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COLUM01.TXT
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1993-02-20
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THE ELECTRONIC IDENTITY
by
Robert Parson
A Sysop deletes a message by a user. Next thing you know,
there's a bitter argument going on between the user and the Sysop.
Usually it goes something like this:
Sysop: It's my computer, my BBS and what I say goes.
User: What about my First Amendment right to Freedom of Speech?
Sysop: [No answer]
User: Well? If you aren't going to let me say what I want
when I want I'm just not going to call anymore.
Sysop: Fine. I'm deleting your account anyway.
What a sorry state of affairs. I am truly saddened when I
see something like this. But let me come out squarely in favor of
the Sysop.
As soon as the modem CONNECTs, we lose our First Amendment
Rights. For the record, the First Amendment says "Congress Shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof: or abridging the freedom of
speech, or of the press; or the right of people to peaceably
assemble, and to petition the government for a redress of
grievances."
The key word, for our purposes, is "Congress." The First
Amendment guarantees specifically that the Government will not
restrict what we say or write. It says absolutely nothing about
what a citizen or corporation can or cannot do to restrict free
speech.
A Sysop is perfectly within his rights to delete messages and
files and even purge active users. In the case of someone
providing an information driven service such as a Computer
Bulletin Board, the First Amendment Rights of the System Operator
SUPERSEDE the rights of the User. This is because Congress cannot
tell the Sysop what to do.
This also applies to the National Online Services such as
America Online, Compuserve, Delphi, GEnie, and Prodigy. Normally
when you sign up for a National Service, you are also provided
with a Member Agreement of some sort. You either abide by the
Agreement or you are booted out. Usually, though, you are given
plenty of opportunities to redeem yourself before they cancel your
membership. After all, they hate to lose a paying customer.
But wait, the Sysop or National Service does not have
unlimited powers. Despite the wide freedoms granted under the
First Amendment, there are some restrictions. The National
Services are well aware of these restrictions, and the Friendly
Neighborhood Sysop needs to know.
The Sysop is ultimately responsible for everything that is on
a Bulletin Board. That means if there is any kind of legal
action, the Sysop could be fined, or even thrown into jail. Most
cases we've heard about have dealt with pirate software--
distribution of commercial software on a BBS. But that
responsibility extends to the message bases as well.
Most Sysops do not allow personal attacks in message bases.
This is not only good manners, but it makes good legal sense as
well. If a User writes a message that includes slanderous remark,
not only is the user liable, but the Sysop is liable as well.
That means the injured party can sue the writer of the remark and
the Sysop for Big Bucks. Keep in mind there is a difference
between constructive criticism and slanderous remarks.
For instance, you can write "Robert, your article about
Sysops and the First Amendment is wrong. My interpretation of the
First Amendment is that I can say whatever I want whenever I want
where ever I want." But you can't say "Robert, you are wrong and
you are a fool."
I MAY be wrong, but I am not a fool. Thus, I can sue you.
Unless you can prove in court that I am a fool, which is unlikely,
I might be able to get a million dollars from you. And because it
appeared on a Bulletin Board I could seek damages from the Sysop
also. In addition, if it appeared on a nationally distributed
echo, I could sue the Conference Moderators and the Network
Administrators.
The Disclaimer we've seen on most BBSs that the Sysop "is not
responsible for damages arising from use of this Bulletin Board"
may not be quite sufficient. Reporters still get thrown in jail
for not revealing their sources, First Amendment notwithstanding.
Even though we enjoy wide freedoms as a result of the First
Amendment, the First Amendment does not protect slander, libel or
otherwise illegal activities.
I haven't heard of any libel or slander cases that resulted
from a message or a bulletin written on a BBS, but that doesn't
mean they haven't occurred. But as BBSs and National Online
Services become more prevalent in our society the more likely
someone will get sued.
This may also open up a market for an Insurance Entrepreneur
to develop a product line that would cover Sysops in the event of
these types of damages. But that's another matter entirely.
_______
We haven't heard much about it this year, but I thought I
might remind you that the Michaelangelo Virus is still haunting
us. Now would be a good time to run a virus checker before it
strikes on March 6th.
Don't forget it's ALWAYS a good idea to run a virus checker
on all new software.
Most Sysops go to great pains to ensure that shareware and
public domain software on their systems are virus free. But that
doesn't mean a virus won't sneak through on occasion.
In addition, there have been several cases in the past year
in which original distribution disks of commercial software were
infected.
Practice safe Hex.
(c) 1993 Robert Parson