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bbslaw.txt
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1991-11-11
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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.