Cyberspace, the Free Market and the Free Marketplace of Ideas: 
Recognizing Legal Differences in Computer Bulletin Board Functions 
 
by
 
ERIC SCHLACHTER[*]
 
 
The Essay originally appeared in Hastings_Communications_and_Entertainment_Law_Journal (Comm/Ent) [16 
Hastings Comm/Ent L.J. 87 (1994)]. Questions and reprints: (415) 565-4731; comment@uchastings.edu.
 
The author can be reached at ericgoldman@onebox.com. 
 
 Table of Contents 
 
 
I. Difficult Issues Resulting from Changing Technologies
 A. The Emergence of BBSs as a Communication Medium
 B. The Need for a Law of Cyberspace
 C. The Quest for the Appropriate Legal Analogy Applicable to 
 Sysops
II. Breaking Down Computer Bulletin Board Systems Into Their Key  
 Characteristics
 A. Who is the Sysop? 
 B. The Sysop's Control
 C. BBS Functions
 1. Message Functions
 2. User/System Interaction and Information Services 
 3. "Gateways" 
III. Analysis of the Implications of Various Legal Analogies as Applied 
  to the BBS Context
 A. Synopses of the Rights and Obligations Involved with Each 
 Analogy 
 1. The Extent of Government Regulation
 2. Owner's Extent of Control/User's Right to Access
 3. Owner's Liability for the Statements or Actions of Others
 B. State Actors and the Public Forum Doctrine
 C. Policy Considerations--The Merits of BBSs and Interest 
 Balancing
IV. Application of Existing Legal Doctrines to Specific BBS Functions
 A. First and Fourth Amendment Cross-Functional Constitutional 
 Considerations
 1. Unreasonable Search and Seizure/Prior Restraint 
 2. Associational Interests 
 B. Function-Specific Analogies 
 1. Message Posting
 2. Electronic Mail
 3. Real-Time Conferencing
 4. Information Resources Dissemination
 5. Software Distribution and Commercial Services
 6. Gateways
V. Conclusions 
 
 
 
I
 
Difficult Issues Resulting from Changing Technologies 
 
 The digital revolution. Net surfing. Five hundred channels. 
Multimedia. Global village. Cyberspace.[1] The information superhigh-
way/information infrastructure. These and other buzzwords have 
proliferated in recent years, describing technology that promises to 
change our lives.
 
 The past year has brought an explosion of joint ventures and 
mergers among various media and entertainment entities, computer 
companies, and telecommunications providers.[2] These projects reflect 
the increasing convergence of computers, communications, and the media.
 
 Computer bulletin board systems (BBSs)[3] represent a key 
technology at the intersection of these disciplines, occupying an 
increasingly important role in today's mass communications.[4] A BBS is 
an electronic network of computers. At the heart of the BBS is the 
central computer,[5] set up and operated by the system operator 
(commonly called the "sysop").[6] Users link their computers to the 
central BBS computer by modem.[7] Once users have accessed the BBS, 
they may communicate with other users, obtain information from 
databases, obtain software, or perform other activities.[8]
 
 
A. The Emergence of BBSs as a Communication Medium 
 
 Over the past fifteen years,[9] BBS usage has grown exponentially. 
The United States has as many as 60,000 public and commercial BBSs,[10] 
120,000 private and corporate BBSs,[11] and ten million users.[12] This 
popularity can be primarily attributed to two factors. First, BBSs are 
inexpensive to set up[13] and use.[14] This makes them one of the 
lowest cost mass media.[15] Second, because users retain some 
anonymity[16] or because of the ease and power of BBS communication, 
users may lower their psychological barriers[17] and "open up, 
connecting [them] even more intimately to others in society."[18]
 
 As a result of these and other factors, BBSs have taken a place 
alongside "traditional" media as a major force for intellectual, 
political, and informational exchanges.[19] For example, during global 
crises, BBS communication has become an important source of news 
information.[20] BBSs also support political expression, creating new 
ways for politicians to receive feedback from their constituents[21] and 
increasing citizens' opportunities to discuss and debate issues.[22] 
For example, when one Colorado sysop, concerned about a proposed but 
unpublicized city ordinance, typed the ordinance's text into his BBS, 
175 people showed up at the next city council meeting to express their 
opinions on the ordinance.[23]
 
 However, as with any emerging technology, users have also 
exploited the technology's dark side. Because BBSs are tremendously 
powerful tools for communication, they empower individuals to engage in 
socially-undesirable speech or anti-social behavior. There are a number 
of ways that BBSs can support illegal activity, such as through the 
illegal distribution of telephone card numbers[24] or copyrighted 
software.[25] BBSs also are used to propagate harmful speech such as 
defamation,[26] child pornography,[27] hate speech and anti-
Semitism,[28] and to facilitate hate crimes[29] and copyright 
infringement.[30] The power of this new technology has caused some 
private and state actors to respond aggressively, overreacting to weak 
threats and inhibiting legitimate conduct.[31]
 
 Ambiguities arise as old law is applied to new technologies. With 
the inherent ambiguities of cyberspace, the need to define its 
boundaries for legal purposes becomes even more critical. For example, 
the boundaries on permissible Fourth Amendment searches and seizures can 
be murky even in physical space. The absence of such boundaries in 
cyberspace can result in searches far beyond the necessary scope. For 
example, in Operation Sun Devil, when government agents seized BBS 
computers, they searched entire hard drives, reading private electronic 
mail ("e-mail") not associated with the crimes alleged on the search 
warrants.[32]
 
 Furthermore, while the technology has empowered users and induced 
a strong response from government, it has also empowered sysops to 
control the flow of information. For example, Prodigy, a large 
commercial BBS, has censored users for various reasons. Prodigy has 
prohibited users from posting public messages critical of Prodigy and 
ultimately ejected some users who failed to comply.[33] Prodigy has 
also regularly edited and refused to post submissions.[34]
 
 
B. The Need for a Law of Cyberspace 
 
 Presently, there is significant uncertainty regarding which laws 
govern the situations described above and how those laws would be 
applied. Although laws have begun to address primary criminal and civil 
liability, the extent of vicarious sysop liability for users' actions 
remains undetermined. One reason sysop liability is tricky is that 
communication on BBSs presents a unique set of interests to balance.[35] 
More significantly, however, the Constitution "tends to carve up the 
social, legal, and political universe along the lines of `physical 
place' or `temporal proximity.'"[36] As a result, "[w]hen the lines 
along which our Constitution is drawn warp or vanish, what happens to 
the Constitution itself?"[37] Without physical or temporal boundaries, 
both substantive and procedural legal issues such as jurisdiction, 
choice of law, and enforcement are problematic.[38]
 
 As future legislation and court rulings address BBSs' unique 
aspects and as BBS technology proliferates,[39] legislators and jurists 
will find it increasingly appropriate to discuss the law of cyberspace, 
the electronic version of physical space.[40] As the courts and 
legislatures start mapping the contours of law in cyberspace, the powers 
of the cyberspace media and its keepers (the sysops) will create 
numerous questions of constitutional and tort jurisprudence. How should 
the bundle of individual constitutional rights contained in the Bill of 
Rights be protected from government infringement in cyberspace? How 
extensively should the government regulate private sysop conduct? 
Should the government prohibit private actors from determining the types 
of conversations or activities that take place on private BBSs, or who 
can gain access? What combination of direct regulation and tort 
liability will provide a socially desirable level of control over 
private BBS owners? How can we as a society strike a satisfactory 
balance between private autonomy and appropriate government 
intervention?
 
 
C. The Quest for the Appropriate Legal Analogy Applicable to Sysops 
 
 Unfortunately, the law has difficulty adapting to major 
advancements in communications technology.[41] This is particularly 
true in the case of BBS technology, in which the traditional legal 
trifurcation of print, broadcasting, and common carriage is collapsed 
into one medium.[42] However, the uniqueness of BBSs does not mean that 
new legal rules must be fashioned to govern sysops' legal rights and 
responsibilities; rather, the proper application of existing legal rules 
will reach satisfactory legal results without judicial activism or 
legislative intervention.[43]
 
 Commentators on BBS legal issues have sought to apply existing 
legal doctrine to sysops from the very beginning.[44] Sysops have been 
analogized to:
 
 * newspaper publishers and editors;
 
 * "secondary publishers," such as libraries and booksellers;
 
 * broadcast media, such as radio or television;
 
 * common carriers, such as telephones and postal mail; and
 
 * private real property owners.
 
However, most commentators have proposed these analogies to solve single 
legal problems, without considering how these analogies apply to other 
problems that will inevitably arise on BBSs. Unfortunately, the "law of 
unintended consequences" applies: In trying to solve an isolated 
problem, the "solution" creates other problems. For example, many 
commentators have argued, and continue to argue, that to protect BBSs 
from prior restraints effected by BBS seizures, sysops should be 
analogized to print publishers. On the other hand, Prodigy has been 
repeatedly criticized for claiming it has editorial control similar to 
that of print publishers which allows it to discriminate on the basis of 
content and deny access to users.
 
 The complexity and versatility of BBSs suggest that no single 
legal model or analogy will prove satisfactory.[45] Consequently, some 
have argued for the development of a hybrid model.[46] This Essay 
proposes a hybrid model that combines specific pieces of existing 
jurisprudence, each based on an appropriate analogy for a particular BBS 
function. To do so, this Essay breaks down the entity "computer 
bulletin board" into three categories[47] that will serve as the 
building blocks for synthesizing the law of cyberspace from existing 
legal rules:
 
 (1) the identity of the owner/sysop;[48]
 
 (2) the sysop's knowledge of, and control over, users' 
actions;[49] and
 
 (3) the way the BBS is being used.[50]
 
Ultimately, all three characteristics are essential to tailoring 
existing legal doctrine to fit the myriad of legal difficulties that 
arise on BBSs.
 
 Part II of this Essay addresses the current state of the BBS 
industry with respect to each of the three dimensions, illustrating the 
diversity of BBSs and sysops. Part III summarizes the jurisprudence 
that has developed for each of the relevant legal analogies proposed. 
Part III of the Essay demonstrates how legal rights and responsibilities 
vary with the amount of editorial control available to and exercised by 
the entities' owners. Part IV then methodically applies the conclusions 
of part III, developing the law of cyberspace by outlining appropriate 
analogies for each function. Significantly, part IV shows that sysops 
can and should have the choice to determine the amount of editorial 
control they exercise and the concomitant bundle of legal rights and 
responsibilities. Finally, part V concludes by discussing the 
interaction between the freedom to contract and the marketplace of 
ideas, arguing that a policy of permitting sysops to choose their bundle 
of rights and responsibilities, combined with a properly functioning 
market, will foster the free marketplace of ideas.
 
 
 
II
 
Breaking Down Computer Bulletin Board Systems Into Their Key 
Characteristics 
 
 This part separates computer bulletin board systems into three 
significant components: BBS ownership, sysop control, and BBS functions. 
The analysis will prove useful as this Essay reconstructs the BBS 
industry along various dimensions to develop appropriate legal doctrine.
 
 
A. Who is the Sysop? 
 
 BBSs may be categorized as national and regional commercial BBSs, 
public and private free BBSs, corporate BBSs, and state-owned BBSs. 
Wide area electronic networks link BBSs and warrant special mention.
 
 Some commercial BBSs have taken a "mass market" approach, 
developing a national user base and providing a comprehensive set of 
functions. For example, one large commercial BBS, Prodigy, is a joint 
venture of Sears Roebuck & Co. and International Business Machines 
Corporation[51] and has approximately one million subscribers.[52] 
Prodigy distinguishes itself from other commercial BBSs in three ways: 
(1) by promoting an on-line "family" atmosphere;[53] (2) by routinely 
removing messages that do not meet its subjective standards;[54]and (3) 
by displaying advertising on virtually every computer screen.[55]
 
 Other national commercial BBSs include GEnie,[56] America On-
line,[57] and CompuServe, which has 1.4 million subscribers[58] and is 
the oldest[59] commercial BBS. Although these BBSs have segmented the 
market somewhat, there is significant competition among them, especially 
based on pricing.[60]
 
 In addition to the handful of national commercial BBSs, there are 
many regional commercial BBSs.[61] A typical regional BBS is the 
Channel 1 BBS in Cambridge, Massachusetts. Channel 1 has 250 forums and 
over four gigabytes of downloadable files, uses eighty-five telephone 
lines, receives 2500 calls a day, and has annual revenues of 
$250,000.[62] One of the most prominent regional BBSs, and a frequent 
trendsetter for the industry, is the Sausalito, California-based WELL 
(Whole Earth 'Lectronic Link), which has 6000 subscribers.[63]
 
  Supplementing the commercial BBSs are the free BBSs, which 
constitute a major portion of the overall BBS industry.[64] With the 
appropriate computer hardware, telephone lines, and software, anyone can 
set up a free public BBS. Sysops establish BBSs to serve the communi-
ty,[65] support discussion of a topic of interest,[66] or just for 
fun.[67] Private free BBSs are similar to public BBSs, except that 
access is restricted, often to people known to the sysop.[68]
 
 BBSs set up for corporation- or organization-specific purposes are 
yet another segment of the BBS industry. The flexibility of BBS 
technology has supported numerous organizational uses. BBS technology 
can integrate a company through electronic mail systems for employees or 
through centralized information databases.[69] Companies can also use 
BBSs as twenty-four-hour customer service lines[70] or to facilitate the 
exchange of messages and documents between clients and the company.[71] 
BBSs have also begun to play a special role in "making markets" by 
facilitating the connections of buyers and sellers.[72]
 
 In addition to the proliferation of BBSs throughout the private 
sector, government has found uses for BBSs at the federal,[73] 
state,[74] and municipal levels, such as Santa Monica's Public 
Electronic Network (PEN).[75] Some universities use BBSs as well.[76]
 
 Wide area networks (WANs), the final segment of the BBS industry 
discussed here, are not technically BBS technology but are so integral 
to the functioning of BBSs that they deserve mention. WANs 
electronically connect stand-alone computer systems and networks 
nationally and internationally.[77] The most prominent WAN is 
Internet,[78] which has evolved from networks established by the 
Department of Defense and the National Science Foundation.[79] Internet 
connects various government, university, and corporate entities,[80] 
spans 137 nations, and has at least fifteen million users.[81] Through 
the USENET BBS, carried over Internet, and other on-line resources, 
Internet users can perform all the functions available to BBS users.[82]
 
 Other WANs include BITNET, a network sponsored by the City 
University of New York,[83] and FidoNet, a "virtual network" of 10,000 
BBSs that automatically exchange private e-mail and public messages.[84]
 
 WANs will become increasingly important given the passage in 1991 
of Vice President (then Senator) Gore's National Research and Education 
Network (NREN) legislation.[85] NREN will create a national information 
infrastructure, or electronic superhighway, for high-volume information 
transmission. This infrastructure may provide linkages between all BBSs 
and electronic networks nationwide. It may also support the development 
of entrepreneurial for-profit network nodes, where BBSs or other 
information providers can cost-effectively access the national market. 
This could lead to a major increase in entrepreneurial activity in the 
BBS industry.
 
 
B. The Sysop's Control 
 
 As part of the process of establishing and maintaining a BBS, a 
sysop must make business judgments in a number of areas.[86] These 
areas range from financial and mechanical, such as the types of hardware 
and software used, to operational, such as access[87] and monitoring 
policies, to the BBS's culture and "space."[88] Although certain sysop 
profiles recur, it is impossible to describe a meaningful or legally 
useful "typical" sysop,[89] because each sysop makes a different 
combination of choices.[90]
 
 
C. BBS Functions 
 
 Many different functions are available to BBS users. As this 
Essay will later develop,[91] these functions prove critical in 
determining sysops' and users' legal rights and obligations.
 
 
1. Message Functions 
 
 One of the most popular BBS functions is the ability to post 
public messages instantaneously. Users can opine, share information, or 
engage in spirited discussions with other users on a dazzling diversity 
of topics.[92] After reviewing a list of discussion topics, the user 
can post a message under either a general topic, accessible by the 
entire BBS user base, or under one of the special interest topics. The 
posted messages then become part of an archive, and subsequent users may 
browse old messages and trace the "threads" of various debates and lines 
of conversation.
 
 In addition to public message posting, users may send private 
electronic messages to other users directly, either internally to users 
of other BBSs or to global networks. For example, CompuServe's e-mail 
system can communicate externally with systems such as Internet, MCI 
Mail, Telex, and AT&T Mail, and can fax documents to any fax ma-
chine.[93] Although e-mail is generally private, the difference in 
audience between publicly-posted messages and private e-mail can be 
slight when users send e-mails to mass electronic mailing lists[94] or 
list servers.[95]
 
 Although the public and private message functions described above 
are asynchronous, many BBSs also allow users to communicate with each 
other in "real time."[96] Real-time conferences can range from informal 
user-to-user "chatter"[97] to committee meetings or press 
conferences.[98] Although one of the attractions of real-time 
conferencing is spontaneity, some sysops exercise control over these 
conferences.[99] However, users may exercise control themselves by 
taking a real-time discussion into a private "room."[100] On many BBSs, 
users may also interact with each other in real-time through on-line 
games.[101]
 
 
2. User/System Interaction and Information Services 
 
 The messaging functions listed above involve users communicating 
with other users, but BBSs also allow users to interact with the 
computer system. Such interaction may be one of five types: 
advertising, shopping, information databases, information storage, and 
software distribution.
 
 The first type of user/system interaction is advertising. BBS 
technology supports both direct company advertising and product 
announcements. Virtually every Prodigy computer screen has an 
advertisement,[102] and some companies use their own BBSs to advertise 
their products.[103]
 
 Shopping is a second category of user/system interaction. Most 
national commercial BBSs have "shopping malls" or electronic catalogues 
that allow users to buy a range of products and services.[104] For 
example, CompuServe has an electronic shopping mall with 100 
retailers,[105] on-line airline, car, and hotel reservations, and 
on-line stockbrokers who can execute buy or sell orders.[106]
 
 Information databases are a third type of user/system interaction. 
CompuServe provides access to investment services,[107] news 
services,[108] the full text of 700 publications,[109] MEDLINE,[110] a 
database of movie reviews, Census Bureau demographic data, national 
white page and yellow page telephone number directories, and Department 
of State travel advisories.[111] In addition, some BBSs develop 
databases exclusively for their users.[112]
 
 A partial survey of the resources available on Internet 
demonstrates the power of BBSs to distribute information. Accessible 
databases include reference works such as the 
Concise_Oxford_English_Dictionary, Oxford_Thesaurus, and 
Peterson's_College_Directory, electronic journals and newsletters, and 
computer-encoded books such as Moby_Dick, The_Federalist_Papers, 
The_Book_of_Mormon, and the complete works of Shakespeare.[113]
 
 Data storage is a fourth type of user/system interaction. Most 
BBSs allow users to store information and data on the system computer. 
This information can be either electronically transmitted to the user 
from an external source, downloaded (received)[114] from the BBS's 
databases, or uploaded (sent)[115] by the user to the BBS computer's 
hard drive.
 
 Software exchange is the fifth and final category of user/system 
interaction. Most BBSs allow users to upload and download 
software.[116] Because of this, BBSs have become major software 
distributors.[117] BBSs often build their reputations on the quality 
and quantity of their downloadable software.[118] While much of the 
software available is "public domain," "freeware," or "shareware,"[119] 
copyrighted software that has been illegally copied can be found on some 
BBSs.[120] Other problems with the distribution of software by BBSs 
include the spread of computer viruses[121] and the presence of files 
which users may find indecent, pornographic, or obscene.
 
 
3. "Gateways" 
 
 One of the unique features of a BBS, compared with other technolo-
gies, is the ability to act as a gateway. A gateway allows the computer 
to communicate electronically with other computers, so that the BBS user 
can perform activities on the external computer system.[122] Information 
passing through the gateway computer is briefly processed by the 
gateway's computer hardware before being sent to the intermediate or 
destination computer for further processing.[123] When CompuServe users 
access another company's proprietary database (such as Dow Jones), 
CompuServe is acting as a gateway between the user and the Dow Jones 
database. Similarly, when CompuServe users access the Internet, 
CompuServe is a gateway to the Internet gateway, which connects the 
user's computer to a destination network system.[124]
 
 
III
 
Analysis of the Implications of Various Legal Analogies as Applied to 
the BBS Context 
 
 
A. Synopses of the Rights and Obligations Involved with Each Analogy 
 
 Having offered some background into the functional and industry 
context of BBSs in the previous part, this Essay will now outline the 
law that applies in analogous situations.[125] The Essay focuses on 
three categories: (1) the extent of the government regulatory scheme; 
(2) the owner's right of control and the user's right to access; and (3) 
the owner's liability for the statements of others. This subpart will 
provide a common framework of the general rules, but will not explore 
the nuances of various legal models. Once the framework is established, 
the next subpart will evaluate each analogy's strengths and weaknesses 
from a policy perspective, as applied to both users and sysops.[126]
 
 The types of entities considered as analogous to BBSs include 
print publishers (primary publishers and republishers), secondary 
publishers (including booksellers, news distributors, libraries, and, 
for defamation liability purposes, telegraph companies),[127] 
broadcasters, common carriers, and private real and personal property 
owners.[128] At the end of this subpart, an analysis of the public 
forum doctrine outlines some rules that apply to state actors.
 
 
1. The Extent of Government Regulation 
 
 Some media, such as broadcasters and common carriers, are subject 
to extensive government regulation. For example, because of perceived 
spectrum scarcity, the FCC allocates the broadcast spectrum to ensure 
that it is being used to benefit the public.[129] The FCC only grants 
licenses for a limited time period[130] and may restrict ownership.[131] 
In response to the potential for monopolistic situations, Congress has 
similarly enacted a broad scheme of telephone and telegraph 
regulations.[132]
 
 In contrast, government intrusion into print publishing is 
severely restricted both constitutionally and statutorily. For 
instance, the U.S. Supreme Court held that a use tax on ink and paper, 
with its detrimental impact on print publishers, was an unconstitutional 
infringement of print publishers' freedom.[133] Before searching or 
seizing print publishers' work product or documentary materials, the 
government must make a heightened showing of need.[134] Congress, 
recognizing the important role of newspapers, has exempted newspapers 
from some antitrust prohibitions.[135]
 Similarly, whether based on the owner's First Amendment 
protections or the Fifth Amendment Takings Clause, the government is 
also prohibited from dictating the use of private property for 
communications purposes.[136] 
 
 
2. Owner's Extent of Control/User's Right to Access 
 
 In general, there is a sliding scale of control in relation to 
forced access. At one end of the scale are primary publishers, who have 
virtually unrestrained discretion over what they print or to whom they 
give access to disseminate information.[137] Also on this end are 
owners of private property, who are similarly protected from mandatory 
or forced access.[138] In some cases, government-mandated access could 
be considered a taking.[139] However, the rights of private property 
owners have been restricted in one key respect. As an extension of the 
public forum doctrine, if private property resembles a traditional 
government-owned or -controlled public forum, the Court has been willing 
to consider permitting government-mandated access.[140] Thus, although 
speakers do not have a right of access to private property under the 
U.S. Constitution,[141] the Court has held that states may, on indepen-
dent state grounds, require private owners to permit individuals to 
exercise free speech on private property in limited circumstances.[142]
 
 Further along the sliding scale of control and forced access lies 
broadcasting, about which Laurence Tribe has noted, "[f]rom the 
beginning, the federal government--by its licensing practices and by 
rules directed at the substantive content of broadcasting--has strongly 
influenced what broadcasters have had to say."[143] For example, under 
the Equal Opportunities Doctrine, broadcasters who provide access to one 
political candidate must offer equal opportunity to competing candidates 
and may not censor these broadcasts.[144] Broadcasters have discretion 
to reject editorial advertising,[145] but the FCC may revoke a station's 
license if it does not provide "reasonable access" to candidates for 
federal office.[146] Additionally, broadcasters have no discretion to 
accept cigarette advertising.[147] Finally, the FCC may control 
content, such as the publication of indecent words.[148]
 
 At the other end of the sliding scale from primary publishers are 
common carriers, who by definition must be available to all comers and 
cannot refuse to provide service in a discriminatory fashion.[149]  This 
open access generally means that the carrier cannot distinguish between 
customers based on content, and government control over the right of 
access is restricted. Therefore, in Sable_Communication_v._FCC,[150] 
the U.S. Supreme Court found that the FCC's ban of "indecent" telephone 
communications[151] was unconstitutional, since it exceeded what was 
necessary to serve the compelling government interests involved.[152]
 
 In some respects, secondary publishers are similar to common 
carriers, because secondary publishers also do not exercise editorial 
control over content. However, this analogy is not complete, because 
secondary publishers do not necessarily have to allow unrestricted 
access. For example, in Board_of_Education_v._Pico,[153] the Court 
permitted school libraries to exercise some discretion over which books 
are placed on their shelves, but once a book is placed on its shelves, 
the library may not remove the book merely because the library disagrees 
with the book's contents.[154] While Pico was limited to state actors, 
a broad reading of the rule could apply to private secondary publishers, 
who would be permitted to choose who gets access but, once an entity is 
given access, could not censor content for arbitrary reasons. However, 
in the absence of such a broad reading of Pico, there is no general 
right of access to private secondary publishers.
 
 
3. Owner's Liability for the Statements or Actions of Others 
 
 The sliding scale of control and access described in the previous 
subpart also applies here: Those entities with more editorial control 
generally also have greater exposure to tort liability for the 
statements or actions of others. Therefore, primary publishers, who 
have the greatest control, also have the greatest exposure to defamation 
liability. Primary publishers may be liable for defamation in the case 
of public officials and other public figures only if they have actual 
malice (including recklessness);[155] otherwise, states may hold primary 
publishers liable under a negligence standard.[156] In 
Dun_&_Bradstreet,_Inc._v._Greenmoss_Builders,_Inc.,[157] the Court held 
that a private commercial information distributor could be held liable 
for presumed damages without a showing of "actual malice" if the issue 
was not a public concern.[158] Although the strict standards of 
defamation liability have historically applied only to news media 
entities, language in Dun_&_Bradstreet indicates that the rules will be 
applied consistently to both media and nonmedia primary publishers.[159]
 
 In addition to defamation liability, primary publishers may be 
liable for other types of statements. For example, a print publisher 
may be liable for compensatory damages for publishing commercial 
advertisements that pose a substantial danger of causing harm if the 
danger is apparent on the advertisement's face.[160]
 
 However, where primary publishers exercise only limited editorial 
control, traditional standards may not apply. In other words, when 
primary publishers act as a conduit for other people's statements, such 
as when they report defamatory statements as news, primary publishers 
may benefit from a more lenient standard. For example, in 
Edwards_v._National_Audubon_Society,_Inc.,[161] the Second Circuit Court 
of Appeals held that The_New_York_Times was not liable for defamation 
when it merely reported defamatory allegations made by the "responsible 
[and] prominent" National Audubon Society, even if the publisher did not 
independently investigate the allegations.[162]
 
 Most broadcasters exercise editorial control as vigorously as do 
primary publishers. As a result, broadcasters' liability for defamation 
does not differ from print publishers' liability,[163] and the scienter 
requirements are the same.[164] However, in contexts where broadcasters 
have only limited control, their liability also appears to scale back 
proportionately. Therefore, in 
Farmers_Education_and_Cooperative_Union_v._WDAY,_Inc.,[165] the Court 
held that, because the Equal Opportunities Doctrine[166] required the 
defendant radio station effectively to turn control of the broadcast 
content over to the candidate making defamatory statements, the station 
was not liable for these statements.[167]
 
 Continuing on the sliding scale, private property owners who have 
extensive control over the use of their property for communication 
purposes can be liable for defamation if they meet the requirements for 
becoming a republisher. Therefore, private property owners can be 
liable for the defamatory statements of others if they control land or 
chattels and intentionally and unreasonably fail to remove defamatory 
matter that they know is exhibited.[168]
 
 With no real editorial control, secondary publishers are liable 
for defamatory statements by others only if they "knew or had reason to 
know of the existence of defamatory material contained in the matter 
published . . . [unless] (a) the originator had a privilege or (b) the 
disseminator reasonably believed that the originator had a 
privilege."[169] This general immunity from liability for others' 
statements applies in other contexts, such as the transmission of 
obscenity. In Smith_v._California,[170] the Court struck down a Los 
Angeles municipal ordinance that held booksellers strictly liable for 
possessing obscene material, reasoning that requiring booksellers to 
review all the books they sold would decrease public access to books, 
including books containing constitutionally protected expression.[171] 
This illustrates that the basis for finding an absence of liability for 
other people's statements is partly a concern that imposing liability 
would lead to greater control which, in turn, would inhibit 
constitutionally protected speech.
 
 Finally, common carriers, such as telephone companies, mail 
carriers, and other non-content providers like equipment providers,[172] 
also lack substantial editorial control and generally are considered 
immune from liability for the statements of others in the absence of 
some aggravating circumstance.[173] Therefore, in 
Anderson_v._New_York_Telephone_Co.,[174] the telephone company was not 
liable for a user's defamatory answering machine message even when the 
telephone company knew about the defamatory statements. Without this 
type of immunity, common carriers would be forced to prescreen, which 
would cause them to operate less efficiently and would be contrary to 
the users' expectations of privacy.[175]
 
 
B. State Actors and the Public Forum Doctrine 
 
 The public forum doctrine[176] applies only to "state owned, 
operated, or sponsored computer systems."[177] If the BBS is a state 
actor, the BBS's ability to act will be determined by the type of forum 
it is deemed to be. The three type of forums described by the U.S. 
Supreme Court are:[178]
 
 (1) The "traditional public forum." Based primarily on historical 
usage, traditional public forums are narrowly defined as parks, public 
streets and sidewalks,[179] not BBSs.[180] In traditional public 
forums, the Court applies strict scrutiny[181] to content-based 
restrictions on speech and intermediate scrutiny[182] to content-neutral 
time, place, and manner restrictions.[183]
 
 (2) The "limited public forum." Limited public forums exist when 
the state actor intentionally creates a forum and makes it available to 
the public.[184] The Court applies strict scrutiny to content-based 
restrictions in limited public forums.[185] Time, place, and manner 
restrictions in such forums must be reasonable.[186] State-owned BBSs 
set up for the purpose of facilitating interactive communication with 
the government and other citizens could be considered limited public 
forums, subject to the state actor's right to shut down the forum and to 
impose time, place, and manner restrictions.[187]
 
 (3) The "nonpublic forum." A nonpublic forum is defined as 
"[p]ublic property which is not by tradition or designation a forum for 
public communication."[188] State actors can restrict access and impose 
reasonable regulations, including those which discriminate on the basis 
of content.[189]
 
 
C. Policy Considerations--The Merits of BBSs and Interest Balancing 
 
 Given the range of legal rights and obligations outlined in 
subparts A and B above, an important issue is determining which 
distinguishing characteristics of BBSs warrant special consideration in 
selecting the appropriate levels of legal rights and obligations. One 
commentator has posited BBSs are unique because of the speed and low 
cost of BBS-based communication.[190] Certainly speed is no small 
factor. The fact that speakers may disseminate their ideas on demand, 
and in some cases interact with each other contemporaneously, compares 
favorably with "slow" technologies such as publishing and broadcasting. 
The fast speed also allows faulty or imprecise information to be 
corrected rapidly, creating a dynamic information marketplace.[191]
 
 The low cost of BBSs is another important factor, particularly 
regarding free BBSs that are essentially electronic "traditional public 
forums."[192] Indeed, as the poor person's mass media vehicle, BBSs can 
be the only cost-effective and meaningful way for some individuals to 
command the attention of an audience.[193] The low cost can also help 
create "inverted pyramids," where individuals who have low status in the 
physical world can gain prominence and notoriety in the on-line 
world.[194]
 
 In addition to beneficial effects on communication, the speed and 
cost-effectiveness of BBSs can lead to the instantaneous and low-cost 
formation of interest-based groups, without regard to any user's 
geography or demographic characteristics.[195] BBS users can cost-
-effectively find others with whom to affiliate and can engage in 
wide-ranging, socially-enriching dialogue,[196] in effect creating a 
decentralized information economy.[197] These decentralized and 
geographically disparate groups frequently develop altruistic community 
norms, which are even found in situations in which the cost for 
individuals to assist other users exceeds their personal benefits.[198] 
The combination of a global scope of communication, altruism contrary to 
economic theory, and immediate on-line intimacy makes the BBS an 
empowering tool.[199]
 
 Finally, in addition to their communication and group dynamics, 
BBSs are also one-stop electronic convenience stores, offering the 
ability to access experts or celebrities,[200] to tap into tremendous 
information databases, to obtain software, to store information, and to 
shop.[201] Everything that can be done in cyberspace can be done in the 
physical world, but the convenience and speed[202] of BBSs can convert 
otherwise burdensome tasks into accessible ones.
 As the above discussion indicates, BBSs have many special features 
that deserve protection. However, the electronic power that allows 
users to achieve so much that is positive also allows users to engage in 
social wrongs.[203] Eventually, through either tort or criminal 
liability for sysops, society will decide how much BBS activity it will 
circumscribe both directly and indirectly.
 
 In ascribing tort liability, it is axiomatic that the tortious 
user should be liable.[204] However, if society considers sysops part of 
the causal link in user wrongdoing, then the tort goals of deterrence 
and victim compensation indicate that sysops should also be liable.[205] 
In contrast, if society decides that BBSs have more social benefits than 
are reflected by BBS revenues, society should subsidize BBSs by 
restricting the sysop's tort liability.[206]
 
 It has been proposed that sysops should be subject to criminal 
liability for users' actions.[207] However, criminal liability poses 
the dangers that sysops may inadvertently be held strictly liable for 
users' criminal behavior,[208] or that law enforcement officials, either 
afraid[209] or ignorant[210] of computers, will use criminal liability 
to harass sysops and breach constitutional protections.[211] While it 
is beyond the scope of this Essay to fully map the contours of sysops' 
criminal liability for the statements or actions of their users,[212] a 
mens_rea of recklessness, at the least, should be required to impose 
liability, in order to avoid a chilling effect.[213]
 
 Beyond the sysops' civil and criminal liability, there is an 
underlying issue of how extensively the government should intervene in 
the mechanical operation of private media ventures. For example, if the 
government does not mandate media access, then access may be restricted 
to powerful or wealthy individuals.[214] Indeed, print publisher 
jurisprudence has acknowledged this reality. In 
Miami_Herald_Publishing_Co._v._Tornillo,[215] the Court noted that 
"economic factors . . . have made entry into the marketplace of ideas 
served by the print media almost impossible."[216] However, if new BBSs 
may freely enter the market, power concentration or restricted access is 
less of a problem because users can vote with their modems or become 
sysops themselves.[217] Therefore, functioning market mechanisms 
obviate the need for government's heavy hand.
 
 Indeed, government intervention or excessive sysop liability may 
cause a chilling effect that will shrink all speech, not necessarily 
just speech unprotected by the Constitution.[218] The dangerous effect 
of government intrusion is most obvious in the prospect of Congressional 
authorization of FCC control over the BBS industry.[219] FCC regulation 
poses several dangers: Sysops may exit or refuse to enter the industry 
rather than comply with licensing obligations,[220] private entities 
have the incentive to use FCC requirements as a way to stifle or 
eliminate potentially socially desirable speech,[221] and the FCC may 
ultimately promulgate content regulations.[222] Further, the 
theoretical underpinnings supporting FCC regulation of BBSs seem shaky: 
BBS-based communication does not have sonic or visual interference and 
telephone line scarcity can be resolved given present technology.[223] 
Additionally, there are limited circumstances where unconsenting users 
can be exposed to offensive materials because users must affirmatively 
seek out access to BBSs,[224] which can institute screening mecha-
nisms.[225] While these conditions may change over time,[226] until 
they do, there seems to be many dangers in, and few justifications for, 
FCC regulation of BBSs.
 
 State-owned BBSs have different policy considerations. While 
there are many state-owned BBSs specifically designed for internal 
government uses or one-way communication, state-owned BBSs designed to 
facilitate public and interactive communication are difficult to 
distinguish from traditional public forums. Furthermore, users may 
reasonably expect significant user autonomy and liberal access. As 
state-owned BBSs proliferate, the courts should be vigilant about 
treating these BBSs as tools for tremendous communicative powers that 
should be protected and encouraged.
 
 As a final consideration, there has been some discussion about 
whether legal doctrines applicable to BBSs should be rigid and 
well-articulated or determined on an ad hoc basis.[227] The advantage to 
rigid rules is that they are predictable and can be applied 
consistently,[228] which may result in judicial economy.[229] One 
commentator argues that a federal solution is imperative, because state 
regulation will cause BBSs to locate in unregulated states.[230] Another 
commentator has argued that the best approach to the choice of law 
problem in defamation cases is to create a federal common law.[231] 
However, the problems these "global" solutions are trying to solve do 
not warrant such drastic measures; in fact, in some ways these 
"problems" work to the benefit of the technology. Although BBS users 
may be located nationwide, state regulation of BBSs might result in 
socially desirable variations in government-mandated access, privacy and 
associational protections, or state-specific substantive laws.[232] 
Therefore, variations by state, despite the implicit confusion, may at 
this early point in the growth of the technology prove to extend 
substantive and procedural protections further than a homogenous federal 
approach.
 
 More importantly, because the BBS industry is still maturing, ad 
hoc determinations may defer the formation of difficult-to-change rules 
until after the BBS technology is well-established,[233] when the true 
policy implications are clear. Rather than adopting hard-to-change 
global rules, this Essay seeks to craft rules that are narrowly tailored 
to the specific factual situations by focusing on the functional 
capabilities of BBSs.[234] If this approach is used, there is a reduced 
chance that judges, trying to craft a decision that will account for all 
of the variations in BBSs, will fashion sweeping rules that will prove 
difficult to dislodge after the technology has evolved.[235]
 
 
 
IV
 
Application of Existing Legal Doctrines to Specific BBS Functions 
 
 This part breaks BBSs down into their component functions to 
search for the appropriate legal analogies for each function. This 
function specific approach may seem odd, given that other communication 
technologies appear to "fit" in the publisher/broadcaster/common carrier 
legal tripartite. However, as has been shown, there is a sliding scale 
of editorial control and tort liability; if a media technology does not 
or cannot exercise its typical level of editorial control, then tort 
liabilities also abate. For example, in both Edwards and WDAY,[236] the 
courts did not apply the prevailing defamation liability standard 
because the media did not exercise typical editorial control over the 
defamatory material.[237] The versatility and multiple functions of 
BBSs, and other technologies such as cable television (which can act 
both as broadcasters and common carriers), stretch the usual boundaries 
because the level of editorial control can and should vary with the way 
the technology is being used. Therefore, function-specific legal rules 
for BBSs are not a radical jurisprudential approach, but rather 
explicitly reflect the fact that communications laws already adjust to 
the media's specific function.
 
 
A. First and Fourth Amendment Cross-Functional Constitutional
Considerations 
 
 Because the constitutional protections of the Fourth Amendment 
against search and seizure and of the First Amendment freedom to 
associate apply across all media technologies, these protections warrant 
special consideration and should apply to BBSs regardless of how the BBS 
is being used functionally.
 
 
1. Unreasonable Search and Seizure/Prior Restraint 
 
 Seizures of BBSs pose special problems because seizure eliminates 
the BBS's ability to communicate and, in essence, effects a prior 
restraint.[238] Prior restraints are disfavored in all media (except 
common carriers[239]): To obtain a prepublication restraint, the 
government must prove the "unprotected character of the particular 
speech with certainty," and "the irreparable nature of the harm that 
would occur if a prepublication restraint were not imposed, at least 
where timing is an important factor."[240] The government should bear 
this burden if it wants to seize or otherwise preemptively restrain 
BBS-based communication.
 
 Furthermore, if the government seizes a computer, it can search 
through the computer's entire hard drive, easily extending the search 
beyond the boundaries of the search warrant. Because such "shotgun" 
searches are disfavored,[241] they should be deemed unconstitutional and 
courts should require significant specificity in granting and upholding 
search warrants related to computer seizures.[242]
 
 
2. Associational Interests 
 
 BBSs warrant consideration as private clubs, organized around 
mutual interests, that meet electronically. Indeed, electronic 
communication has increased group activity.[243] Therefore, courts 
should carefully protect both the sysop's right to associate and the 
user's associational privacy.
 
 As a general rule, sysops have the right to associate or not 
associate with whomever they choose.[244] Because sysops may become 
liable for their users' actions, sysops should have the right to choose 
their users and to deny access to users who harm others or reduce the 
quality of the BBS.[245]
 
 Nevertheless, states may partially circumscribe the sysop's 
freedom to associate. The U.S. Supreme Court has upheld state 
legislation that compromises the right to associate or not associate if 
the state has a compelling state interest and chooses the least 
restrictive means to achieve the state's end.[246] Therefore, as a 
default, sysops may freely choose their members, but individual states, 
reflecting various state interests, may place some limitations on the 
sysop's associational freedom.
 
 The users also have important associational interests.  For 
example, users may not be willing to associate with BBSs if sysops 
cannot keep BBS membership lists private.[247] In 
Gibson_v._Florida_Legislative_Investigation_Committee,[248] the U.S. 
Supreme Court held that state-mandated disclosure of membership lists 
requires that the state show a "substantial relation" between the 
membership list and a compelling state interest.[249] Therefore, 
government mandated disclosure of membership lists should be strictly 
scrutinized.[250]
 
 More generally, the Gibson approach should apply not only to BBS 
membership lists, but also to disclosure of all the users' actions on 
BBSs. Most BBS computers can and do track users' electronic actions and 
can store and retrieve this information. In effect, users who assume 
that private electronic acts or statements are untraceable may find, 
over time, that their actions were tracked and can be disclosed through 
government intervention.[251] Specifically, the historical ability to 
recreate users' electronic movements and statements accurately, 
something the government cannot easily do in physical space, has the 
potential to lead to embarrassing or harmful disclosures.[252] This 
ability of third parties to obtain information about users' actions, 
especially if users do not want such information to be known publicly, 
presents a real likelihood that users' willingness to participate in 
BBSs will be inhibited. Therefore, as this monitoring becomes more 
commonplace, it may be appropriate to expand Gibson's approach to 
include privacy of associational actions, or to combine associational 
privacy with the other zones of privacy created in the Fourth, Fifth, 
and Sixth Amendments and require strict scrutiny of government-mandated 
disclosure of this class of information.
 
 However, even expanded First Amendment associational privacy will 
not prohibit private-party sysops from voluntarily disclosing membership 
lists or users' actions to third parties. Perhaps, over time, sysops 
will voluntarily and routinely insert a non-disclosure or 
confidentiality provision in their contracts with users.[253] An 
expansive approach to the tort of invasion of privacy may also inhibit 
sysop disclosure.[254]
 
 
B. Function-Specific Analogies 
 
 In examining the different aspects of involvement that would 
warrant imposing sysop liability for users' actions, the analysis 
ultimately depends on the level of sysop knowledge and control.[255] 
For purposes of this part, it is necessary to establish working 
definitions of these terms.
 
 "Knowledge." If the sysop has actual knowledge of users' actions, 
it is easier but not necessarily appropriate to impose liability.[256] 
The more difficult inquiry surrounds the situation in which the sysop 
has imputed or constructive knowledge of users' actions (i.e., the sysop 
should have known). Because BBSs sometimes "operate without 
intervention for days or weeks at a time,"[257] requiring all sysops to 
monitor their BBSs continually, even those operating "normally," could 
be unduly burdensome. Therefore, for the purposes of this part, sysops 
do not have "knowledge" unless they have actual knowledge[258] or were 
negligent in monitoring the contents of their BBS. Because negligence 
depends on the function being used and the sysop's status (commercial 
versus hobbyist), and will evolve over time as the technology or 
industry practices change, an appropriate negligence standard would look 
at what a "reasonable sysop similarly situated" would have done given 
all the facts and circumstances. This may or may not include monitoring 
or other sorts of inquiry, depending on how the industry evolves.[259]
 
 "Control." Sysops can exercise control over users' actions in one 
of several ways:[260] warning users that others may have posted harmful 
messages,[261] instructing users not to harm others intentionally,[262] 
reacting to users' actions by removing harmful material,[263] or 
preventing users from acting harmfully by prescreening their actions or 
denying access. For the purposes of this part, "editorial control" is 
defined as either (a) prescreening and exercising proactive control over 
the content of users' statements and actions, or (b) "customizing" the 
contents of the BBS, through the deletion of users' messages or the 
undoing of users' actions under a standard that is substantially more 
subjective[264] than that required to avoid criminal or civil liability. 
However, editing and removing material not pertinent to the discussion 
is vital to avoid "clogged channels"[265] and should not be considered 
editorial control.[266]
 
 
1. Message Posting 
 
 Public message posting has proven the most difficult BBS function 
to analogize because it involves communication from many people to many 
people. It resembles the one-to-many communication of publication and 
broadcasting,[267] not the one-to-one communication of telephones.[268] 
The ability of any user to post messages at any time, however, 
differentiates the abilities of sysops from those of publishers and 
broadcasters.[269] Indeed, the volume of information on BBSs often 
effectively prevents sysops from monitoring all postings.[270]
 
 In response to the easy access and high volume of public message 
posting, BBSs have sought different levels of control over, and 
responsibility for, users' messages. Prodigy states that it is 
responsible for its users' messages and therefore has the rights of a 
print publisher not to print every message submitted.[271] CompuServe 
and GEnie remove obscene, illegal, or abusive messages as well as other 
messages based on user complaints.[272] The WELL's policy is that users 
own their words and are individually responsible for what they say.[273]
 
 Given that sysops have different objectives, the legal rules 
should allow sysops to choose the level of rights and responsibilities 
needed to carry them out effectively.[274] From a policy perspective, 
sysops should be able to choose between being primary and secondary 
publishers so long as they accept the commensurate liability[275] and 
the market is free so that users can choose between competing BBSs.[276] 
Therefore, Prodigy can choose to become a primary publisher and gain the 
benefits of editorial discretion,[277] but Prodigy will also be exposed 
to greater liability and possible consumer resistance. On the other 
hand, if sysops choose to become secondary publishers and intervene in 
users' actions only when they know that the actions are causing harm, 
the law should support this decision by granting them enhanced 
protection from liability in exchange for the free speech they 
promote.[278]
 
 Prodigy has argued that BBSs should be liable for users' 
statements only if the BBS "endorses" the users' statements,[279] an 
argument that amounts to editorial control without legal liability for 
those statements Prodigy does not "endorse." This legal doctrine is 
perilous because it disengages the social costs from the private costs 
of Prodigy's actions. By exercising editorial control, Prodigy is 
making decisions that may impose costs on others. To make socially 
optimal decisions, however, Prodigy must internalize these social costs, 
which include the harm proximately caused as passed through by the tort 
system. If Prodigy is making decisions through the exercise of 
editorial control, but is not bearing tort liability for these actions, 
Prodigy will make its decisions based on its private costs, not the 
social costs, resulting in economic inefficiency. Therefore, Prodigy's 
"endorsement" or "control-without-liability" approach should be rejected 
because it prevents the tort system from effectively conveying the costs 
of poor social choices.
 
 The non-interventionist approach is also problematic. If BBSs 
such as the WELL do not intervene at all, injured parties such as 
defamed individuals or copyright holders lack the ability to mitigate 
further damage.[280] No other media, except common carriers, may 
knowingly allow harmful statements to be exchanged. However, unlike 
common carriers, such as telephone companies, removal of extant harmful 
materials from BBSs can prevent further harm without effecting a prior 
restraint or chilling constitutionally protected speech. Therefore, 
non-interventionist sysops, along with sysops who are categorized as 
secondary publishers, should have an obligation to remove tortious 
postings they know exist.[281]
 
 Some have argued that allowing sysops to choose their own level of 
rights and responsibilities will induce all sysops to "run [their] 
system[s] blindly,"[282] effectively minimizing their contact with the 
BBS to reduce their exposure. This argument incorrectly presumes that 
the market will refuse to compensate the sysop for the sysop's greater 
exposure.[283] Further, this Essay suggests numerous places where the 
sysop cannot turn a blind eye, such as in the presence of postings the 
sysop knows are harmful. Therefore, since liability depends on whether 
the sysop exercises editorial control, sysops seeking application of the 
secondary publisher model will not be punished for, nor have incentives 
to refrain from, engaging in beneficial activities on BBSs.
 
 Finally, state actors deserve a different analysis. To the extent 
that a state-owned BBS is intended to promote interactive communication 
and therefore acts as a limited public forum,[284] the courts should 
strictly scrutinize content-based discrimination, and restrictions on 
access should be reasonable.[285] On the other hand, a BBS not intended 
to promote interactive communication (i.e., BBSs that primarily transmit 
information one way to users) should be treated as a nonpublic forum, 
and the state should have wide latitude in its ability to restrict 
communication and user access. In either case, the state actors may 
have tort immunity by statute or common law.
 
 
2. Electronic Mail 
 
 Electronic mail differs from public message posting in that e-mail 
is one-to-one or one-to-many communication, in the sense that the sender 
specifically identifies one or more recipients. Congress has regulated 
e-mail somewhat,[286] but these regulations do not protect e-mail as 
extensively as mail carried by the United States Postal Service. Sysops 
may not disclose electronic communications to third parties without 
permission[287] or unless faced with valid search warrant,[288] but the 
statute does not prohibit sysops from reading correspondence,[289] even 
if the e-mail is transmitted on company-owned BBSs and employers access 
employees' e-mail.[290] Further, gateways can electronically copy e-
mail as the gateway processes the information, and sysops and system 
administrators can access these back-ups.[291]
 
 Some BBSs have gone beyond the statute and instituted a policy 
against reading private e-mail.[292] Others, acknowledging their power 
under the statute, have instituted a "no privacy" policy, stating that 
the sysop will read e-mail on occasion and, therefore, the user should 
not expect e-mail privacy.[293]
 
 Under the Electronic Communications Privacy Act, either approach 
is permissible,[294] but in the absence of a contractual agreement to 
the contrary, e-mail should be accorded the full legal protections 
afforded to physical mail. In particular, government entities should 
not have additional access to private e-mail simply because the 
information passes through a state-owned BBS; such power would give the 
government significantly greater access then it is allowed with physical 
mail protected by an envelope. In these situations, the state actor 
sysop should routinely destroy any back-ups or copies without any use or 
disclosure.
 
 
3. Real-Time Conferencing 
 
 Real-time conferencing is a many-to-many medium and is instanta-
neously interactive. When the sysop's involvement is limited to merely 
providing the hardware, real-time conferencing is functionally 
equivalent to telephone conference calls. In these situations, the 
sysop should be treated like a common law common carrier.[295] They 
should neither be liable for users' actions, nor have the power to deny 
users access.[296]
 
 When sysops exercise some control over real-time conferences,[297] 
it is inappropriate to allow them to claim the shield of either the 
common carrier or secondary publisher models. However, because the 
sysop's control fluctuates as users enter or exit the conference or 
private rooms, to hold the sysop liable in these situations is 
problematic. Further, when users are interacting instantaneously, 
sysops cannot affirmatively control users. They can only react to 
problems by deleting messages once they have been transmitted and by 
ejecting users from the conference.
 
 Holding sysops who exercise control on real-time conferences 
automatically liable for users' actions would either inhibit sysops from 
trying to control interactive conferences or would force sysops to 
abandon the immediacy of conferencing for a system that permits sysops 
to screen communications prior to posting. The better approach is to 
treat real-time conferences as a committee meeting chaired by the sysop. 
In this analogy, the chairperson/sysop may exercise control by refusing 
to recognize certain members or ejecting troublesome users from the 
conference, but is not responsible for prescreening the opinions of the 
audience. This approach acknowledges the sysop's limited control 
without forcing sysops to abandon the technology.
 
 
4. Information Resources Dissemination 
 
 Several cases have addressed the legal status of on-line 
databases. The cases indicate that database creators are treated as 
primary publishers, while database disseminators are treated as 
secondary publishers.
 
 In Legi-Tech,_Inc._v._Keiper,[298] the State of New York sold a 
computerized database of legislative materials. Legi-Tech, a for-profit 
company, sought unlimited access to the database to serve as source 
material for its own commercial computerized database. The state argued 
that, because it was not required to offer the computerized service, it 
could offer the service in a discriminatory way.[299] The court 
rejected this argument and treated Legi-Tech as a press entity, holding 
that differential treatment of the press was unconstitutional unless 
there is some "special characteristic."[300]
 
 In Daniel_v._Dow_Jones_&_Co.,[301] the plaintiff sued the database 
creator for negligently making false statements.[302] New York common 
law had held news services not liable for negligently making false 
statements unless the parties had a special relationship.[303] The 
court rejected plaintiff's claim because the parties did not have a 
special relationship beyond the ordinary buyer/seller relationship: 
"There is no functional difference between defendant's service and the 
distribution of a moderate circulation newspaper or subscription 
newsletter. . . . [I]f the substance of a transaction has not changed, 
new technology does not require a new legal rule merely because of its 
novelty."[304] Therefore, the court's holding that computerized on-line 
databases could not be held liable is predicated on the fact that 
newspapers could not be held liable under the common law or under the 
First Amendment for negligent omissions.[305]
 
 In contrast, in Cubby,_Inc._v._CompuServe,_Inc.,[306] the court 
analyzed CompuServe'sliability for defamation differently because 
CompuServe was the electronic distributor of a magazine, not the author. 
CompuServe contracted with Cameron Communications, Inc., an organization 
wholly independent from CompuServe, to have Cameron manage the 
"Journalism Forum" subject to standards developed by CompuServe.[307] 
Don Fitzpatrick Associates ("DFA") contracted with Cameron to provide a 
daily newsletter to the Journalism Forum entitled Rumorville_USA. 
Plaintiffs initiated a rival newsletter and sued for libel, business 
disparagement, and unfair competition based on statements Rumorville 
made about plaintiffs.
 
 The court enumerated the restraints on CompuServe's control over 
Rumorville: (1) CompuServe users subscribed directly with DFA for 
Rumorville; (2) DFA uploaded Rumorville to CompuServe's computers 
without giving CompuServe opportunity to review it; (3) CompuServe 
received no revenues directly from users' subscription to Rumorville; 
and (4) CompuServe claimed that it had not received any complaints about 
the magazine.[308]
 
 Plaintiffs claimed that CompuServe was a publisher. CompuServe 
moved for summary judgment, claiming that it acted as a news 
distributor. Following Smith_v._California,[309] the Court held:
 
CompuServe[] . . . is in essence an electronic, for-profit library that 
carries a vast number of publications and collects usage and membership 
fees from its subscribers in return for access to the publications. . . 
. While CompuServe may decline to carry a given publication altogether, 
in reality, once it does decide to carry a publication, it will have 
little or no editorial control over that publication's contents. This 
is especially so when CompuServe carries the publication as part of a 
forum that is managed by a company unrelated to CompuServe. . . . 
CompuServe has no more editorial control over [Rumorville] than does a 
public library, book store, or newsstand, and it would be no more 
feasible for CompuServe to examine every publication it carries for 
potentially defamatory statements than it would be for any other 
distributor to do so.[310]
 
Therefore, recognizing CompuServe's nonexistent editorial control over 
the defamatory material, the Cubby court held that CompuServe warranted 
more favorable legal treatment as a secondary publisher.
 
 Collectively, the case holdings indicate that BBSs/sysops that 
develop electronic databases will be treated as primary publishers, 
while BBSs/sysops that act as a "conduit" for other database developers 
or publishers will be treated as secondary publishers. From a policy 
perspective, these outcomes are appropriate. Giving sysops the 
opportunity to shield themselves from liability (by acting as an 
information disseminator) allows sysops to provide additional 
information services and increases overall access to information. On 
the other hand, sysops that want to be primary publishers[311] will have 
the power to do so, but at the cost of greater exposure to tort (and 
possibly contract) liability.[312]
 
 
5. Software Distribution and Commercial Services 
 
 Software dissemination on BBSs poses two general problems. First, 
software exchanges are many-to-many forums, and the volume of software 
uploaded makes monitoring by the sysops difficult. Second, in providing 
software or other commercial services such as information storage or 
electronic shopping, BBSs are essentially selling products. Therefore, 
in some respects, sysops act as vendors or distributors.
 
 In these situations, the allocation of tort liability should turn 
on whether the BBS is a vendor. In other words, commercial BBSs that 
tout their reputation for software files and are perceived as software 
distributors should be treated as such for tort purposes, as should 
those BBSs that provide other types of commercial services.[313] 
Liability imposes greater responsibility on these BBSs and, to a lesser 
extent, all commercial BBSs (which, even if not vendors, will have to 
obtain insurance or raise fees to reflect the costs of possible 
liability), but this liability is appropriately borne by the users 
through the BBSs' fees. However, because these sysops should have a 
reasonable opportunity to remove uploaded copyrighted software, the 
liability standard should be negligence,[314] not strict liability.
 
 In contrast, free BBSs cannot pass on the cost of tort liability 
to their users. Therefore, in allocating losses between these sysops 
and their user, the tort laws should favor the sysops.[315] Indeed, 
legal solicitude toward services like software distribution on free BBSs 
is especially important given that users can obtain freeware and 
shareware on these BBSs, which, over time, could increase access to 
computer technology by the disenfranchised.
 
 However, in the case of software distribution, because copyright 
violations harm third parties, even free BBSs must bear some 
responsibility. Since it is difficult for sysops to monitor software 
uploading, they should not be liable unless they have knowledge of the 
copyright violation and failed to exercise control by removing the 
copyrighted software.[316] With this standard, copyright holders will 
be able to mitigate their damages,[317] but sysops of free BBSs will 
receive ample protection from liability.
 
 
6. Gateways 
 
 Computers acting as gateways by definition do not have either 
knowledge or control of the information being transmitted. In this 
respect, gateways act as common law common carriers and it would be 
unreasonable to hold the BBS or network liable for users' actions,[318] 
for much the same reasons as those articulated in SmithÊand Pico. In 
contrast, if liability is imposed, it will encourage information 
conduits to censor or reduce the flow of information.[319] However, as 
common carriers, the BBS gateways may not discriminate either in user 
access or in transmitting the information. This lack of discrimination 
will be essential to the imminent development of a single national 
information network, which should be required to carry any and all BBSs 
that choose to affiliate with that network.[320]