Boards and the First Amendment," 39 Fed. Comm. L.J. 217,
224-226 (1987).
44Id. at 257.
13
would be unenforceable. Hobbyists could easily "go
underground," concealing their activities from regulators.45
Jensen provides one original analogy, what he calls "the
BBS as an association,"46 a place where "people from all
across the country gather electronically and exchange views,
recipes, or epithets, just as would the local Jaycees."47
Citing NAACP v. Alabama,48 he writes, "As an association
engaged in speech, a bulletin board is entitled to
constitutional protection."49
A slightly different approach to the sysop liability
question is taken by Edward Di Cato,50 who discusses a more
recent addition to the list of BBS hazards: the distribution
of computer viruses.51 Di Cato reaches a familiar
conclusion -- that a sysop would be liable only for
"recklessly" allowing a computer virus to spread through a
45
Id. at 232-3.
46Id. at 252.
47Id.
48357 U.S. 449 (1958).
49Id.
50E. Di Cato, "Operator Liability Associated With
Maintaining a Computer Bulletin Board," 4 Software L.J.
147 (1990).
51A virus is a computer program that is designed to
replicate itself by attaching itself surreptitiously to
other programs. Viruses may be fairly harmless, perhaps
popping up a mischievous message on the screen, or
destructive -- erasing files from a hard disk or perhaps
scrambling the disk's data irretrievably.
14
BBS.52 He also suggests that sysops could protect
themselves by exercising tight control over their BBSs,
verifying users' identities before giving them access.53 He
further suggests that a disclaimer clearly specifying the
responsibilities of users and specifically repudiating sysop
responsibility might further protect sysops from
liability.54
The sysop liability question has also been tackled by
John T. Soma, Paula J. Smith and Robert D. Sprague.55 Their
article, however, consists mostly of an extensive survey of
"computer crime" laws, engaging in little First Amendment
analysis.
One commentator reaches a conclusion quite different from
most others on the subject of BBS regulation. Robert Beall
examines the liability of sysops for the posting of
illegally obtained information by phone phreakers.56 In
asking which model of media law will apply, Beall forces a
choice between the laws covering newspapers or the laws
52Di Cato, supra note 50, at 155.
53Id. at 156.
54Id. at 157.
55J. Soma, P. Smith, R. Sprague, "Legal Analysis of
Electronic Bulletin Board Activities," 7 W. New Eng. L.
Rev. 571 (1985).
56R. Beall, "Developing a Coherent Approach to the
Regulation of Computer Bulletin Boards," 7 Computer/Law
Journal 499 (1987).
15
covering telephone service;57 he ends up choosing elements
of each. He agrees with other commentators that a sysop may
not be liable without affirmative involvement in the illegal
activity.58 While he seems to favor strong First Amendment
protection for BBSs, he is not satisfied with the resulting
lack of protection against phreaking activity. He therefore
proposes a full-fledged system of licensing of BBSs by the
FCC, with licensees required to adhere to certain rules in
order to retain or renew their licenses.59 However, he
would rely upon the private sector for enforcement of these
rules; telephone companies, for instance, would be expected
to monitor BBSs for stolen credit card numbers.60
Besides the BBS, the only other related communication
media that have received significant attention in the legal
literature are the similar technologies of teletext and
videotex. Teletext is a form of electronic text delivered
by television stations to subscribers' TV sets, either via
broadcasting or cable hookups but as part of a conventional
television signal. Teletext presents a series of pages, or
frames, of text, from which the subscriber may select using
a special keypad.61 Videotex is a similar service,
57Id. at 509-10.
58Id. at 504-5.
59Id. at 513-15.
60Id. at 516.
61Freedman, supra note 7, at 689.
16
delivered to customers' TV sets via telephone lines.62
Neither service has been implemented on a large scale in the
United States, but despite their obscurity, they have
received much attention from legal commentators.
Jeffrey Hurwitz devotes his attention to teletext,
particularly broadcast teletext.63 He suggests that the
FCC's 1983 decision not to regulate teletext -- reasoning
that it is an "ancillary service" not subject to the
regulations applied to regular TV programming -- was
incorrect.64 Teletext, like traditional broadcasting, he
felt should be content regulated -- subject to the Fairness
Doctrine,65 the "equal opportunity" rule and the "reasonable
access" rule.66 Exempting teletext from such content
regulations provides an easy avenue for circumventing the
purpose of such regulations as applied to broadcasting, he
writes.67 Perhaps most troubling, however, is his argument
that the FCC, more than anything else, has simply
misconstrued the clear language of the statutes and
62Id. at 735.
63J. Hurwitz, "Teletext and the FCC: Turning the Content
Regulatory Clock Backwards," 64 Boston Univ. L. Rev. 1057
(1984).
64Id. at 1057.
65The Fairness Doctrine, no longer FCC policy, was still
applied to broadcasters when Hurwitz wrote his article.
66Hurwitz, supra note 63, at 1083.
67Id. at 1098.
17
regulations in question.68 Hurwitz's arguments suggest that
the existing statutes could pose a threat to the freedom of
computer communication.
Another writer, Richard Hindman, has a markedly different
view of teletext.69 "The first amendment," he writes,
"protects the right of every person to participate in the
marketplace of ideas."70 Most of Hindman's article is
devoted to an analysis of a consent decree that currently
bars telecommunications giant AT&T from entering the
teletext business.71 However, Hindman's comments about the
First Amendment issues underlying teletext regulation are
insightful:
The history of broadcast and cable regulation
suggests that as new communication technologies
become available Congress and the courts will fail
to fully comprehend how the first amendment limits
government authority to regulate. In fact, at
first, the courts will attempt to characterize
users of the new medium as someone other than a
speaker entitled to full first amendment
protection or, as a speaker entitled to some
lessor [sic] protected right.... [U]ntil a new
technology becomes familiar in its own right,
courts generally attempt to impute the regulatory
baggage of an existing medium, leaving unresolved
the difficult constitutional issues.72
68Id. at 1083-1094.
69R. Hindman, "The Diversity Principle and the MFJ
Information Services Restriction: Applying Time-Worn First
Amendment Assumptions to New Technologies," 38 Catholic
Univ. L. Rev. 471 (1989).
70Id. at 471.
71U.S. v. AT&T, 552 F.Supp. 131 (D.C. Cir. 1982).
72Id. at 494-5.
18
Lynn Becker, in her survey of the confused state of the
law regarding teletext and videotex, agrees that the
technology of delivery should not be the decisive factor in
deciding its regulatory status.73 "A preferable
alternative," she writes, "would be to view all electronic
publishing as a single communications medium regardless of
the method of transmission.... The basis for distinguishing
between typeset and electronically transmitted
communications is not viable in 1985. The regulatory
underpinnings are without merit."74 Instead, she calls for
the design of a new legal framework designed to accommodate
the new media and to recognize their true nature. "[T]he
new media must be viewed according to their function rather
than through their methods of distribution.... When viewed
in this manner, the regulatory mandate is clear: Congress
shall make no laws abridging ... the freedom of the
press."75
What conclusions emerge from this body of literature?
It is clear that analogy to older media has been the method
of choice for deciding the legal status of computer
communication, whether BBS, teletext or videotex. Almost
every author divides existing media into regulatory
73L. Becker, "Electronic Publishing: First Amendment Issues
in the Twenty-First Century," 13 Fordham Urban L.J. 801
(1985).
74Id. at 866.
75Id. at 868.
19
categories, generally classifying print media as most immune
to regulation but most vulnerable in liability cases and
common carriers as most regulated but generally immune to
liability, with broadcasters in the middle. With only a
couple of exceptions -- Beall's scheme of licensing BBSs and
Hurwitz's argument in favor of content regulation for
teletext -- the authors are opposed to governmental
regulation of electronic publishing. However, the authors
devote themselves to answering narrow questions, questions
either of BBS sysop liability or of the regulatory status of
two obscure technologies, teletext and videotex.
In the literature there seems to be agreement on several
specific questions. First, BBS sysops should be held liable
for messages on their boards only when they are in some way
involved with or aware of the illegality. Second, a new
legal framework may be necessary to accommodate these media.
And third, the First Amendment does apply to computer-based
communication.
Missing from most of the literature is recognition of a
serious First Amendment threat or an attempt to discover the
specific sources of that threat. With the exception of De
Sola Pool's forward-looking book and Katsh's philosophical
article, most authors seem to perceive only technical legal
difficulties. While most authors conclude, or even assume,
that the First Amendment applies to computer communication,
they do not seem to see implications for the mainstream of
First Amendment law. Computer-based communication is
20
portrayed either as something still far in the future or as
a "niche" medium of interest only to computer hackers and
scientists. It is depicted as only peripheral to the speech
the First Amendment is intended to protect.
In fact, however, such electronic communication is in use
today by a vast number of people with diverse interests,
using inexpensive and readily available technology. It is
already a significant and important forum for speech on
almost every conceivable topic. The way in which this
medium is used indicates that it is not peripheral to First
Amendment "core speech." It should be considered in the
mainstream of First Amendment-protected expression. If
computer-based media are to become a dominant channel for
information delivery in the future, it is vitally important
that the decisions made today regarding the treatment of
these media be the right ones.
Objectives Objectives Objectives
Perceptions of a threat to the First Amendment freedoms
of computer-based communication have come not from codified
policies -- of which there are few -- but from de facto
policies emerging from an unsettled and chaotic area of law.
These de facto policies are, in turn, the product of
precedent-setting events such as the Craig Neidorf and Steve
Jackson cases and other controversies of 1990.
Krasnow, Longley and Terry, in their book The Politics of
Broadcast Regulation, begin their analysis with the idea
21
that "there is no such thing as 'government regulation';
there is only regulation by government officials."76 In
other words, particularly with a medium as new as this one,
attention is best directed not toward codified regulations
but rather toward the attitudes and agendas of the people
who will create them -- people both in and out of the
government. The legal treatment of any new technology will
ultimately be a product of political pressures, different
players with different agendas pushing in different
directions. The result will depend upon whose voice is
heard most strongly.
The embryonic field of computer-communication law is
characterized by several different facets of government and
the private sector influencing policy formation. These
include Congress, which has responded primarily to economic
pressures related to computer crime, but has passed statutes
incidentally affecting computer communication; the courts,
which only recently and at the lowest levels have been asked
to recognize constitutional protection for computer
communication; and law enforcement agencies, which have
caused the most visible controversies by enforcing computer
crime laws zealously and without evident regard for free
speech. Other entities exerting an influence on the
policymaking process include the computer-user community,
76Krasnow, Longley, and Terry, The Politics of Broadcast
Regulation 9 (citing Loevinger, The Sociology of
Bureacracy, 24 Business Lawyer 9 (1968)) (3d ed. 1982).
22
particularly the "computer underground" and the hacker
subculture, which have been the focus of the recent
controversies; and the Electronic Frontier Foundation, a
political action group founded to protect the civil
liberties of computer communicators.
This thesis will examine the political development of de
facto policies affecting the First Amendment freedoms
associated with computer-based communication, particularly
during the important events of 1990. It will examine the
legislative history of the relevant federal statutes and the
events surrounding the important cases, including those of
Craig Neidorf and Steve Jackson, and the Secret Service's
"Operation Sun Devil," and attempt to identify the roles of
the major players in this process.
Research Questions and Methodology Research Questions and Methodology Research Questions and Methodology
The specific research questions addressed by this thesis
are:
1) Does a threat to the freedom of computer-based 1) Does a threat to the freedom of computer-based 1) Does a threat to the freedom of computer-based
communication represent a threat to the core meaning of the communication represent a threat to the core meaning of the communication represent a threat to the core meaning of the
First Amendment? First Amendment? First Amendment?
In order to answer this question, this thesis will first
explore the nature of computer-based communication as it is
used today. After an overview of the technology that makes
such communication possible, it will examine the way in
which this medium is used. It will demonstrate that
computer-based communication is a vital and important
23
medium, and that users of this medium are members of a
community engaged in "core speech" deserving of the highest
constitutional protection.
2) Who are the important players involved in the 2) Who are the important players involved in the 2) Who are the important players involved in the
controversies of 1990 and the formation of computer- controversies of 1990 and the formation of computer- controversies of 1990 and the formation of computer-
communication policy and what are their roles? communication policy and what are their roles? communication policy and what are their roles?
The thesis will then examine in detail the important
cases of 1990 and the events surrounding them in an attempt
to discover the role of each major player involved. The
players themselves will be identified, and the contribution
of each will be evaluated. This will include an exploration
of the legislative history of the statutes involved in these
cases, as well as factual accounts from news media and other
sources of the events surrounding the 1990 controversies.
Source documents, including legislative debates,
indictments, written court opinions, search warrant
affidavits, briefs and policy statements will provide
insight into the motives and objectives of each player.
3) Based upon the roles of the players involved, what is 3) Based upon the roles of the players involved, what is 3) Based upon the roles of the players involved, what is
the general direction of the law? the general direction of the law? the general direction of the law?
From this analysis should emerge an overall picture of
the regulatory atmosphere, the degree of the First Amendment
threat and what the future may hold for these new media.
Organization Organization Organization
Chapter Two will describe the technological foundation of
today's computer-based communication media in order to
24
define terms and concepts important to this topic. It will
briefly describe the way in which these media are used, in
order to establish that a genuine outlet for First
Amendment-protected speech is involved. It will also
introduce the culture of computer hackers, which plays an
important part in events described later.
Chapter Three will examine the legislative history of the
computer crime laws that served as the authority for the
hacker crackdown of the late 1980s and 1990. This chapter
will study the role of Congress as a regulatory player and
will also reveal the early involvement of two other players
that figure prominently in later events: computer hackers
and law enforcement.
Chapter Four will discuss in detail the major cases of
1990 and the surrounding events that have been the focus of
the recent controversies over First Amendment freedoms and
computer communication. These events demonstrate the
involvement of four important players in this regulatory
process: computer hackers, law enforcement agencies, the
courts and the Electronic Frontier Foundation.
Chapter Five will summarize and discuss the preceding
material and will attempt to identify the direction of the
law based upon the roles of the involved players.
Limitations Limitations Limitations
Some legal aspects of this new communication technology,
while important, will not be included in this thesis.
25
First, any examination of computers and civil liberties
seems to include a discussion of privacy. Computers provide
new ways of collecting and retrieving information about
individuals, and many civil libertarians see this use of
computers as a threat to privacy. However, privacy law will
not be a part of this thesis.
Second, the communication of data by electronic
transmission introduces a host of new and difficult
questions of copyright and patent. While these questions
are intriguing, they could themselves be the basis of
another thesis. While the law of intellectual property
plays a part in some of the cases involved in this area,
extended discussion of copyright or patent law is beyond the
scope of this thesis.
Third, where this thesis discusses computer-crime laws,
it will limit such discussion to the federal statutes
involved in the hacker-crackdown controversies of 1990.
Consequently, state computer-crime laws, of which there are
many, will not be discussed.
A Note About Sources and Citations A Note About Sources and Citations A Note About Sources and Citations
Because of the nature of this topic, a large number of
the sources used in this thesis are themselves electronic
publications, or are source documents made available through
electronic means. Citation of such documents is
problematic, as conventional citation forms are not readily
adaptable to nonprinted sources. In this thesis, citation
26
of an electronic document will provide complete
identification of the publication and the source through
which it was obtained. Because electronic publications do
not generally have page numbers, citation to a specific
passage in an electronic document will give the line number
in the file.
27
CHAPTER TWO: CHAPTER TWO: CHAPTER TWO:
The Net The Net The Net
This chapter will explore the nature of today's computer-
based media, both technological and cultural, in order to
lay the foundation for the discussion that follows.
The first section will describe the technological
foundation of computer-based communication. In order to
understand many aspects of this topic, and to appreciate the
culture of computer users, it is necessary first to
understand the media through which communication takes
place. Such an understanding requires a certain amount of
technical explanation. However, the minute technical
details of computer networking are less important than an
appreciation of the vast variety and immense power of the
technology.
The second section will examine the way in which these
media are used today. This will include general
descriptions and examples of the types of communication that
take place via computer-based media.
The final section will be a brief introduction to the
culture of computer hackers, a group that has played a
continuing and important role in the development of policy
in this area.
The Technology The Technology The Technology1
Several kinds of technological media exist through which
computer-based communication takes place. These can
generally be grouped into three categories: the computer
bulletin board system (BBS), the online information service
and the computer network. There is considerable overlap
between these categories, and within each category there is
much variation in implementation. Nonetheless, meaningful
distinctions can be made between these types of systems and
the way in which they operate.
Bulletin Board Systems (BBSs) Bulletin Board Systems (BBSs) Bulletin Board Systems (BBSs)
At the low end of the technological and economic scale is
the computer bulletin board system or BBS. Typically, a BBS
is operated on a single personal computer, often in a spare
bedroom or corner of the home of the system operator
(sysop). Such a BBS is usually operated strictly as a
hobby, and no fee is charged for access (though some BBSs
may charge a small fee to help defray costs). The only
equipment required to operate a BBS is a computer, BBS
software,2 a modem and a telephone line. In some cases the
1Much of the information in this section comes from the
author's own experience. Where this information has been
supplemented by external sources, or where such sources
might provide additional useful information, citations are
given.
2BBS packages include TBBS (The Bread Board System),
Wildcat! and Searchlight. Many BBS packages are shareware
(see infra note 7), bringing the cost of operating a BBS
even lower.
29
BBS will not even have its own telephone line but will share
the sysop's home or business line (and consequently may be
available only during certain hours).
The idea of a computer system publicly available for
posting messages goes back at least to 1973 when a project
called Community Memory went online in San Francisco. A
project of a group of progressive computer enthusiasts,
Community Memory was a system consisting of a mainframe3
computer connected to a dedicated teletype terminal placed
in a record store (a second terminal was added later). The
system functioned much like the message base of a modern
BBS, allowing anyone who wanted to use it to leave a message
that could be viewed by others.4
The first true BBS appeared in January of 1978 when two
members of a Chicago computer club called CACHE (Chicago
Area Computer Hobbyist Exchange) came up with the idea of
using a computer to help the club members share information
that had previously been posted on a real bulletin board.
The system, called the CACHE Bulletin Board System/Chicago
or CBBS/Chicago, was strictly a message board and ran on
3A mainframe is a large computer with abundant processing
power. The term is usually used to distinguish such large
computers from personal computers such as the IBM PC or the
Apple Macintosh. Technically, before the advent of such
small computers in the late 1970s, all computers were
mainframes. See Freedman, The Computer Glossary 434 (4th
