The Unsorted BBS Collection/thegreatunsorted.tar/thegreatunsorted/texts/bbs_legal_info/tbereply.txt

Text File | 1989-07-10 | 22KB | 345 lines

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 Courtesy of Kevin Mcaleavey, SYSOP, The Big Experiment, Albany, N.Y.


TBE MAGAZINE: NYS SENATE BILL S5604- TBE'S RESPONSE
================================================================================

    PSC 89-C-098 and 89-C-099 were initiated to address concerns by Senator
John R. Dunne (R-C, Nassau County) over policing of BBS's. Senator Dunne
introduced a Bill which would direct the PSC to require New York Telephone to
monitor and possibly censor messaging on BBS's. Senator Dunne's office has
promised copies of the proposed legislation to us on numerous occasions, but
thus far has failed to provide same. Nancy spoke at length with Senator Dunne's
counsel as to the contents and intentions of the bill.

    We found, much to our surprise that Senator Dunne's counsel who helped to
draft the law hadn't the faintest idea of what a BBS is!!! He actually believed
that BBS's routinely charge large hourly fees for access and utilize special
equipment and are operated by the same people who operate those "dial-a-date"
voice services. Clearly Legislators should have some familiarity with the
subject matter upon which they intend to create law regulating same. If the
quality of research that went into this proposed law is any indication of the
typical work done by the State Legislature, God help us all! The Senate closed
it's session today, and the Bill had not yet been released from Committee. It
is expected to make the calendar during the Fall special session.

    Since so little is known by the framers of the proposed law, Nancy and I
wrote an educational response which may be of benefit to you should you wish
to write to any governmental authorities regarding our hobby:


                                               Kevin and Nancy McAleavey
                                               TBE: The Big Experiment BBS
                                               120 Winnie Road
                                               Selkirk, NY 12158
                                               [phone]

                                               June 30, 1989

Hon. Senator John R. Dunne
Capitol - Room 417
Albany, NY  12247

  Dear Senator Dunne,

    We are individual private citizens and do not represent any lobbying group.
We do however operate a hobbyist BBS (Bulletin Board System) on our home
computer utilizing the public common-carrier voice-grade local telephone
network. We noted with great interest your bill S5604 involving false
third-party identifications. We have attempted on numerous occasions to obtain
a copy of your proposed legislation to no avail. Therefore, we must respond to
the issues described by your counsel without benefit of paper before us.

    Since our BBS is one of a small number of systems which serves adult
computer users wherein conversation on a wide variety of sensitive topics is
permitted, we are greatly concerned about significant amounts of misinformation
regarding computer bulletin boards and its potentially chilling effect on the
free interchange of ideas and information among the general public via BBS's.

    We are familiar with the case of a 12 year old child who was victimized
by a spate of unwanted phone calls following the posting of a message on a
BBS system on Long Island. Such behavior is despicable and does not in any
way reflect the behavior of any significant number of BBS users, nor is such
conduct tolerated on any BBS operated by any responsible member of the
non-commercical hobbyist telecommunications community.

    The Public Service Commission has promulgated an order to show cause by
New York Telephone under cases #89-C-098 and #89-C-099 why it should not be
required to validate callers in order to prevent false identifications on
electronic messaging services provided by New York Telephone. The document
further states that the PSC has recently initiated a proceeding on common
carrier recodification. That could bring all BBS's under regulatory seige.

    Therefore, We'd like to take a few minutes of your time to explain what a
BBS's function is in telecommunications. We fully support your concerns for
privacy as well as accountability to preclude any further incidents from
occurring, however we believe that minor modifications to existing legislation
might better serve everyone's interests.

    The type of Electronic Bulletin Board System to which we refer is one
operated on a residential telephone line by ordinary citizens pursuing a
hobby. System Operators (SysOps) such as ourselves do not charge fees of
any kind for providing our personal computers for use by the public.
Utilizing a BBS is much like Amateur radio wherein enthusiasts would use
ancient teletype machines to type messages back and forth. The computer can
similarly be used over ordinary voice-grade telephone lines by connecting a
device to it known as a modem. This device sends audible tones over the phone
allowing two computers to communicate with each other and exchange information.

A BBS is a regular home computer equipped with a software program which allows
the computer to field incoming calls from other computers and automatically
dispense and receive information, stories, articles, public domain software,
tips and hints on various topics, private electronic mail, and in some
instances games and entertainment under the direct control of the calling
party. Most BBS's also permit the posting of messages in order to permit all
authorized users to read the message.  This functions much the same as the
"community bulletin boards" in Supermarkets where people are permitted to place
messages on index cards on a corkboard for others who pass by to view. This
letter, for example has been made available to a large number of people to read
and discuss, including your home district. Our service exists to better inform
and educate the public on a number of issues, and serves as a medium for public
discussion and interaction on a wide array of issues. All of these services are
provided free by people who enjoy doing so as a hobby activity in the public
interest without compensation. BBS's are truly the last symbol of freedom of
public expression, much like the editorial page of a newspaper.

     Bulletin boards, when operated by a responsible SysOp take many security
measures to ensure the authenticity of those who use their systems. There
is already great concern among computer users regarding the threat of computer
"virus" programs. Computer "viruses" are programs which cause damage to a
computer by destroying files, or necessary internal information required to
access the files on a computer. Another plague which affects us is known as the
"computer delinquent". These unsavory characters attempt to gain access to a
system for which they have not received permission or authorization to access.
Senator Goodman has confused the two in a bill he has sponsored. The amount of
misinformation out there regarding computer communications is in desperate need
of clarification. The term "hacker" has been unjustly used in place of the term
"computer delinquent" in the media. A computer "hacker" is actually a person
who delights in playing with a computer either in technical or software aspects
as part of a bona fide learning experience. A true "hacker" does not attempt to
harm or destroy a system. We once made that mistake in definitions ourselves!

     The Federal Electronic Communications Privacy Act of 1986 already holds
the SysOp of a BBS system responsible for all that transpires on their system.
Responsible SysOps already practice "voice-validation" whereby a potential user
is required to leave a real name and phone number prior to gaining access to
the system. Should an illegal act by a user on a BBS occur, the responsible
SysOp under a court order would be able to provide the number given by a
certain user as well as time and date of posting which would aid in locating
and prosecuting the perpetrator. Under Federal privacy laws, we are unable to
give out user information without a duly sworn warrant.

     Harassing and obscene phone calls are already sanctioned under the
Public Service laws. Telephone security can install trap and trace devices
on any BBS line to determine the originating number of a perpetrator while
they are "online." The Telephone company's "annoyance call bureau" and
local police agencies are best equipped to handle harassing phone calls. It
does not seem reasonable to burden a hobbyist with police powers either
implied or explicit.

      Our BBS is one geared to older, predominantly married people. Our
BBS, due to the nature of conversation of people well past 20 years of age
sometimes borders on "mature matter of an explicit nature." Our service
offers 17 public message areas on a wide variety of topics ranging from
marital peer counseling to discussions on religion, politics, culinary
interests, environmental issues, consumer issues, education, science,
nostalgia, video technology, computers and electronics, as well as areas for
people to publish articles for others to read and discuss. We also provide
private electronic mail service for our members, all at no charge whatsoever.

      We don't offer any kind of "dating service" on our BBS and we do not
follow the mold of BBS's that concentrate on the racy and the titillating. We
do permit the use of "handles" or pseudonyms in order to make people more at
ease with the ability to post their true feelings under a "nom de plume". We do
maintain a record of their real name and number as part of our normal vigilance
in the event that a user of our system should cause US liability. Only we need
know who a user really is, and we afford our users such confidentiality in
accordance with Federal law.

    Unlike many other BBS's, a new caller to our system does not obtain any
access to the system whatsoever upon their first call. Further, we only
accept a new "membership" during limited hours when we are physically at our
computer console and call the number the person leaves as a "reach" number.
Our system accepts only a name that "appears" to be real. Pseudonyms used
on the application cause instant disconnect. This gives us a name, a town
of residence, their claim as to age, and a phone number. After taking the
information, the system disconnects them and we call back and speak to them
to ensure they are who they say they are and that they are NOT underage.

    If doubt exists as to the veracity of their claim, we ask them for their
date of birth, and then fashion a question or two pertaining to current events
they experienced at about age 5. This test is highly successful in keeping
minors off OUR system. Sadly, not many so-called "adult" BBS's in the State
take the measures we do. We suspect that an underage person who was not
properly challenged by a sysop gained access to that system where that
unfortunate incident occurred. Such is not likely on a BBS such as TBE.

    If New York Telephone has to spend money to protect the consumer from
BBS systems, they will have just the ammunition they need to crush BBS's. In
Texas, Southwestern Bell has a case pending in front of the Texas PUC wherein
they attempted to impose charges on BBS operators claiming added costs of
servicing them. Within days of the announcement of the still-pending case
hundreds of BBS's in Texas vanished from the phone lines leaving many angry
voters with useless modems.  Democrats were swept into office in the subsequent
election at the State level for whatever the reason.

     In Florida, Oklahoma, and California, similar attempts to eliminate all
BBS's are underway and in the courts through a different tack: charging simple
hobbyists business rates resulting in untenable costs for the provision of our
services, with the intent of depriving the citizenry existing free services.

    The chilling effects of telephone company intrusion into our hobby has
already been demonstrated to have had a severe impact. The telephone company
desires greatly to enter into the service we provide for significant charges
such as those on the commercial computer services such as CompuServe, and a
great number of hobbyists providing similar services for free causes them to
perceive their potential profits as being somehow eroded by our presence.

    Our hobby has served the public since 1979 alongside the larger commercial
entities without any infringement on their income. The Bell Operating Companies
seem unaware of how limited the capabilities of hobbyist computer BBS's are and
how their perception of competitive threat is misplaced. Still, the BOC's
insist on attempting to "recoup" losses they haven't actually suffered through
a variety of attempts to extort additional payments from us, the RECIPIENTS of
the phone call. In fact, owing to the longer connect times of data calls, we
are indeed providing the phone company with a more abundant amount of revenue
based upon timed message rate calling to our services by the public.

    New York Telephone thus far has not yet engaged in such activities in New
York State, but I have heard that the parent company NYNEX has indeed explored
changes in tariffs in Massachussetts which would result in hefty surcharges for
operators of BBS's. We hobbyists are beseiged by various attempts to "tax" our
nonexistent "income" that we surely must be making from doing this. We assure
you we are not!

    While I personally abhor the regulation of lawful hobby activities, I can
understand that the passions of the moment seemingly require regulation to be
undertaken to address the problem encountered down on Long Island. Therefore in
the interest of a reasonable compromise, there are a few possible means of
addressing the problem without violating our rights or causing a chilling
effect on the free speech of citizens without undue restraint:


   1)  Annoyance messages posted on a BBS should be enforced by local
     police forces only after obtaining a warrant to inspect the records of the
     BBS at a time convenient to the hobbyist with prior notice to determine
     the party who placed the message. Telephone company security personnel
     should also be offered the ability to obtain a warrant for such
     information.  Compliance with this should PROHIBIT removal or use of the
     operator's equipment by such parties unless the SysOp refuses to cooperate
     upon service of the warrant. A hobbyist SysOp's total liability should be
     no more than providing the name and number and time and date of posting by
     the perpetrator to duly authorized law enforcement personnel.

   2)   Hobbyist SysOps should be required to make a good-faith effort to
     voice-validate all users of their systems as policy. Requiring that a
     printed log of all callers with time and date stamping would not be an
     unreasonable measure. Through proper logkeeping, an operator would be
     able to readily determine who the writer of a harassing message is for
     law enforcement agencies. If I'm not mistaken, there is an electronic
     communication privacy bill that passed a year or two ago that could be
     amended to include provision for bare-minimum record keeping by
     hobbyists to at least provide the last-known "reach number" and the
     "real" name used by the caller on logon. Hobbyists lack the financial
     means or inducements to be able to provide more investigation of a
     potential new user and the placement of police powers on SysOps is
     a danger to the privacy of legitimate users and would have a chilling
     effect on the utilization of any such services by an already paranoid
     general public.

   3)   Place civil and/or criminal liabilities on any person who willfully
     attempts to gain access to a BBS system under false pretences or name
     of record for voice validation purposes. The worst violators
     unfortunately are underage, and a means of dealing with them will also
     be required. Perhaps the parents of minors could be held responsible
     to some degree for the activities of their offspring.

   4)   Should any wording in the proposed legislation require that a SysOp
     be held liable for the contents of the message areas of a BBS, the
     hobbyist should be allowed a "reasonable amount of time" to act. Many
     computer SysOps use their computers as "electronic answering machines"
     and can be away from them for extended periods of time owing to the
     automated nature of most BBS programs. If such wording must still be
     included in the bill, it should be in terms of time since the SysOp
     first became aware of the offending message or has actually received
     electronic mail regarding said message. Conflicts with Federal privacy
     regulations regarding deletion of messages in electronic storage must
     be addressed as well, as SysOps are prohibited from reading or checking
     personal electronic mail to determine their contents.

   5)   The telephone company should NOT be required to engage in any new
     investigatory or protective means to secure electronic communication.
     This would induce unfavorable price pressures on the general rate
     payers and would justify unreasonable price pressures on hobbyist BBS
     services, forcing the majority to close down. This would be contrary
     to the public interest in the "information age." Existing channels of
     "annoyance calls" enforcement should be empowered to handle this
     situation as well as their other related duties. It is a widely known
     fact that the Telephone company already engages in routine monitoring
     of traffic on BBS's, especially those of any controversial nature.

   6)   Hobbyist BBS's operated at no charge to users should be given
     protection in exchange for the increased administrative costs
     associated with upgrading their recordkeeping as well as costs of
     software enhancements they may require to provide the time and date
     stamping, or new user procedures. We wrote our own BBS program. Many
     others purchase theirs. Since this would be a cost borne by the
     hobbyists, such protection should prohibit the telephone company from
     imposing "access" charges to local-call basis BBS's on either BBS's or
     the users of them. The cost of telephone service on a residential
     basis as now paid by BBS's shall be grandfathered in rate for hobbyist
     BBS systems. The telcos are hungry for money under the mistaken belief
     that somehow, we're charging for this. Pay-BBS's are rare, and they
     may be considered as business rate and should not be grandfathered.

   7)   Enhanced subscriber services such as "call-waiting" provided by New
     York Telephone interrupt modem access to BBS's. This causes grievous
     inconvenience to subscribers who pay high timed-message-rate fees for
     connection to BBS's only to have a great amount of time spent in
     transferring a file squandered by its destruction. The user then has to
     spend even more time and money attempting to call the BBS again. Call-
     waiting also causes real damage to some BBS systems when it disconnects a
     caller. It can actually result in making a computer system as unavailable
     as if some "computer delinquent" shut it down, making the service totally
     unavailable for use. The damage caused to BBS's by call-waiting is quite
     substantial to some systems. Call-waiting could once be defeated by
     entering a few touchtone numbers before dialing the number you wish to
     cancel call-waiting for. In most areas, the phone company will no longer
     give out the code number to drop call-waiting for one call. People have a
     right to know how to turn off the feature, previously called "do not
     disturb".  In some areas, call-waiting is forced upon customers who do not
     want it and cannot disable it. I humbly request that the PSC be directed
     to order them to release the code on the subscriber's request from the
     business office or to provide a "do not disturb" function. Tremendous
     amounts of money are lost on this feature that seems intended to destroy
     BBS utilization, and perhaps may result in our demise.  Please ask the PSC
     to order this information about a subscriber's own phone service be
     available. Then and ONLY then will we of the BBS community be willing to
     permit your legislation to take effect.

   Should you wish any further information or anecdotes regarding BBS's and
telecommunication via modem, we would be honored to answer any questions or
testify in a public hearing for you. If you would like to examine our BBS
or have an aide do so, our system, TBE (The Big Experiment) can be logged
onto between 7 and 10 PM any evening at [phone].



                                             Sincerely,




                                      Kevin and Nancy McAleavey



cc:  Users of TBE BBS and Network affiliates of TBE in New York State

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