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- Date: 02 Jul 91 19:15:10 EDT
- From: "76012,300 Brad Hicks" <76012.300@COMPUSERVE.COM>
- Subject: File 6-- CompuServe Responds to Policy and Operations Questions
-
- Attn: Computer Underground Digest
- In TELECOM Digest #11.507, John Higdon writes:
-
- > If I really am responsible for every article and pass-through
- > e-mail message that writes to my disk drive, then I lack the
- > facilities (mostly manpower) to remain an intermediate UUCP site.
-
-
- John, in every meeting of four or more sysops I have been at in the
- last three years, I have heard this one argued. I have submitted this
- exact question to maybe a half-dozen lawyers. The only thing that ALL
- agreed upon was that until we have three or more cases prosecuted in
- the federal courts, no one knows whether you are liable or not.
-
- Mike Godwin, the EFF's attorney, told a bunch of us that he's been
- researching this exact question for most of a year, and so far it
- comes down to three broad categories:
-
- (1) ENTIRELY PRIVATE, ONE-TO-ONE MAIL
-
- Covered by the Electronic Communications Privacy Act. Sysop/sysadmin
- is not liable for content; may read for technical reasons such as to
- check service; may not disclose to anyone for any reason without a
- court order. (Aside: Since the search warrant at Steve Jackson Games
- said nothing about third-party mail, in the seizure of Illuminati BBS
- the aptly-acronymed SS almost certainly violated ECPA over this very
- issue.)
-
- (2) ENTIRELY PUBLIC MAIL ON ONLY ONE SYSTEM (local BBS messages)
-
- Only limited case law, but it does appear that the sysop is liable in
- general. More cases or new laws will be necessary to determine WHEN
- the sysop becomes liable ... e.g., if somebody posts a Sprint access
- number on your BBS, you are definitely liable if it is still there a
- month later. But what about the next day? An hour later? Five
- seconds later? Nobody knows until the lawyers fight it out. Godwin
- thinks it comes down to "if the sysop could reasonably have known
- about it"--and then some poor ignorant bunch of jurors will get to
- decide how often a "resonable sysop" checks his mail.
-
- (3) WIDELY-DISTRIBUTED PUBLIC MAIL (newsgroups, echomail, mail lists,
- etc.)
-
- No readily applicable law. No CLEAR precedent ... but the few
- half-precedents, taken from the world of ham packet-radio repeaters,
- suggests that in fact, you are liable for any public message residing
- on your system, even if it originated elsewhere. If you allow your
- system to forward public messages before you clear them, you may find
- yourself charged with moving illegal messages across state lines.
-
- As an ex-sysop of seven years' experience, #3 horrifies and terrifies
- me. I almost got caught in this trap myself, when a Dallas TV station
- tried to persuade police that as the conference moderator on
- MagickNet, I personally was responsible for a message on MagickNet
- offering assistance to a man seeking to smuggle his daughter out of
- the country so his inlaws couldn't take her away. (Note: message from
- someone else, to a third party outside the country, and the hue and
- cry arose two days before I even saw the message.)
-
- Maybe common sense will prevail in the courtroom. (And maybe chickens
- have teeth.) Maybe Congress will pass clear, reasonable, technically
- feasible legislation to clarify the issue and President Bush will sign
- it. (And maybe we =can= balance the budget in 1993.) Or maybe the
- Rehnquist court will recognize this as an important freedom-of-speech,
- freedom-of-association, freedom-of-press issue and grant appropriate
- protection. (And maybe we'll find a universally popular solution to
- the abortion issue tomorrow after lunch, and everybody will agree to
- it.)
-
- ------------------------------
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- End of Computer Underground Digest #3.26
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