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 Smith and 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]
 
 
 
V
 
Conclusions 
 
††††††† By examining computer bulletin boards in their relevant 
constituent components, this Essay has sought to show that existing 
legal precedents can be used on a function-specific basis to protect the 
rights of both sysops and users and to further important policies.[321]
As legal fact finders analyze BBSs, judicious use of existing legal 
precedents can promote the development of the BBS industry.
 
††††††† However, this Essay has also argued that sysop liability should 
depend on the amount of knowledge and control a sysop exercises for the 
specific function in question.On a function-specific basis, sysops can 
choose the level of knowledge and control they want, with the 
concomitant rights and responsibilities.[322]
 
††††††† As a default state of the law, this legal conclusion may not be 
particularly significant if sysops and users choose to resolve these 
issues contractually.[323]So long as the BBS industry remains 
characterized by easy entry and exit, sysops and users should have the 
ability to negotiate any one of the myriad of contractual allocations of 
rights and responsibilities available, if the contractual resolutions 
sufficiently protect the interests of third parties.[324]With a 
competitive free market and proper cost pass-through,[325] users will 
provide appropriate market incentives to allow the BBS industry to 
achieve a free market equilibrium[326] without extensive government 
intervention, regulation, or judicial overreaching.[327]Given the 
current robustness and dynamism of the marketplace, there are strong 
indicia that the free market is currently functioning normally.[328]
 
††††††† Of course, as with any emergent technology, future situations 
could undermine the assumptions underlying the free market.For 
example, this free marketplace analysis assumes that users provide the 
primary source of benefits.If user revenues become less important to 
sysops than other revenue sources, then BBSs will cater to these other 
sources, not to users.[329] Advertiser-driven content regulation by BBSs 
will not be a problem if noncommercial BBSs retain their vitality; 
however, should Prodigy's model of advertising on every screen become 
more prevalent, then the free market analysis must be retooled to 
examine sysops' relationship with advertisers.[330]
 
††††††† More likely, should the BBS industry consolidate to the point that 
individual BBSs command market power,[331] or should the BBS industry 
become an indispensable link in the nation's communications chain, then 
we can anticipate that the current legal doctrines will be insufficient 
to meet our policy objectives.At that time, it may be appropriate to 
reevaluate government intervention[332] or the identification of these 
BBSs as state actors,[333] as these actions may prove best to protect 
the rights and interests of sysops, users, and third parties.
 
 
 
 
 
FOOTNOTES TO
 
CYBERSPACE, THE FREE MARKET, AND THE FREE MARKETPLACE OF IDEAS: 
RECOGNIZING LEGAL DIFFERENCES IN COMPUTER BULLETIN BOARD FUNCTIONS
 
[*]†††† M.B.A. 1994, UCLA; J.D. 1994, UCLA; B.A. 1988, UCLA.The author 
gratefully acknowledges the special contributions and assistance of John 
Brice, Esq., Mike Godwin, Esq., Sandra Goldstein Hirsh, Gail Schlachter, 
Marc Smith and Professor Tracy Westen.The author is especially 
appreciative of the thorough and competent work of the COMM/ENT editors 
and staff.
 
††††††† The author invites interested readers to initiate a cyberspace 
dialogue.He can be reached at his Internet address:
ericgoldman@onebox.com.He also refers interested readers to a related 
article, entitled "Computer Bulletin Board Technology: Sysop Control and 
Liability in a Decentralized Information Economy," in the conference 
proceedings for the International Symposium on Technology and Society 
1993 (available from the Institute of Electrical and Electronics 
Engineers, Inc., IEEE Catalog Number 93CH3263-1, or the author).
 
 
[1]†††† The phrase "cyberspace" was initially popularized by William 
Gibson in his 1984 book, Neuromancer.For a detailed look at Gibson's 
definition of cyberspace throughout his various novels, see David G.W. 
Birch & S. Peter Buck, What_is_Cyberspace?, available_in Internet via 
gopher, gopher.eff.org.
 
††††††† The definition of cyberspace can be conceptually difficult and 
amorphous, reflecting the ethereal nature of the technology.However, a 
reasonably descriptive definition was posited by Michael Benedikt, chair 
of University of Texas at Austin's Department of Architecture:
 
Cyberspace is a globally networked, computer-sustained, 
computer-accessed, and computer-generated, multi-dimensional, 
artificial, or "virtual" reality.In this world, onto which every 
computer screen is a window, actual, geographic distance is irrelevant.
Objects seen or heard are neither physical nor, necessarily, 
presentations of physical objects, but are rather--in form, character, 
and action--made up of data, of pure information.This information is 
derived in part from the operation of the natural, physical world, but 
is derived primarily from the immense traffic of symbolic information, 
images, sounds, and people, that constitute human enterprise in science, 
art, business, and culture.
 
Willard Uncapher, Trouble_in_Cyberspace, Humanist, Sept.-Oct. 1991, at 
5, 9.
 
††††††† The cyberspace analogy is based on the fact that most physical 
space actions have electronic space (i.e., cyberspace) equivalents.See 
Jack Rickard, Preface_to_the_Second_Edition of Lance Rose & Jonathan 
Wallace, Syslaw at xiii (2d ed. 1992) ("At an increasing pace, real 
world transactions are being `translated' into online analogs."); John 
Arnold, The_Medium_is_Messages, Miami Herald, Sept. 28, 1985, at 1D 
("[BBSs] contain the equivalent of want ads and graffiti, reminders and 
requests, jokes and personal messages."); cf. 
Pair_Weds_Via_Computer_Link, S.F. Examiner, Nov. 14, 1993, at A12 
(describing an on-line wedding between a couple that also met on-line).
 
[2]†††† See, e.g., Lawrence M. Fisher, News_Corp._Buys_On-Line_Network, 
N.Y. Times, Sept. 2, 1993, at D4 (reporting that News Corp. purchased 
Delphi BBS as a way to expand its distribution channels); William 
Glaberson, Times_Mirror_to_Go_On-Line_Through_Prodigy, S.F. Chron., Aug. 
5, 1993, at D1 (explaining Prodigy's arrangement with the Times Mirror 
Co. and Cox Newspapers to offer their newspapers' contents, plus 
background and source material, on-line); Carla Lazzareschi, 
The_Scramble_Is_on_to_Find_New_Partners—Or_Be_Left_in_the_Dust, L.A. 
Times, Oct. 14, 1993, at D1 (describing how the merger between Bell 
Atlantic Corp. and Tele-Communications, Inc. set off soul searching by 
phone companies and cable companies over the need for alliances); Cindy 
Skrzycki & Paul Fahri, 
The_Multimedia_Feeding_Frenzy:__As_Technology_Converges,_So_Are_Communic
ations_Giants_Looking_for_Deals--and_Billions_in_Future_Profits, Wash. 
Post, May 23, 1993, at H1 (listing numerous deals, including U.S. West 
telephone company's $2.5 billion investment in Time Warner, Southwestern 
Bell's $650 million purchase of Virginia cable television systems, and a 
joint venture between Microsoft, Intel Corp., and General Instrument 
Corp. to develop television converter boxes that will be compatible with 
personal computers); Jonathan Weber, AT&T_Takes_the_Cellular_Lead, L.A. 
Times, Aug. 17, 1993, at D1 (describing AT&T's recent investments, 
including its $12.6 billion bid to take over McCaw Communications and 
its investments in 3DO Co., a home multimedia manufacturer, Sierra 
Network, General Magic, Inc., a developer of operating system software, 
Eo Inc., a manufacturer of personal digital assistants (PDAs), and Go 
Corp., a developer of PDA software).
 
[3]†††† To avoid confusion, this Essay uses the term "computer bulletin 
board system" generically to include computer bulletin boards, 
electronic bulletin boards, network nodes, on-line services, information 
services, electronic information services, videotext services, 
electronic publishers, electronic mail systems, and electronic networks.
This Essay integrates the legal analysis applied to these entities 
because current technology and usage indicate that each of these 
electronic communication methods performs essentially the same functions 
(or, that the distinctions in the functions performed are not legally 
significant).See Philip L. Becker et al., Introduction to PC 
Communications 76 (1992) [hereinafter Becker, PC Communications].
 
[4]†††† "[T]he BBS has become the most common form of mass communication 
in the country." T.R. Reid, 
Mass_Communicate_Your_Messages_at_Little_Cost, Wash. Pos. Dec. 2 1991, 
at F18 [hereinafter Reid, Mass_Communicate].
 
[5]†††† For a description of some of the computer hardware requirements of 
BBSs, see Loftus E. Becker, Jr., 
The_Liability_of_Computer_Bulletin_Board_Operators_for_Defamation_Posted
_by_Others, 22 Conn. L. Rev. 203, 207-08 (1989) [hereinafter Becker, 
Bulletin_Board_Operators].
 
[6]†††† Douglas C. McGill, Newest_City_Meeting_Places_are_in_Computers, 
N.Y. Times, Mar. 21, 1984, at B1.Sysops range from individuals to 
large corporations to government entities. See infra part II.A.In 
general, this Essay does not distinguish between BBS owners, sysops, and 
system administrators.Where BBS owners have retained sysops as 
independent contractors (see infra note 307), this Essay's analysis 
applies only to the sysop.
 
[7]†††† A modem is a device that allows computers to communicate over 
telephone lines. Becker, PC Communications, supra note 3, at 31.
See_generally Jay R. McDaniel, Note, 
Electronic_Torts_and_Videotext--At_the_Junction_of_Commerce_and_Communic
ation, 18 Rutgers Computer & Tech. L.J. 773, 781 (1992) (describing how 
modems operate).
 
[8]†††† See infra part II.C.
 
[9]†††† The first BBS was established in 1978 when a computer enthusiast 
transferred the physical contents of his computer club's bulletin board 
onto his computer and made the electronic files accessible to other club 
members.Becker, PC Communications, supra note 3, at 73-74; see_also 
Janet L. Balas, Bulletin_Board_Systems:__A_Nostalgic_Look_Back, 
Computers in Libr., May 1993, at 24 (elaborating on the history). 
 
[10]††† Judith Berck, 
It's_No_Longer_Just_Techno-Hobbyists_Who_Meet_by_Modem, N.Y. Times, July 
19, 1992, S. 3, at 12.In 1985, the estimated number of active BBSs was 
3500 to 4500. John T. Soma et al., 
Legal_Analysis_of_Electronic_Bulletin_Board_Activities, 7 W. New Eng. L. 
Rev. 571, 572 (1985).†† 
 
[11]††† Berck, supra note 10, at 12. 
 
[12]††† Id.††† 
 
[13]††† In 1989, a sysop could set up a basic BBS for as little as $500.
Becker, Bulletin_Board_Operators, supra note 5, at 203 n.2.In 1987, 
the cost was estimated at $2000.Robert Beall, Note, 
Developing_a_Coherent_Approach_to_the_Regulation_of_Computer_Bulletin_Bo
ards, 7 Computer/L.J. 499, 501 (1987). 
 
[14]††† Membership in a commercial BBS costs as little as $15 annually, 
and there are many free BBSs.See infra notes 61, 64-65 and 
accompanying text. 
 
[15]††† "[BBSs are] the lowest entry-barrier mass-communication system in 
history . . . . [A]nybody can come up with the capital needed to start a 
bulletin board."Reid, Mass_Communicate, supra note 4, at F18 (quoting 
Ralph Nader); see_also Freedom_and_the_New_Age, L.A. Times, Nov. 27, 
1985, at B4 ("[BBSs] are the vanguard of the democratization of 
communication. . . .").
††††††† The low cost of entry into the BBS industry has significant 
implications for the perception that media access depends on media 
ownership.See infra text accompanying notes 214-17.
 
[16]††† There are two types of anonymity:(1) complete anonymity, such as 
that gained by the use of passwords or code names, and (2) social 
anonymity, where there is a minimal chance of physical contact or 
subsequent significant interaction.While many BBSs previously allowed 
users to access their BBS using only code names, so that users had 
complete anonymity (see Beall, supra note 13, at 512 n.100), most BBSs 
now deny complete anonymity by requiring users to register their names 
and phone numbers accurately.Becker, PC Communications, supra note 3, 
at 333.But_see William M. Bulkeley, 
Censorship_Fights_Heat_up_on_Academic_Networks, Wall St. J., May 24, 
1993, at B1, B6 (explaining that some BBSs "strip" users' names before 
sending messages to other BBSs).However, users who do not have 
absolute anonymity often retain social anonymity.See Terri A. Cutrera, 
Computer_Networks,_Libel_and_the_First_Amendment, 11 Computer/L.J. 555, 
557, 559-60 (1992) [hereinafter Cutrera, Computer_Networks] (describing 
how social anonymity can result in misunderstandings); Martin Lasden, 
Of_Bytes_and_Bulletin_Boards, N.Y. Times, Aug. 4, 1985, S. 6, at 34, 36 
(noting that, unlike the typical exchange of letters between persons 
known to each other, "familiarity is the exception rather than the rule" 
in BBS communication).
 
††††††† Anonymity allows users to adopt new personas.John Markoff, 
The_Latest_Technology_Fuels_the_Oldest_of_Drives, N.Y. Times, Mar. 22, 
1992, S. 4, at 5 [hereinafter Markoff, The_Latest_Technology] (noting 
that a user may assume a different identity, role, gender, and age). 
While this freedom may allow timid users to find new avenues of 
expression, it can also result in gender-bending or mythical 
experiences.See, e.g., Michael Schrage, 
Forget_the_Message,_The_Medium_is_a_Mask, L.A. Times, June 7, 1990, at 
D1 (describing men who have signed on-line as women).
 
[17]††† See Gina M. Garramone et al., Uses_of_Political_Bulletin_Boards, 
30 J. of Broadcasting & Electronic Media 325, 329 (1986); see_also 
Arnold, supra note 1, at 3D ("It allows people to sound off.") (quoting 
Bob Sherman, sysop of The Big Apple BBS); Robert O'Harrow, Jr., 
Computer-Friendly_Homes_Increasing:__Electronic_Bulletin_Boards_Provide_
Many_Residents_with_Comfort,_Communication, Wash. Post, Dec. 27, 1992, 
at B1 (quoting one user as describing how BBSs have "almost a 
confessional atmosphere"); Janny Scott, On-Line,_and_Maybe_Out_of_Line, 
L.A. Times, Sept. 24, 1993, at A1 (explaining that on-line communication 
tends to be intimate, democratic, and playful, but because of the 
"disinhibition" of the medium, it can also be blunt, extreme and 
impulsive). 
 
[18]††† Garramone et al., supra note 17, at 329; see_also M. Ethan Katsh, 
The_First_Amendment_and_Technological_Change:__The_New_Media_Have_a_Mess
age, 57 Geo. Wash. L. Rev. 1459, 1481 (1989) [hereinafter Katsh, 
The_First_Amendment_and_Technological_Change] (explaining how electronic 
communication promotes self-fulfillment); Eric C. Jensen, Comment, 
An_Electronic_Soapbox:__Computer_Bulletin_Boards_and_the_First_Amendment
, 39 Fed. Comm. L.J. 217, 224 (1987) ("[A]nonymity allows the timid to 
flower:identity, appearance, possibly even personality, become 
unimportant.") (footnote omitted); Joel Garreau, 
Thanksgiving_in_Cyberspace:__A_Far-Flung,_Close-
Knit_Family's_Computer_Network, Wash. Post, Nov. 25, 1993, at B1 
(describing the Fetternet, a network set up by an extended family that 
has brought the family closer and led to unusual cross-generational 
connections); Julie Pitta, Electronic_Democracy, Forbes, Oct. 1, 1990, 
at 132 (quoting a Santa Monica city official as saying that Santa 
Monica's public electronic network "adds to our sense of community"); 
Don Stanley, One_World,_One_Modem, Sacramento Bee, Nov. 18, 1993, at SC1 
(describing how BBSs have encouraged introverts to increase their social 
connections); cf. Ithiel de Sola Pool, Technologies of Freedom 229 
(1983) (explaining that virtual elimination of cost constraints on 
global communication means people will interact based on affinity, not 
geography).
 
††††††† However, this freedom of intimacy carries some implicit 
responsibilities:The Dial-Your-Match BBS reminds users that "[j]ust as 
it is not acceptable to walk up to a stranger and describe your sexual 
desires in graphic detail, it is not correct here."
For_Every_Taste,_a_Bulletin_Board, U.S. News & World Rep., June 3, 1985, 
at 59 [hereinafter For_Every_Taste]; cf. Becker, PC Communications, 
supra note 3, at 334 ("Most BBS etiquette is just common sense and 
follows the same rules as any social interaction."); Marc Silver, 
Action_on_the_Boards, U.S. News & World Rep., Nov. 18, 1991, at 96 
(explaining that rule number one of an eight-rule etiquette guide for 
BBS users is "[t]here aren't many rules, so don't break them").
 
[19]††† Edward J. Naughton, Note, 
Is_Cyberspace_a_Public_Forum?__Computer_Bulletin_Boards,_Free_Speech,_an
d_State_Action, 81 Geo. L.J. 409, 413 (1992) ("[C]omputer bulletin 
boards are rapidly supplanting traditional media as the least expensive 
and most effective means of communicating to a large audience.") 
(footnote omitted).
 
[20]††† The electronic network Internet provided the quickest and most 
reliable source of news information during the Tiananmen Square 
demonstrations of 1989 and the Russian coup attempt of 1991.See Rose & 
Wallace, supra note 1, at 2; see_also Gladys D. Ganley, 
Power_to_the_People_via_Personal_Electronic_Media, Wash. Q., Spring 
1991, at 5, 10-12 (describing the various ways the Chinese protesters 
used computer technology).During the 1994 Northridge earthquake, 
electronic communication played a pivotal role in disseminating news, 
allowing friends and relatives to bypass the telephone system to reach 
loved ones, andproviding solace to isolated and distressed residents.
Miles Corwin, Many_Find_Comfort_and_Help_On-Line, L.A. Times, Jan. 21, 
1994, at A3.Some users use BBSs as a way to bypass the "media 
filters." Greme Browning, Hot-Wiring_Washington, 25 Nat'l J. 1624 
(1993).
 
[21]††† See Garramone et al., supra note 17, at 326; Lawrence J. Magid, 
White_House_is_Definitely_Plugged_in, L.A. Times, Mar. 19, 1993, at D3 
(describing how the White House and Congress can be reached through 
electronic mail and how constituents can increase their political 
involvement and awareness through electronic resources); Pitta, supra 
note 18, at 132 (explaining that many of the messages U.S. 
Representative Mel Levine received on Santa Monica's public electronic 
network were from constituents who would not otherwise participate in 
the political process). 
 
[22]††† See Garramone et al., supra note 17, at 326; see_also Katsh, 
The_First_Amendment_and_Technological_Change, supra note 18, at 1482-83 
(noting that BBSs allow for more rapid expression of political 
grievances and concerns); Browning, supra note 20, at 1624 ("Computer-
to-computer communications . . . are revolutionizing the way Americans 
interact with their government."); Mitchell Kapor, 
Civil_Liberties_in_Cyberspace:__Computers,_Networks_and_Public_Policy, 
Sci. Am., Sept. 1991, at 158, 160 ("[C]omputer-based bulletin boards and 
conferencing systems support some of the most vigorous exercise of the 
First Amendment freedoms of expression and association that this country 
has ever seen.").
 
[23]††† Lasden, supra note 16, at 37; see_also Howard Rheingold, 
The_Great_Equalizer, Whole Earth Rev., Summer 1991, at 5, 9. 
 
[24]††† For example, in 1984, sysop Thomas Tcimpidis was arrested because 
a user had posted stolen telephone credit card numbers on Tcimpidis's 
BBS without his knowledge.Lynn Becker, 
Electronic_Publishing:__First_Amendment_Issues_in_the_Twenty-First_Centu
ry, 13 Fordham Urb. L.J. 801, 801-06 (1985) [hereinafter Becker, 
Electronic_Publishing]; Kim Uyehara, 
Computer_Bulletin_Boards:__Let_the_Operator_Beware, Student Law., Apr. 
1986, at 28, 30.Telephone credit cards have played a significant role 
in BBSs because users must pay toll charges for the time they are logged 
on to the BBS.See Beall, supra note 13, at 501; cf. Berck, supra note 
10, at 12 (noting that at least one telephone company includes a list of 
BBSs in its phone bills as a way of encouraging use and generating 
additional revenue).As a result, some users have sought ways to avoid 
paying telephone charges while accessing BBSs nationwide.See_generally 
Soma et al., supra note 10, at 573-74 (describing some of the ways that 
"phreakers," people who play with the telephone system, attempt to avoid 
long-distance telephone charges).
 
††††††† Congress responded with 18 U.S.C. S. 1029 (1988), making it a 
misdemeanor to transfer computer passwords to another with the intent to 
defraud.Some states have similar prohibitions. See, e.g., Cal. Penal 
Code S. 484j (West 1988) (prohibiting "publishing" access numbers, 
computer passwords, and bank account numbers with the intent to defraud 
on BBSs).See_generally Rose & Wallace, supra note 1, at 285-89 
(listing state computer crime laws); Michael P. Dierks, 
Computer_Network_Abuse, 6 Harv. J.L. & Tech. 307, 324 n.64 (1993) 
(enumerating state computer abuse statutes); Soma et al., supra note 10 
(analyzing direct and indirect state regulation of computer crime); 
Michael T. Friedman, Comment, 
The_Misuse_of_Electronically_Transferred_Confidential_Information_in_Int
erstate_Commerce:__How_Well_Do_Our_Present_Laws_Address_the_Issue?, 4 
Software L.J. 529, 553 n.143 (1991) (listing state computer crime laws); 
Note, Addressing_the_New_Hazards_of_the_High_Technology_Workplace, 104 
Harv. L. Rev. 1898, 1899-1902 (1991) (outlining some of the issues and 
history of computer crime legislation). 
 
[25]††† See Lasden, supra note 16, at 42 (suggesting that, in 1983, almost 
half of the BBSs traded "pirated" copyrighted software).
 
[26]††† For example, Medphone Corp. sued Peter DeNigris for defamation and 
securities fraud because DeNigris made comments on Prodigy's Money Talk 
discussion forum that allegedly drove down the price of Medphone's 
stock.Amy Harmon, New_Legal_Frontier:__Cyberspace, L.A. Times, Mar. 
19, 1993, at A1 [hereinafter Harmon, New_Legal_Frontier].See_generally 
Mike Godwin, What's_Important_About_the_Medphone_Libel_Case?, EFFector 
Online (Electronic Frontier Foundation, Washington, D.C.), Apr. 2, 1993, 
available_in Internet via gopher, gopher.eff.org.The Medphone case was 
ultimately settled for one dollar.Fred Vogelstein, 
Computer_Bulletin_Board_Libel_Suit_Settled_for_$1, L.A. Times, Dec. 28, 
1993, at D7. 
 
[27]††† In 1991, an America Online user complained that he received 
digitized photos of child pornography sent to his private electronic 
mailbox.Jim Doyle, 
FBI_Probing_Child_Porn_on_Computers:__Fremont_Man_Complains_of_Illicit_E
lectronic_Mail, S.F. Chron., Dec. 5, 1991, at A23.America Online said 
that, because the photos were transmitted as a private communication, it 
had no knowledge of the transmissions.Id.
 
††††††† In 1989, the San Jose police and the FBI arrested two men who used 
BBSs to find a 12 year old boy whom they planned to rape and then murder 
on videotape.Robert L. Jackson, 
Child_Molesters_Use_Electronic_Networks:__Computer-Crime_Sleuths_Go_Unde
rcover, L.A. Times, Oct. 1, 1989, at A20, A20-A21; see United States v. 
DePew, 751 F. Supp. 1195, 1195-98 (E.D. Va. 1990) (describing some of 
the conversations between the agents and the defendants). 
 
[28]††† In 1988, Stanford University cancelled its subscription to a 
USENET discussion forum that contained racist jokes.After a computer 
science professor made the forum available on his own computer, the 
University changed its decision.See W. John Moore, Taming_Cyberspace, 
24 Nat'l J. 745, 748 (1992) [hereinafter Moore, Taming_Cyberspace]; 
see_also Bill Workman, Unplugging_Racist_Jokes_Starts_Furor_at_Stanford, 
S.F. Chron., Feb. 1, 1989, at A4.
 
††††††† In 1991, the Anti-Defamation League of B'nai B'rith criticized 
Prodigy for allowing anti-Semitic messages to be sent on the system.It 
was later shown that the worst messages had been sent as private 
electronic mail, which Prodigy transmits without reading, and Prodigy's 
censors had repeatedly rejected these messages for public posting as 
offensive.Barnaby J. Feder, 
Towards_Defining_Free_Speech_in_the_Computer_Age, N.Y. Times, Nov. 3, 
1991, S. 4, at 5.See_generally Edward V. Di Lello, 
Functional_Equivalency_and_its_Application_to_Freedom_of_Speech_on_Compu
ter_Bulletin_Boards, 26 Colum. J.L. & Soc. Probs. 199, 208 (1993) 
(describing the incident); Naughton, supra note 19, at 411 (also 
describing the incident). 
 
[29]††† The Aryan Brotherhood Youth Movement reportedly used the Liberty 
BBS network to compile a list of homosexuals as potential targets of 
hate crimes.Jackson, supra note 27, at A20. 
 
[30]††† Playboy magazine was granted summary judgment against George 
Frena, sysop of the Techs Warehouse Board, for copyright infringement, 
trademark infringement, and Lanham Act violations because users had 
digitized and uploaded 170 photographs from Playboy.Playboy Enters., 
Inc. v. Frena, No. 93-489-CIV-J-20, 1993 WL 522892 (M.D. Fla. Dec. 9, 
1993).See_also Rick Karlin, 
Trouble_on_the_Electronic_Frontier:__Computer_Bulletin_Board_Users_are_U
nder_Siege_by_the_Government, Times Union, June 2, 1991, at T6 (fearing 
copyright infringement, Rensselaer Polytechnic Institute officials 
stopped subscribing to an electronic forum that contained digitized 
photographs from Playboy and Sports_Illustrated).See_generally Charles 
Cangialosi, 
The_Electronic_Underground:__Computer_Piracy_and_Electronic_Bulletin_Boa
rds, 15 Rutgers Computer & Tech. L.J. 265 (1989); Benjamin R. Seecof, 
Scanning_into_the_Future_of_Copyrightable_Images:__Computer_Based_Image_
Processing_Poses_a_Present_Threat, 5 High Tech. L.J. 371 (1990).
 
[31]††† The 1990 raid of Steve Jackson Games, Inc. is a well-known example 
of government's aggressive approach.In response to their belief that a 
company employee was a hacker who kept his documents on the company BBS, 
Secret Service agents seized the company's computer, files, and disks 
that were being used to write a role playing game.Michael Alexander, 
Suit_Seeks_to_Define_User_Rights, Computerworld, May 6, 1991, at 1, 4.
See_generally John Perry Barlow, Crime_and_Puzzlement, Whole Earth Rev., 
Fall 1990, at 44, 51-52 (describing the story); Kapor, supra note 22, at 
158-60 (enumerating the errors made by the Secret Service in dealing 
with Steve Jackson).As a result of the seizure, the company lost 
$125,000 in revenue, had to lay off eight employees, and delayed 
publication of a book for six weeks.Alexander, supra, at 4.
Admonishing the Secret Service for its "sloppiness," a federal district 
court judge awarded Steve Jackson Games $8781 in expenses and $42,259 in 
lost revenue under the Privacy Protection Act, and $1000 per plaintiff 
under the Electronic Communications Privacy Act.Steve Jackson Games, 
Inc. v. Secret Serv., 816 F. Supp. 432 (W.D. Tex. 1993).
 
††††††† Another prominent incident involved Craig Neidorf, who distributed 
an electronic newsletter called Phrack over his BBS.Government 
officials prosecuted Neidorf for publishing in Phrack a telephone 
company document regarding the emergency 911 system that,allegedly, 
had been stolen.See, e.g., United States v. Riggs, 743 F. Supp. 556, 
558-59 (N.D. Ill. 1990); United States v. Riggs, 739 F. Supp. 414, 
416-18 (N.D. Ill. 1990).The case was dropped when evidence was 
introduced that the same document, allegedly worth $79,449, was publicly 
available for sale for $13.Joshua Quittner, 
Computer_Rights:__Advocates_Worry_About_Overzealousness_in_the_Crackdown
_on_Hackers, Newsday, Sept. 4, 1990, Discovery, at 1.See_generally 
Barlow, supra, at 49-51.
 
[32]††† See, e.g., Jim Sulski, 
Crackdown_on_Crime_is_Raising_Question_of_Computer_Rights, Chi. Trib., 
Nov. 18, 1990, at C17.See_generally Barlow, supra note 31, at 48-52 
(describing Operation Sun Devil, in particular how police used tactics 
such as forcible entry with guns drawn in situations which seemingly did 
not require such shows of force).
 
[33]††† The incident began when Prodigy instituted a charge (in addition 
to its regular monthly fee) of 25 cents for every electronic letter over 
30 per month.Marianne Taylor, 
Users_Say_Computer_Network_is_Muzzling_Their_Give-and-Take, Chi. Trib., 
Jan. 7, 1991, at C1.Prodigy stated its actions were based on the fact 
that its e-mail volume was increasing by 20% each_month.John Markoff, 
Home-Computer_Network_Criticized_for_Limiting_Users, N.Y. Times, Nov. 
27, 1990, at D1, D5 [hereinafter Markoff, Home-Computer_Network].
Outraged users sent electronic complaint letters to other users and to 
the companies that advertised on Prodigy. Prodigy responded by 
cancelling the subscriptions of 12 of the worst complainers, although 
after intervention by the ACLU, these subscribers were invited back as 
long as they agreed to some guidelines.Michael R. Zimmerman, 
Prodigy_Offers_Olive_Branch,_of_Sorts,_to_Protesting_Users, PC Week, 
Dec. 3, 1990, at 13.See_generally Di Lello, supra note 28, at 207-08 
(describing the incident).
[34]††† In a letter to the New_York_Times, Prodigy's director of market 
programs and communications gave some examples of submissions that 
Prodigy chose not to publish:
 
`I'm thinking of killing myself.Which is less painful:hanging or 
slashing my wrists?'
`My neighbor, William, embezzled $10,000 from his company and is still 
stealing to this day.'
`Little girls in tight jeans and T-shirts are a real turn-on to guys 
like me.Write to me at P.O. Box . . . .'
`Here's how to avoid paying for HBO:Climb the telephone pole outside 
your house and . . . .'
`You can't get pregnant if you don't have an orgasm.'
 
Geoffrey Moore, The_1st_Amendment_is_Safe_at_Prodigy, N.Y. Times, Dec. 
16, 1990, S. 3, at 13 [hereinafter Moore, 1st_Amendment].
 
††††††† While Prodigy's decision not to publish those submissions may not 
be especially controversial, Prodigy came under fire for cancelling the 
"Health Spa" discussion forum in 1989, which began as a forum for 
discussing gay sexual practices but developed into a heated debate 
between religious fundamentalists and gays.See Moore, 
Taming_Cyberspace, supra note 28, at 748.Users have also complained 
about Prodigy's refusal to post messages using the term "death 
certificate" or questioning the Catholic church's stand on birth control 
in the context of a debate about abortion.Chris Reidy, 
Computer_Flap:__Is_Speech_Free_on_Prodigy?, Boston Globe, Jan. 30, 1991, 
at 35.Apparently, fewer users were upset when Prodigy cancelled its 
"Frank Discussion" forum, which was intended to support discussion on 
alternative lifestyles but occasionally degenerated into explicit and 
scatological discussions that some users found offensive.See 
Sex_Talk_Prompts_Prodigy_to_Shutter_Bulletin_Board, Chi. Trib., Feb. 1, 
1993, at C2.
††††††† Although the controversy surrounding Prodigy has received the most 
attention, Prodigy is only one of many entities that have privately 
censored user transmissions.For example, some Canadian universities 
cancelled access to Internet forums such as "sex.bestiality," 
"sex.torture," and "sex.bondage," which often supported academic 
discussions but occasionally degenerated into more graphic discussions.
Bulkeley, supra note 16, at B6.
 
††††††† In a different type of private censorship, an academician, 
frustrated with anonymous abusive messages on the USENET BBS, developed 
and briefly utilized a computer program that effectively killed any 
anonymously posted messages.David L. Wilson, 
A_Computer_Program_That_Can_Censor_Electronic_Messages_Sets_Off_a_Furor, 
Chron. Higher Educ., May 12, 1993, at A21.Anonymous messages are 
disfavored on USENET because normally the freely functioning market 
responds to unpopular messages by flooding the sender's mailbox with 
disapproving messages, which cannot be done if the sender is anonymous.
Id. at A21, A25. On the other hand, killing the messages, so that no one 
may see them, also distorts the free marketplace of ideas.However, 
this does not stop users from deploying "bozo filters," also known as 
the command "kill-file," which allows users to instruct the computer not 
to receive messages from individually specified users.Id. at A25.
 
[35]††† For further discussion of the policy considerations in the BBS 
industry, see infra part III.C.
 
[36]††† Laurence Tribe, 
The_Constitution_in_Cyberspace:__Law_and_Liberty_Beyond_the_Electronic_F
rontier, Humanist, Sept.-Oct. 1991, at 15 [hereinafter Tribe, 
The_Constitution_in_Cyberspace].
 
[37]††† Id.
 
[38]††† See Anne W. Branscomb, Common_Law_for_the_Electronic_Frontier, 
Sci. Am., Sept. 1991, at 154, 158; see_also Lance Rose, 
The_Boy_Who_Cried_Wolfenstein, Boardwatch Mag., Sept. 1992 (describing 
how CompuServe and other United States BBSs removed a game containing 
Nazi imagery for fear that German residents would obtain a copy in 
violation of German laws); 
It's_New,_It's_Hard_to_Track_Down_and_There_Are_No_Legal_Precedents, 
Vancouver Sun, Sept. 12, 1992, at A4 (reporting that Canadian officials 
are having difficulty enforcing a law against material depicting child 
pornography, sexual violence, or sexual degradation because much of this 
material is digitized in the United States and sent electronically to 
Canadian BBSs).See_generally Di Lello, supra note 28, at 234-39 
(analyzing choice of law issues in a hypothetical class action suit 
against Prodigy); John D. Faucher, Comment, 
Let_the_Chips_Fall_Where_They_May:__Choice_of_Law_in_Computer_Bulletin_B
oard_Defamation_Cases, 26 U.C. Davis L. Rev. 1045 (1993) (analyzing 
different choice of law models as applied in cyberspace).
 
[39]††† One commentator has estimated, perhaps hyperbolically, that the 
United States will have one million BBSs by the year 2000.See Becker, 
PC Communications, supra note 3, at 341. In any case, at some point the 
ubiquity and importance of computer-based communication may radically 
alter current communication dynamics.See Michael L. Taviss, Editorial 
Comment, 
Dueling_Forums:__The_Public_Forum_Doctrine's_Failure_to_Protect_the_Elec
tronic_Forum, 60 U. Cin. L. Rev. 757, 788-89 (1992) (suggesting that 
BBSs may play a "major, if not decisive, role in disseminating 
expression" and could make alternative modes of communication "scarce or 
impractical"); O'Harrow, supra note 17, at B1 ("`Things are now reaching 
a threshold . . . [BBSs are] being positioned, I guess, to permeate 
every part of society.'") (quoting Fred Wood of the Office of Technology 
Assessment); see_also infra part V. 
 
[40]††† See Taviss, supra note 39, at 760 n.22; see_also Carla 
Lazzareschi, The_Rights_of_Computer_Users, L.A. Times, Aug. 26, 1990, at 
D9 [hereinafter Lazzareschi, Computer_Users] (interview with Mitch 
Kapor, founder of the Electronic Frontier Foundation).
 
[41]††† See Pool, supra note 18, at 7 (noting the inherent difficulties of 
analogizing new technology to existing legal precedents); Laurence H. 
Tribe, American Constitutional Law 1007 (2d ed. 1988) [hereinafter 
Tribe, American Constitutional Law] ("The rate of technological change 
has outstripped the ability of the law, lurching from one precedent to 
another, to address new realities.").
 
[42]††† See Katsh, The_First_Amendment_and_Technological_Change, supra 
note 18, at 1480-81 (explaining how electronic information processing 
has blurred the traditional lines between First Amendment "boxes"); 
McDaniel, supra note 7, at 784 ("Videotext is many types of services 
bundled together."); cf. Kevin M. Savetz, Plug_in,_Log_on,_Tune_in, 
Microtimes, May 31, 1993, at 154 (describing the distribution of an 
electronic talk "radio" program, complete with advertising sponsors, 
through the Internet).
 
††††††† As a result, BBS technology may transcend the trifurcation and 
warrant a new legal approach.See Taviss, supra note 39, at 789 
("Eventually, computer-based expression may require a . . . drastic 
break with First Amendment tradition, and the courts and legislatures 
may have to craft completely new laws to protect it.") (footnote 
omitted); Tribe, The_Constitution_in_Cyberspace, supra note 36, at 17 
("The Constitution's architecture can easily come to seem quaintly 
irrelevant—or at least impossible to take very seriously—in the world as 
reconstituted by the microchip.").
 
[43]††† To illustrate the adequacy of existing law if interpreted 
correctly, Laurence Tribe has proposed a Twenty-Seventh Amendment:
 
This Constitution's protections for the freedoms of speech, press, 
petition, and assembly, and its protection 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.
 
Tribe, The_Constitution_in_Cyberspace, supra note 36, at 39; see 
Freedom_and_the_New_Age, supra note 15, at B4 ("The Constitution 
protects electronic words as much as spoken or written ones . . . .
Whatever is legal to publish on paper should also be legal to publish 
electronically."); see_also Pool, supra note 18, at 246; McDaniel, supra 
note 7.See_generally Jim Warren, 
Guaranteeing_Constitutional_Freedoms_into_the_21st_Century, Microtimes, 
Mar. 2, 1992, at 26, 26 (suggesting applications of Tribe's proposed 
amendment in various legal situations).
 
[44]††† This law-by-analogy approach is not new.See Pool, supra note 18, 
at 103 (noting how courts applied the law of railroads to telegraphy 
because telegraphy was seen as the successor to railroads and the law of 
telegraphy was applied to telephones for the same reason).
 
[45]††† See, e.g., David J. Loundy, E-
Law:__Legal_Issues_Affecting_Computer_Information_Systems_and_Systems_Op
erator_Liability, 3 Alb. L.J. Sci. & Tech. 79, 89 (1993) ("[W]hen a 
service has a number of communication options . . . one analogy is 
insufficient.");Don Oldenburg, The_Law:__Lost_in_Cyberspace, Wash. 
Post, Oct. 1, 1991, at E5 [hereinafter Oldenburg, The_Law] ("A lot of 
metaphors have been thrown around, all of which raise interesting legal 
thoughts . . . .But no one metaphor covers the whole territory.") 
(quoting Lance Rose).
 
[46]††† See, e.g., Kapor, supra note 22, at 162.
 
[47]††† See Becker, Bulletin_Board_Operators, supra note 5, at 206 ("[I]t 
is a mistake to turn the legal rules on whether or not an entity is 
called a computer bulletin board . . . .We should not be misled by a 
label into thinking that all communication through computer bulletin 
boards is the same."); Ethan Katsh, 
Law_in_a_Digital_World:__Computer_Networks_and_Cyberspace, 38 Vill. L. 
Rev. 403 (1993) [hereinafter Katsh, Law_in_a_Digital_World] (noting how 
the terms used for analogies often seem antiquated as the technology 
evolves); Naughton, supra note 19, at 412-13 (focusing only on the 
public messaging function "[i]n order to offer a coherent analogy"); 
Anthony J. Sassan, Note, Cubby, Inc. v. CompuServe, Inc.:
Comparing_Apples_to_Oranges:__The_Need_for_a_New_Media_Classification, 5 
Software L.J. 821, 833 (1992); cf. Mark S. Nadel, 
A_Technology_Transparent_Theory_of_the_First_Amendment_and_Access_to_Com
munications_Media, 43 Fed. Comm. L.J. 157 (1991) (arguing for new access 
rules that are based on the economic accessibility of the media rather 
than on "historical categories"). 
 
[48]††† One distinction is whether the BBS is owned and operated by public 
or private entities. See infra part II.A.
 
[49]††† See infra part II.B. 
 
[50]††† Uses include posting public messages, sending private e-mail, and 
accessing information databases.See infra part II.C.
 
[51]††† Becker, PC Communications, supra note 3, at 259. 
 
[52]††† Growth_Off_for_On-Line_Services, Wash. Post, Sept. 27, 1993, at 
F17 [hereinafter Growth_Off].
 
[53]††† Prodigy claims to be the "Disney Channel" of BBSs.Moore, 
1st_Amendment, supra note 34, at 13. 
 
[54]††† Because Prodigy receives 175,000 postings a day, it has an 
automated screening process. Harmon, New_Legal_Frontier, supra note 26, 
at A24.First, Prodigy's computer scans each message for any of several 
dozen obscene or offensive words or phrases, and then Prodigy's 
screeners review flagged messages.Sandra Sugawara, 
Computer_Networks_and_the_First_Amendment, Wash. Post, Oct. 26, 1991, at 
A12.The subjectivity of this process is reflected in the fact that at 
least one user would resubmit rejected messages until they were accepted 
by Prodigy.Adam Gaffin, Prodigy:__Where_Is_It_Going?, 1991, 
available_in Internet via gopher, gopher.eff.org.
 
††††††† Because uploaded software is even more difficult to screen, 
Prodigy does not allow users to exchange software.See Becker, PC 
Communications, supra note 3, at 201. 
 
[55]††† Becker, PC Communications, supra note 3, at 201; see infra note 
102.Prodigy takes a 10% commission on every purchase made through the 
system.Censor_Nonsense, Economist, Dec. 1, 1990, at 24.
 
[56]††† GEnie is owned by General Electric Information Services and has 
400,000 subscribers. See Laurie Flynn, Solving_the_On-Linear_Equation, 
San Jose Mercury News, Jan. 17, 1993, at 1F. 
 
[57]††† America Online has approximately 350,000 subscribers.Growth_Off, 
supra note 52, at F17.America Online is publicly held, although the 
Chicago Tribune owns 11% of the outstanding stock.Mark Potts, 
Plugged-in_Pleasures:__America_Online_Serves_a_Growing_Market_of_Home_Co
mputer_Users, Wash. Post, July 27, 1992, at F1. 
 
[58]††† Growth_Off, supra note 52, at F17. 
 
[59]††† CompuServe was founded in 1979.Flynn, supra note 56, at 1F.
CompuServe is owned by H&R Block Inc.Potts, supra note 57, at F1. 
 
[60]††† In comparing commercial BBSs, users must evaluate a complicated 
fee structure.There are at least six types of fees:set-up charges, 
monthly fees, hourly connect time charges based on the service accessed 
or the time of day, user volume charges, hourly charges based on the 
speed of the user's modem, and hourly communications surcharges based on 
long distance telephone access.The lack of standardized pricing makes 
cost comparison between BBSs very difficult.See_generally Amy Harmon, 
Price_War_Erupts_Among_On-Line_Computer_Services, L.A. Times, Apr. 21, 
1993, at D1 [hereinafter Harmon, Price_War] (describing recent changes 
in national BBS pricing structures).
 
[61]††† Regional commercial BBSs charge annual fees of $15 or more.
Berck, supra note 10, at 12.The term "regional" is a partial misnomer 
since these BBSs can have a national user base.However, it suggests 
the smaller scale of these BBSs.
 
[62]††† Id; see_also 
A_`Poor_Man's_CompuServe'_Can_Put_Cash_in_Your_Pocket, PC/Computing, 
Mar. 1991, at 286.†† 
 
[63]††† Jacques Leslie, Hacking_Away_at_a_'Virtual_Vacation', L.A. Times, 
Dec. 6, 1992, at L5, L20; see, e.g., Amy Harmon, For_GenX,_the Angst 
is_On-Line, L.A. Times, Apr. 28, 1993, at A1 (describing the phenomenon 
of the post-Baby Boomers, labeled Generation X, as reflected in the 
culture and communication dynamics on the WELL's "Generation X" 
discussion forum).
 
[64]††† The exact percentage is hard to pin down.Compare Berck, supra 
note 10, at 12 (over one-third of all BBSs do not charge an access fee) 
with Becker, Bulletin_Board_Operators, supra note 5, at 227 n.119 (in 
1989, "the majority of bulletin boards [were] not commercial 
operations") and Feder, supra note 28, at 5 (in 1991, 90% of BBSs were 
not commercial).Free BBSs are also occasionally referred to as "hobby 
BBSs."See Becker, PC Communications, supra note 3, at 325.
 
[65]††† See For_Every_Taste, supra note 18, at 59 (explaining that Tom 
Mack, sysop for the Second Ring BBS, runs the BBS as a public service 
because he feels he should "give something back for all the things I've 
gotten").
 
††††††† Some non-profit entities establish free BBSs to extend their reach 
into the community. Steve Snow, Join_the_Community, San Jose Mercury 
News, June 20, 1993, at 1F.One of these BBSs, the Cleveland Free-Net, 
has 30,000 users and costs the sponsoring organizations upwards of 
$100,000 to start and $100,000 annually to maintain.Id. at 5F. 
 
[66]††† See Taviss, supra note 39, at 766 (explaining how sysops normally 
set up BBSs related to their interests). 
 
[67]††† See Rose & Wallace, supra note 1, at 91 (explaining sysops may 
start a BBS because they want to interact regularly with people); 
Arnold, supra note 1, at 3D (describing the Kendall BBS, operated by an 
auto mechanic and his wife because running the board is "a lot of fun"). 
[68]††† Some BBSs have both public and private sections; general users may 
have limited access to BBS functions, while users known to the sysop 
will be given additional access.Jensen, supra note 18, at 221; see 
Manuel Schiffres, The_Shadowy_World_of_Computer_`Hackers', U.S. News & 
World Rep., June 3, 1985, at 58, 59 (describing the private Off the Wall 
BBS, where the first level contains innocuous material, the second level 
supports discussions on software trading and X-rated material, and the 
final level provides illegal passwords and access codes).See_generally 
Soma et al., supra note 10, at 572 n.3 (explaining that it is difficult 
to obtain an accurate count of the number of BBSs, since many are 
private).
 
[69]††† For example, Blue Cross and Blue Shield use a BBS to collect, 
process, and submit Medicaid claims to the government.Berck, supra 
note 10, at 12.Nikon Precision Inc. uses a BBS to transmit information 
between corporate headquarters and 12 satellite offices, id., while some 
franchising companies use BBSs to collect information from franchise 
locations and to manage inventory and resources.Becker, PC 
Communications, supra note 3, at 75.Argus Chemical uses the Internet 
instead of Federal Express to distribute research reports company-wide, 
while Unocal disseminates maps and land surveys to all of its 
international offices through the Internet.Carla Lazzareschi, 
Wired:__Businesses_Create_Cyberspace_Land_Rush_on_the_Internet, L.A. 
Times, Aug. 22, 1993, at D1 [hereinafter Lazzareschi, Wired].
 
[70]††† Berck, supra note 10, at 12; see John Eckhouse, 
Internet:__The_Information_Superhighway_Goes_Commercial, S.F. Chron., 
June 1, 1993, at C1, C7 (explaining how Apple Computer provides 
technical support over the Internet); Chris Oakes, 
The_Internet:__What_It_Is,_How_You_Can_Access_It,_&_What_It_Can_Do_For_Y
ou, Computer Currents, July 20, 1993, at 30, 33 (describing that many 
companies now provide product support through the Internet).†† 
 
[71]††† James Evans, Practicing_Law_on_America's_Electronic_Highways, S.F. 
Daily J., June 2, 1993, at 1, 8; Jim Meyer, 
Let_Your_Fingers_Do_the_Talking, A.B.A. J., Sept. 1993, at 106. 
 
[72]††† See Paul McCarthy, 
Going_Once:__Computer_Technology_Puts_Art_on_the_Auction_Block, Omni, 
Sept. 1993, at 18 (observing how art buyers can now purchase art on 
various BBSs); Thomas A. Stewart, Boom_Time_on_the_New_Frontier, 
Fortune, Autumn 1993, at 153 (describing how a New York-based medical 
products company used a BBS to find a Chinese supplier).
 
[73]††† See, e.g., 22 U.S.C. S. 5511 (Supp. II 1990) (directing the 
Secretary of State to establish a BBS to make information contained in 
the Bureau of Diplomatic Security's Overseas Security BBS available to 
the public); 35 U.S.C. S. 41(i)(2) (Supp. IV 1992) (requiring the Patent 
and Trademark Office to use a BBS to allow for public searches); 
O'Harrow, supra note 17, at B1 (noting that federal BBS topics include 
entry-level jobs and space shuttle flights); 
U.S._Agency_Made_Computer_Virus_Programs_Available_to_Public, San Jose 
Mercury News, June 19, 1993, at 10D (describing how a Treasury 
Department BBS made the source code for viruses and hackers tools 
available to the public).To facilitate access to the various federal 
BBSs, a unit of the Commerce Department sponsors the FedWorld Gateway, a 
gateway to over 100 different federal BBSs.Browning, supra note 20, at 
1629.
 
[74]††† See, e.g., Iowa Code S. 159.37 (1990) (establishing a BBS to make 
a 
market in specialty grains, by allowing buyers and sellers to post their 
requirements); Mont. Code Ann. S.2-17-322 (1992) (using a BBS to 
facilitate citizen access by distributing information from state 
agencies).California recently passed legislation to make extensive 
legislative materials available on-line free of charge.Jim Warren, 
Free_On_Line_Access_to_California_Legislation_and_Laws,_Now_Mandated_by_
Law, Microtimes, Nov. 1, 1993, at 27. 
 
[75]††† Pitta, supra note 18, at 132.This public electronic network has 
300 topics, not limited to political discussions, and residents without 
computers can access a public computer terminal at the county library.
Id.PEN is an active BBS that receives approximately 7000 calls per 
month.Pancho Doll, 
A_Quiet_Revolution;__Computer_Bulletin_Boards_Have_Captivated_the_Attent
ion_of_County_Users, L.A. Times, Sept. 30, 1993, Ventura West edition, 
at J6 (comparing response to Ojai's community BBS, which received only 
288 calls in its first year.)In Fairfax County, Virginia, elementary 
school principals communicate using a BBS.O'Harrow, supra note 17, at 
B1.See generally Tom Abate, Bay_Area_Cities_Going_On-
Line;_Computers,_Cable_TV_and_High-
Tech_Phone_Systems_Keep_Government_Open_24_Hours_a_Day, S.F. Examiner, 
Nov. 7, 1993, at B1 (describing the numerous efforts by Bay Area cities 
to establish BBSs or on-line access).
 
[76]††† For example, the University of Tennessee, Knoxville, supports the 
Health & Safety Systems BBS, which distributes health information.
Becker, Bulletin_Board_Operators, supra note 5, at 208 n.23.
 
[77]††† One of the advantages of a network like the Internet is that users 
can communicate nationwide and internationally without incurring long 
distance telephone charges.Berck, supra note 10, at 12.
 
[78]††† Internet connects over 12,000 stand-alone computer networks.
Lazzareschi, Wired, supra note 69, at D2. 
 
[79]††† Carol Tenopir, Online_Searching_with_Internet, Libr. J., Dec. 
1992, at 102.
 
[80]††† Oakes, supra note 70, at 30. 
 
[81]††† John Markoff, Thing;_The_Internet, N.Y. Times, Sept. 5, 1993, S.9, 
at 11; see Jim Warren, The_Online_Presidential_Debate, Microtimes, July 
20, 1992, at 30 (estimating that the USENET BBS, carried over the 
Internet, has one to three million users).
 
[82]††† See Tenopir, supra note 79, at 102, 104.
 
[83]††† BITNET connects 2500 campus-based networks.Becker, PC 
Communications, supra note 3, at 367. 
 
[84]††† See id. at 367-68, 370-71 (explaining that FidoNet has 500,000 
users worldwide and carries three megabytes of information a day); 
see_also Balas, supra note 9, at 26 (describing the history of FidoNet 
and Echomail); Alex Barnum, 
The_Boom_in_Bulletin_Boards:__Bay_Area_Users_Discover_the_"Underground_N
etwork", San Jose Mercury News, Oct. 4, 1987, at 1F; Ric Manning, 
The_National_Park_Service_Builds_an_Electronic-Mail_System_on_BBS_Softwa
re, PC Week, Sept. 29, 1987, at C22 (describing the use of 
Fido-compatible BBS software for the National Park Service's BBS for the 
Western region).
 
[85]††† See The High-Performance Computing Act of 1991, 15 U.S.C. S.S. 
5501-5528 (Supp. III 1991).
 
[86]††† See_generally Becker, PC Communications, supra note 3, at 341-60; 
Rose & Wallace, supra note 1, at 17-23.
 
[87]††† See_generally Becker, PC Communications, supra note 3, at 333. 
 
[88]††† David R. Johnson & Kevin A. Marks, 
Mapping_Electronic_Data_Communications_onto_Existing_Legal_Metaphors:__S
hould_We_Let_Our_Conscience_(and_Our_Contracts)_Be_Our_Guide? 38 Vill. 
L. Rev. 487, 511-12 (1993) ("[A] sysop can, in general, first decide how 
he or she wants the electronic `space' to be configured . . . .").
 
[89]††† One commentator suggested that all sysops have the following 
characteristics:(1) they invest time and money to establish the BBS, 
(2) they set up the BBS but otherwise do not participate in the 
information exchange between members, and (3) they do not know who the 
members are.See Beall, supra note 13, at 512; see_also McDaniel, supra 
note 7 (developing rules to apply generically to all BBSs).
 
††††††† These stereotypes are not necessarily accurate.Some sysops set 
up their BBS so that they can interact with other users, see supra notes 
66-67, and systems like Prodigy interact with every user on every 
message through their screening mechanism.See supra note 54.Also, 
most BBSs no longer accept anonymous users.See supra note 16.
Therefore, the variability of sysop behavior poses some problems when 
rigid rules are intended to apply to all sysops. 
 
[90]††† See Cutrera, Computer_Networks, supra note 16, at 569.
 
[91]††† See infra part IV.B. 
 
[92]††† See T.R. Reid, 
Computers_Becoming_Nation's_Bulletin_Board:__Communication_is_Easy_and_L
ittle-Regulated, Wash. Post, July 19, 1985, at A4 [hereinafter Reid, 
Nation's_Bulletin_Board].For example, CompuServe discussion forums 
include:"aquaria/fish," "astronomy," "cancer," "comic book," 
"disabilities," "food/wine," "gardening," "human sexuality," "model 
aviation," "new age," "pets," "photography," "religion," and "science 
fiction."CompuServe: The Information Service You Won't Outgrow (1992) 
[hereinafter CompuServe Brochure].However, the topics available are 
practically unlimited. For example, in response to the USENET user who 
created the program that kills anonymous messages, see supra note 34, 
critics created a mocking USENET forum entitled "alt.fan.dick-depew" 
which soon supported heavy traffic of angry and expletive-laced 
postings.Wilson, supra note 34, at A25. 
[93]††† CompuServe Brochure, supra note 92.Most national BBSs now 
support some level of Internet access.Oakes, supra note 70, at 30.
 
[94]††† For example, in response to what was considered onerous screening 
in Prodigy discussion forums, users created mailing lists that had up to 
1500 readers and were distributed regularly. Gaffin, supra note 54. 
 
[95]††† Unmoderated list servers automatically forward messages sent to 
the server to a mailing list created either by an individual or 
subscribed to by interested parties.In many ways, the mechanics of an 
unmoderated list server resemble gateways.See infra part II.C.3.
 
[96]††† The differences between public message posting, electronic mail, 
and real-time conferencing may blur as the technology evolves.Becker, 
PC Communications, supra note 3, at 185.
 
[97]††† For example, CompuServe's CB Simulator has a communication dynamic 
similar to that on citizens' band radios.See Becker, 
Bulletin_Board_Operators, supra note 5, at 212.Another analogy is 
"900" telephone party lines, where people call in and converse while 
everyone else listens.
 
††††††† The different applications of real-time conferencing can be seen 
by comparing the formality of GEnie's Real-Time Conferencing system, 
where users can send scrambled messages, kill the statements of 
troublesome users, identify the real names of users, and see who is in 
other private conferences, with GEnie's more casual LiveWire Chatlines, 
where users adopt a "handle" (pseudonym) to conceal their true 
identities and choose from 40 different channels. See Becker, PC 
Communications, supra note 3, at 310-11. 
 
[98]††† Becker, Bulletin_Board_Operators, supra note 5, at 212.MENSA, 
the national high IQ society, has on-line meetings on CompuServe.
CompuServe Brochure, supra note 92.
 
[99]††† See Becker, PC Communications, supra note 3, at 308-09 (explaining 
that GEnie's real-time conferences have leaders who can deny access to 
users, eject users from the conference, and require speakers to be 
recognized before they are allowed to post messages). 
[100]†† Becker, Bulletin_Board_Operators, supra note 5, at 212 n.38.
 
[101]†† See Becker, PC Communications, supra note 3, at 143.On Prodigy, 
interactive games include GUTS, a nationwide trivia contest, and CEO, a 
simulation where players manage their own companies in an interactive 
economy.Prodigy Brochure (1992); see Potts, supra note 57, at F1 
(describing how CompuServe, Prodigy, and America Online offer 
interactive baseball fantasy leagues and role-playing games).
 
††††††† The Internet also supports real-time communications and games.
Some of the more bizarre offerings of the Internet are multi-user 
dungeons (MUDs), which attempt to create real-time virtual reality where 
users assume personas and explore "rooms" through a progressive series 
of questions and answers.See Ellen Germain, In_the_Jungle_of_MUD, 
Time, Sept. 13, 1993, at 61; Oakes, supra note 70, at 33.
 
[102]†† Advertising occupies approximately one quarter of each screen.
Reidy, supra note 34, at 35.The advertising is interspersed with 
substantive text, much like print media mixes text and advertising on 
the same page or television commercials interrupt a television show.
When users ask for more information about an advertised product, the 
advertiser pays a fee to Prodigy. Markoff, Home-Computer_Network, supra 
note 33, at D5. 
 
[103]†† See Barnum, supra note 84, at 1F (describing a BBS set up by a 
software vendor for customer service that advertises the company's 
products).
 
[104]†† When acting as a conduit between the user and the retailer, the 
BBS functions as a gateway.See infra part II.C.3.††† 
 
[105]†† Flynn, supra note 56, at 1F.CompuServe also has a "new car 
showroom," a classified ads section, and a discount shopping club called 
"Shoppers Advantage."CompuServe Brochure, supra note 92. 
 
[106]†† CompuServe Brochure, supra note 92.
 
[107]†† These include Disclosure (financial statements), FundWatch Online, 
Standard & Poor's, and Value Line.Id. 
 
[108]†† These include AP, The_Washington_Post, Reuters, UPI, ITAR, Kyodo 
News Service, Xinhua News Agency, and Deutsche Press-Agentur.Id. 
 
[109]†† These publications include the Rumorville newsletter that was at 
issue in Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 
1991).See infra text accompanying notes 306-10.CompuServe also has 
its own hard copy news magazine, CompuServe_Magazine. 
 
[110]†† CompuServe Brochure, supra note 92. 
 
[111]†† Id.
 
[112]†† These databases can include lists of other BBSs that act as 
gateways for certain networks, lists of viruses, and BBS membership 
lists.Rose & Wallace, supra note 1, at 57.
 
[113]†† Tenopir, supra note 79, at 102, 104.
 
[114]†† "Downloading" occurs when the user copies information or software 
from the BBS onto the user's computer. 
 
[115]†† "Uploading" occurs when the user copies information or software 
from the user's computer to the BBS. 
 
[116]†† Software includes computer programs, clip art, digitized 
photographs, and digitized sound.Becker, Bulletin_Board_Operators, 
supra note 5, at 212-13.
 
[117]†† "Because shareware depends largely on [BBSs] for its distribution 
and advertising, the continued growth of the BBS community will provide 
a stronger and more widespread network for the distribution of archived 
shareware.Many bulletin boards boast shareware libraries that fill 
several hundred megabytes of hard disk space."Becker, PC Communi-
cations, supra note 3, at 104.
 
††††††† BBS etiquette dictates that users who download software should 
upload software in return.See id. at 334; cf. Becker, 
Bulletin_Board_Operators, supra note 5, at 210 n.28 (describing how one 
"pirate" BBS conditioned access to software on the user having 
contributed pirated software).See_generally Rose & Wallace, supra note 
1, at 29 (discussing how some sysops impose upload/download ratio 
requirements).
 
[118]†† Many BBSs advertise the extent of their software files.For 
example, GEnie advertises that it has three times more software 
available than other major BBSs.GEnie Brochure (1992).
 
[119]†† "Public domain software" is software that the programmer does not 
copyright and dedicates to the public domain."Freeware" is software 
that the programmer copyrights but makes available for free.
"Shareware" is copyrighted software that the programmer makes available 
without charge; those users who keep and use the software are obligated, 
however, to pay the programmer for the software.See Becker, PC 
Communications, supra note 3, at 81-84. 
 
[120]†† See, e.g., Joe Abernathy, 
Federal_Agents_Raid_Dorms,_Seize_Computer_Equipment, Hous. Chron., Dec. 
17, 1992, at A1 ("There are a lot of underground sites on the Internet . 
. .[that] have tons of software available to download--gigabytes of 
software . . . .There's no way that one agency or authority can go 
through and try to sweep all the bad software off the Internet, because 
the Internet's too big.") (quoting Scott Chasin, a computer security 
consultant).
 
[121]†† Viruses cause the user's computer to do something unexpected and 
unwanted, ranging from the innocuous (e.g., displaying the name of the 
virus's author) to the catastrophic (e.g., erasing the entire contents 
of a user's hard disk).See Becker, PC Communications, supra note 3, at 
107-09.See_generally Rose & Wallace, supra note 1, at 155-57 
(distinguishing between viruses, trojans, worms, and time bombs).
 
††††††† Because BBSs historically have been a major transmitter of 
viruses, many BBSs automatically scan uploaded software to detect 
viruses.Becker, PC Communications, supra note 3, at 112. 
 
[122]†† See Becker, PC Communications, supra note 3, at 169, 368.
 
[123]†† Id. at 362.
 
[124]†† The Internet acts as a gateway in connecting e-mail users on 
different systems, but it can also provide a gateway to commercial 
information databases such as Dialog.Tenopir, supra note 79, at 102, 
104.
 
[125]†† Commentators have also analogized BBSs to:
 
††††††† ° Radio or television talk shows.Robert Charles, Note, 
Computer_Bulletin_Boards_and_Defamation:__Who_Should_Be_Liable?_Under_Wh
at_Standard?, 2 J.L. & Tech. 121, 143-44 (1987).
 
††††††† ° Corner pubs, in that BBSs tend to attract regular users who 
develop their own subculture and social norms.Michael Freitag, 
As_Computer_Bulletin_Boards_Grow,_If_It's_Out_There,_It's_Posted_Here, 
N.Y. Times, Apr. 2, 1989, S. 1, at 38.The WELL analogizes itself to a 
"saloon," with the sysop as the "barkeeper."
Computer_Communications_Networks_Face_Identity_Crisis_over_Their_Legal_S
tatus, Daily Rep. for Executives, Feb. 26, 1991, at A6 [hereinafter 
Computer_Communications] (quoting Cliff Figallo, former director of the 
WELL); see also Doll, supra note 75 (quoting a Ventura County-based 
sysop who also used the bar analogy).This analogy seems apt, given 
that the SF Net has installed terminals in coffeehouses as an extension 
of an on-line coffeehouse atmosphere. Katherine Bishop, 
The_Electronic_Coffeehouse, N.Y. Times, Aug. 2, 1992, S. 9, at 3.
 
††††††† ° "[A]n electronic version of Hyde Park's Speakers' Corner, `in 
which anyone with information or opinions to share may publish them for 
the review of his peers.'"Freitag, supra, at 38 (quoting Tom Mack, 
sysop of the Second Ring BBS).
 
[126]†† This is important to protect both the sysops' freedom and the 
users' right to free speech, although these rights necessarily conflict.
Cf. Henry H. Perritt, Jr., 
Tort_Liability,_the_First_Amendment,_and_Equal_Access_to_Electronic_Netw
orks, 5 Harv. J.L. & Tech. 65, 71 (1992) [hereinafter Perritt, 
Tort_Liability] (enumerating such goals as diversity of opinions, low 
access barriers, and victim compensation).Currently, the law favors 
owners' First Amendment rights and there is a danger that focusing on 
sysop liability will reinforce this existing favoritism to the detriment 
of the First Amendment rights of listeners or users.See Pool, supra 
note 18, at 133; Rose & Wallace, supra note 1, at 19.
[127]†† For the purposes of defamation, telegraph companies are included 
as secondary publishers.See W. Page Keeton et al., Prosser and Keeton 
on the Law of Torts S.113, at 811-12 (5th ed. 1984); Restatement 
(Second) 
of Torts S. 581(1), cmt. f (1976); see_also Becker, 
Bulletin_Board_Operators, supra note 5, at 214. 
 
[128]†† Other analogies also could be considered, such as enhanced service 
providers (as defined by the FCC) and cablecasters, but for the relevant 
analysis these other situations merge with one of the five types 
discussed.
 
[129]†† See Tribe, American Constitutional Law, supra note 41, at 1004.†† 
 
[130]†† 47 U.S.C. S. 307(c) (1988).The power to license can take the 
form 
of content regulation.See Pool, supra note 18, at 134-35; infra notes 
148, 222 and accompanying text. 
 
[131]†† 47 U.S.C. S. 310 (1988) (restricting foreigners from obtaining 
broadcasting licenses); id. S. 533(a) (restricting single entities from 
owning television stations and cable television systems in the same 
market).
 
[132]†† Id. S.S. 201-224.Pool also notes that Congress allows taxes on 
phone bills but the Supreme Court prohibited an identical tax on 
newspapers in Minneapolis Star & Tribune Co. v. Minnesota Commissioner 
of Revenue, 460 U.S. 575 (1983).Pool, supra note 18, at 106.
 
[133]†† Minneapolis_Star_&_Tribune_Co., 460 U.S. 575.
 
[134]†† Privacy Protection Act of 1980, 42 U.S.C. S. 2000aa (1988).
 
[135]†† The Newspaper Preservation Act, 15 U.S.C. S.S. 1801-1804 (1988) 
(permitting newspapers serving the same market to merge).
 
[136]†† See Wooley v. Maynard, 430 U.S. 705, 715 (1977) (striking down New 
Hampshire's "Live Free or Die" license plate because the state had 
compelled its citizens to "use their private property as a `mobile 
billboard' for the State's ideological message").††† 
 
[137]†† See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 261 
(1974) (White, J., concurring) ("[G]overnment may not force a newspaper 
to print copy which, in its journalistic discretion, it chooses to leave 
on the newsroom floor.").
 
[138]†† See Pacific Gas & Elec. Co. v. Public Util. Comm'n, 475 U.S. 1 
(1986) (private utility company could refuse to allow private groups 
access to utility company billing statement); cf. Wooley, 430 U.S. at 
715.
 
[139]†† See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 
(1982) (holding that a New York law requiring apartment buildings to 
give access to cable companies constituted a taking).However, the 
Court may be more deferential to government-imposed burdens in 
cyberspace (as opposed to takings in physical space).Cf. Tribe, 
American Constitutional Law, supra note 41, at 1008 (noting that the 
Equal Opportunities Doctrine, which requires broadcasters to allow 
political candidates to use the broadcasting facilities, apparently does 
not raise a takings issue).
 
[140]†† PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980).
 
[141]†† Hudgens v. NLRB, 424 U.S. 507 (1976).In Hudgens, the Court 
rejected a First Amendment challenge to a private shopping center 
owner's restrictions on a labor union that wanted to picket a store in 
the center.Tribe argues that the Hudgens court was sympathetic to the 
First Amendment interests of shopping center owners not to use their 
property to support someone else's ideology.See Tribe, American 
Constitutional Law, supra note 41, at 1000.
 
[142]†† PruneYard, 447 U.S. 74.The Court gave three reasons:(1) the 
states' inability to mandate access could greatly restrain speakers' 
ability to communicate their messages; (2) if the mandated access was 
content-neutral, there would be no discrimination problem; and (3) 
shopping centers are generally considered inherently public, so 
audiences will not perceive the owner as the speaker.Id. at 87.
See_generally Di Lello, supra note 28, at 225-26 (outlining which 
states' laws favor property owners and which states' laws favor 
speakers).
 
[143]†† Tribe, American Constitutional Law, supra note 41, at 1002 n.35.
Tribe continued: "The first amendment's sweeping guarantees have been 
most compromised in the realm of . . . electronic broadcasting."Id. at 
1004.
 
[144]†† 47 U.S.C. S. 315(a) (1988).The Equal Opportunities Doctrine also 
restricts the amount that can be charged to these candidates for their 
use of broadcast stations.Id. S. 315(b).
 
††††††† The FCC has also applied the Fairness Doctrine, which conditioned 
the renewal of licenses on discussion of issues of public concern and 
fair coverage of different viewpoints.See Philip H. Miller, Note, 
New_Technology,_Old_Problem:__Determining_the_First_Amendment_Status_of_
Electronic_Information_Services, 61 Fordham L. Rev. 1147, 1156-57 
(1993).A First Amendment challenge to the Fairness Doctrine by 
broadcasters, involving a person's right to respond to an attack, was 
rejected in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). 
But_see Miller, supra, at 1157 n.67 (Fairness Doctrine abandoned).
 
[145]†† See CBS, Inc. v. Democratic Nat'l Comm., 412 U.S. 94 (1973). 
 
[146]†† 47 U.S.C. S. 312(a)(7) (1988).The Court rejected a 
constitutional 
challenge to the statute in CBS, Inc. v. FCC, 453 U.S. 367 (1981).
 
[147]†† 15 U.S.C. S. 1335 (1988).
 
[148]†† In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Court 
rejected a constitutional challenge to the FCC's power, based on the 
concerns that captive audiences and children would be subjected to 
offensive material.
[149]†† See National Ass'n of Regulatory Util. Comm'rs v. FCC, 525 F.2d 
630, 641-42 (D.C. Cir.), cert._denied_sub_nom. National Ass'n of Radio 
Tel. Sys. v. FCC, 425 U.S. 992 (1976) (holding that cellular telephone 
systems could be considered common carriers and therefore regulated by 
the FCC if they offered service to the public indiscriminately).In 
general, these rules have developed to protect the public's expectations 
and to deter monopolization.Perritt, Tort_Liability, supra note 126, 
at 77.
 
[150]†† 492 U.S. 115 (1989). 
 
[151]†† 47 U.S.C. S. 223(b) (1988). 
 
[152]†† Distinguishing FCC v. Pacifica Foundation, 438 U.S. 726, and the 
regulation of indecency in broadcasting, the Court noted that accessing 
telephone services requires affirmative action on the part of users, so 
there is not a captive audience problem.492 U.S. at 127-28.
 
[153]†† 457 U.S. 853 (1982). 
 
[154]†† Id. at 870-72 (Brennan, J., plurality opinion).
 
[155]†† New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 
 
[156]†† Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (imposing 
liability where defamatory statement created apparent substantial danger 
to reputation).
 
[157]†† 472 U.S. 749 (1985). 
 
[158]†† Id. at 761 (Powell, J., plurality opinion).The private/public 
distinction is less tenable now that the type of credit information at 
issue in Greenmoss_Builders is routinely made available on-line to 
thousands of subscribers.Tribe, American Constitutional Law, supra 
note 41, at 1009 n.76.
 
[159]†† 472 U.S. at 773 (White, J., concurring in the judgment); accord 
id. at 782 n.7 (Brennan, J., dissenting) ("[T]here has been an 
increasing convergence of what might be labeled `media' and 
`nonmedia.'").
 
[160]†† Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1119 
(11th Cir. 1992), cert._denied, 113 S. Ct. 1028 (1993).See generally 
Brian J. Cullen, Note, Putting_a_`Chill'_on_Contract_Murder:Braun v. 
Soldier of Fortune and_Tort_Liability_for_Negligent_Publishing, 38 Vill. 
L. Rev. 625 (1993).
 
[161]†† 556 F.2d 113 (2d Cir.), cert._denied, 434 U.S. 1002 (1977). 
 
[162]†† Id. at 120.In Edwards, the New_York_Times was sued after it 
reported allegedly defamatory statements.The National Audubon Society 
had challenged statistics regarding the effects of the pesticide DDT on 
the bird population and said that any scientist who used the evidence to 
support the continued use of DDT "is being paid to lie, or is parroting 
something he knows little about."Id. at 118.
 
[163]†† Becker, Electronic_Publishing, supra note 24, at 849. 
 
[164]†† Restatement (Second) of Torts S. 581 (1977); accord Keeton et al., 
supra note 127, at 812.
 
[165]†† 360 U.S. 525 (1959).The Court's holding apparently applies even 
if the broadcaster could have used an electronic delay system.Keeton 
et al., supra note 127, at 812. 
 
[166]†† The Equal Opportunities Doctrine at issue in WDAY was similar to 
47 U.S.C. S. 315(a). 
 
[167]†† 360 U.S. at 531.
 
[168]†† Restatement (Second) of Torts S. 577(2) (1976); see, e.g., Hellar 
v. Bianco, 244 P.2d 757 (Cal. Ct. App. 1952).In Hellar, the defamatory 
statement involved was "ask for Isabelle" and a phone number, written on 
the bathroom wall of a bar.After a patron called the woman in 
question, the woman's husband demanded that the statement be removed, 
which the bartender failed to do "after some delay."Id. at 758-59.
The court held that, in places of public accommodation, the landlord 
must remove publicly visible defamatory statements within a reasonable 
time or the landlord may be held liable for republication.Id.; see 
Restatement (Second) of Torts S. 577(2), cmt. p & illus. 15 (1976) 
(noting, however, that landlords do not have a duty to police the 
property or chattel).But_see Scott v. Hull, 259 N.E.2d 160 (Ohio Ct. 
App. 1970) (explaining that even if owner has notice, owner is not 
liable for visible defamatory graffiti, since nonfeasance does not 
create defamation liability).
 
††††††† Numerous commentators have tried to reconcile the conflicting 
Hellar and Hull approaches.See,_e.g., John R. Kahn, 
Defamation_Liability_of_Computerized_Bulletin_Board_Operators_and_Proble
ms_of_Proof, Feb. 1989, available_in Internet via gopher, 
gopher.eff.org; Loundy, supra note 45, at 146-48.
 
[169]†† Keeton et al., supra note 127, at 811; see Restatement (Second) of 
Torts S. 612 (1976).
 
[170]†† 361 U.S. 147 (1959). 
 
[171]†† Id. at 153-54.However, by expressly limiting its holding to 
strict liability in a criminal context, the Court did not preclude 
criminal liability based on scienter.Id. at 154.Further, Smith would 
not apply to a question of civil liability based on scienter.See, 
e.g., Perritt, Tort_Liability, supra note 126, at 105 (giving a 
hypothetical situation in which a bookseller knew a book contained 
defamatory statements, and presuming such knowledge would make the 
bookseller liable as a republisher).
 
[172]†† See Perritt, Tort_Liability, supra note 126, at 103 n.195; 
McDaniel, supra note 7, at 824 (treating "contract printers" as 
secondary publishers). 
 
[173]†† See Restatement (Second) of Torts S. 612(2) (1976); see_also 
Charles, supra note 125, at 132 n.72 (listing cases that hold a common 
carrier is not liable for defamation).
 
[174]†† 320 N.E.2d 647 (N.Y. 1974). 
 
[175]†† Charles, supra note 125, at 143.
 
[176]†† A forum has the following elements:"(1) a location, (2) 
accessible to, (3) segments of the population, (4) where the discussion 
of issues occurs."Taviss, supra note 39, at 760. Although BBSs lack a 
physical location, id., so do public forums such as government 
publications and mail systems.Therefore, a BBS can and should be 
considered a forum located in cyberspace.See supra note 1. 
 
[177]†† Taviss, supra note 39, at 781-82.For purposes of public forum 
analysis, private actors are state actors if either the private actor 
performs a public function or the state is entangled with private 
actors.Id. at 767-68 & n.69.Taviss concludes that privately-owned 
BBSs do not perform a public function because the state does not 
traditionally own BBSs, id. at 770, and they will not be entangled 
unless the state is extensively involved in operating the BBS or 
affirmatively exercises licensing power.Id. at 772-73.Even if 
gateways such as Internet are state actors, this is not sufficient to 
entangle all communication transmitted by the gateway.Id. at 784-85.
 
††††††† Taviss concludes that the increasing importance and ubiquity of 
computer-based communication could eventually lead to enough 
entanglement to make all BBSs state actors.Id. at 791; accord Pool, 
supra note 18, at 41; Oldenburg, The_Law, supra note 45, at E5 (quoting 
Laurence Tribe).Alternatively, Congress could convert private BBSs 
into state actors using the Commerce Clause.Taviss, supra note 39, at 
792 & n.264; cf. Di Lello, supra note 28, at 241 (arguing for Congress 
to enact legislation, using the Commerce Clause, to prohibit commercial 
BBSs from censoring or ejecting users). But_cf. Pool, supra note 18, at 
91-92 (early regulation of telegraphy under the Commerce Clause probably 
should have been subordinated to First Amendment interests).
 
[178]†† Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 
45-46 (1983); see_also International Soc'y for Krishna Consciousness v. 
Lee, 112 S. Ct. 2701 (1992) (reaffirming and applying the Perry 
framework).
 
[179]†† Perry, 460 U.S. at 45. 
 
[180]†† In some respects, BBS technology demonstrates that strict 
adherence to physical-based definitions turns constitutional protections 
on their head.See supra text accompanying notes 35-38.Because BBSs 
are extremely powerful vehicles for political expression and protest, 
see supra text accompanying notes 19-23, liberal access to "traditional" 
public forums without concomitant liberal access to electronic media may 
in time undermine the free marketplace of ideas.Cf. Naughton, supra 
note 19, at 431 ("For a substantial population, the electronic arenas of 
computer networks have displaced the nation's streets and parks as the 
quintessential public fora. . . .[C]omputer networks enable users to 
disseminate their ideas to a far broader audience than any traditional 
public forum.").Ultimately, if BBSs become a predominant communication 
medium, see supra note 39, courts should reexamine the policy 
considerations underlying the limiting of special legal solicitude to 
"traditional" public forums.
 
[181]†† In order for a regulation to be upheld under strict scrutiny,the 
regulation must be "necessary to serve a compelling state interest and . 
. . narrowly drawn to achieve that end." Perry, 460 U.S. at 45. 
 
[182]†† In order for a regulation to meet the intermediate scrutiny 
standard, it must be "narrowly tailored to serve a significant 
government interest, and leave open ample alternative channels of 
communication."Id. 
 
[183]†† Id.
 
[184]†† Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 
802 (1985). Taviss argues that, especially given the courts' deference 
to free speech on campuses, courts should treat university-based BBSs 
and computer systems as limited public forums, Taviss, supra note 39, at 
789-90, or legislation should be passed to declare academic-based BBSs 
and computer systems to be limited public forums.Id. at 791-92.†† 
 
[185]†† Perry, 460 U.S. at 45-46.
 
[186]†† Id.††† 
 
[187]†† Taviss, supra note 39, at 787-88.These interactive BBSs include 
Santa Monica's PEN, id. at 788, and BBSs (such as Montana's) that are 
designed to promote constituent/public official interaction.In 
contrast, state-owned BBSs used for internal government purposes, such 
as the National Park Service BBS, see supra note 84, or BBSs intended to 
provide information one-way to users, should be nonpublic forums.
 
[188]†† Perry, 460 U.S. at 46.
 
[189]†† Id.
 
[190]†† Charles, supra note 125, at 143.
 
[191]†† When William Donoghue, a well-known publisher of financial 
reports, disseminated outdated information on Prodigy's Money Talk 
forum, users quickly corrected the information and within a week 
Donoghue acknowledged his error.Susan Antilla, 
Bill_Donoghue's_Electronic_Tarring, N.Y. Times, Dec. 13, 1992, S. 3, at 
15.
 
[192]†† See Naughton, supra note 19, at 429 ("A computer network has many 
of the attributes of a traditional public forum.").
 
[193]†† For example, BBSs' speed and low access costs allow defamed 
individuals to respond immediately on the same BBS and with the same 
intensity, undermining some of the underpinnings of defamation 
jurisprudence.Edward A. Cavazos, Note, 
Computer_Bulletin_Board_Systems_and_the_Right_of_Reply:__Redefining_Defa
mation_Liability_for_a_New_Technology, 12 Rev. Litig. 231, 246-47 
(1992); see Cutrera, Computer_Networks, supra note 16, at 570.
 
[194]†† See William Grimes, 
Computer_as_a_Cultural_Tool:__Chatter_Mounts_on_Every_Topic, N.Y. Times, 
Dec. 1, 1992, at C13 (citing Nancy Baym, a doctoral student in speech 
communications).
 
[195]†† Characteristics which become irrelevant to group interaction 
include race, religion, sex, age, educational status, and socioeconomic 
status.BBSs are "a medium whose characteristics champion only `pure' 
messages, stripped of physical conditions.In an electronic forum, 
there can be no discrimination because factors such as race, religion, 
and economic status, do not accompany the message."Taviss, supra note 
39, at 795.As a result, "`[t]here is no visual content, no hearing of 
accents.People are judged on the content of what they say.'"Bishop, 
supra note 125, at 3 (quoting Wayne Gregori, sysop of the SF Net).
Further, because "[c]yberspace recognizes no national boundaries, and 
physical obstacles such as oceans and deserts that have historically 
compartmentalized people are non-existent . . . individuals are free to 
associate with others of their choosing . . . ."Terri A. Cutrera, 
Note, 
The_Constitution_in_Cyberspace:__The_Fundamental_Rights_of_Computer_User
s, 60 UMKC L. Rev. 139, 139 (1991) [hereinafter Cutrera, 
The_Constitution_in_Cyberspace].
 
[196]†† "[T]he essence of public messages and open files on a computer 
bulletin board is . . . the participation of many in the interchange of 
ideas, opinions, and information."Becker, Bulletin_Board_Operators, 
supra note 5, at 228; see Harmon, New_Legal_Frontier, supra note 26, at 
A24 (the low cost of group formation allows small stock market investors 
to pool information resources). 
 
[197]†† See Jon Katz, Bulletin_Boards:__News_from_Cyberspace, Rolling 
Stone, Apr. 15, 1993, at 35, 35 ("Armed with relatively inexpensive new 
technology, millions of Americans are now finding that they don't need 
the gatekeepers [such as the traditional media] anymore.").
 
[198]†† See, e.g., Christopher J. Galvin, A_World_of_Good, CompuServe 
Mag., June 1993, at 10.In his article, Galvin describes numerous 
examples of altruistic behavior on CompuServe. Even the merest 
assistance, such as answering a question posed to a conference, imposes 
private costs because the answerer must pay CompuServe's on-line connect 
charges.However, the generosity often extends to mentoring and to 
providing technical troubleshooting that would normally command a 
consulting fee.See id. at 12-13.
 
[199]†† See John S. Quarterman, Network_Communities_Across_Boundaries, 
Microtimes, May 31, 1993, at 128, 128 (describing how the former Soviet 
Union and China, among others, appear to be restricting the development 
of wide area networks for fear of the subversive power of these 
networks); cf. Rheingold, supra note 23, at 6 ("`Electronic citizenship 
means freedom of electronic expression.'") (quoting Dave Hughes, an 
activist in local politics).
 
[200]†† For example, William Donoghue, a publisher of financial reports, 
and Peter Lynch, fund manager of the best performing mutual fund between 
1977 and 1990, have participated in Prodigy's Money Talk forum.See 
Antilla, supra note 191, at 15; 
Lynch_Predicts_Sharp_Correction_in_Stock_Market, San Jose Mercury News, 
June 9, 1993, at 2F; see_also Billy_Graham_a_Convert_to_On-
Line_Preaching, L.A. Times, Nov. 27, 1993, at B5 (reporting that Rev. 
Billy Graham held a one hour public "guest appearance" on America 
Online).Some lawyers routinely answer legal questions on-line.Daniel 
B. Kennedy, PC_Practitioners_Proliferate, A.B.A. J., June 1993, at 36. 
 
[201]†† See_supra part II.C.
 
[202]†† Corporate users have found that access to information and software 
is both greater and quicker on the Internet.For example, one IBM 
researcher used the Internet to obtain technical software immediately 
that would have taken nine months to obtain otherwise.Eckhouse, supra 
note 70, at C1. 
 
[203]†† See Godwin, supra note 26."People are people, even in 
cyberspace."Rose & Wallace, supra note 1, at 67.
 
[204]†† For example, in California Software, Inc. v. Reliability Research, 
Inc., 631 F. Supp. 1356, 1358 (C.D. Cal. 1986), the defendants sent 
allegedly tortious communications over a nationwide BBS.The sysops 
were not named as defendants.Similarly, Prodigy was not named as 
defendants in the Medphone case.Godwin, supra note 26.
 
[205]†† Jonathan Gilbert, Note, 
Computer_Bulletin_Board_Operator_Liability_for_User_Misuse, 54 Fordham 
L. Rev. 439, 441 (1985).See_generally 
Fourth_Annual_Benton_National_Moot_Court_Competition:__System_Operator_L
iability_for_Defamatory_Statements_Appearing_on_an_Electronic_Bulletin_B
oard, 19 J. Marshall L. Rev. 1107 (1986).
 
††††††† However, victim compensation can be tricky because both the user 
and the sysop can be judgment-proof, and the sysop may not be able to 
obtain insurance, Rose & Wallace, supra note 1, at 88, or afford it, 
Jensen, supra note 18, at 247.On networks such as FidoNet, Echnonet, 
and USENET, victim compensation is especially problematic given that no 
one entity or person monitors the on-going activities of the system.
See Becker, PC Communications, supra note 3, at 370, 374; Rose & 
Wallace, supra note 1, at 15; Oldenburg, The_Law, supra note 45, at E5.
 
[206]†† Jensen, supra note 18, at 247 n.158.
 
[207]†† See Lee Dembart, 
The_Law_Versus_Computers:__A_Confounding_Terminal_Case, L.A. Times, Aug. 
11, 1985, S. IV, at 3, 3.
[208]†† See id.; cf. Uyehara, supra note 24, at 32 (noting that users 
could deliberately implicate sysops in wrongdoing by intentionally 
posting illegally copied software). 
 
[209]†† Technology phobia is not a new phenomenon.See Pool, supra note 
18, at 119 (noting that in the 1920s, radio "was often looked upon as a 
potentially . . . dangerous instrument which could, without vigilance, 
destroy American ideals") (footnote omitted). 
 
[210]†† While it is tempting to assume that law enforcement officials are 
technologically sophisticated, law enforcement naiveté is well 
documented.See Rose & Wallace, supra note 1, at 143-45; Karlin, supra 
note 30, at T6 (quoting Jack Rickard of Boardwatch magazine as saying 
that law enforcement officials are unable to distinguish between 
computer hobbyists and criminals); Lazzareschi, Computer_Users, supra 
note 40, at D9 ("[O]ne prosecuting attorney has equated a teenager with 
a modem to a teenager with a gun.") (quoting Mitch Kapor); Quittner, 
supra note 31, at 1 (quoting Steve Jackson, on the return of computers 
extensively damaged after the Secret Service had searched them for 
evidence:"[T]he Secret Service knows nothing about computers, and this 
just demonstrates it."); Uyehara, supra note 24, at 32 (Jeffrey Fogel, 
executive director of the New Jersey ACLU, responding to a prosecutor's 
suggestion that the legislature should license modems with "[w]hy don't 
they ask legislators to license mouths?"). 
 
[211]†† See the examples, such as the Steve Jackson and Craig Neidorf 
prosecutions and Operation Sun Devil, described supra notes 31-32.The 
government has admitted that Operation Sun Devil was intended to have a 
deterrent effect.See Cutrera, The_Constitution_in_Cyberspace, supra 
note 195, at 162.While deterring criminal activity is desirable, the 
Secret Service's heavy-handed tactics can also intimidate law-abiding 
citizens from entering the marketplace of ideas for fear of 
inadvertently being the Secret Service's next target.
 
[212]†† Of course, sysops who use their BBSs for criminal purposes should 
be criminally liable. See, e.g., John Engellenner, 
Roseville_Couple_Arrested_in_Satellite-TV_Pirating_Case, Sacramento Bee, 
Dec. 11, 1992, at B1 (describing how a couple was arrested because they 
established and used a BBS to disseminate satellite TV descrambling 
codes). 
 
[213]†† See Jensen, supra note 18, at 231-32 n.79 (explaining that since 
sysop liability for users' actions "seems akin to that of a 
co-conspirator," sysop's criminal liability requires specific intent); 
Brock N. Meeks, As_BBSes_Mature,_Liability_Becomes_an_Issue, InfoWorld, 
Jan. 22, 1990, at S14, S14 (arguing that sysops should not be criminally 
liable for the presence of illegal material on their BBSs "unless 
obvious evidence exists that the sysop solicited the information").
 
††††††† However, in a case of criminal obscenity, Smith v. California, 361 
U.S. 147, 153-54 (1959), the Court held that secondary publishers cannot 
be criminally liable for distributing information.Where sysops become 
secondary publishers, Smith would dictate that these sysops are free 
from criminal liability for obscenity.Conversely, sysops who become 
primary publishers can be criminally liable for obscenity.
 
[214]†† Tribe, American Constitutional Law, supra note 41, at 1002.†† 
 
[215]†† 418 U.S. 241 (1974). 
 
[216]†† Id. at 251; cf. Pool, supra note 18, at 11-12 ("Publishing is 
rarely now the expression of just an individual.It is undertaken by 
large organizations.").
 
[217]†† See Henry H. Perritt, Jr., 
Introduction:__Symposium:__The_Congress,_The_Courts_and_Computer_Based_C
ommunications_Networks:__Answering_Questions_About_Access_and_Content_Co
ntrol, 38 Vill. L. Rev. 319 (1993) [hereinafter Perritt, Symposium]; 
Perritt, Tort_Liability, supra note 126, at 141; infra part V.However, 
some fear that the centralized information infrastructure, currently 
being built by private entities and which is expected to be the major 
media conduit in the future, will charge significant fees to recoup the 
cost of development and thereby preclude access by noncommercial 
disseminators.See Tom Abate, What_So_Proudly_We_Logged_on, S.F. 
Examiner, July 4, 1993, at E1.
 
[218]†† See.,_e.g., Becker, Bulletin_Board_Operators, supra note 5, at 230 
n.125; Beall, supra note 13, at 511; Gilbert, supra note 205, at 448 
n.44.As one telecommunications writer recommended, "[s]ysops can take 
practical steps to protect against [defamation liability] by not 
tolerating any types of personal attacks, even against public figures.
Even if the mayor is a crook, do you [the sysop] want to spend 
hard-earned money proving it in court?"Meeks, supra note 213, at S15.
 
[219]†† See Beall, supra note 13, at 513-15 (advocating a licensing system 
to allow the FCC to track BBSs and to provide the private sector with 
incentives to monitor).††† 
 
[220]†† See Cavazos, supra note 193, at 240; Jensen, supra note 18, at 233 
("[L]icensing requirements would cause hobbyist boards to go 
underground."); Arnold, supra note 1, at 3D. Historically, the initial 
intent behind licensing broadcasters was to promote radio expansion, but 
the opposite effect occurred.Pool, supra note 18, at 116. 
 
[221]†† See Firms_Target_Bulletin_Boards_to_Stop_Pirating_of_Software, San 
Jose Mercury News, Dec. 10, 1992, at 6G (describing how a software 
industry group has forced BBSs in Europe and Asia to shut down).
Already corporations and private entities routinely monitor BBSs.See 
Harmon, New_Legal_Frontier, supra note 26, at A24 (explaining that many 
companies now covertly "lurk" on BBSs to find out what is being said 
about them); see_also Schiffres, supra note 68, at 60 ("[A]ll the major 
toll carriers, as well as TRW, claim to monitor the boards closely [in 
1985].").For example, if given recourse through FCC regulation, these 
private entities may use the threat of a complaint to the FCC as 
leverage over BBSs who disseminate unflattering, but constitutionally 
protected, information. 
 
[222]†† See Karlin, supra note 30, at T6 (relating that an FCC regulation 
potentially holding sysops liable for "indecent" language transmitted 
across state lines caused two sysops in Alabama to restrict access to 
their BBS to in-state users); Uncapher, supra note 1, at 8 (explaining 
that, in 1991, the FCC cited numerous sysops because their computers, 
acting as gateways, automatically relayed messages that violated an FCC 
restriction on the use of amateur airwaves to promote business 
activities).
[223]†† Three types of telephone line scarcity could affect BBSs.First, 
telephone line capacity could become a scarce resource.See Becker, 
Bulletin_Board_Operators, supra note 5, at 234 n.157.While the optimal 
method for upgrading the information-carrying capacity of telephone 
lines remains a hotly debated issue, there are a number of possible 
technological solutions to this constraint.See, e.g., Michael L. 
Dertouzos, Building_the_Information_Marketplace, Tech. Rev., Jan. 1991, 
at 28, 32 (converting telephone lines from narrowband ISDN to broadband 
ISDN could result in an enormous increase in information carrying 
capacity).
 
††††††† Telephone numbers are the second scarce resource.See Jube Shiver 
Jr., Phone_Numbers_Grow_Scarce_in_Information_Age, L.A. Times, Feb. 8, 
1993, at A1, A1 (without changes, the supply of telephone area codes 
will be exhausted by 1995); see_also Eckhouse, supra note 70, at C7 
(discussing how the proliferation of Internet accounts has consumed 
Internet addresses so rapidly that, unless standards are modified, the 
supply of Internet addresses will run out in 2003).Bellcore will 
introduce 640 new area codes by 1995 to alleviate the phone number 
constraint, but this is a temporary solution and does not resolve the 
capacity constraints in non-geographic specific prefixes such as the 800 
and 900 phone numbers.Shiver, supra, at A11.
 
††††††† The third type of scarcity is telephone lines.For example, the 
ECHO BBS expanded so rapidly that it required every available line in 
the neighborhood.Stewart, supra note 72, at 155. This was resolved 
when the local phone company ran a separate cable just for ECHO.Id. 
However, even if telephone line or number scarcity becomes a binding 
constraint, market mechanisms may still be the optimal way to allocate 
them.See Pool, supra note 18, at 138-39. 
[224]†† See Jensen, supra note 18, at 239 (explaining that Pacifica 
concerns are not warranted in the BBS context because individuals must 
invest time and money to access BBSs and "very young" children will not 
be able to access computer messages); Miller, supra note 144, at 1192 
(noting that BBSs are among the "least intrusive" media because they 
"require an initiating act or invitation to trigger transmission at 
home").But_see John Schwartz, 
Caution:__Children_at_Play_on_Information_Highway;_Access_to_Adult_Netwo
rks_Holds_Hazards, Wash. Post, Nov. 28, 1993, at A1 (describing the 
numerous ways that young children have been able to access adult 
materials on-line). 
 
[225]†† For example, users of a Sierra On-Line version of the adult 
interactive role-playing game Leisure Suit Larry must sign a statement 
that they are over eighteen years old.Markoff, The_Latest_Technology, 
supra note 16, at 5.However, the company's president wants the game to 
be "G-rated," and explains that, during the sex scenes, only the faces 
will be shown on the screen.Id.
 
[226]†† See infra part V. 
 
[227]†† See Becker, Electronic_Publishing, supra note 24, at 831.†† 
 
[228]†† See id. at 866 (arguing that all forms of electronic publishing 
should be treated as a single communications medium); Moore, 
Taming_Cyberspace, supra note 28, at 749 ("We must address these issues 
in a more coherent, less ad hoc way.") (quoting computer science 
professor Lance Hoffman); cf. Charles, supra note 125, at 147-48 
(outlining a very specific negligence standard for defamation liability 
to avoid the chilling effect of ad hoc balancing tests). 
 
[229]†† See Cutrera, Computer_Networks, supra note 16, at 582; Faucher, 
supra note 38.
 
[230]†† Beall, supra note 13, at 513-14.
 
[231]†† Faucher, supra note 38.
 
[232]†† See supra text accompanying notes 136-42 (government mandated 
access); infra part IV.A.2 (privacy and associational protections).
 
[233]†† See M. Ethan Katsh, The Electronic Media and the Transformation of 
Law 240 (1989) [hereinafter Katsh, The Electronic Media] (noting that 
the uses of a new communication technology are often not apparent until 
the technology has proliferated); see_also Johnson & Marks, supra note 
88 (suggesting that, over time, custom and technology will determine the 
appropriate legal principles); Perritt, Tort_Liability, supra note 126, 
at 95 (common law evolution is more flexible than administrative 
regulations); cf. Tribe, American Constitutional Law, supra note 41, at 
1007 ("Novel communications are pressed into service while still in 
their infancy, and the legal system's initial encounters with these 
newborns often have a lasting influence."); Barlow, supra note 31, at 56 
("Today's heuristical answers of the moment become tomorrow's permanent 
institutions of both law and expectation.").
 
††††††† For example, both telegraphy and computers were initially 
regulated as business entities, not as media, because the technology was 
so costly that businesses were the only viable users. Pool, supra note 
18, at 91; see Henry Beck, 
Control_of,_and_Access_to,_On-Line_Computer_Data_Bases:__Some_First_Amen
dment_Issues_in_Videotext_and_Teletext, 5 Comm/Ent L.J. 1, 6-8 (1982) 
(discussing the evolution of the computer from a business machine into a 
communications medium).As innovation reduced the cost of technology 
and therefore increased its accessibility, these initial regulations 
became inadequate.For a summary of significant changes in both the 
legal status and technology of BBSs between 1988 and 1992, see Rose & 
Wallace, supra note 1, at xiii, xix-xxii. 
 
[234]†† Cf. Perritt, Symposium, supra note 217 (looking at factual 
questions to resolve a posited hypothetical); Miller, supra note 144, at 
1199 & n.359 (explaining that sysops probably would prefer regulatory 
flexibility over legal certainty, even though each case would then 
require fact-specific analysis to determine how the BBS was being used 
functionally).
 
††††††† Playboy Enterprises, Inc. v. Frena, No. 93-489-CIV-J-20, 1993 WL 
522892 (M.D. Fla. Dec. 9, 1993), described supra note 30, is a prime 
example of the problems courts will encounter should they fail to engage 
in fact-based analysis.In Frena, the court granted plaintiff summary 
judgment on the copyright, trademark, and Lanham Act claims even though 
the defendant sysop alleged that he was not aware that users had 
uploaded the infringing photographs.Id. at *1.By granting summary 
judgment, the court essentially held the sysop strictly liable—a very 
unfair result.A more appropriate approach would have been to allow 
Frena to present evidence that he was merely an information disseminator 
and entitled to the defenses available to secondary publishers.†† 
 
[235]†† There is a real danger that civil liberties on BBSs will initially 
be accorded less protection.See Pool, supra note 18, at 250 (noting 
how "judges ha[ve] not got[ten] into the habit of being solicitous about 
guarding" freedom as new technologies have proliferated) (quoting 
Zechariah Chafee, Free Speech in the United States 381 (1941)); Rose & 
Wallace, supra note 1, at 101 ("Courts asked to apply older laws to new 
technologies will sometimes be afraid to [do so], throwing the ball back 
to the legislature to confirm that the same rights indeed apply to new 
technologies."); Tribe, The_Constitution_in_Cyberspace, supra note 36, 
at 21 (noting that recent cases regarding cable television make it 
appear "as if the Constitution had to be reinvented with the birth of 
each new technology").Because cases decided today may greatly 
influence the course of future legal developments, see Pool, supra note 
18, at 7; Tribe, American Constitutional Law, supra note 41, at 1003, it 
is important that early precedents in the BBS industry protect 
constitutional rights as much as possible.
 
[236]†† See supra notes 161-62, 165-67; see_also George E. Stevens & 
Harold M. Hoffman, Tort_Liability_for_Defamation_by_Computer, 6 Rutgers 
J. Computers & L. 91, 94 n.18 (1977) (arguing that computer information 
processors should not be held liable for defamation if acting as 
conduits); McDaniel, supra note 7, at 819 (explaining that defamation 
liability requires some sort of publication function). 
 
[237]†† Cf. Miller, supra note 144, at 1188-89 (giving examples of how 
cable television laws reflect cable television's hybrid of broadcasting 
and common carriage functions).
 
[238]†† See Lawrence Edelman, 
Is_This_Man_Invading_Your_Privacy?__A_Solution_is_Sought_to_Close_Gap_Be
tween_Technology_and_Law, Boston Globe, Nov. 20, 1990, at 25, 29 
(quoting attorney Harvey Silverglate saying that the seizure of Steve 
Jackson's BBS computer and disks was functionally equivalent to the 
seizure of a printing press).
 
[239]†† Telephone companies may terminate access of those who use obscene 
or indecent language, Pool, supra note 18, at 106, and the United States 
Postal Service may refuse to carry prohibited materials.Id. at 
86-87.):
 
[240]†† Tribe, American Constitutional Law, supra note 41, at 1051.††† 
 
[241]†† See Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978) ("[C]ourts 
[should] apply the warrant requirements with particular_exactitude when 
First Amendment interests would be endangered by the search.") (emphasis 
added). 
 
[242]†† One commentator has argued that because Congress failed to include 
BBSs in the relevant section of the Electronic Communication Privacy 
Act, see infra part IV.B.2, such evidence obtained unconstitutionally is 
not subject to exclusion at trial.See Cutrera, 
The_Constitution_in_Cyberspace, supra note 195, at 152.This is 
unfortunate and warrants legislative remedy, given the significant 
opportunities for breaches of reasonable expectations of privacy.
 
[243]†† Katsh, The_First_Amendment_and_Technological_Change, supra note 
18, at 1474; see Arnold, supra note 1, at 3D (describing how sysops who 
were curious about their users invited the users to their house for a 
party); Christopher J. Galvin, When_Online_Volunteerism_Crosses_Over, 
CompuServe Mag., June, 1993, at 12 (describing how CompuServe's Judaism 
section of its Religious Forum adopted an official charity and raised 
over $4000 for this charity, including donations from "lurkers" who do 
not publicly participate in the Forum); Grimes, supra note 194, at 13 
(Prodigy's music discussion forum has arranged several social 
functions); Lawrence J. Magid, 
Cyberspace!__The_Revolution_in_Online_Service, Computer Currents, 
July 20, 1993, at 24, 25 [hereinafter Magid, Cyberspace!] ("The WELL 
also encourages its members to get together—in real life--by sponsoring 
parties on a monthly basis."); cf. Katsh, The Electronic Media, supra 
note 233, at 239 (noting that the ability to communicate efficiently 
with a large group of people has fostered the formation of global 
groups).
 
[244]†† Cf. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-36 (1977) 
(upholding the right of nonunion workers not to pay compulsory fees that 
supported political lobbying).
 
[245]†† Many BBSs already follow this approach.See Peter H. Lewis, 
On_Electronic_Bulletin_Boards,_What_Rights_Are_at_Stake?, N.Y. Times, 
Dec. 23, 1990, S. 3, at 8 (reporting that CompuServe removed 10 users 
between 1987 and 1990); Christopher Lindquist, 
`Child_Porn'_Sent_on_America_On-Line:__Transmission_Raises_Censorship,_L
iability_Issues_for_Nervous_Bulletin_Board_Owners, Computerworld, Dec. 
9, 1991, at 7, 7 (explaining that America Online reserves the right to 
deny access to users who post offending messages in public areas, but 
has never done so).
 
††††††† Rose and Wallace refer to one sysop who treats his BBS as his 
living room and his users as his guests:
 
If the caller conducts himself in a civil manner and is considerate of 
others, he is permitted a lot of latitude in his behavior.If he is 
inconsiderate or does damaging things, he will be invited to leave, just 
as if he was really in the sysop's living room and started hitting 
people or pouring beer on the furniture.
 
Rose & Wallace, supra note 1, at 20; see_also Doll, supra note 75 
(quoting a Ventura County sysop who also treats her BBS as her living 
room).
 
††††††† Some commentators have incorrectly asserted that sysops should not 
have meaningful First Amendment associational rights.See, e.g., Di 
Lello, supra note 28, at 244.This can lead to the erroneous conclusion 
that a mandatory right to speak on BBSs will enhance, and not chill, the 
free marketplace of ideas.See id.Potential sysops, especially 
non-profit and non-commercial sysops, face scarcity in allocating 
capital (both time and financial resources) to the marketplace of ideas.
Ignoring sysops' associational freedom, especially in the face of 
potential tort or criminal liability, will make being a sysop less 
appealing at the margin and therefore will shift the sysop supply curve 
to the left.The result is higher costs and lower quantity supplied, 
shrinking the marketplace of ideas.
 
[246]†† Roberts v. United States Jaycees, 468 U.S. 609, 625 (1984) 
(upholding a Minnesota statute that prohibited sexual discrimination in 
places of public accommodation).
 
[247]†† See Charles, supra note 125, at 136.Some BBSs allow users to 
decide whether they want to be listed on membership directories 
available to other users.See Becker, PC Communications, supra note 3, 
at 235 (noting that CompuServe does not require users to join its 
publicly-accessible membership directory).
 
[248]†† 372 U.S. 539 (1963). 
 
[249]†† Id. at 546.
 
[250]†† In the Neidorf case, see supra note 31, the Secret Service used 
membership on Neidorf's mailing list as probable cause to issue a search 
warrant.See Cutrera, The_Constitution_in_Cyberspace, supra note 195, 
at 157 & n.172.This sort of derivative use, without more evidence 
supporting suspicion, seems perilous in the face of Gibson's 
associational privacy.
 
[251]†† Cf. Jean A. Polly, NREN_for_All:__Insurmountable_Opportunity, 
Libr. J., Feb. 1, 1993, at 38, 38 (asking if information searches on the 
proposed information superhighway would be kept confidential).
 
[252]†† For example, the Air Force initiated court martial proceedings 
against Col. James A. Maxwell, Jr. for homosexual behavior after the Air 
Force learned that Maxwell had allegedly used America Online to find 
restaurants that cater to homosexuals and to download homo-erotic 
pornography.See 
Colonel_Faces_Court_Martial_After_Gay_Activities_Alleged:__Air_Force_Off
icer_Blasts_`Innuendo', Hous. Post, Dec. 21, 1992, at A1.††† 
 
[253]†† These provisions may prove porous in application.For example, 
one sysop, a junior college professor, started men-only and women-only 
BBS conferences where the users agreed not to reveal the contents.
Bulkeley, supra note 16, at B6.When one woman discovered that the 
male-only BBS contained an obscene message about her, she complained and 
the professor was forced to shut the BBSs down and was put on leave by 
the college.Id.While in this case the college was a state actor, the 
situation illustrates that other users, as well as sysops, pose a threat 
of disclosure despite non-disclosure or confidentiality provisions.
 
[254]†† See Perritt, Tort_Liability, supra note 126, at 108-10.
 
[255]†† Cf. Restatement (Second) of Torts S. 318 (1976) (articulating that 
chattel owners are not liable for the conduct of others when allowing 
others to use chattel if the owner (a) is not present, (b) cannot 
control the user, or (c) has no knowledge of the need to exercise such 
control).
 
[256]†† Case law supports sysop liability if the sysop was "aware" that 
the defamatory material was available for distribution.Becker, 
Bulletin_Board_Operators, supra note 5, at 228. However, basing 
liability on knowledge, without also requiring the ability to control, 
could result in sysops being held strictly liable if they were unable to 
act.
 
[257]†† Id. at 229-30; see Johnson & Marks, supra note 88, at 493 ("[I]n 
many communication systems, access to contents before `publication' is a 
practical impossibility."). 
 
[258]†† Loundy, supra note 45, at 103, 130, 136; Naughton, supra note 19, 
at 439. 
 
[259]†† Loundy, supra note 45, at 111; Johnson & Marks, supra note 88; 
Perritt, Symposium, supra note 217; cf. McDaniel, supra note 7, at 839 
(arguing that all commercial BBSs should have a duty to inquire into 
information distributors' credentials before granting access).But_see 
Perritt, Tort_Liability, supra note 126, at 103, 107 (explaining that 
any exercise of control may trigger imputation of knowledge).
 
[260]†† Cf. Edward M. Di Cato, 
Operator_Liability_Associated_with_Maintaining_a_Computer_Bulletin_Board
, 4 Software L.J. 147, 156-57 (1990) (describing sysop "precautions," 
which include:(a) requiring user registration, (b) physically 
separating user-uploaded material, (c) limiting the length of user 
messages, (d) prescreening messages, (e) setting time limits on length 
of user's connect time, and (f) posting disclaimers).
 
††††††† One commentator suggested technology-based controls to replace 
sysop monitoring, including programming the computer to search for 
certain terms or information in certain formats and limiting the size of 
the messages or information the user can post on the BBS.See Gilbert, 
supra note 205, at 449-50.
 
[261]†† See Don Oldenburg, 
Rights_on_the_Line:__Defining_the_Limits_on_the_Networks, Wash. Post, 
Oct. 1, 1991, at E5 [hereinafter Oldenburg, Rights_on_the_Line] 
(discussing the WELL's Eros conference, where "[t]hose who enter are 
forewarned" that the conference is "pretty wide open to any of the most 
erotic ideas and writing you want to come up with") (quoting Cliff 
Figallo, former director of the WELL). 
 
[262]†† See Reid, Nation's_Bulletin_Board, supra note 92, at A4 (citing 
Phreakenstein's Lair, a youth-oriented BBS, that warned users "[a]nyone 
leaving any message . . . dealing with breaking into computers, etc., 
will have their password ZAPPED!!!!!"). 
 
[263]†† Even if sysops exercise "reasonable care" in monitoring, offending 
or illegal messages can remain on the BBS for a day or longer.Sulski, 
supra note 32, at C17.On national and global network systems such as 
USENET, in which the message may be automatically stored and forwarded 
electronically between systems, the moderator (if there is one) may not 
be able to remove the message for days or even weeks.Rose & Wallace, 
supra note 1, at 15. 
 
[264]†† For example, CompuServe does not post messages that abuse others, 
"lessen the favorable experience of others using the service," or 
advertise other BBSs.Lewis, supra note 245, at 8 (quoting Dave 
Kissler, CompuServe spokesperson).This editorial policy employs 
somewhat amorphous standards (what activities "lessen the experience"?) 
which, if exercised extensively, probably should be considered editorial 
control.More refined standards, limiting CompuServe's intervention 
only to editing obscenity, redirecting off-topic messages to more 
appropriate discussion forums, or denying access to users who repeatedly 
post abusive messages, would clarify CompuServe's power to discriminate 
among content without triggering editorial control. 
 
[265]†† See Perritt, Tort_Liability, supra note 126, at 140 ("It is 
unlikely that networks will survive where absolutely anyone can publish 
and users can read everything, deciding for themselves about value."); 
Cavazos, supra note 193, at 239 (describing the difficulties of 
maintaining a forum for children if users continually post "adult" 
messages).Indeed, with the opportunity for all users to post messages 
at their pleasure, many forums can be easily overrun by "junk postings" 
if sysops do not remove off-topic messages.Id. at 242; see Allen Lacy, 
A_Gardener's_World:__When_is_Gardening_a_Subversive_Act?, N.Y. Times, 
Jan. 31, 1991, at C1 (describing how a gardening forum on Prodigy 
drifted into discussions on the 1991 Persian Gulf War until Prodigy 
refused to post these off-topic messages).A similar problem can occur 
in software exchanges if, for example, users overrun the software 
utilities exchange with games postings. 
 
[266]†† See Lance Rose, The CompuServe Case—
A_Federal_Court_Recognizes_Sysop_Rights, Boardwatch Mag., Dec. 1991; 
Tribe, The_Constitution_in_Cyberspace, supra note 36, at 18-19 (avoiding 
topic drift is analogous to the information organization and 
presentation undertaken by bookstores and does not represent editorial 
control).
 
[267]†† See, e.g., Becker, Bulletin_Board_Operators, supra note 5, at 221. 
 
[268]†† This does not take into consideration, however, conference calls 
that allow communication between multiple, geographically-separated 
parties.
 
[269]†† See Cavazos, supra note 193, at 236-37; Computer_Communications, 
supra note 125, at A6 ("How can a network operator assume the 
obligations of a publisher . . . if network participants can post 
messages at will?");see_also Di Lello, supra note 28, at 231 
(explaining that Prodigy publishes on average approximately one message 
per subscriber every three weeks, which arguably no newspaper could do).
 
[270]†† See Beall, supra note 13, at 505; see_also 
Computer_Communications, supra note 125, at A6 ("There is no way we can 
patrol the boundaries of a multiple-gigabyte territory.") (quoting Cliff 
Figallo, former director of the WELL); For_Every_Taste, supra note 18, 
at 59 (describing how one sysop spent three hours a day reviewing 
messages); Andrew Pollack, 
Free-Speech_Issues_Surround_Computer_Bulletin_Board_Use, N.Y. Times, 
Nov. 12, 1984, at A1, A4 (concluding that sysops believe it would be 
"impossible to continue operating their boards if they had to monitor 
their boards at regular intervals").
 
[271]†† Taylor, supra note 33, at C4 (quoting Martha Griffin, Prodigy 
spokesperson). Previously, Prodigy used prescreening to make its 
subscribers confident that everything on its BBS was suitable for every 
family member. See Moore, 1st_Amendment, supra note 34, at 13. Prodigy 
no longer prescreens for content other than key words.Godwin, supra 
note 26.In response to the incident with the Anti-Defamation League, 
see supra note 28, Prodigy now censors all postings deemed "grossly 
repugnant to community standards," which includes anti-Semitic 
statements.John Schwartz, A_Screenful_of_Venom, Newsweek, Nov. 4, 
1991, at 48.
 
††††††† One commentator has argued, unpersuasively, that Prodigy is not 
analogous to a newspaper or print publisher.See Di Lello, supra note 
28, at 231-32.As shown in part III.A, media entities receive certain 
legal treatment based on a complex matrix of government interests and 
editorial control.If Prodigy exercises the type of editorial control 
similar to that of print publishers, other differences are irrelevant.
 
[272]†† See Lewis, supra note 245, at 8; Taylor, supra note 33, at C4.To 
monitor activities on its different forums, GEnie contracts with 120 
people who have the power to remove messages. Sugawara, supra note 54, 
at A12.America Online only deletes about one message per year. Id.
 
[273]†† Branscomb, supra note 38, at 156.However, this policy does not 
prevent the WELL from occasionally prohibiting some discussions or 
banning some users.Computer_Communications, supra note 125, at A6; 
Schwartz, supra note 271, at 48.Contrast this with the positions of 
"self-styled `First Amendment' BBS's . . . [that] deliberately refrain 
from interfering with their public message areas in the name of freedom 
of their callers' speech except in extreme cases where they fear serious 
legal problems."Rose & Wallace, supra note 1, at 9.
 
[274]†† Johnson & Marks, supra note 88, at 513-14 n.105; Henry H. Perritt, 
Jr., Dispute_Resolution_in_Electronic_Network_Communities, 38 Vill. L. 
Rev. 349 (1993) [hereinafter Perritt, Dispute_Resolution]; cf. Rose & 
Wallace, supra note 1, at 17 (advocating that USENET moderators should 
be able to choose how much control to exercise); Becker, 
Electronic_Publishing,supra note 24, at 867-68 (arguing that BBSs that 
choose to become electronic publishers should have that right but should 
not dictate legal standards for those BBSs who choose not to undertake 
this role).
 
††††††† Note that other legal regimes allow individuals to choose their 
bundle of rights and obligations.For example, given a complicated set 
of tax, tort liability, and control issues, businesses can choose 
whether to organize as sole proprietorships, general partnerships, 
limited partnerships, corporations, or in some cases, limited liability 
companies.Similarly, given a complicated tradeoff between tort 
liability, control, and constitutional protections, sysops should have 
the opportunity to choose their bundle of rights and responsibilities.
 
[275]†† While much of the focus has been on sysops' civil liability for 
users' statements, editorial control also can expose sysops acting as 
primary publishers to criminal liability for obscenity. See supra notes 
207-13 and accompanying text. 
 
[276]†† See infra part V.
 
[277]†† These benefits are not limited strictly to control over users' 
actions.By adding value to the discussion through the exercise of 
editorial control, primary publishers may also claim a compilation 
copyright.See Rose & Wallace, supra note 1, at 49 (suggesting that 
sysops can claim a compilation copyright if they have "contributed 
enough . . . creative authorship" through active involvement in 
directing the discussion, such as the selection, arrangement, or 
coordination of postings).In contrast, sysops that strictly 
disseminate information have not added any originality to the 
information and cannot claim a compilation copyright.See_generally 
Priscilla A. Walter & Eric H. Sussman, 
Protecting_Commercially_Developed_Information_on_the_NREN, Computer 
Law., Apr. 1993, at 1 (analyzing the application of Feist Publications, 
Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), to electronic 
resources). 
 
[278]†† It would be unfair to hold these sysops liable because they do not 
exercise control, and it would be undesirable because BBSs serve an 
integral role in the dissemination and flow of information.See Rose & 
Wallace, supra note 1, at 11.
 
[279]†† See Moore, Taming_Cyberspace, supra note 28, at 748; see_also 
Cutrera, Computer_Networks, supra note 16, at 571 ("Prodigy wants to 
have its cake and eat it too.").†† 
 
[280]†† See Becker, Bulletin_Board_Operators, supra note 5, at 229 
(arguing that complete immunity will allow defamatory messages to be 
posted indefinitely).But_see Cavazos, supra note 193, at 246-47 
(concluding that BBSs allow a powerful and inexpensive right to reply to 
defamatory statements).
 
[281]†† Rose & Wallace, supra note 1, at 9; Uncapher, supra note 1, at 14; 
cf. Sassan, supra note 47, at 840-43 (proposing that sysops have a duty 
to mitigate, which is fulfilled by removing the tortious posting after 
receiving notice and posting a retraction).
 
††††††† As discussed supra in part IV.A.2, at some point BBSs are more 
appropriately treated as associations rather than media entities.In 
those situations, it would be unfair to hold the BBS liable for its 
users' statements, just as it is unfair to hold an association liable 
for the statements of its members.Distinguishing between an 
association and a media entity is a very difficult line-drawing 
exercise; however, courts should continually consider the impact of 
potential rules on BBSs' associational interests.
 
[282]†† Cavazos, supra note 193, at 242-43; accord Johnson & Marks, supra 
note 88; Miller, supra note 144, at 1196 (trying to read Cubby, Inc. v. 
CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), broadly in order to 
avoid this result).See infra text accompanying notes 306-10. 
 
[283]†† See Perritt, Dispute_Resolution, supra note 274, at 356 
("Competitive forces will drive users to suppliers offering better 
terms.").Prodigy's volume of both users and subscribers has not 
translated into financial success.See Nikhil Hutheesing, 
The_First_Shall_Be_Last, Forbes, Oct. 25, 1993, at 220 (reporting that 
Prodigy has lost $1 billion cumulatively, $30 million in 1993 alone, and 
had to cut 25% of its staff).Nevertheless, Prodigy's difficulties are 
not necessarily due to its editorial policy; instead, it is plausible 
that its editorial policy has been instrumental in the success it has 
had.
 
††††††† Despite Prodigy's prominence, there also remains an immense 
segment of the market that does not exercise such extensive editorial 
control.See Naughton, supra note 19, at 434.For example, America 
Online, which has also experienced rapid growth in its user base and 
significant support on the stock market, removes on average only one 
message per year.See Sugawara, supra note 54, at A12.
 
[284]†† See supra notes 184-86 and accompanying text. 
 
[285]†† See supra part III.A.2.Further, although the holding in Board of 
Education v. Pico, 457 U.S. 853 (1992), does not directly apply, the 
policies the Court articulated in Pico provide additional reasons for 
courts to strictly scrutinize content-discriminatory removals of 
postings. See supra text accompanying notes 153-54.
 
[286]†† See The Electronic Communications Privacy Act of 1986, Pub. L. No. 
99-508, 100 Stat. 1848 (codified in scattered sections of 18 U.S.C.). 
 
[287]†† 18 U.S.C. S. 2702 (1988).†† 
 
[288]†† Id. S. 2703.Under S. 2707, the government has had to pay for 
wrongful seizure.See Steve Jackson Games, Inc. v. Secret Serv., 816 F. 
Supp. 432 (W.D. Tex. 1993) (awarding $1000 per plaintiff for seizure of 
e-mail messages); Victoria Slind-Flor, What_is_E-Mail_Exactly?, Nat'l 
L.J., Nov. 25, 1991, at 3, 22 (noting the Riverside County coroner's 
office paid $1000 per individual, plus attorneys' fees, after it seized 
e-mail on a cryonics society's computer while searching for frozen 
bodies). 
 
[289]†† In fact, Congress recognizes that sysops can gain access to e-mail 
because the Electronic Communications Privacy Act allows third party 
disclosure of electronic communications to law enforcement officials if 
the sysop "inadvertently obtained" the communications.See 18 U.S.C S. 
2702(b)(6)(A) (1988); cf. Don J. DeBenedictis, 
E-Mail_Snoops:__Reading_Others'_Computer_Messages_May_Be_Against_the_Law
, A.B.A. J., Sept. 1990, at 26 (discussing how the mayor of Colorado 
Springs systematically read backed-up personal e-mail sent between city 
council members without their knowledge). 
 
[290]†† See, e.g., Julia T. Baumhart, 
The_Employer's_Right_to_Read_Employee_E-mail:_Protecting_Property_or_Per
sonal_Prying?, 8 Labor Law. 923 (1992); Jennifer J. Griffen, Comment, 
The_Monitoring_of_Electronic_Mail_in_the_Private_Sector_Workplace:__An_E
lectronic_Assault_on_Employee_Privacy_Rights, 4 Software L.J. 493 
(1991); Alice LaPlante, Is_Big_Brother_Watching, InfoWorld, Oct. 22, 
1990, at 58, 65.
 
[291]†† Jim Warren, Who_Are_You_Talking_To?__And_Who's_Listening?, 
Microtimes, Nov. 11, 1991, at 23-24.
 
[292]†† See Markoff, The_Latest_Technology, supra note 16, at 5 (reporting 
that even though child pornography is being sent on America Online, the 
sysops do not monitor private e-mail); Moore, 1st_Amendment, supra note 
34, at 13 (stating that even when claiming the print publisher's power 
to edit public submissions, Prodigy claims that users' private e-mail is 
"strictly private" and not censored).But_cf. Markoff, Home-
Computer_Network, supra note 33, at D5 (reporting that Prodigy 
restricted users from sending e-mail to system advertisers except to 
purchase or communicate about a specific order).
 
[293]†† Meeks, supra note 213, at S14.However, even in such cases, 
users' e-mail privacy may be partially "protected by the sheer volume of 
messages."Becker, PC Communications, supra note 3, at 194.
 
[294]†† Pub. L. No. 99-508, 100 Stat. 1848 (codified in scattered sections 
of 18 U.S.C.)
 
[295]†† See Becker, Bulletin_Board_Operators, supra note 5, at 220-21.
 
[296]†† Because of the instantaneously interactive nature of real-time 
conferencing, these conferences should be treated differently than 
message posting.In message posting, the messages can persist for 
weeks, months, or even years; the sysop can prevent further harm by 
removing the message.See supra text accompanying note 280.On the 
other hand, in real-time conferencing, the information persists only a 
brief time during the interaction, so the sysop has limited power to 
prevent further harm from occurring after the fact.
 
[297]†† See supra note 99. 
 
[298]†† 766 F.2d 728 (2d Cir. 1985). 
 
[299]†† Id. at 734.The court could have held that, under Perry Education 
Association v. Perry Local Educators' Association, 460 U.S. 37 (1983), 
the database was a nonpublic forum subject to reasonable regulation, 
including the refusal to provide unlimited access to a direct 
competitor. See supra part III.B; cf. Mayo v. United States Gov't 
Printing Office, 9 F.3d 1450 (9th Cir. 1993) (denying a BBS's request 
for free access to electronic slip onions under a common law "right to 
inspect" public records).The court's approach, relying on special 
rights given to the press, seems less persuasive after the rejection of 
a media/nonmedia distinction for defamation purposes in Dun & 
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).
 
[300]†† 766 F.2d at 735 (quoting Minneapolis Star & Tribune Co. v. 
Minneapolis Comm'r of Revenue, 460 U.S. 575, 585 (1983)).The Second 
Circuit acknowledged that Legi-Tech's access could allow Legi-Tech a 
"free ride" on the state's efforts and expenses, but noted that the 
relevant statute prohibited Legi-Tech from such a pricing scheme.Id.
In any respect, any "free ride" may not be legally actionable after 
Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 
(1991).See, e.g., Robert A. Gorman, The Feist 
Case:__Reflections_on_a_Pathbreaking_Copyright_Decision, 18 Rutgers 
Computer & Tech. L.J. 731 (1992); John F. Hayden, Recent Development, 
Copyright_Protection_of_Computer_Databases_After Feist, 5 Harv. J.L. & 
Tech. 215 (1991); Gerard J. Lewis, Comment, 
Copyright_Protection_for_Purely_Factual_Compilations_Under Feist 
Publications, Inc. v. Rural Telephone Service Co.:How_Does Feist 
Protect_Electronic_Data_Bases_of_Facts?, 8 Santa Clara Computer & High 
Tech. L.J. 169 (1992); Henry Beck, 
Copyright_Protection_for_Compilations_and_Databases_After Feist, 
Computer Law., July 1991, at 1; Walter & Sussman, supra note 277.
 
[301]†† 520 N.Y.S.2d 334 (N.Y. Civ. Ct. 1987). 
 
[302]†† Plaintiff was a subscriber and a securities investor.Defendant 
provided allegedly misleading information, because it stated prices in 
dollars without specifying whether the dollars were American or 
Canadian.
 
[303]†† Daniel v. Dow Jones & Co., 520 N.Y.S.2d at 336-37.
 
[304]†† Id. at 337-38.
 
[305]†† Noting that the U.S. Supreme Court in Greenmoss_Builders largely 
collapsed the media/nonmedia distinction, the court treated the "wire 
service" as a media defendant. Id. at 339-40.As a result, "[n]ews 
services . . . such as defendant's computerized database, are 
instruments for the free flow of all forms of information, and should be 
treated as unquestionably within the First Amendment's guarantee of 
freedom of the press."Id. at 340.
 
[306]†† 776 F. Supp. 135 (S.D.N.Y. 1991).See_generally Cutrera, 
Computer_Networks, supra note 16, at 576-80; Di Lello, supra note 28, at 
210-17; Miller, supra note 144, at 1194-97; Sassan, supra note 47. 
 
[307]†† On some BBSs, discussion forums are managed or "refereed" by third 
parties to minimize "junk" postings and increase the level and quality 
of discussion on the forum.See Rose & Wallace, supra note 1, at 14-17 
(addressing some of the rights and responsibilities of moderators on 
USENET); Oldenburg, Rights_on_the_Line, supra note 261, at E5 (noting 
the importance of a moderator to keep conversations focused).
CompuServe uses outside independent forum managers (sysops) for each of 
its forums.Becker, PC Communications, supra note 3, at 221.
 
[308]†† 776 F. Supp. at 137.Future courts should look at these four 
factors in applying Cubby. Because CompuServe's structure is unique, 
however, courts should not necessarily require all four factors to find 
that BBSs functioning as information databases are secondary publishers.
 
[309]†† 361 U.S. 147 (1959). 
 
[310]†† 776 F. Supp. at 140 (emphasis added).The court continued that 
imposing a lower standard of liability on an "electronic news 
distributor such as CompuServe" would unduly burden the free flow of 
information.Id.
 
[311]†† A sysop may want to be considered a primary publisher to obtain, 
among other things, enhanced protection from search and seizure, 
compilation copyrights, or additional access to information available to 
press entities.For example, Delphi, a national BBS, offers a service 
where it analyzes, collects, and makes available to its users 
information resources from the Internet.Magid, Cyberspace!, supra note 
243, at 26.Essentially, by performing this service, Delphi acts as a 
republisher, for which it presumably receives additional revenues and/or 
market share to compensate for the additional liability. 
 
[312]†† One commentator has argued, unpersuasively, that the Cubby holding 
applies only to CompuServe, and not to Prodigy, because CompuServe is 
functionally equivalent to a bookstore while Prodigy is designed for 
shopping and more functionally equivalent to a shopping mall. See Di 
Lello, supra note 28, at 228-29.Putting aside the obvious (that even 
bookstores are designed for shopping), the commentator misses the point 
of his "functional equivalency" argument.If the sysop is acting as a 
vendor at the time of the legal incident, then the sysop should be 
treated as a vendor; if the sysop is acting as a secondary 
publisher/bookstore, then under the Cubby analysis, the sysop will be 
treated as a secondary publisher.Therefore, in those situations where 
Prodigy acts as a secondary publisher, Prodigy should receive the 
benefits of the Cubby holding.However, it is completely consistent 
with Cubby that where Prodigy exercises editorial control, it no longer 
can claim the protection of the secondary publisher model, because of 
its editorial control and not because the BBS's atmosphere is more like 
a shopping mall than a bookstore.
 
[313]†† See Lance Rose, All_the_News_That's_Fair_to_Use, Boardwatch Mag., 
May, 1992; cf. Di Cato, supra note 260, at 158 (acknowledging the 
potential need to distinguish between commercial and free BBSs).On one 
level, the result in Playboy Enterprises, Inc. v. Frena, No. 93-489-CIV-
J-20, 1993 WL 522892 (M.D. Fla. Dec. 9, 1993), in which the court found 
the sysop liable for digitized Playboy photos uploaded by users, can be 
explained by this approach. Although the Frena court did not explain why 
it considered the sysop responsible for his users' actions, the fact 
that the BBS was commercial and received revenues in part because of its 
photo libraries suggests one reason why the court was comfortable 
imposing liability.See_id. at *11 (analyzing the "reverse passing off" 
issue by focusing on the treatment of plaintiff's "products").
 
††††††† The distinction between commercial and free BBSs for the purposes 
of software downloading has been proposed in other contexts.See 
Barbara E. McMullen & John F. McMullen, 
Confusion_Reigns_on_NY_State_"Download"_Tax, Newsbytes, Sept. 12, 1991, 
available_in WESTLAW, Comp-ASAP file (noting that a New York sales tax 
law appeared to require sysops to remit sales taxes on downloaded 
software but was interpreted not to include free BBSs); cf. Cavazos, 
supra note 193, at 239 n.48 (noting that Southwestern Bell charges 
noncommercial telephone rates to Texas BBSs that have fewer than three 
incoming lines).††† 
 
[314]†† The negligence standard should apply, for example, if the sysop 
failed to remove the copyrighted posting after receiving actual 
knowledge or within a reasonable time (as determined by sysops similarly 
situated).See supra text accompanying notes 258-59. 
 
[315]†† For example, users should have the burden to check the software 
for viruses.Not only can users easily check for viruses, but users 
should also know of the need to do so.See Becker, PC Communications, 
supra note 3, at 126.
[316]†† Cf. Di Cato, supra note 260, at 155-56 (advocating that only 
sysops who act intentionally or grossly negligently be liable for the 
illegal distribution of copyrighted software).
 
[317]†† However, copyright holders will have some responsibility to 
monitor BBSs and to point out violations to the sysop.This obligation 
may be onerous but no more so than exists in physical space. 
 
[318]†† This is essentially the argument the court accepted in Cubby, Inc. 
v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991).Rose and Wallace 
suggest that, because sysops can decide not to act as a gateway, some 
liability might accrue if the BBS acts as a gateway to a discussion 
forum or file exchange that repeatedly engages in tortious or illegal 
conduct.Rose & Wallace, supra note 1, at 15-16; see_also McDaniel, 
supra note 7, at 839 (arguing essentially the same in the information 
services context).The Cubby court recognized this possibility but did 
not address it directly.See supra text accompanying note 310.
 
††††††† As a result, to clarify the lack of liability, some commentators 
have proposed an "Electronic Communications Forwarding Act" which would 
absolve from liability entities that only forward communications.See 
Johnson & Marks, supra note 88, at 510-11; Perritt, Symposium, supra 
note 217, at 343 (concluding remarks of Shari Steele of the Electronic 
Frontier Foundation). 
 
[319]†† See Perritt, Symposium, supra note 217; cf. Johnson & Marks, supra 
note 88 (arguing that a duty to monitor will reduce the number of 
sysops).
 
[320]†† See Kapor, supra note 22, at 162; cf. Nadine Epstein, 
Et_Voila!__Le_Minitel, N.Y. Times, Mar. 9, 1986, S. 6, at 46 (describing 
the experience of the French government-sponsored Le Minitel, a national 
network which distributes private electronic newspapers); Rone Tempest, 
France_Plugs_into_Future_with_Video_System, L.A. Times, Apr. 18, 1993, 
at A11 (describing the Minitel system also).
 
[321]†† See Perritt, Symposium, supra note 217 (using existing laws); cf. 
Tribe, The_Constitution_in_Cyberspace, supra note 36, at 39 ("[T]he 
Constitution as a whole 
must_be_read_through_technologically_transparent_lenses. . . .") 
(emphasis in original).
 
[322]†† Rose & Wallace, supra note 1, at 20 ("[S]ysops [can] adjust the 
amount of freedom and power they give to callers, and the amount of 
legal risk they can take on."); accord Perritt, Tort_Liability, supra 
note 126, at 66 (emphasizing the sysop's choice in control and risk); 
McDaniel, supra note 7, at 785; Meeks, supra note 213, at S14 ("[S]ysops 
have the right to run their systems any way they see fit.").
 
††††††† However, allowing sysops to exercise editorial discretion allows 
private parties to inhibit free speech.In critiquing Prodigy's 
actions, Jerry Berman, formerly of the ACLU, said:"[W]e should be 
concerned if systems such as Prodigy become the rule.Instead of 
expanding speech, we'll have electronic forums that are quite limited."
Markoff, Home_Computer_Network, supra note 33, at D5; accord Di Lello, 
supra note 28, at 245-46; cf. Tribe, American Constitutional Law, supra 
note 41, at 1009 n.78 ("[W]e cannot depend upon those who own and 
control the new media to resolve the critical issues of access and 
availability in a publicly-responsible manner.").To avoid excessive 
private-sector stifling of free speech, Berman suggests that either the 
market must provide significant meaningful choices or Congress must 
regulate.See Taylor, supra note 33, at 4.
 
[323]†† See Oldenburg, The_Law, supra note 45, at E5 (quoting Lance Rose).
In fact some commentators have suggested that contracts and not statutes 
should currently be the primary way to govern computer communications.
See, e.g., Johnson & Marks, supra note 88.
 
††††††† However, the formation of an industry group could restrict users' 
power to contract freely."[T]he most comprehensive censorship [in 
broadcasting] . . . . consists of elaborate systems of `self-regulation' 
which the broadcast industry imposes on itself . . . ."Tribe, American 
Constitutional Law, supra note 41, at 1002-03 n.35; see Pool, supra note 
18, at 121 (positing that the initial censorship in radio broadcasting 
was driven by the attitude "censor ourselves so the government will 
not"); cf. Charles, supra note 125, at 149 (arguing that sysops could 
avoid court intervention by forming an industry group to develop 
industry-wide rules).In fact, in 1984, the New York Sysops 
Association, a BBS industry group, pressured sysops to restrict the use 
of BBSs for illegal activity.See McGill, supra note 6, at B5; see also 
Kahn, supra note 168, at 17-18 (describing the standards for sysops 
articulated by a BBS user group).
 
††††††† However, even if industry-wide standards emerge, this should not 
override the right of parties to form enforceable contracts in 
cyberspace.In fact, robust contract law is an essential component of a 
properly functioning free market.Perritt, Dispute_Resolution, supra 
note 274. However, sysops might standardize contracts of adhesion, which 
bind users to statements that appear on the screen for a few seconds and 
provide one-way protection for the sysop only.See McDaniel, supra note 
7, at 837-38; see_also Di Lello, supra note 28, at 232 (arguing that 
Prodigy's contract is adhesive).These contracts should be voidable 
just as they would be in physical space.
 
[324]†† Some commentators argue that sysop liability should be exclusively 
governed by the user/sysop contract.See, e.g., Johnson & Marks, supra 
note 88; Perritt, Dispute_Resolution, supra note 274, at 396-97 
(proposing a statute where, if sysops post "Terms of Service," they 
shall not be liable to "any person" for injury caused by the users); 
Cutrera, Computer_Networks, supra note 16, at 582-83.This is 
unrealistic, as there always will be cases where the contract is silent 
on the key issue or where no contract exists.More importantly, this 
could lead to a contractual version of Prodigy's current approach of 
exercising editorial control, but absolving itself of all liability for 
its actions.As noted supra in the text accompanying note 279, this 
distorts the free market by uncoupling Prodigy's private costs from the 
implicit social costs of its actions.Therefore, while contractual 
allocations are desirable and should be encouraged, courts should 
disallow provisions that, based on existing constitutional 
jurisprudence, do not properly allocate social costs.
 
[325]†† See_supra part IV.B. 
[326]†† See Perritt, Tort_Liability, supra note 126, at 137-38 (market 
competition achieves all policy goals); Kapor, supra note 22, at 162 
("[M]arket competition is the most efficient means of ensuring that 
needs of network users will be met."); cf. Moore, 1st_Amendment, supra 
note 34, at 13 (arguing that if users want "uninhibited, titillating 
conversation," they can subscribe to BBSs other than Prodigy). 
 
[327]†† Government regulation of media is a last recourse.Pool, supra 
note 18, at 246; see Kapor, supra note 22, at 162 (seeking to limit 
government subsidization or regulation because such intervention can 
lead to content-based discrimination).
 
[328]†† See supra text accompanying notes 10-15; see_also Johnson & Marks, 
supra note 88, at 504 ("The ease with which sysops can develop a system, 
and the relative ease with which consumers can access the service, are 
leading to a drastic increase in both the number of systems available to 
the consumers and in the usage of such systems."); Cutrera, 
Computer_Networks, supra note 16, at 573 ("The cost of starting a 
bulletin board is so low that a thriving, competitive market is 
developing.") (footnote omitted); Naughton, supra note 19, at 434-35. 
However there are some transaction costs that may pervert the free 
market.See Perritt, Dispute_Resolution, supra note 274, at 357 (citing 
when there is "significant detrimental reliance on the network's service 
terms");_see_also Richard Core, Prodigy_Readmits_Foe_of_Shock_Jock, L.A. 
Times, Oct. 2, 1993, Orange County edition, at B4 (reporting that a 
Prodigy user who was kicked off the system for personal attacks against 
Howard Stern sued Prodigy in small claims court for the costs of 
switching to another BBS).While the large numbers of unsubscribed 
potential customers keeps pressure on BBSs, as the market becomes 
significantly more mature, these switching costs may hinder the vitality 
of the free market.
 
[329]†† See Tribe, American Constitutional Law, supra note 41, at 1002-03 
n.35 (noting that advertising revenues engender adherence to 
broadcasters' self-imposed censorship guidelines in order to keep 
Nielsen ratings high and to avoid offending advertisers).
 
[330]†† Prodigy apparently has failed to raise significant revenues from 
its advertisers, however, and has changed its pricing structure to 
derive more revenues (and a larger percentage of revenues) from users.
See Kathleen Creighton, The_End_of_BBSing_on_Prodigy?, Microtimes, May 
31, 1993, at 114, 186.
 
[331]†† See Perritt, Tort_Liability, supra note 126, at 134 (arguing that 
private electronic networks should be subject to mandatory access only 
if the network has a monopoly position that precludes access); see_also 
Miller, supra note 144, at 1196.
 
††††††† The idea that individual BBSs command market power is not 
inconceivable.See Di Lello, supra note 28, at 245-46 (presuming that 
Prodigy, and its censorship model, will dominate the market).But_see 
Harmon, Price_War, supra note 60, at D2 (noting its significant 
financial problems, some have speculated that Prodigy will not survive).
 
††††††† However, the Internet is consolidating market power.Because the 
Internet is the largest and most global network, users are consolidating 
on BBSs that connect to the Internet.See Eckhouse, supra note 70, at 
C1 (describing the growth of the Internet and noting that "[h]aving an 
Internet address . . . on one's business card has become a badge of 
honor"); Lazzareschi, Wired, supra note 69, at D1 ("An address on the 
Internet is the latest gotta-have status symbol in corporate America.").
The Internet's consolidation is not surprising given that electronic 
networks have both economies of scale and scope.See Perritt, 
Tort_Liability, supra note 126, at 142. 
 
[332]†† Laurence Tribe has argued that the size of some electronic 
networks has created "virtual `governments'" that create their own 
access policies and operate internationally.Oldenburg, The_Law, supra 
note 45, at E5.Therefore, these networks "may be outgrowing their 
private status and ripening for regulation."Id.; see Di Lello, supra 
note 28, at 231, 241 (arguing that "the [present] danger of market power 
and monopoly are considerable" and arguing for federal regulation of 
commercial BBSs); Perritt, Tort_Liability, supra note 126, at 149 
(arguing that the FCC should begin an inquiry into network denials of 
access). 
 
[333]†† See Naughton, supra note 19, at 434-35 & n.150 (arguing that if 
the market becomes concentrated, BBSs should be considered under the 
cases allowing users the right to access private property). 
 
 
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