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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 going 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 communicatons (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 elec- tronic storage in such system shall be punished as provided in subsection (b) of this section. (b) Punishment. -- The punishment for an offense under subsection (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 offense under this subparagraph; and (B) a fine under this title or imprisonment for not more than two years or both for any subsequent offense under this subparagraph; and (2) a fine of not 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 communi- cation service to the public shall not knowingly divulge to any person or entity the contents of a communicaton 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 communi- cation 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 addresee 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 used 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, with- out authorization, a facility through which an electronic communication service is provided or (2) intentionally exceed- ing 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 communi- cation. Section 2701(a) makes it an offense intentionally to access without authorization, or to exceed an authorization to access, an electronic communciation service and thereby obtain later, or prevent authorized access to, a wire or an 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 elec- tronic 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 are widely known, and if a person does not, in the course of gaining access, encounter any warnings, encryptions, password requests or other indication 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. These 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 acessible to the general public. Section 2702 specifes 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 Commmittee 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 resonable 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 a communications, and having taken action that evidences acquies- cence 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 communi- cation on a computer "electronic bulletin board", with a rea- sonable 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. If con- ditions governing disclosure or use are spelled out in the rules of an electronic communication service, and those rules are available to users or in contracts for the provison of such services, it would be appropriate to imply consent on the part of a user to disclosures or uses consistent with those rules. Section 2702(a) specifies that a person or entity providing a wire or electronic communication service or remote computer services to the public shall not knowingly divulge the contents of any communication while in electronic storage by that service to any person or entity other than the addressee or intended recipient of such communication or an agent of such addressee or intended recipient of the communications. Under some circum- stances, however, a customer or suscriber to a wire or electron- ic communication service may place a communication on the ser- vice without specifying an addressee. The Committee intends, in that situation, that the communication at a minimum be deemed addressed to the service provider for purposes of Section 2702(b). Because an addressee may consent to the disclosure of a communi- cation to any other person, a service provider or system operator, as imputed address, may disclose the contents of an unaddressed communcation. A person may be an "intended recipient" of a communication, for purpose of section 2702, even if he is not individually identified by name or otherwise. A communication may be addressed to the members of a group, for example. In the case of an electronic bulletin board, for instance, a communication might be directed to all members of a previously formed "special interest group" or, alternatively, to all members of the public who are interested in a particular topic of disucssion. In such an instance, the service provider would not be liable for disclosure to any peson who might reasonably be considered to fall in the class of intended recip- ients. ***** COMMENTS The entire document has to be read and studied to draw final conclusions on a number of important issues. However, the following observations I think are fair at this point: 1. SYSOPS are, under the Act, going to be considered providers of an electronic communications service. In other words, whenever a BBS goes up, it becomes an electronic communication service subject to the requirements of the new law, should it be enacted. 2. Users of the BBS are protected by the law, and may have grounds to take action against or ask that criminal charges be brought if their communications are improperly disclosed. 3. SYSOPs do have added protection against hackers, and federal law enforcement should now be available. 4. Any "general" messages addressed to all members of the board, provided the board is open to the general public, may be disclosed and are not protected. 5. How other messages and files are handled gets complex very thereafter.