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 SmithĘand 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_PartnersŃOr_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.Ę2 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, and providing 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 irrelevantŃor at least impossible to take very seriouslyŃin 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., JuneĘ2, 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 noteĘ3, 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.Ęv.ĘCompuServe, 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 noteĘ3, 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:
ˇ 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).
ˇ 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.
ˇ "[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 .Ę.Ę. 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,ĘJ., 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 noteĘ26, 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, MayĘ31, 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 naivetŽ 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 noteĘ1, 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 liableŃa 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 noteĘ36,
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,
JulyĘ20, 1993, at 24, 25 [hereinafter Magid, Cyberspace!] ("The WELL also encourages its members to get togetherŃin 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 CaseŃ
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).
[end]