2,000 Greater & Lesser Mysteries/2,000 Greater and Lesser Mysteries.iso/legal/mys01167.txt

Text File | 1994-06-10 | 8.6 KB | 135 lines

ELECTRONIC COMMUNICATIONS PRIVACY ACT OF 1986 H.R. 4952
The House has already passed the Electronic Communications Act of 1986,
H.R. 4952, and the Senate is now considering it. According to the
Washington Post, and most political observers, the Act is gong to pass
and become law.
Some of its provisions are important to BBS sysops and users. The
following is an excerpt from the House Report (Report 99-647), which
accompanied the passage of the bill in the house.

CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTION
RECORDS ACCESS

Section 2701. Unlawful access to stored communications
 (a) Offense.--Except as provided in subsection 9c) of this section
whoever--  (1) intentionally accesses without authorization a facility
through which an electronic communication service is provided;or  (2)
intentionally exceeds an authorization to access that facility and
thereby obtains, alters, or prevents authorized access to a wire or
electronic communication while it is in electronic storage in such
system shall be punished as provided in subsection (b) of this section.
 (b) Punishment.-- The punishment for an offense under sub section (a)
of this section is--  (1) if the offense is committed for purposes of
commercial advantage, malicious destruction or damages, or private
commercial gain-- (A) a fine of not more than $250,000 or imprisonment
for not more than one year, or both, in the case of a first offender
this subparagraph; and (B) a fine under this title or imprisonment for
not more than two years or both for an subsequent offense under this
subparagraph; and  (2) a fine of nor more than $5,000 or imprisonment
for not more than six months, or both in any other case.
Section 2702. Disclosure of Contents
 (a) Prohibitions.--Except as provided in subsection (b) --  (1) a
person or entitle providing an electronic communication service to the
public shall not knowingly divulge to any person or entity the contents
of a communication while in electronic storage by that service;and  (2)
a person or entity providing remote computing service to the public
shall not knowingly divulge to any person or entity the contents of any
communication which is carried or maintained on that service-- (A) on
behalf of, and received by means of electronic transmission from (or
created by means of computer processing of communications received by
means of electronic transmission from),a subscriber or customer of such
service; and (B) solely for the purpose of providing storage or computer
processing services to such subscriber or customer, if the provider is
not authorized to access the contents of any such communications for
purposes of providing any services other than storage or computer
processing.
 (b) Exceptions.--A person or entity may divulge the contents of a
communication ---  (1) to an addressee or intended recipient of such
communication or an agent of such addressee or intended recipient;  (2)
as otherwise authorized in section 2516, 2511 (2) (a) or 2703 of this
title;  (3) with the lawful consent of the originator or an addressee or
intended recipient of such communication, or the subscriber in the case
of remote computing service;  (4) to a person employed or authorized or
whose facilities are sued to forward such communication to its
destination;  (5) as may be necessarily incident to the rendition of the
service or to the protection of the rights or property of the provider
of that service;or  (6) to a law enforcement agency, if such contents--
(A) were inadvertently obtained by service provider;and (B) appear to
pertain to the commission of a crime.
 *******
 REPORT LANGUAGE
Proposed section 2701 provides a new criminal offense. The offense
consists of either: (1) intentionally accessing,without authorization, a
facility through which an electronic communication service is provided
or (2) intentionally exceeding the authorization of such facility. in
addition, the offense requires that the offender must, as a result of
such conduct, obtain, alter, or prevent unauthorized access to a wire or
electronic communication while it is in electronic storage in such a
system. The term electronic storage is defined in section 2510 (17) of
Title 18. Electronic storage means any temporary,intermediate storage of
a wire or electronic communication incidental to the electronic
transmission thereof and the storage of such communication by an
electronic communications service for the purpose of back-up protection
of such communication.
Section 2701 (a) makes it an offense intentionally to access without
authorization, or to exceed an authorization to access, an electronic
communication service and thereby obtain, later or prevent authorized
access to a wire or or electronic communication while it is in
electronic storage in such system. This provision addresses the growing
problem of unauthorized persons deliberately gaining access to, and
sometimes tampering with, electronic or wire communication that are not
intended to be available to the public. ******* (emphasis added) ****The
Committee recognizes however that some electronic communication services
offer specific features, sometimes known as computer "electronic
bulletin boards," through which interested person may communicate openly
with the public to exchange computer programs in the public domain and
other types of information that may be distributed without legal
constraint.
It is not the intent to hinder the development or use of"electronic
bulletin boards" or other comparable services. The Committee believes
that where communications are readily accessible to the general public,
the sender has,for purposes of Section 2701 (a) , extended
an"authorization" to the public to access those communications. A person
may reasonably conclude that a communication is readily accessible to
the general public if the telephone number of the system and other means
of access as are widely known, and if a person does not, in the course
of gaining access, encounter any warnings, encryptions, password
requests or other indicia of intended privacy. To access a communication
on such a system should not be a violation of the law.
Some communication systems offer a mixture of services,some,such as
bulletin boards, which maybe readily accessible to the general public,
while others--such as electronic mail--may be intended to be
confidential. Such a system typically has two or more distinct levels of
security. A user may be able to access electronic bulletin boards and
the like merely with a password he assigns to himself,while access to
such features as electronic mail ordinarily entails a higher level of
security (i.e., the mail must be addressed to the user to be accessible
specifically). Section 2701 would apply differently to the different
services. Those wire or electronic communications which the service
provider attempts to keep confidential would be protected, while the
statute would impose no liability for access to feature configured to be
readily accessible to the general public.
 *****
Section 2702 specifies that a person or entity providing wire or
electronic communication service to the public may divulge the contents
of a communication while in electronic storage by that service with the
lawful consent of the originator or any addressee or intended addressee
or intended recipient of such communication. The committee emphasizes
that "lawful consent" in this context, need not take the form of a
formal written document of consent. A grant of consent electronically
would protect the service provider from liability for disclosure under
section 2702.Under various circumstances, consent might be inferred to
have arisen from a course of dealing between the service provider and
the customer or subscriber--e.g. where a history of transactions between
the parties offers a basis for a reasonable understanding that a consent
to disclosure attaches to a particular class of communications. Consent
may also flow from a user having had a reasonable basis for knowing that
disclosure or use may be made with respect to communications, and having
taken action that evidences acquiescence to such disclosure or
use--e.g., continued use of such an electronic communication system.
Another type of implied consent might be inferred from the very nature
of the electronic transaction. For example, a subscriber who places a
communication on a computer "electronic bulletin board," with a
reasonable basis for knowing that such communications are freely made
available to the public,should be considered to have given consent to
the disclosure or use of the communication.