal scene
that Congress passing an Act is but the first step in an
FN85. Complaint, Thompson v. Predaina, No. 88-93C (S.D.
Indiana 1988), dismissed August 10th, 1988. One source
relates the dismissal was voluntary. Hernandez, ECPA and
Online Computer Privacy, 41 FED. COMM. L.J. 17 (1989).
Another source indicates the dismissal was caused by the
defendant's filing bankruptcy, thereby automatically staying
the prosecution of the suit. Wilson, message in Fidonet:LAW
echo (1990). An electronic copy of the complaint is avail-
able from the author.
32
area filled with First and Fourth Amendment concerns. It
would have been helpful for a judicial construction of the
ECPA, but that will of necessity wait for another time.
There is, from empirical data, [FN86] a connec-
tion between the earlier discussion of liability for defama-
tion and illegal activities and liability for privacy. Many
sysops have difficulty in separating the two, and it seems
that to "normal" sysops "liability is liability." The
distinction as to the form of the action, and whether it is
brought by a citizen or the state, either eludes or does not
concern them.
Conclusion
The ever-increasing rate of change in the world around
us has eclipsed the state of the law in many ways. As we
have progressed from Luther's church door, to Paine's pam-
phlet, to the supermarket bulletin board, and to the comput-
erized BBS, the lines between mail and press and telephony
and public and private have often become unclear. The
application of traditional legal lines of demarcation and
tests for responsibility for defamation and criminal liabil-
ity appears unclear as well. The computerized bulletin
FN86. By "empirical data" the author means that he continu-
ally receives questions from fellow sysops who, knowing him
to be a law student, verbalize questions about their liabil-
ity exposure over the range of issues discussed in this
paper.
33
board system has become a fixture in a small but increasing
segment of our society, and that society needs the legal
system to sort out the rules so that everyone in it can play
the game on a level playing field--so that they both know
what they may reasonably expect of others and what others
may reasonably expect of them.
34
