Saturday, August 15, 2015

HOW THE TRADITIONAL MEDIA CLASSIFICATIONS

A CLASS LIKE NONE OTHER:  HOW THE TRADITIONAL MEDIA CLASSIFICATIONS

   FAIL TO PROTECT IN THE ELECTRONIC FRONTIER

By Jonathan Bell
August 4, 1993
Mass Communications Law and Ethics
Dwight Teeter - Summer 1993

Imagine the mass communications functions of publisher, distributor, broadcaster, advertiser and utility rolled into one and you might find that the beast before you is being operated out of your own home -- or at least that of a friend or neighbor.  The computer bulletin board  (BBS) offers a variety of services to its users: shopping, electronic  mail, public discussion of hot topics, free software, free advice, news. All that may sound idealistic but it is here. The only thing endangering BBS' and their system operators' (sysops') ability to run them is a legal system unclear and uneducated about the First Amendment held dearly by those who keep them going, whether they are the users or the operators.

Exactly where BBS' stand in the legal structure has not been
definitively decided by anyone. Getting sysops to agree has yet to be accomplished, users see things differently and lawyers and government often have views widely divergent from the thoughts of the other two. The simple fact that the proper status of bulletin boards has yet to be answered reasonably opens up the dire need for a new media classification system. No one sees eye to eye, and assurances that the right thing will always be done do not work.

Professor Laurence Tribe is an advocate of an amendment to the U.S. Constitution guaranteeing First Amendment protection for Americans regardless of the technical means by which we disseminate our views.1 His proposal is an admirable step to solving the problems of BBS'. It is not the only one as these problems suggest:

Discussions on computer bulletin boards and information systems vary  greatly. Topics cover everything imaginable and then some:  general politics, vegetarianism, religion, UFOs, software, technology, movies, television, writing, law, aviation, chocolate and soap operas.2 No discussion area, or conference, is immune from wild and freewheeling talk that at one time or another will inevitably fall from lively talk into abusive, childish and defamatory personal attacks, otherwise known as a flame war.

Unfortunately for those who like to participate in computer
discussions, these issues come up much too often. Technical
conferences wherein users seem to be headed on the path of an
operating system war (DOS, Windows v. Macintosh, NT v. OS/2, UNIX v. VMS) quickly find the heavy hand of the moderator resting upon their shoulder.3 Or in the case of social issues, avoiding arguments over the rights and wrongs of homosexuality would probably be hopeless.4 And the evils of liberalism or conservatism is a sure bet as well.

In one instance an argument developed among participants of the ILink network's Opinion conference. What began as a conversation over civil  rights for gays turned into questioning the legal nature of state sodomy laws, gay marriages, etc.5 Eventually one user, a former gay activist, decided to appease other participants and explain in detail what homosexuals (the men at least) do in bed.6 Not unsurprisingly a  parent chimed in to note that his preteen son had access to the material on his own. He threatened to sue ILink and anyone else he could think of, presumably on the grounds that the material -- graphic sexuality and profane language -- was inappropriate for minors.7

That unfortunately was not all. The conference took a turn against the activist because of what eventually bore out as his rude, indignant, even childish behavior. The activist took the ensuing debate against him as anti-gay, when in fact they were decidedly "anti-Gary." Even the conference moderator, well known on the network as a lesbian, could find no way to support his allegations. The activist eventuallywon himself a "vacation" from the ILink Opinion conference for violating network user guidelines.8

Any casual look at electronic systems should reveal to an observer
that the common user knows not one wit about copyright law. Users
routinely post copyrighted material, whether it be an article from The New York Times,9 news briefs from Prodigy10 or the full text from magazine articles.11 People seem to think that "fair use" means reprinting much, if not all, of an article with no additional
commentary to solicit comments,12 or that reprinting is permissible so long as the copyright notice is intact.13 Generally, publishers are
not likely to care, although repeated copying from a single source may result in a stiff word or two from a representative.14 The Berne Convention is misunderstood sometimes to mean that mere quoting of copyrighted material is illegal without permission.15

Some users have managed to find themselves committing acts akin to sexual harassment simply by continuing a thread, titled "Galactic
Breasts," that female readers found offensive.16 The topic began as
worthy comment and criticism of Star Trek: The Next Generation, which began its first season placing Marina Sirtis in a costume which displayed a great deal of cleavage.17 In the absence of a visible moderator, the discussion turned from borderline sexual harassment to name calling to claims of discriminatory treatment and accusations that other users had lied about the goings-on of the "discussion."18

These problems tend to crop up often. Unlike the traditional media
classifications, there is often no one to screen what passes through
the system before material that is defamatory, obscene, infringing or harassing reaches participants. Sysops generally do not have the time to monitor everything on their own boards: Dealing with hardware and software glitches, managing file directories, weeding out pirated software and scanned images from Penthouse, and still maintaining a day job and domestic necessities takes time from what is usually a hobby.

In cases where messages will leave the local bulletin board and
"echo"19 across the country or to other countries, selective removal
of messages by local sysops can lead to fragmentation of discussions where some people have seen certain messages and others have not.20 Theoretically, a user might log in one day to see replies to replies of a message which were deleted before they reached the board he uses.21

Even if the resources to screen every message before posting it to theboard were possible, a sysop would likely be falling prey to
censorship, much as if a broadcaster used a delay device to ward off libel suits when a caller to a talk radio show could not refrain from


using specific words or simply chose to say something that was
conjecture or simply not true. In the 1976 case Adams v. Frontier
Broadcasting Co.,22 the Wyoming Supreme Court held that screening calls to a talk show subverts a broadcaster's own First Amendment principles:
"... broadcasters, to protect themselves from judgments for damages, would feel compelled to adopt and regularly use one of the tools of censorship, an electronic delay system. While using such a system a broadcaster would be charged with the responsibility of concluding that some comments should be edited or not broadcast at all. Furthermore, we must recognize the possibility that the requirement for the use of such equipment might, on occasion, tempt the broadcaster to screen out the comments of those with whom the broadcaster ... did not agree and then broadcast only the comments of those with whom the broadcaster did agree."23

Forcing callers to adhere to the broadcaster's views essentially
destroys the purpose of open debate. Electronic systems are wide open to debate based solely on their existence and the invitation of the operators to friends and the public to join in. No one should be
forced to agree, and no one will agree.  Disputes are common and
expected. But with free expression comes the danger of overstepping the bounds of the First Amendment:  obscenity, distributing material not appropriate for minors, defamation,24 copyright infringement, and more.

The level of ignorance and lack of courtesy or taste on computer
networks is astounding. Though not the heart of electronic discourse, the problems exist enough to pose a problem for sysops, moderators and network administrators.

Traditional media classifications carry varying levels of
responsibility and liability. What the law considers grounds for court action against a broadcaster might have no bearing to a newspaper publisher. A library or bookstore would likely have even less responsibility.

Unfortunately, computer information systems and bulletin boards fit none of the classic molds nicely. In some ways they are nothing more than distributors, but in others they actively behave as publishers. In the case of the echo networks mentioned above, they behave to some degree as republishers, although responsibility for removing or lessening the damage of problematic material is shifted.25

Users who have found the rules of electronic networks restrictive
sometimes advocate the common carrier principle.26 Such a standard has been denounced as an intrusion on the rights of owners to operate their private property as they desire27 and impractical28; impractical because as a common carrier, they would then be obligated to carry everything posted to the boards.

This might be fine if computer operators had an unlimited supply of
disk space and money. They do not. Many systems are operated as a hobby with no fees charged of users. Sysops foot the bill to shuttle information around a volunteer network.29 Under those restrictions, moderators attempt to maintain as high a signal to noise ratio as they possibly can, cutting off chitchat, directing off-topic conversations to a more appropriate venue, ending disputes and attacks before they turn into virtual brawls or a flame war with no end in sight. 



Evidence of what happens when the stops are removed exists on USENET
in the alt.* hierarchy of newsgroups. These "alt" groups have no
moderators to prescreen posts or discipline unruly participants.30
They are anarchy at work.31 If proof of how uncivilized these groups
can become is required, any interested party is directed toward
alt.flame, the USENET equivalent of a grudge match. Some newsgroups
under the alt.flame heading carry the names of legendary net
personalities.32 Others such as alt.flame.fucking.faggots have been
turned by heterosexuals to attack those who would call themselves
homophobic and proud of it, undoubtedly to the dismay of the people
who created it.

No mistake should be made here: Those who are "wired" to the realm of
computer networks often start them or volunteer and are aware of
networks such as USENET, where "In a few groups, the postings lack any
coherence at all, and make you wonder what, er, stimulants were
influencing the authors."33

Such anarchy would not be permitted on other networks, which either
due to cost or technical capabilities can not allow their facilities
to be roamed freely by what passes as atmosphere or lively discussion
elsewhere.34 An example of this is Prodigy.  When Prodigy's electronic
bulletin boards became exceedingly popular they drew all manner of
discussions. They became popular enough to overload a network intended
for the transmission of repetitive information (i.e. advertising,
shopping, news, etc.) not E-mail and bulletin board messages which
differ from one another.35 Prodigy, in a public relations disaster in
1990, announced the imposition of new fees on private electronic mail
to help hold off the costs incurred by heavy E-mail use by some of its
users.36

In its role as a "family" network, Prodigy also prescreened messages37
that did not fit the mold of something available to both children and
skin-thinned adults. Prodigy's computers routinely scanned messages
for key words often used as profanity or a pejorative.38
Unfortunately, this caused problems for people using the words
legitimately. Disguised words, those with letters replaced by *&%$#
characters, were acceptable.39 Users were also not allowed to name
other users in their posts regardless of the topic. In one case the
name in question referred not to Roosevelt Dime, a halfback for the
Chicago Bears as Prodigy insisted, but to a Roosevelt dime the user
was looking to add to his coin collection.40

The network has from the beginning considered itself a publisher,
choosing to allow some discussions and not others. In late 1989 when
arguments broke out in a Health Spa bulletin board,41 Prodigy
discontinued the area outright, saying that public interest had waned.
One Prodigy member who was evicted from the network for his protests
against its E-mail fee policy noted: "It was this wild debate between
fundamentalist Christians and gay activists. ... This is the kind of
thing that happens on a bulletin board. You wouldn't get this to
happen in a room."42

In a much more highly publicized incident, Prodigy recovered from
complaints against it by the Anti-Defamation League of the B'nai
B'rith when users in another area posted statements that the Holocaust
never happened43 or that if Hitler removed the Jews, we could "go a
long ways toward avoiding much trouble."44 Afterwards, Prodigy issued
its policy that it would no longer prescreen messages for content
(except for language)45 but would delete discussions it considered
"grossly repugnant to community standards."46

Such policies may be fine for Prodigy which directs itself to
families, but others contend that they are open to just about
anything. They act as libraries. In this category is CompuServe, a
system already legally classified by the New York courts as a
distributor:47

After Rumorville USA, an electronic publication on CompuServe's
Journalism Forum,48 claimed that its competitor Skuttlebut was a
"start-up scam,"49 the plaintiff filed a suit against not only
Rumorville's publisher but also CompuServe itself. District Court
Judge Peter Leisure granted a summary judgment to CompuServe on the
basis that as a distributor it could be held liable only if it knew or
had reason to know of the defamatory statements:

"Technology is rapidly transforming the information industry. A
computerized database is the functional equivalent of a more
traditional news vendor, and the inconsistent application of a lower
standard of liability to an electronic news distributor such as
CompuServe than that which is applied to a public library, book store,
or newsstand would impose an undue burden on the free flow of
information."

Industry observers naturally hailed Leisure's decision. Had the judge ruled differently, CompuServe likely may have had to begin censoring its boards,50 which like the Prodigy incidents outrages users andviolates the First Amendment principles so long defended by other courts.

To an individual sysop without the resources of Prodigy, this would
become a nightmare, significantly slowing down the flow of
information. Lawyers on the electronic frontier suggest that should a hobby bulletin board lose its privileges as a distributor they almost unquestionably would shut down or "face the Hobson's choice of either wasting vast amounts of time and effort combing through computer files, or being subject to potential lawsuits and damage awards basedon the unknown illegal acts any one of hundreds or thousands of callers might choose to commit on their systems."51

No such imposition should be allowed. Thus in some respects it is
logical to consider these systems a distributor free from most legal
liability.52 But the varying manners in which people communicate on electronic systems makes this single, albeit protective, label
inaccurate. Real-time chats are immediate with no opportunity to
prescreen, although if someone is rude or abusive, they may find
themselves cut out. Such as the case when a male America Online user entered the chat room "Women for Women."53 He wandered in blathering, "So, any lesbian Nazi hookers from hell here?" The moderator quickly booted him out, and the user later received a warning message in his mailbox. The user -- already on notice -- later made the mistake of using the word "piss" in another chat areas and lost his account on America Online.

Because the user "spoke" in real time offering observers no chance to filter out his offensive comments, the electronic chat system was much like a broadcaster without a delay device. No prior censorship was in place except that problem users would find themselves unable to participate as long as they behaved inappropriately among a diverse population.

This lack of ability to filter the speech of others is at the heart of
the needed definition for electronic mass communications systems. Only common carriers do not have previous knowledge of the communication carried through their systems. They also are obligated to carry it. Asthe history of sysop intervention and moderation on shared networks has indicated, however, the desire to maintain high-qualitydiscussions is a common desire.54 Low signal to noise ratios are expensive. Users and sysops are paying to transmit messages across the country and want to eliminate as much chaff as they possibly can. Thecornerstone of eliminating garbage is steering conversations to appropriate areas (no religion talk in the soap opera conference) and coming down hard on users who routinely abuse other users. This may seem like an effort to censor views analogous to a broadcaster using a delay device to silence its political opposition as warned against in Adams v. Frontier Broadcasting. But administrators for these networks
will quickly remind people that the First Amendment simply doesn't apply: The network makes the rules and grants users limited freedom of speech.55

Though that has not been enough for some socialist members of society who insist that computer networks are much like a company town or shopping mall in that the more they open themselves to the public, the less control over speech they have.56 The public forum doctrine,unfortunately, is not equal from state to state. More state courts have favored defendants who restricted speech than states that found for the speaker.57

What this means for national and global computer networks is a
confusing array of laws that vary from state to state. Lance Rose, a
lawyer who has written much on the subject of computing-related law, has suggested that laws related to the electronic frontier be
nationalized to alleviate the uncertain nature of laws from state to
state.58 That is a central goal to protecting operators from
unnecessary liability. Users will see their rights to speak in what
they believe to be a public forum enhanced if the proper steps after
that are taken. As Rose stated: "It's time to realize that provincial
state laws only hinder proper development of interstate electronic
systems."59

One direction that could be taken in the public discourse area of
computer-mediated communication is the notion of the public forum. Nomethod of communication ever developed by mankind so easily puts the power of speech into individual hands. None ever has opened itself up to the thoughts expressed by the millions of users who operate on the commercial information services, the 60,000 bulletin board systems and Internet-connected systems.

This certainly supports the expansion of "freedom of speech" to
computer networks to the point that respectable users can do or say
what they want. The technology provides everyone a chance to have their say. Sysops tend to dislike this analogy, insisting that their boards are their private property much like their private living room to which they can invite anyone they want or from which they canremove anyone they dislike.60 No infringement on their rights as theowner is intended; computer bulletin boards are still safe because they fit so many roles.

Different types of systems have different needs. To help them meet
that is the "time, place and manner" provision already assigned to
traditional public forums.61 It should be expected that in areas opento minors, decent language will be used and certain types of discourseare agreed upon as inappropriate. In those systems sensitive to cost,rules barring extraneous ASCII (overquoting, cute quote boxes andbloated signatures)62 are permissible as are those discouraging off-topic meandering and flaming.

In none of these should operators be expected to prescreen discourse. They do have the right and obligation, however, to remove damaging materials on private, non-shared message bases once brought to their  attention.63 The cost is insignificant as the means to delete such material is available at the tap of a key. Expecting the same behavior on shared systems is impractical and counterproductive. In this case moderators have an obligation to ensure that disruptive elements are not allowed to continue inserting damaging material into the network. Again, there is little need of this when the area at question has no sponsor, such as with the "alt" groups on USENET. The individual, not the network's leadership or its connecting parts, is responsible for material placed in the public arena. The system operators in this case act as pure distributors. Some have a choice over what areas they will support and which they will not, but not individual statements.64 This
is like a library which might cancel a periodical subscription but not remove a single issue someone considers offensive.65

If a bookstore chooses to carry pornographic material it should be
allowed to do as long as state laws regarding distribution to minors
and obscenity are adhered to. The same should apply to computer
bulletin boards; operators should not be afraid to maintain adult
areas simply because law enforcement behaves like the Keystone Kops. One would hope that local authorities have learned something about the rights of bulletin board operators and users over the last 10 years when Tom Tcimpidis' BBS was seized in 1984 after a user posted a stolen telephone credit card number on the board.66 Unfortunately, they have not. One local Knoxville board removed its adult area reportedly for fear of legal disputes,67 and the Secret Service was chastised for seizing the computer equipment of a publisher which contained works in progress and electronic mail.68 Sysop Mark Lehrer of Ohio is still fighting to recover the private E-mail from his system which authorities took along with his entire BBS in a failed sting operation directed at suspected child pornography distribution.69

As long as sysops see such reports and fear the security of their
board, open exchange of ideas whether written or graphic can not
freely occur despite American courts' insistence they support the
First Amendment as well as privacy. Once definitive classification is obtained, the freedom that spread across computer bulletin boards in their birth will continue into the next century as networks grow and as new systems reach completion.70

With that classification must come an understanding of what
responsibilities a sysop has as a distributor or publisher.  Injurious
materials can include defamation, copyright infringement and computer viruses, all of which can affect users or third parties. A sysop operator's role in preventing or limiting damage has yet to be finely detailed, although the considerations of negligence and actual malice can be extended to the operations of a computer bulletin board. Which standard of fault is best hasn't been decided.71 Operators may prefer one, parents another and adult users yet their own again.

Some steps have already been taken. The Electronic Frontier Foundation has supported building a consensus on the limits of sysop liability.72 A handful of law review articles have suggested that the current media classifications are unfit to include BBS' in their realm and that a new class is needed.73 Unfortunately, most of this discussion has taken place among computer watchers and interested law parties. Many Americans still lag behind in its understanding of what bulletinboards are and where they stand as evidenced by reports in the media on how BBS scandals continue to mystify basic concepts long accepted by the public as expected.74

It may seem shocking for users today to learn that more than ever they are responsible for what they write and what they distribute. Theability to have your voice heard is unprecedented but so is the
capability to harm. The media lessons of copyright, privacy and
defamation still are being taught on the networks today. They will
continue as more people log on to the networks at hand, spreading
their personage electronically.

Education can answer many of the problems facing the electronic world today. But no puzzles are solvable until computer information systems and bulletin boards are granted the highest degree of First Amendment rights and freedom from liability necessary to keep the waves of public exchange coming throughout the future.

[FOOTNOTES]

1 Here is the text of Tribe's proposed amendment:

"This Constitution's protections for the freedoms of speech, press,
petition, and assembly, and its protections against unreasonable
searches and seizures and the deprivation of life, liberty, or
property without due process of law, shall be construed as fully
applicable without regard to the technological method or medium
through which information content is generated, stored, altered,
transmitted, or controlled."

2 "ILink Conference Information," (short list) July 1993 from the file ILCNF307.ZIP available on ILink-affiliated boards of which Data World BBS in Maryville, Tenn. (615-675-3282) is one.

Besides conferences geared to debate, technical discussion, hobbies, professions and entertainment, networks often maintain administrative areas for news announcements and handling of user-moderator disputes.

The Mod & User area of ILink for example is set aside as the "hallway" where users and conference hosts can discuss instances where someone has been moderated for rules violations. Its implementation is public.Other networks may handle moderations similarly, very differently, privately or not at all (as is the case with LuciferNet).

3 A recurring problem in almost any conference devoted to computer
operating systems. The author has personally noted warnings and minor
disputes in Windows and Macintosh-oriented conferences. Other users
have been moderated for similar instances in OS/2, according to
exchanges in the ILink Mod & User conference.

4 Common conferences for such debates: Politics, Opinion and even Star
Trek.

5 Because this incident began in the summer of 1992 and continued into
the autumn months, copies of the dispute long ago disappeared from the
archives available to most users, including the author. Descriptions
of the account are based upon his memory of the conference's flame war
at the time.

6 Ibid. Gary Phillips' description did nothing to help his argument.
If anything it increased some users' distaste of homosexuals.

7 Ibid. Matthew Ackerman was the participant who threatened the ILink
network with legal action. He was eventually reassured that 1) ILink
policies would be sufficient and 2) successfully suing everyone
involved would be a monumental task because the boards are distributed
across the United States and internationally.

8 On the ILink network, the official moderation schedule is as
follows:

-- Informal warning. Discuss in Mod & User.

-- Formal warning. Discuss in Mod & User. Replying to moderation
   messages in the conference in which one has broken a rule rather
   than Mod & User is a common method of earning the next step:

-- 30-day suspension. Applies to the conference only. This is
   unappealable and thus no discussion is warranted.

-- 6-month revocation. This is appealable. Upon a return from a 30-day
   suspension, any violation of rules demands this access restriction.
   Discuss in Mod & User.

-- Network expulsion. In rare instances a user may have access to
   ILink removed completely. See note 34 below.

9 An E-mail acquaintance of the author is the culprit in this case. He eventually stopped posting the articles after Russell King, an
assistant managing editor at The New York Times who read the
conference, informed him that he was in violation of copyright law and should immediately cease posting Times articles verbatim or as lengthy excerpts.

10 This particular user posted several different messages in several
different conferences on ILink.

11 Take for example a posting in the ILink Politics conference of the article from The American Spectator on Magic Johnson's contraction of HIV.

12 Such reprinting without permission occurs on a regularly basis on some Internet discussion groups. These are posted apparently for nonprofit information distribution in most cases.

13 Pham, Dewey. Response to moderator's notice that he could not post
an Associated Press wire service article, no matter how fascinating
and pertinent, about Robin Williams possibly showing up as a guest
star on Star Trek: The Next Generation.

14 See note 9 above.

15 Posting on USENET's alt.censorship newsgroup.

"The USENET is an informal, rather anarchic, group of systems that
exchange `news.' News is essentially similar to `bulletin boards' on
other networks." Krol, Ed. The Whole Internet: User's Guide and
Catalog, p. 363.

16 Account of a month-long incident according to complaints and
moderation posts in the network's Mod & User conference. Some of the
posts included verbatim quotations. Available on Data World BBS.

17 As the seasons progressed, Sirtis' cleavage diminished. It
disappeared completely beginning with the sixth season episode "Chain
of Command," which aired just before the "Galactic Breasts" thread
started and seemed to spark the discussion. A captain in temporary
command of the program's starship ordered Sirtis' character to "wear a


standard uniform." She hasn't switched back to the revealing uniform since despite the return of the permissive commanding officer.

18 See note 16 above.

19 Echo networks are also known as shared network systems and
store-and-forward networks. Though messages may enter the network froma specific point, it passes through many systems before reachingeveryone on the network.

Such systems are organized in a hierarchical tree fashion.  Naturally, if one of the major hub systems goes down, anyone "downstream" from that board is cut off until the hub recovers.  In the case of Knoxville's ILink connection, problems on Data Warp BBS in Houston, Texas would disrupt the mail flow to and from Knoxville and 10 other cities. (Boone, Earl. ILink International Network Map.)

Because individual systems vary in how quickly they receive messages from different points on the network, a message entered in one citymay appear on one BBS the next day and another BBS as much as a week later. (Public message from a moderator to a user returning from asuspension on how exchanges were delayed due to slow mail delivery.)Internet-based discussions tend to appear on member systems within minutes or hours. (Just try it.)

20 Rose, Lance and Jonathan Wallace. SysLaw, Winona, Minn.: PC
Information Group. p. 15.

21 A similar situation occurs with mail loss, a phenomenon considered to be tamed but never really controlled. As an example: The author one day noticed replies to the announcement of a new moderator for a StarTrek conference. The original message which named the new moderator never arrived.

22 555 P.2d 556 (Wyo.1976), 2 Med.L.Rptr. 1166.

23 Ibid., 564-567, 2 Med.L.Rptr. at 1173-75.

24 An interesting idea is that the (limited purpose) public figure
status could be extended to include online participants who log on
frequently so that they become well known even if they would be
considered private individuals offline. (Rose and Wallace. p. 75)
Their involvement may not necessarily include participation in debate conferences but their identity is common. Even stronger a case might be made for users who post numerous messages on topics in debateareas. Debate by its very nature (barring academic mock competitionswhich is not the issue here) demands that someone place themselves into the spotlight.

25 Rose and Wallace. pp. 8-17.

26 See a long-standing argument from ILink's BBSPolicy conference July-August 1992. See generally messaged labeled "Your Freedom, My Toys" and "Free Speech -- Again." The "common carrier" and "public forum" principles were initiated by a user.

27 Ibid. Property and privacy rights defended by sysops and network volunteers.

28 Cavasos, Edward A. "Computer Bulletin Board Systems and The Right of Reply: Redefining Defamation Liability for a New Technology," 12 Review of Litigation (Fall 1992) pp. 231-248 at 239-240.

29 Your Freedom, My Toys.

30 Rose and Wallace. p. 15.

31 Hunt, Eric. In the "Opinion Conference" thread from the general
Your Freedom, My Toys discussion (August 6, 1992):

"USENET is a full-fledged anarchy. ... It contains some of the most
informative and technical discussion areas available in cyberspace. It also contains some of the worst message areas in terms of the
signal/noise ratio."

32 Satirical versions may be discovered under alt.fan, however.

33 Krol. p. 131.

34 LuciferNet is a worthy exception. There are no rules, although one user reportedly was expelled for publicly stating that he hoped to embarrass the network and its users. That user also was expelled from the ILink network after several concurrent suspensions.

35 Kapor, Mitch. "Keep the Switches Open. Prodigy: A Cautionary Tale," Wired 1.3 (July/August 1993) p. 57.

36 Taylor, Marianne. "Users say computer network is muzzling their give-and-take," Chicago Tribune, January 7, 1991. sec. 4 p. 1,4 at 4.

37 "The Lessons of the Prodigy Controversy," EFF News 1.00 (December 10, 1990) lines 444-588.

38 Godwin, Mike. "What's Important About the Medphone Libel Case?" 5 EFFector Online No. 5 (April 2, 1993) lines 258-436, at ln. 388-389.

39 On the ILink echomail network, such attempts at disguising "potty mouth" still warrant warnings from the conference moderator. (Bibich, Larry. Message dated July 14, 1993 in Politics conference listing
rules by which users should abide.)

40 Gaffin, Adam. Prodigy: Where Is It Going? Available from the files of the Electronic Frontier Foundation.

41 Di Lello, Edward V. "Functional Equivalency and Its Application to Freedom of Speech on Computer Bulletin Boards," 26 Columbia Journal of Law and Social Problems (Winter 1993) pp.  199-247, at 207.

42 Taylor. sec. 4 p. 4.

43 Feder, Barnaby J. "Toward Defining Free Speech in the Computer Age," The New York Times (November 3, 1991) p. E5.

44 Steele, Shari. April 26, 1993 letter to the National
Telecommunications and Information Administration on behalf of the Electronic Frontier Foundation. The letter was in response to the NTIA's request for comments on hate crimes as related to
telecommunications, including computer bulletin boards.

45 Godwin at lines 387-389.

And a good thing too. Earlier this year, Prodigy user Peter Denigris
posted messages to the Money Talk forum that led to a business
disparagement suit being filed against Denigris, an investor who
reportedly lost $9,000 on Medphone stock and encouraged others to steer clear because the company was financially and managerially  unsecure, and "appears to be a fraud." Prodigy was not named in the suit. Ibid. See also Lance Rose, "When Modems Squawk, Wall Street Listens," Wired 1.3 (July/August 1993) p. 30 for a brief articleraising the question of a "chilling effect" that resulted on Prodigy during the discovery portion of the suit.

46 Feder.

47 Cubby v. CompuServe 776 F.Supp. 135 (S.D.N.Y. 1991)

48 Ibid. The Journalism Forum is run by Cameron Communications Inc.
under contract with CompuServe.

49 Ibid. That statement unfortunately was not the only one at issue as the court's background statement indicates:

"The allegedly defamatory remarks included a suggestion that
individuals at Skuttlebut gained access to information first published in Rumorville `through some back door'; a statement that [Skuttlebut publisher Robert G.] Blanchard was `bounced' from his previous employer, WABC; and a description of Skuttlebut as a `new start-up scam.'"

50 Garneau, George. "Ruling protects electronic services," Editor & Publisher (November 16, 1991) p. 15.

51 Rose and Wallace. p. 12.

52 No attempt is made in this paper to defend known pirate boards such as Rusty & Edie's or Event Horizons, both of which carried copyrighted images from porn magazines. (Copies of images from both boards are available on boards in other cities including Knoxville.)

Event Horizons settled out of court with Playboy (Public message dated September 18, 1992 by Lance Rose in ILink's BBSPolicy conference).

Rusty & Edie's was temporarily shut down by the FBI after an
investigation by that agency and the Software Publishers Association,
which learned that the board was illegally distributing commercial
software. (Hobbs, Michael A. "FBI Shuts Bulletin Board -- Copyright Probe Begun," Cleveland Plain Dealer, February 17, 1993. See also a message dated February 27, 1993 in the ILink BBSPolicy conference noting the board's return after one month.)

53 See a series of alt.censorship posts on USENET dated mid-July 1993.
Copy available from author if archives cannot be located.

54 Sumrada, Bobbie. "Users' Etiquette Guide to Interlink," ILink
information packet as file ILGUIDE.ZIP. Note that ILink(sm) has since replaced the term Interlink, which was registered by a package delivery service (public posting supported by LegalTrac index).

55 Your Freedom, My Toys.

56 Ibid.

57 Di Lello. pp. 225-226.

58 Rose. Cyberspace and the Legal Matrix: Laws or Confusion?
Available from the files of the Electronic Frontier Foundation.

59 Ibid. at line 360.

60 Your Freedom, My Toys. See specifically messages by Glenn Sieb.

61 Taviss, Michael L. "Dueling forums: the public forum doctrine's
failure to protect the electronic forum," 60 University of Cincinnati
Law Review. (Winter 1992) pp. 757-795 at 788.

62 Sumrada. For notes on extraneous ASCII, see the sections labeled "Don't quote excessively" and "How to bug your fellow BBSer."

See also the "Intelec International E-Mail Network Operational
Guidelines." The Intelec Network Information File. (May 1993) The latest release is available on computer bulletin boards as
IN-yymm.ZIP, where yy is the year and mm is the month.

This document, an unretrievably terse accounting of the network rules, spells out in no uncertain terms that signatures can be no longer than three lines and "taglines," the parting witticisms after a signature,may be only one line.

Some other networks and/or sysops are not as generous.

63 Rose and Wallace. pp. 8-10.

64 Ibid. pp. 15-16.

65 Though high school libraries and bookstores have been known to accept such restrictions, the concept that they as a whole abhor the behavior defends the free expression and distribution of all ideas.

66 Pollack, Andrew. "Free-Speech Issues Surround Computer Bulletin
Board Use," The New York Times (November 12, 1984), pp.  A1, D4. See
also, Stiff, David. "Computer Bulletin Boards Fret Over Liability for
Stolen Data," Wall Street Journal (November 9, 1984) p. 33.

67 From an announcement in the early 1993 on Data World BBS' news
screen. That message has since expired and is no longer available.

68 Nathan, Paco Xander. "Jackson Wins, Feds Lose," Wired 1.2 (May/June 1993) p. 20. Federal District Judge Sam Sparks cited two Federal acts which the Secret Service violated in its investigation of Steve


Jackson Games: the Privacy Protection Act barring government officials from searching publishers, and the Electronic Communications Privacy Act severely limiting who can intercept and read private electronic mail.

69 Lehrer, David. "Akron Anomaly BBS Update," 5 Computer underground Digest No. 56, File 1. The update by the sysops' father has been  widely circulated around the Internet; this reference to CuD is onlyone of several where the report can be obtained. The editors at CuD 

note:

"Subsequent events indicated that the raid was an excessive exercise in local law enforcement zeal. Under pressure, the sysop pleaded guilty to a minor misdemeanor charge to avoid costly legal
entanglements. But, the case continues to raise issues ..."

70 Kapor. "Where is the Digital Highway Really Heading?" Wired 1.3 (July/August 1993), pp. 53-59, 94.

71 Rose and Wallace. pp. 71-74.

72 Kapor. "Legal and Policy Projects," EFF News 1.03 (March 7, 1991) ln. 115-470, at ln. 117-123, 157-198.

73 See: Di Lello, note 41 above;

Sassan, Anthony J. "Comparing apples to oranges: the need for a new media classification," 5 Software Law Journal (December 1992) pp.821-844; and

Taviss, note 61 above.

74 Schwartz, John. "Sex Crimes on Your Screen?" Newsweek (December 23,1991) p. 66. After a user received computer graphic files of minors engaged in sex acts in his private mailbox, America Online president Steve Case said: "People ask, `How can you permit this?' It's the same question that could be asked to the postmaster general."

______________________________________________________________________
Jonathan Bell                          Internet: jmbell@darmok.win.net

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