Date: Fri, 30 Sep 1994 07:58:58 -0500 (CDT)
From: David Loundy <[email protected]>
To: David Loundy <[email protected]>
Subject: Computer Information Systems Law


Title           :  E-Law 2.0: Computer Information Systems Law and System
               :  Operator Liability Revisited
Author          :  David J. Loundy ([email protected])
Language        :  English
Keywords        :  Computer information systems, copyright, hacking,
               :  BBS, obscenity, pornography, defamation,
               :  Cyberspace
Abstract        :  The article examines the current regulatory
structure in the United States governing some of the "Empires of
Cyberspace" such as electronic bulletin board systems (BBSs),
electronic databases and file servers.  The author draws analogies
between these computer information systems and a number of the more
"traditional" communications media, such as print publishers, and
examines the issues which are pertinent to these media, such as
defamation (and related constitutional protection of defamatory
"speech" on these electronic fora) and violation of copyright, as
they apply to computer electronic systems.  The article also
discusses the liability of the operators/administrators of these
systems  ("Sysops") in this context, and includes an examination of
the relevant legislation.  The author outlines the difficulties
involved in applying current regulatory standards to electronic
publishing and Cyberspace in general, and contends that, although
many of the current laws will work well if adapted to computer
information systems, the creators of the law - judges, juries,
lawyers and legislators - need to have an adequate understanding of
the technology relevant to computer systems if the laws are to
effectively regulate such a rapidly changing area as this, and not
to lag behind.
File Name       :  loundy.txt
File Size       :  220 KB
File Type       :  Document
File Format     :  ASCII
URL
gopher://infolib.murdoch.edu.au:70/00/.ftp/pub/subj/law/jnl/elaw/refereed/
loundy.txt
ftp://infolib.murdoch.edu.au/pub/subj/law/jnl/elaw/refereed/loundy.txt

***********************************************************************

E-LAW 2.0: COMPUTER INFORMATION SYSTEMS LAW AND SYSTEM OPERATOR LIABILITY
REVISITED[+]

David J. Loundy[*]

TABLE OF CONTENTS

I.   Introduction

II.  Computer Information Systems Defined
A.   Bulletin Board Systems
B.   Teletext and Videotex or Videotext
C.   Information Distribution Systems
D.   Networks

III. Issues Involved

IV.  Legal Analogies

V.   Current Regulatory Environment
A.   Defamation
B.   Speech Advocating Lawless Action
C.   Fighting Words
D.   Child Pornography
E.   Computer Crime
F.   Computer Fraud
G.   Unauthorized Use of Communications Services
H.   Viruses
I.   Protection From Hackers

VI.  Privacy
A.   Pre-Electronic Communication Privacy Act of 1986
B.   Electronic Communications Privacy Act of 1986
C.   Access to Stored Communications
D.   An Apparent Exception for Federal Records
E.   Privacy Protection Act of 1980

VII. Obscene and Indecent Material
A.   Obscenity
B.   Indecent Speech

VIII.     Copyright Issues
A.   Basics of Copyrights
B.   Copyrighted Text
C.   Copyrighted Software
D.   Copyrighted Pictures
E.   Copyrighted Sound

IX.  Liability for Computer Information System Content
A.   Information System as Press
B.   Information System as Republisher/Disseminator
C.   Information System as Common Carrier
D.   Information System as Traditional Mail
E.   Information System as Traditional Public Forum
F.   Information System as Traditional Bulletin Board
G.   Information System as Broadcaster

X.  Suggestions for Regulation


I.   INTRODUCTION

"Over the last 50 years, the people of the developed world have begun to
cross into a landscape unlike any which humanity has experienced before.
It is a region without physical shape or form.  It exists, like a standing
wave, in the vast web of our electronic communication systems.  It
consists of electron states, microwaves, magnetic fields, light pulses and
thought itself."...

"It is familiar to most people as the "place" in which a long-distance
telephone conversation takes place.  But it is also the repository for all
digital or electronically transferred information, and, as such, it is the
venue for most of what is now commerce, industry, and broad-scale human
interaction.  William Gibson called this Platonic realm "Cyberspace," a
name which has some currency among its present inhabitants."...

"Whatever it is eventually called, it is the homeland of the information
Age, the place where the future is destined to dwell."[1]

"Computer information systems," as the term is used in this paper, refers
to a variety of computer services that, together, make up "Cyberspace."
Cyberspace is the realm of digital data.  Its shores and rivers are the
computer memories and telephone networks that connect computers all over
the world.  Cyberspace is a hidden universe behind the automatic teller
machines, telephones, and WESTLAW terminals which many of us take for
granted.  It is also a way for computer users all over the world to
interact with each other instantaneously.  At ever increasing rates,
people are beginning to see the advantages of this new electronic medium
and incorporate travels into Cyberspace as a regular part of their
lives.[2] However, the growth of electronic communication and data
manipulation has not been matched by an equal growth in understanding on
the part of legislatures, the judiciary, or the bar.

This paper examines the current regulatory structure in the United States
governing a few of the "Empires of Cyberspace," such as bulletin board
systems, electronic databases, file servers, networks and the like.
Different legal analogies that may apply will be illustrated, and some of
their strengths, weaknesses and alternatives will be analyzed.  We will
begin by looking at different types of computer information systems, and
then the major legal issues surrounding computer information systems will
be surveyed in brief.[3] Next, the different legal analogies which could
be applied to computer information systems will be examined.  These
different analogies provide an understanding of how courts have seen
various communication technologies, and how more traditional technologies
are similar to computer information systems.  Liability for improper
activities - both defining what is improper and who can be held
responsible - has been determined by the analogy the courts decide to
apply.  Finally, an evaluation will be made of where the law affecting
computer information systems now stands, and how it should be developed.


II.  COMPUTER INFORMATION SYSTEMS DEFINED

A.  Bulletin Board Systems

Often referred to simply as a BBS, a computer bulletin board system is the
computerized equivalent to the bulletin boards commonly found in the
workplace, schools and the like.  Instead of hanging on a wall covered
with notes pinned up with thumbtacks, computer bulletin boards exist
inside the memory of a computer system.[4] Rather than walking up to a
bulletin board and reading notes other people have left or sticking up
notes of his or her own, the BBS user connects his or her personal
computer to the " host" computer,[5] usually via a telephone line.[6] Once
connected to the host computer, a user can read the notes (also referred
to as messages or posts) of other users or type in his or her own messages
to be read by other users.  These Computer Bulletin Boards are referred to
as "systems" because they often provide additional services or several
separate "areas" for messages related to different topics.[7]

Bulletin board systems can be classified in a number of ways.  Some are
commercial BBSs run for profit, and some provide free access.  One way to
classify them is by the number of users the BBS can support
simultaneously.  The majority of BBSs run by hobbyists are single-user
boards which means they can only be used by one person at a time.  But
some bulletin boards are able to support many users at the same time,
often hundreds of users at once.  Another way to differentiate between
BBSs is by means of access: some are available only by direct dial, other
BBSs are available through a network.[8]

There are a number of different things bulletin board systems allow one to
do.  As their name implies, their primary function is as a place to post
messages and read messages posted by others.  Whatever the user's
interests, there is probably a BBS to cat er to it.  However, like any
communications forum, this can raise some serious First Amendment concerns
over some of the potential uses, such as availability of pornographic
material, defamation, etc.

Another use for bulletin board systems is the sending of electronic mail,
or E-Mail, as it is commonly called.  Electronic mail is a message that is
sent from one computer user to another, occurring either between users on
the same computer, or between users on different computers connected
together in a network.  Electronic mail is different from regular mail in
three important ways.  First, E-mail is provided by private parties and,
thus, is not subject to government control under the postal laws.[9]
However, it is under the control of the System Operator (often called the
SYSOP) of the bulletin board system.  This gives rise to the second issue
- privacy.  Unlike the U.S. mail, electronic mail is almost always
examinable by someone other than the sender and the receiver.[10] By
necessity, the communications provider may not only have access to all
mail sent through the computer system, but may also have to keep copies
(or "backups") in case of system failure.[11] Third, E-mail is interactive
in nature and can involve almost instantaneous communication, more like a
telephone than regular mail,[12] so much so that regular users of E-mail
often refer to the U.S. mail as "snail mail."

Another service many bulletin board systems make available is the
uploading and downloading of files.[13] A BBS providing a section of files
for its users to download, can distribute almost any type of computer
file.  This may consist of text, software, pictures, or even sounds.
Multiple user bulletin board systems are also frequently used for their
"chat" features, allowing a user to talk to other users who are on-line
(connected to the host computer) at the same time.[14]

B.  Teletext and Videotex or Videotext

Another kind of computer information system is Teletext,[15] a one-way
distribution system, generally run over a cable television system.[16] It
sends out a continually repeating set of information screens.[17] By using
a decoder, a user can select which screen he or she wants.[18] The decoder
then "grabs" the requested screen and displays it as it cycles by.[19]
Since Teletext is only a one-way service, a user can only read the
information the service has available for his or her reading.  There is no
way for the user to contribute his or her own input to the system.

More advanced than Teletext is videotex [20] (often called videotext).[21]
Videotex is a two-way service which usually uses a personal computer as a
terminal.[22] When provided via a telephone, videotex is basically the
same as any other computer information system discussed in this paper, so
the terms "videotex" and "computer information system" are used
synonymously for ease of discussion.

C.  Information Distribution Systems

Computers are used frequently for distributing information of various
types.  E-Mail, mentioned above, is one type of information distributed
among users of a computer system or between computers connected to a
common network.  Another common type of information distribution system is
the database.[23] These services allow the user to enter a variety of
"search terms" to look through the information the service has
collected.[24]

Another type of information distribution system is the "file server."[25]
A file server (or just "server") is a storage device, such as a disk drive
or CD ROM, hooked up to a computer network, which lets any computer
connected to it access the files contained on the server.[26] These files
may consist of virtually anything, ranging from software to news articles
distributed by a "news server."  While file servers may be found as part
of another computer information system, the server itself is used only f
or storing and retrieving files.[27]

Other network based information distribution services include the menu
driven "gopher" server, WAIS (Wide Area Information Server), and the World
Wide Web (WWW).  A gopher server provides a standard interface to access
diverse information sources on different parts of a network [28].  WAIS is
a natural language search system for searching through diverse forms of
information stored in a large database or across computer networks.[29]
The World Wide Web is another method of accessing material on a computer
network which works by following hypertext links.[30] Hypertext links are,
for example, terms in a document which when selected call up other
documents, (or sounds, pictures, or other materials) that are related to
the selected term.[31] From these relate d documents, links can be
followed to yet more documents related to the second set, and so on.

This paper will focus on file servers and databases, as the other network
services mentioned are largely just advanced forms of accessing
information stored on a file server or in a database.

D.  Networks

A network is a series of computers, connected often by special types of
telephone wires.[32] Many networks are conduits used to call up a remote
computer in order to make use of that computer's resources from a remote
personal computer or terminal.[33] Many networks allow a much broader
range of uses such as sending E-mail and more interactive forms of
communication between machines,[34] transferring computer files, and also
providing the same remote access and use that the simpler networks
allow.[35]

Some of these networks are so sophisticated and far-reaching that they
provide an ideal communications medium for the computer literate.  They
can be used not only for personal E-mail, but they are also used for a
number of special kinds of electronic publishing.[36]


III. ISSUES INVOLVED

Computer information systems present a whole slew of legal issues.
Whenever a new form of communication emerges, there is a concern that,
along with legitimate users will come some abusers.  Just as a bulletin
board system can be used for political debate, it can also be used as an
outlet for defamation.  How should this be treated?  Who is liable?  Is it
the user who originally posted the defamation, or the system operator who
controls and provides the forum?  Currently, these are hotly debated
issues.

Whenever a new communications medium develops, there is a risk that it
will be used to deliver material which society frowns upon, such as
obscene or indecent data.  Computer information systems allow the
distribution of this material in the forms of text , picture, and sound.

One major use for computer information systems is transferring files; in
fact, that is the whole purpose for services such as file servers.  Legal
issues arise when these transfers contain copyrighted material for
example, either text, pictures, sounds, or computer software which
violates copyright law.

A growing threat to computer users is the computer virus.  The Computer
Virus Industry Association reports that in 1988, nearly 90,000 personal
computers were affected by computer viruses.[37] Viruses can be
distributed via computer information systems, both consciously and
unconsciously.  They can be put into a system by someone intending to
cause harm, or they can be innocently transferred by a user who has an
infected disk.[38]

Privacy is another issue for users and system operators of computer
information systems.  With society becoming increasingly computerized,
people need to be made aware of how secure their stored data and
electronic mail really is.  The Fourth Amendment to the United States
Constitution reads:  "The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched and the persons or things to be
seized."[39] Yet, how does this Amendment apply to Cyberspace?  Cyberspace
is a vague, ethereal place with no readily identifiable boundaries, wh ere
a "seizure" may not result in the loss of anything tangible and may not
even be noticed.

In all of these cases, questions arise as to who is liable.  If SYSOPs are
not made aware of the legal issues they may face in running a computer
system, they may either fail to reduce or eliminate harm when it is within
their power to do so, or they may unnecessarily restrict the services they
provide out of fear of liability.


IV.  LEGAL ANALOGIES

Liability for illegal activities in Cyberspace is affected by how the
particular computer information service is viewed.  Some services allow
one entity to deliver its message to a large number of receivers.  In this
regard the service acts like a publish er.  Some theorists already refer
to computer networks as "the printing presses of the 21st century."[40]
Many publishers use BBSs to supplement their printed editions either by
providing additional stories or by providing computer information services
on a BBS.[41] In fact, more than 2,700 newspapers are experimenting with
some sort of electronic venture.[42] However, other services are more like
common carriers than publishers.  Networks just pass data from one
computer to another -they do not gather an d edit data.  Still other
services are more akin to broadcasting than common carriage.  This
similarity exists because computer services can be provided by sending
data over the airwaves, thus providing the same services available from
computers networked together by wire.  Computer services can also be used
to allow many entities to deliver their messages simultaneously to many
other entities in a public debate style setting.  In this way, computer
information systems are likened to traditional public fora, such as street
corners or community bulletin boards.

None of these analogies is especially useful taken individually.  Each is
accurate in describing some situations, but lacking in describing others.
There is a tendency to look at a service and give it a label, and then
regulate it based on its label.  This labelling works well in some
instances; but, when a service has a number of communication options, such
as a BBS that provides a series of bulletin boards, EPmail, and a chat
feature, and that makes available electronic periodicals in the BBS's file
sys tem, one analogy is insufficient.  To regulate computer information
systems properly, lawyers, judges, and juries need to understand computer
information systems and how they work.


V.  CURRENT REGULATORY ENVIRONMENT

The current regulatory environment governing computer information systems
is somewhat confused because of the multiplicity of the means which can be
employed in regulating a wide variety of dissimilar services.  The Federal
Communications Commission, which regulates broadcasters and common
carriers providing electronic data, considers computer information systems
to be "enhanced" services, and, therefore, computer information systems
are not regulated by the F.C.C.[43] However, some specific aspects of
computer information systems are governed by existing case law and
statutes.

Let us start with a hypothetical situation.  The Data Playground is a
large, full service bulletin board system.  In the BBS's message system,
one of the fora, called the Sewer, is set aside for the users as a place
to blow off some steam, and express their anger at whatever they feel like
complaining about. Samantha Sysop, the bulletin board operator, feels such
a forum is necessary.  She feels that without it, frustrated users will
leave unpleasant messages in the other fora which are meant for rational
discussions of serious topics.  By providing the Sewer, users who get
upset with other users or with life in general can "take their problem to
the Sewer."  Because she is unsure of any liability for posts in the Sewer
which get too heated, she posts a disclaimer, which can be seen the first
time a user posts in or reads the Sewer, which states that the SYSOP
disclaims all liability for anything that is said in the Sewer.  Samantha
Sysop reads the posts left in the Sewer, and once in a while posts a mess
age there herself.  One day a user, Sam Slammer, leaves the following
message in the Sewer:

"From: Sam Slammer

I am sick and tired of logging onto this damned bulletin board and seeing
that damn user Dora Defamed here.  She is always here.  However, at least
if she is here it means that she is not still at home beating her young
daughter.  In fact, her daughter is too good looking to be stuck with a
mother like Dora.  She should be stuck with someone like me, after all, I
really like young girls, and having sex with her would be a real catch.
(If anyone would like to see the films of the last little girl I had sex
with, leave me mail) Anyway, Dora: it is a wonder that kid isn't brain
damaged, seeing as you are so badly warped.  I would really like to do
society a favor and kill you before you get the chance to beat any more
children.  In fact, if anyone is near the computer where Dora is connected
to this BBS from, I urge you to go over to her and kill her.  Do us all a
favor."

This hypothetical post raises a number of issues.  In one post there is
potentially defamatory speech, speech advocating lawless action, fighting
words, and an admission and solicitation of child pornography.

A.  Defamation

Defamation can occur on a computer information system in a number of
forms: posts on a bulletin board system, like the one in the Sam Slammer
hypothetical can be defamatory, as can electronic periodicals; file
servers and databases can distribute defamatory material; E-mail can
contain defamatory statements.  Defamation can even be distributed in the
form of a scanned photograph.[44] But what is defamation, and what risks
and obligations does it present to a system operator?

Defamation occurs in two forms - libel and slander.  The difference
between these two forms of defamation is often not apparent, based on a
common sense approach, rather it is solely a matter of form and "no
respectable authority has ever attempted to justify the distinction on
principle."[45] With the rise of new forms of technology which confuse the
distinction between libel and slander, many courts have advocated the
elimination of the distinction.[46] Speech on a computer information
system has more of the characteristics of libel than slander.  Most courts
have argued, based on libel cases, that messages appearing on computer
information systems are libel and not slander; often judges used the
generic term "defamation."[47]

Slander is publication in a transitory form - speech, for example, is
slander.[48] Libel, on the other hand, is embodied in a physical, longer
lasting form, or "by any other form of communication that has the
potentially harmful qualities characteristic of written or printed
words."[49] Written or printed words are considered more harmful than
spoken words because they are deemed more premeditated and deliberate.
For example, Sam Slammer had to sit down at a keyboard and compose his
post; it is not a matter of a comment carelessly made in a fit of anger.
Printed words also last longer, because they are put in a form in which
they can serve to remind auditors of the defamation, while the spoken word
is gone once uttered.[50] Had Sam Slammer accused Dora Defamed of child
abuse in person, the statement would be fleeting; on the BBS it is stored
for viewing by any user who decides to read what posts have been left in
the Sewer.  For days, weeks, or months people can read Sam's statement
unless Samantha Sysop removes it.  Any user can save a copy of the post on
his or her own computer, and can distribute it, verbatim, to anyone else,
with Sam's name right at the top.  Text on a computer screen shares more
traits with libel than with slander.  Computer text appears as printed
words, and it is often more premeditated than spoken words.  Computer text
can be called up off of a disk as many times as is needed.  The message
can even be printed out, and the text can be more widely circulated than
the same words wh en they are spoken.  In its barest form, libel is the
publication of a false, defamatory and unprivileged statement to a third
person.[51] "Defamatory" communication is defined as communication that
tends to harm the reputation of another so "as to lower him [or her] in
the estimation of the community or to deter third persons from associating
or dealing with him [or her]."[52] Actual harm to reputation is not
necessary for a statement to be defamatory, and the statement need not
actually result in a third person's refusal to deal with the object of the
statement; rather the words used must merely be likely to have such an
effect.[53] For this reason, if the person defamed already looks so bad in
the eyes of the community that his or her reputation could not be made
worse, or if the statements are made by someone who has no credibility,
there will not be a strong case for defamation.[54] "Community" does not
refer to the entire community, but rather to a "substantial and
respectable minority" of the community.[55] Even more specifically, the
community is not necessarily seen as the community at large, but rather as
the "relevant" community.[56] This means, for example, that one could post
a defamatory message on a bulletin board system defaming another user and
be subject to a libel suit, even though only other BBS users see the post.

In the hypothetical, we don't know whether Sam's accusations of child
beating are true.  If they are, Sam would have a defense against a charge
of libel.  The comment is being "published" to any other BBS user who
reads the message Sam has left publicly, and as already discussed, the
computer message has the same harmful qualities as a message written and
distributed on paper.  In fact, Sam's comments are potentially reaching a
larger audience than Sam could have reached by simply posting a notice on
a bulletin board in the local computer center.  The remark about child
abuse has the potential for lowering people's estimation of Dora, and
could easily encourage people to avoid associating with her.  Even if
people do not avoid Dora because of the remark, in a defamation suit it is
sufficient that the statements have the potential to have that effect, and
here they clearly do.

The community at issue here is not the world at large, but rather a
substantial and respectable minority of the "relevant" community.
Bulletin board systems can give rise to a close knit group of users.
Here, she is being attacked in a public forum in front of the whole
community of users.  This raises another issue: Can a person sue for
defamation that occurred to a fictitious name or a persona that appears on
a computer?  If "Dora Defamed" was not the BBS user's real name, could the
real user sue Sam Slammer for defaming the user's "Dora" persona on the
BBS?  In a bulletin board community, unless users know each other in real
life away from the computer, the only impression one user gets of another
is from how he or she appears on the computer screen.  The user in real
life may not even be the same sex as the person he or she portrays on the
bulletin board system.  On the BBS, people only know and associate with
Dora; not the real person behind the name.  When Dora is defamed, in
essence, so is the person behind the computer representation of Dora.  The
user is defamed in the eyes of the users behind all of the other BBS
personalities that read Sam's post.  It should not matter if Dora Defamed
is not the user's real identity-a defamation action should still be
allowed.  The last issue is whether Dora is being defamed in front of at
least a "substantial and respectable" minority of the relevant community.
This hinges on who reads the Sewer forum.  If the Sewer is widely read, a
defamation suit will be more likely to succeed than if the Sewer is
largely ignored.

There is one case, from Australia, which held that speech over a computer
"bulletin board" was actionable in a libel suit.[57] This case was a
default judgment resulting from messages sent over the DIALx science
anthropology computer bulletin board, a discussion group available world
wide and subscribed to by some 23,000 anthropology students and
academics.[58] The court found that a number of the statements made were
capable of a defamatory meaning, the statements were published throughout
academic circ les around the world, the statements were likely to be
further repeated, gaining in impact in the process, and that the
statements would have a detrimental impact on the plaintiff's standing in
the international academic circles in which his reputation wa s based.[59]
Due to his reputational and psychological injury, the court found he was
deserving of an award of AU$40,000.[60]

In the United States, another case is currently being pressed claiming
defamation via computer information system.  It involves remarks made over
the Prodigy service on a financial discussion group.[61] In this case,
Peter DeNigris is being sued by MEDphone over disparaging remarks he made
regarding MEDphone and its products in approximately two dozen notes
posted over the course of three months [62].

Because defamation involves speech, defamation raises serious First
Amendment concerns.  Just because speech is defamatory, does not mean that
it is left unprotected.  Analysis is based on the party or parties privy
to the defamation.  In our hypothetical , the relevant parties are Sam and
Dora. Constitutional protection was first found for some types of
defamation in *New York Times v. Sullivan*.[63] This case involved an
advertisement taken out in a newspaper expressing grievances with the
treatment of b lacks in Alabama.[64] An elected city commissioner sued,
claiming that the statements made in the advertisement defamed him and
that the advertisement contained some inaccuracies.[65] Justice Brennan
argued that the case should be considered "against the background of a
profound national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government
and public officials."[66] The court held that, because one of the main
purposes of the First Amendment was to preserve debate and critical
analysis of the affairs of elected officials, any censorship of that
speech would be detrimental to society.[67] Because of this, the court
said libel laws should be relaxed where the speech pertains to the affairs
of elected officials.[68] Likewise, due to the importance of being able to
examine the worthiness of public officials, the court felt that speech
critical of officials should also be less open to attack on grounds of
falsity.[69] False speech that is made known can be investigated, but true
speech that the critic worries may be false and may result in a libel
suit, will remain undisseminated.[70] Because of the importance of
monitoring elected officials, the court held that allowing speech that
would aid in the monitoring of elected officials' conduct was more
important than protecting officials from potential harm resulting from
defamatory speech.[71] A balance between o pen debate and freedom from
defamation was struck by establishing an "actual malice" standard of
liability for the publisher.[72] "Actual malice" is a term of art with a
specific meaning in the publishing context. As the court stated:

"The constitutional guarantees require, we think, a federal rule that
prohibits a public official from recovering damages for a defamatory
falsehood relating to his [or her] official conduct unless he [or she]
proves that the statement was made with "actual malice" -- that is, with
knowledge that it was false or with reckless disregard of whether it was
false or not."[73]

This standard applies to electronic publishing as clearly as it applies to
print or speech.  SYSOPs and users are freed from liability for defamation
carried on computer information systems, as it applies to public
officials, so long as the material is no t allowed to remain when the
SYSOP or user knows of its falsity or has reckless disregard for its
truth. Dora, as far as we know, is not a public official.  If Dora were a
persona on the bulletin board system, and not the user's actual name, and
if there is no way for the average user to associate the persona with the
real person, then even if "Dora" were defamed and the real user *was* a
public official, it would be questionable as to whether the public
official privilege would apply.  In this situation, the rationale behind
the privilege would not be relevant to the actual facts.  Statements about
Dora do not reflect on the actual user's abilities to perform his or her
official job.  If, however, the public official can be linked to the Dora
persona, then the basis for privileging statements about public officials
does apply to the situation, and Sam Slammer's statement may be
privileged, presuming no actual malice was intended.

The *New York Times* standard was expanded in two important cases, *Curtis
Publishing Co. v. Butts*,[74] and its companion case, *Associated Press v.
Walker*.[75] Both cases involved defamation of people who did not fit
under the "public official" heading , but who were "public figures."  As
discussed in the concurrence, some people, even though they are not part
of the government, are nonetheless sufficiently influential to affect
matters of important public concern.[76] The Court subsequently has
defined public figures as "[t]hose who, by reason of the notoriety of
their achievements or the vigor and success with which they seek the
public's attention, are properly classed as public figures ... ."[77]
Because these people have influence in our governance , just as public
officials do, the same "actual malice" standard should apply to such
public figures.[78] Here, as in the case of public officials, we don't
really know who Dora Defamed is.  If she is a public figure, Sam's child
abuse claim may be privileged; if she is not, he may be liable.

Another major case defining the constitutional protection of defamation is
*Gertz v. Robert Welch, Inc*.[79] In *Gertz*, a magazine published an
article accusing a lawyer of being a "Communist-fronter" and a
"Marxist."[80] The article accused the plaintiff of plotting against the
police.[81] The plaintiff was a lawyer who played a role in the trial of a
police officer who was charged with shooting a boy.[82] The lawyer sued
for defamation.  The publisher's defense was based on another exception to
defamation law that the court had carved out in *Rosenbloom v. Metromedia,
Inc*.[83] *Rosenbloom* extended the *New York Times* standard to include
not just public officials and public figures, but also private figures who
were actively involved in matters of public concern.[84] The *Gertz* court
held that this expansion went too far,[85] and the court overruled
*Rosenbloom*.[86] The court in *Gertz* acknowledged that the press should
not be held strictly liable for false factual assertions where matters of
public interest were concerned.[87] Strict liability would serve to chill
the publisher's speech by leading to self censorship where facts are in
doubt.[88] This First Amendment interest was balanced against the
individual's interest in being compensated for defamatory falsehood.[89]
The court reasoned that private individuals were deserving of more
protection than public officials and public figures because private
persons do not have the same access to channels of communication, and they
have not voluntarily exposed themselves to the public spotlight.[90] The
court held that "so long as they do not impose liability without fault,
the States may define for themselves the appropriate standard of liability
for a publisher or broadcaster of defamatory falsehood injurious to a
private individual."[91] Courts have not made it very difficult for
private people to sue for defamation where there is no matter of public
concern at issue; in one of the more famous defamation cases, *Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc.*,[92] Dun & Bradstreet was
held liable for a credit report made from inaccurate records contained in
a database.[93] The court argued that statements on matters of no public
concern, especially when solely motivated by profit, did not deserve
sufficient First Amendment protection to outweigh the individual's
interest in suing for defamation.[94]

In our hypothetical, we must look to the subject of Sam Slammer's
defamatory comment to see if it is a matter of public concern.  Sam is
accusing Dora of "beating her kid."  While child abuse may be a matter of
public concern, whether Dora is such an abuser is not likely a matter of
public concern.  Just as people's inabilities to pay their debts can be a
matter of public concern, as was found in the *Dun & Bradstreet* case,[95]
the ability of one particular company to pay its debts is not necessarily
a matter of public concern.  Child abuse is not the issue in this
hypothetical; Dora Defamed's potential child abuse is the issue.

The press has been found to have other privileges as a result of the kind
of news the press is reporting.  One such privilege, is for fair report,
or "neutral reportage,"[96] (which is not an issue in our hypothetical).
This isolates a reporter from defamatory statements that he or she is
reporting.[97] The reasoning behind this is that the fact that some
statements were made is a matter of public interest, especially around
sensitive issues, and therefore the public interest is best served by
allowing t he press to inform people of these statements without the risk
of liability.[98] Neutral reporting is privileged, but if the reporter is
found not to have lived up to the "actual malice" standard (knowing or
careless disregard for the truth), his or her report will not be
considered neutral and therefore the fair report privilege will not apply.

Statements of opinion are also privileged.[99] Protection of opinion is,
of necessity, not absolute otherwise "a writer could escape liability ...
simply by using, explicitly or implicitly, the words `I think.'"[100] Sam
Slammer cannot defend himself by saying, "Well, I *think* Dora beats her
daughter."  The court in *Cianci v. New Times Publishing Co*.[101]
succinctly laid out the limits of the opinion privilege:

"(1) that a pejorative statement of opinion concerning a public figure
generally is constitutionally protected ... no matter how vigorously
expressed;
(2) that this principle applies even when the statement
includes a term which could refer to criminal conduct if the term
could not reasonably be so understood in context; but
(3) that the principle does not cover a charge which could reasonably
be understood as imputing specific criminal or other wrongful acts."[102]

In the hypothetical, Sam made an outright accusation that Dora Defamed
committed a criminal act.  Even if he had stated that he believes that she
beats her daughter, unless the statement is clearly one interpretable as
an opinion, he still is likely to be held liable for his remark.

In sum, what this means for computer information systems, whether speech
on a bulletin board, text in an electronic journal, or in any of the other
forms of electronic publication, is that liability may result if the
message is libelous.  It may not result in liability if the defamation
concerns public figures, public officials, or matters of public interest.
Communications that defame a user may not constitute defamation to the
community at large, but the statements may still give rise to liability if
i t lowers the opinion of the user in the eyes of the rest of the bulletin
board users.

B.  Speech Advocating Lawless Action

The First Amendment states that "Congress shall make no law ... abridging
the freedom of speech, or of the press."[103] The First Amendment is one
of the most important guarantees in the Bill of Rights, because speech is
essential for securing other right s.[104] While the right of free speech
has been challenged by the emergence of each new medium of communication,
the right of free speech still applies to the new forms of communication,
although it is, at times, more restrictive.[105] An example of such a
restriction is the regulation of radio and television by the Federal
Communications Commission.[106] The rationale for F.C.C. governance is
based on spectrum scarcity.  Currently, this is not a real issue with
computer information systems, but with the rise of packet radio and
wireless networks which transmit computer data through the airwaves,[107]
the F.C.C. may choose to regulate some aspects of computer information
systems.  Some people advocate that, with changes in technology,
distinctions between different forms of media, such as between electronic
and print media, should be eliminated; instead, one all-encompassing
standard should be used.[108] No matter what the standard employed, some
forms of speech are currently not allowed on the local street corner or on
the local computer screen.  In our Sam Slammer hypothetical, questions
arise as to whether his message contains some of this speech which is
inappropriate for public consumption.

One type of speech not permitted is advocacy of lawless action, as laid
out in *Brandenburg v. Ohio*.[109] The court in *Brandenburg* held that
the guarantees of free speech and free press do not forbid a state from
proscribing advocacy of the use of force or of law violation "where such
advocacy is directed to inciting or producing imminent lawless action and
is likely to incite or produce such action."[110] Sam threatened to kill
Dora, and he urged others to kill her as well.  An important distinction i
s made between mere advocacy and incitement to imminent lawless action
-the first is protected speech, while the second is not.  This distinction
is quite important, yet can be blurry, in a computer context.  On a
bulletin board system, for instance, messages may be read by a user weeks
after they have been posted.  It is hard to imagine such "stale" messages
as advocating *imminent* lawless action.  In our hypothetical, Sam
encourages anyone near the computer Dora is using to go kill her.  A user
who reads the post hours later, may no longer have the opportunity to take
the requested action, even if so inclined.  Dora may be, for example, at
home (beating her daughter?), and no longer at that computer.  The action
was advocated, but other users will not be incited to carry out the action
because the act would not be possible at the time.  An information system
with a chat feature, which allows users to talk nearly instantaneously to
one another, is, however, altogether different.  With such a "chat"
feature, it would be possible to make a *Brandenburg* incitement threat.

C.  Fighting Words

Another kind of speech not given First Amendment protection is "fighting
words."  Fighting words are "those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace.[111] In
*Chaplinsky v. State of New Hampshire*, the court held that fighting words
(as well as lewd, obscene, profane, and libelous language) "are no
essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality."[112] The
court further defined fighting words as words that have a direct tendency
to provoke acts of violence from the individual to whom the remarks are
addressed, as judged not by what the addressee believes, but rather by
what a common person of average intelligence would be provoked into
fighting.[113] A message posted on a bulletin board or sent by E-mail
could contain fighting words. Dora is being accused of being a child
abuser, and in the message someone offers to sexually abuse her young
daughter.  There is no imminence requirement in *Chaplinsky* as there is
in *Brandenburg*.[114] Fighting words can be considered delivered to the
addressee when the message is read.  Dora will become enraged when she
reads Sam's message.  When Sam left the message has little bearing on when
Dora will be ready to fight.  While it is hard to fight with the message
sender when he or she may not be nearby or even in the same country, that
does not preclude some forms of "fighting."  Of course, if the sender of
the fighting words is nearby, actual fighting could occur.  If the sender
of the message is on a computer network, an angered recipient could
"fight" by trying to tamper with or otherwise damage the sender's computer
account.  If Sam had written his post about Samantha Sysop instead of
Dora, he could find himself unable to access the bulletin board system, or
he may find that his copy of his master's thesis which he was word
processing is suddenly missing from his computer account.

A statutory example of the fighting words doctrine is the prohibition
against sending threats to kidnap, injure or extort anything from another
person.[115] For example, Section 875 (b) of the U.S. Code reads:

"(b) Whoever, with intent to extort from any person, firm
association, or corporation, any money or other thing of value,
transmits in interstate or foreign commerce any communication
containing any threat to kidnap any person or any threat to injure the
person of another, shall be fined not more than $5,000 or imprisoned
not more than twenty years, or both."[116]

This section was recently applied to convict a college freshman who sent
an E-mail message to President Clinton threatening that "One of these
days, I'm going to come to Washington and blow your little head off.  I
have a bunch of guns, I can do it."[117] The note also threatened Hillary
Rodham Clinton and the Clintons' daughter Chelsea.[118] The statutory
section used to convict the freshman in this case does not make any
distinctions between the means of transportation for the message.  As a
result, it can be easily applied to users of electronic mail.

It is possible that a more adventuresome prosecutor could employ another
statute in the case of threats made against the President.  Section 871,
which covers specifically threats against the President, Vice-President,
and certain other officers of the United States, states that:

"(a) Whoever knowingly and wilfully deposits for conveyance in the mail
or for delivery from any post office or by any letter carrier any
letter, paper, writing, print, missive, or document containing any
threat to take the life of, to kidnap, or to inflict bodily harm upon
the President of the United States . . . shall be fined not more than
$1,000 or imprisoned not more than five years, or both."[119]

If a computer network can be considered "any letter carrier" and an E-mail
message "any letter, writing, print, missive, or document," then this
statute may be applicable to E-mailed threats as well.

D.  Child Pornography

Other areas of content are regulated on computer information systems.  One
is child pornography. *New York v. Ferber*[120] held that states can
prohibit the depiction of minors engaged in sexual conduct. The *Ferber*
court gave five reasons for its holding.  First, the legislative judgment,
that using children as subjects of pornography could be harmful to their
physical and psychological well-being, easily passes muster under the
First Amendment.[121] Second, application of the *Miller* standard for
obscenity (discussed infra) is not a satisfactory solution to the problem
of child pornography.[122] Third, the financial gain involved in selling
and advertising child pornography provides incentive to produce such
material - and such activity is prohibited throughout the United
States.[123] Fourth, the value of permitting minors to perform/appear in
lewd exhibitions is negligible at best.[124] Finally, classifying child
pornography as a form of expression outside the protection of the First
Amendment is not incompatible with earlier court decisions.[125] The court
said, "[T]he distribution of photographs and films depicting sexual
activity by juveniles is intrinsically related to the sexual abuse of
children ..."[126] and is therefore within the state's interest and power
to prohibit.  The Federal government has explicitly addressed child
pornography as it pertains to computer communication.[127] Section 2252 of
Title 18 of the U.S. Code forbids knowing foreign or interstate
transportation or reception by any means including, for example, visual
depictions of minors engaged in sexually explicit conduct which have been
converted into a computer-readable form.[128] Recent international
investigations into illegal child-pornography distribution via computer
network have resulted in search warrants being issued to U.S. Customs
agents in at least 15 states.[129]

Pictures are easily converted into a computer-readable form.  Once in such
a form, they can be distributed, interstate or internationally, over a
computer information system.  Pictures are put into a computer by a
process called "scanning" or "digitizing. "[130] Scanning is accomplished
by dividing a picture up into little tiny elements called pixels.[131] The
equivalent can be seen by looking very closely at a television screen or
at a photograph printed in a newspaper.  The computer examines each of
these dots, or pixels, and measures its brightness; the computer does this
with every pixel.  The picture is then represented by a series of numbers
that correspond to the brightness and location of each pixel.  These
numbers can be stored as a file for access on a bulletin board system or
file server or can be transferred over a network.[132]

Computers do not differentiate between "innocuous" pictures and pictures
that are pornographic.  A piece of child pornography can be scanned and
distributed by file server, bulletin board, or through E-mail just like
any other computer file.  If Sam Slammer had received a response from
someone interested in seeing the pictures of the last time he had sex with
a child, the pictures could easily be scanned into a computer-readable
form and distributed over a BBS or computer network.  While a computer may
no t differentiate between subject matter of pictures, the law does.
Persons responsible for distributing child pornography could be
prosecuted, and such a suit could result in $50,000 or more in fines and
damages.[133] If Sam Slammer did try to distribute the pictures he made of
the last time he had sex with a minor, his distribution of those pictures
over a computer information system could result in a prosecution for child
abuse.

Another issue raised by section 2252 is possession of pornographic
material.  Anyone who "knowingly possesses 3 or more books, magazines,
periodicals, films, video tapes, or other matter which contain any visual
depiction [of child pornography] that has been mailed, or has been shipped
or transported in interstate or foreign commerce, or which was produced
using materials which have been mailed or so shipped or transported, by
means including computer"[134] can be fined and imprisoned for up to five
year s.[135] While the requirement of knowledge may insulate some computer
information systems such as networks, it clearly does not protect computer
users who knowingly traffic in pornographic material stored in computer
files.  Thus, if Sam were distributing pornographic pictures in and out of
his computer account, he could be charged under section 2252 with
transporting material used in child pornography.  He would probably need
to be caught with three pictures in his account at the time, but it is
likely t hat a prosecutor could ask a System Operator to look through any
back-ups of the computer data which was in Sam's account at an earlier
time.  Typically, a System Operator will make a backup copy of all of the
data stored on a computer system.  This is do ne so that if the computer
should malfunction, the information can be restored by use of this backup.
Backups are often kept for a while before being erased, in essence
freezing all of the users' accounts as they were at a time in the past.
If pictures were also found in the backups, a claim could be made that Sam
was in possession of these pictures as well.  This would be an easy claim
to make if Sam had the ability to ask the SYSOP to recover any of the
files that are on these back-ups, but which are no longer in his actual
account.  Based on the public policy against child pornography, it is
likely that an attempt would be made in order to hold Sam responsible for
the knowing possession of any files that were formerly in his account
which could still be recovered from the System Operator's backups of Sam's
data.  However, if such a claim were to be attempted, it would also need
to be shown that Sam knew of the accessibility of these backups, since the
statute requires the *knowing* possession of the pictures.[136] As to
Samantha Sysop's liability, unless she knew what was stored in Sam's
account, it is unlikely that she would be held liable for having child
pornography stored on her computer system.  Section 2252, as quoted above,
contains a knowledge requirement.  If Samantha Sysop did not know what was
in Sam's account, she would not meet that knowledge requirement.  If she
had reason to know that Sam had pictures of child pornography in his
account, but intentionally turned her back, she may be considered to have
constructive knowledge of the presence of the pornographic material on her
system, and therefore she could be charged with the knowing possession of
the material.  It is not likely to make a difference that the material is
in Sam's account; Sam's account is still on Samantha's computer system
which she is responsible for maintaining in a legal manner.

Child pornographers, or pedophiles, may use bulletin board systems and
E-mail for more than just storing and transporting pictures.  There has
been some publicity over bulletin boards being used by pedophiles to
contact each other.[137] Law enforcement us e of bulletin board systems to
track down pedophiles has not resulted in prosecutions of System
Operators, but there have been convictions of BBS users who have arranged
to make "snuff films" through contacts they have made over a
computer.[138]

E.  Computer Crime

Some areas of "computer crime" are regulated.[139] Computer crime is an
issue which computer information system operators should be aware of, as
they may be on the receiving end at some point.  The term "computer crime"
covers a number of offenses,[140] such as: the unauthorized accessing of a
computer system;[141] the unauthorized accessing of a computer to gain
certain kinds of information (such as defense information or financial
records);[142] accessing a computer and removing, damaging, or preventing
access to data without authorization;[143] trafficking in stolen computer
passwords;[144] spreading computer viruses;[145] and a number of other
related offenses.[146] All of these are activities which are often
referred to as "hacking."[147]

F.  Computer Fraud

The first federal computer crime law, entitled the Counterfeit Access
Device and Computer Fraud and Abuse Act of 1984, was passed in October of
1984.[148]

"[T]he Act made it a felony knowingly to access a computer without
authorization, or in excess of authorization, in order to obtain
classified United States defense or foreign relations information with the
intent or reason to believe that such information would be used to harm
the United States or to advantage a foreign nation."[149]

Access to obtain information from financial records of a financial
institution or in a consumer file of a credit reporting agency was also
outlawed.[150] Access to use, destroy, modify or disclose information
found in a computer system, (as well as to pre vent authorized use of any
computer used for government business if such a use would interfere with
the government's use of the computer) was also made illegal.[151] The 1984
Act had several shortcomings, and was revised in The Computer Fraud and
Abuse Ac t of 1986.[152] The 1986 Act added three new crimes - a computer
fraud offense,[153] modeled after federal mail and wire fraud
statutes;[154] an offense for the alteration, damage or destruction of
information contained in a "federal interest computer;"[155] and an
offense for trafficking in computer passwords under some
circumstances.[156] Even the knowing and intentional possession of a
sufficient amount of counterfeit or unauthorized "access devices" is
illegal.[157] This statute has been interpreted to cover computer
passwords "which may be used to access computers to wrongfully obtain
things of value, such as telephone and credit card services."[158]

The Computer Fraud and Abuse Act presents a powerful weapon for SYSOPs
whose computers have been violated by hackers.  The first person charged
with violating the Act,[159] Robert T. Morris Jr., was charged with
releasing a "worm" onto a section of the Internet computer network,[160]
causing numerous government and university computers to either "crash" or
become "catatonic."[161] Morris is the son of the Chief Scientist at the
National Security Agency's National Computer Security Center.[162] His
father is also a former researcher at AT&T's Bell Laboratories where he
worked on the original UNIX operating system.[163] UNIX is the operating
system that many mainframe computers use.  Morris claims that the purpose
of his worm program was to demonstrate security defects and the
inadequacies of network security, not to cause harm.[164] However, due to
a small error in his worm program, it got out of control and caused
numerous computers to require maintenance to eliminate the worm at costs
ranging from $200 t o $53,000.[165] District Judge Munson read the
Computer Fraud and Abuse Act, as it appeared at the time, largely as
defining a strict liability crime.  The relevant language applied to
someone who:

"(5) intentionally accesses a Federal interest computer without
authorization, and by means of one or more instances of such conduct
alters, damages, or destroys information in any such Federal interest
computer, or prevents authorized use of any such computer or information,
and thereby -

(A) causes loss ... of a value aggregating $1,000 or more ....[166] Judge
Munson's interpretation is that this language requires intent only to
access the computer, not intent to cause actual damage."[167]

On appeal, Munson's reading was affirmed by the Court of Appeals,[168] and
the Supreme Court refused to hear further appeals.[169]

Morris' lawyer, Thomas Guidoboni, described the statute as "perilously
vague" because it treats intruders who do not cause any harm just as
severely as computer terrorists.[170] While the Judge's interpretation of
the statute makes it a more powerful weapon in a prosecutor's corner,
Guidoboni argues that Munson's interpretation violates the sense of
fairness that underlies the U.S. criminal justice system, which almost
always differentiates between people who intend to cause harm and those
who do not.[171 ] No one seems to argue that what Morris did was *right*,
but many do not agree that he should be charged with a felony although he
was convicted.[172]

The jury in the Morris case indicated that the most difficult question was
whether Morris' access to the Internet was unauthorized even though
defense counsel pointed out that 2 million subscribers had the same
access.[173] This section was recently clarified in the Computer Abuse
Amendments of 1994[174] The section is re-written, and these amendments
broaden the scope of the protection offered in section 1030 (a) (5) (A) in
order to close a loophole contained in the earlier Act.  "[I]ntentionally
accesses a Federal interest computer" is no longer used, and instead the
section applies to anyone who "through means of a computer used in
interstate commerce or communications, knowingly causes the transmission
of a program, information, code, or command to a computer or computer
system ...."[175] As amended, the section now protects not only Federal
interest computers, but it also covers privately owned computer systems,
used in interstate commerce or communication, but which may be affected by
someone acting through means of a computer located within the same state
as the affected computer.  The amendments also remove the "access"
requirement from the statute.  Instead, a specific intent to perform
certain acts which may constitute direct or indirect access are put into
the statute.[176] Significantly, the statute also adds a requirement that
there be either a specific intent or reckless disregard as to whether the
transmission will cause damage or withhold or deny use of a "computer,
computer system, network, information, data, or program" in excess of the
user's authorization.[177] These changes should help to prevent access and
intent questions raised by the Morris incident.

Two other changes which the Computer Abuse Amendments Act of 1994 make is
to allow for civil remedies caused by a violation of section 1030,[178]
and it provides specific protection for actions which modify or impair
information or computers used in medical examination or treatment.[179]

G.  Unauthorized Use of Communications Services

One of the favorite targets of computer hackers is the telephone company.
Telephone systems are susceptible to computer hackers' illegal use.  By
breaking into the telephone company's computer, hackers can then place
free long distance calls to other computers.[180] They can also break into
telephone companies' computers and get lists of telephone credit card
numbers.[181] Trafficking of stolen credit card numbers and other kinds of
telecommunications fraud costs long distance carriers about $1.2 billion
annually.[182] Distribution of fraudulently procured long distance codes
is often accomplished over bulletin board systems, or by publication in
electronic journals put out by hackers over computer networks.[183] The
major protection for the telephone companies is found in section 1343 of
the Mail Fraud Chapter of the U.S. Code.[184] This section prohibits the
use of wires, radio or television in order to fraudulently deprive a party
of money or property.[185] This statute has been held to include
fraudulent use of telephone services.[186] Presumably, this statute may
also cover fraudulent theft of computer services when the computer is
accessed by wire.  Computer information systems that knowingly distribute
information aiding in wire fraud could be charged with conspiracy to
violate section 1346 of the Mail Fraud Chapter,[187] which specifically
covers schemes to defraud.[188] Some state laws exist to punish theft of
local telephone service or publication of telephone access codes.[189]

H.  Viruses

As pointed out in the introduction, computer viruses are increasingly of
concern - both for operators of computer information systems, as well as
for users of the systems.  But what is a virus?  A virus refers to any
sort of destructive computer program, though the term is usually reserved
for the most dangerous ones.[190] Computer virus crime involves an intent
to cause damage, "akin to vandalism on a small scale, or terrorism on a
grand scale."[191] Viruses can spread through networked computers or by s
haring disks between computers.[192] Viruses cause damage by either
attacking another file or by simply filling up the computer's memory or by
using up the computer's processor power.[193] There are a number of
different types of viruses, but one of the f actors common to most of them
is that they all copy themselves (or parts of themselves).[194] Viruses
are, in essence, self-replicating.

Also discussed earlier was a "pseudo-virus," called a worm.  People in the
computer industry do not agree on the distinctions between worms and
viruses.[195] Regardless, a worm is a program specifically designed to
move through networks.[196] A worm may have constructive purposes, such as
to find machines with free resources that could be more efficiently used,
but usually a worm is used to disable or slow down computers.  More
specifically, worms are defined as, "computer virus programs ... [which]
propagate on a computer network without the aid of an unwitting human
accomplice.  These programs move of their own volition based upon stored
knowledge of the network structure."[197]

Another type of virus is the "Trojan Horse."[198] These are viruses which
hide inside another seemingly harmless program.[199] Once the Trojan Horse
program is used on the computer system, the virus spreads.[200] The virus
type which has gained the most fame recently has been the Time Bomb, which
is a delayed action virus of some type.[201] This type of virus has gained
notoriety as a result of the Michelangelo virus.  A virus designed to
erase the hard drives of people using IBM compatible computers on t he
artist's birthday, Michelangelo was so prevalent, it was even distributed
accidentally by some software publishers when the software developers'
computers became infected.[202]

One concern many have about statutes dealing with computer viruses is the
problem that the statutes need some kind of intent requirement.[203]
Without some sort of intent requirement, virus statutes may be
sufficiently overbroad so as to cover defective computer programs.[204]

What legal remedies are available for virus attacks?  Distributing a virus
affecting computers used substantially by the government or financial
institutions is a federal crime under the Computer Fraud and Abuse
Act.[205] If a virus also involves unauthorized access to an electronic
communications system involving interstate commerce, the Electronic
Communications Privacy Act may come into play.[206] Most states have
statutes that make it a crime to intentionally interfere with a computer
system.[207] The se statutes will often cover viruses as well as other
forms of computer crime.  State statutes generally work by affecting any
of ten different areas:[208]

1. Expanded definitions of "property" to include computer
data.[209]
2. Prohibiting unlawful destruction of computer files.[210]
3. Prohibiting use of a computer to commit, aid or abet commission of
a crime.[211]
4. Creating crimes against intellectual property.[212]
5. Prohibiting knowing or unauthorized use of a computer or computer
services.[213]
6. Prohibiting unauthorized copying of computer
data.[214]
7. Prohibiting the prevention of authorized use.[215]
8. Prohibiting unlawful insertion of material into a computer or
network.[216]
9. Creating crimes like "Voyeurism"- Unauthorized entry
into a computer system just to see what is there.[217]
10. "Taking possession" of or exerting control of a computer or software.[218]

SYSOPs must also worry about being liable to their users as a result of
viruses which cause a disruption in service.  Service outages caused by
viruses or by shutdowns to prevent the spreading of viruses could result
in a breach of contract where continua l service is guaranteed; however,
contract provisions could provide for excuse or deferral of obligation in
the event of disruption of service by a virus.

Similarly, SYSOPs are open to tort suits caused by negligent virus
control.[219] "[A SYSOP] might still be found liable on the ground that,
in its role as operator of a computer system or network, it failed to use
due care to prevent foreseeable damage, to warn of potential dangers, or
to take reasonable steps to limit or control the damage once the dangers
were realized."[220] The nature of "care" still has not been defined by
court or statute.[221] But still, it is likely that a court would find
that a provider is liable for failure to take precautions against viruses
when precautions are likely to be needed. SYSOPs are also likely to be
held liable for not treating files they know are infected.  Taking
precautions against viruses would be likely to reduce the chances or
degree of liability.

I.  Protection from Hackers

System Operators need to worry about damage caused by hackers as well as
damage caused by viruses.  While hackers are liable for the damage they
cause, SYSOPs may find themselves on the receiving end of a tort suit for
being negligent in securing their computer information system.  For a
SYSOP to be found negligent, there must first be a duty of care to the
user who is injured by the hacker.[222] There must then be a breach of
that duty [223] - the SYSOP must display conduct "which falls below the
standard established by law for the protection of others against
unreasonable risk of harm."[224] Simply put, the SYSOP must do what is
generally expected of someone in his or her position in order to protect
users from problems a normal user would expect to be protected against.
Events that the SYSOP could not have prevented - or foreseen and planned
for - will not result in liability.[225] A SYSOP's duty "may be defined as
a duty to select and implement security provisions, to monitor their
effectiveness, and t o maintain the provisions in accordance with changing
security needs."[226] SYSOPs should be aware of the type of information
stored in their systems, what kind of security is needed for the services
they provide, and what users are authorized to use what data and which
services.  SYSOPs also have a duty to explain to each user the extent of
his or her authorization to use the computer information service.[227]

The same analysis applies to operator-caused problems.  If the SYSOP
accidentally deletes data belonging to a user or negligently maintains the
computer system, resulting in damage, he or she would be liable to the
user to the same extent as he or she would be from hacker damage that
occurred due to negligence.


VI.  PRIVACY

Privacy has been a concern of computer information system providers from
the very beginning.  With the speed, power, accessibility, and storage
capacity provided by computers comes tremendous potential to infringe on
people's privacy.  It is imperative that users of services such as
electronic mail understand how these services work, i.e., how private the
users' communications really are, and who may have access to the users'
"personal" E-mail.  The same is true for stored computer files. Just as
importantly, System Operators should be aware of what restrictions and
requirements exist to maintain users' privacy expectations.

A.  Pre-Electronic Communications Privacy Act of 1986

One of the most significant cases establishing privacy for electronic
communications is *Katz v. United States*.[228] *Katz* involved the use of
an electronic listening device (or "bug") mounted on the outside of a
public telephone booth.[229] The government (who placed the bug) assumed
that, because the bug did not actually penetrate the walls of the booth,
and was not actually a "wire tap," there was no invasion of privacy.[230]
However, Defendant argued that the bug was an unlawful search and seizure
i n violation of the Fourth Amendment.[231] The court held that "the
Fourth Amendment protects people, not places.  What a person knowingly
exposes to the public, even in his own home or office, is not a subject of
Fourth Amendment protection. [citations omitted] But what he seeks to
preserve as private, even in an area accessible to the public, may be
constitutionally protected."[232] The decision in this case is also
understood to say that if a person does not have a *reasonable*
expectation of privacy, there is, in fact, no Fourth Amendment
protection.[233] The person must have a subjective expectation of privacy,
and to be reasonable, it must be an expectation that society is willing to
recognize as reasonable.[234] For example, most people have a reasonable
expectation that calls made from inside a closed telephone booth will be
private.  For computer users, this means that, because the computer
operator has control over the system and can read any messages, the user
cannot reasonably protect his or h er privacy.  If there is no reasonable
expectation of privacy, there can be no violation of privacy, and,
therefore, no Fourth Amendment claim.[235]

Statutory protection of the right to privacy was originally provided by
the Federal Wiretap Statute.[236] However, this statute affected only
"wire communication," which is limited to "aural [voice]
acquisition."[237] In *United States v. Seidlitz*,[238] the court held
that interception of computer transmission is not an "aural acquisition"
and, therefore, the Wiretap Act did not provide protection.[239] Even if
the Act did cover transmission, it still does not cover stored computer
data.[240] This does not result in significant or comprehensive protection
of E-mail or stored data.

B.  Electronic Communications Privacy Act of 1986

Prior to the passage of the Electronic Communications Privacy Act,
communications between two persons were subject to widely disparate legal
treatment depending on whether the message was carried by regular mail,
electronic mail, an analog phone line, a cellular phone, or some other
form of electronic communication system.  This technology-dependent legal
approach turned the Fourth Amendment's protection on its head.  The
Supreme Court had said that the Constitution protects people, not places,
but the Wiretap Act did not adequately protect all personal
communications; rather, it extended legal protection only to
communications carried by some technologies.[241]

The Federal Wiretap Act was updated by the Electronic Communications
Privacy Act of 1986.[242] The Electronic Communications Privacy Act deals
specifically with the interception and disclosure of interstate [243]
electronic communications [244] , and functions as the major sword and
shield protecting E-mail.  It works both to guarantee the privacy of
E-mail and also to provide an outlet for prosecuting anyone who will not
respect that privacy.  The statute provides in part that "any person who
(a) intention ally intercepts, endeavors to intercept, or procures any
other person to intercept or endeavor to intercept any wire, oral, or
electronic communication"[245] shall be fined or imprisoned.[246] The
intentional disclosure or use of the contents of any wire, oral, or
electronic communication that is known or could reasonably be known to
have been intercepted in violation of the statute is prohibited.[247] This
largely guarantees the privacy of E-mail as well as data transfers over a
network or telephone line going to or from a computer information system.
In essence, E-mail cannot legally be read except by the sender or the
receiver even if someone else actually intercepted the message.  Further
disclosure or use of the message contents by any party, other than the
message sender and its intended recipient, is prohibited if the
intercepting party knows or has reason to know that the message was
illegally intercepted.

Section 2 of the Electronic Communications Privacy Act [248] provides an
exception for SYSOPs and their employees to the extent necessary to manage
properly the computer information system:  It shall not be unlawful under
this chapter for an operator of a switchboard, or an officer, employee, or
agent of a provider of wire or electronic communication service, whose
facilities are used in the transmission of a wire communication, to
intercept, disclose, or use that communication in the normal course of his
employment while engaged in any activity which is a necessary incident to
the rendition of his service or to the protection of rights or property of
the provider of that service, except that a provider of wire communication
service to the public shall not utilize service observing or random
monitoring except for mechanical or service quality control checks.[249]

"Electronic Communication System" is defined as "any wire, radio,
electromagnetic, photooptical or photoelectronic facilities for the
transmission of electronic communications, and any computer facilities or
related electronic equipment for the electronic storage of such
communications."[250] Further exceptions are made for SYSOPs of these
systems when the originator or addressee of the message gives
consent;[251] when the message is being given to another service provider
to be further forwarded towards its destination;[252] where the message is
inadvertently obtained by the SYSOP; and appears to pertain to a
crime;[253] when the divulgence is being made to a law enforcement
agency;[254] or where the message is configured so as to be readily
accessible t o the public.[255] It is worth noting that this section also
applies to broadcast communications, as long as they are in a form not
readily accessible to the general public (with some exceptions).[256] This
will probably cover the up-and-coming technologies of radio-WANS (Wide
Area Networks-computer networks which link computers by radio transmission
rather than wires), cellular modems, and also packet radio. These
technologies are especially likely to be covered by the statute if data is
transmitted using some sort of encryption scheme.[257]

For law enforcement agencies to intercept electronic communications, they
must first obtain a search warrant by following the procedure laid out in
section 2518 of this Act.[258] The statute does not prohibit the use of
pen registers or trap and trace dev ices.[259] The warrant requirement
makes it harder for law enforcement officials to get at the contents of
the communications, but does not substantially impede efforts to find out
who is calling the computer information system.

C.  Access to Stored Communications

Section 2511 of the Electronic Communications Privacy Act concerns the
interception of computer communications.  Section 2701 of the Act
prohibits unlawful access to communications which are being stored on a
computer.[260] The section reads, in part, "whoever -- (1) intentionally
accesses without authorization a facility through which an electronic
communication service is provided; or (2) intentionally exceeds an
authorization to access that facility; and thereby obtains, alters, or
prevents authorized access to a wire or electronic communication while it
is in electronic storage in such system"[261] shall be subject to fines
and/or imprisonment.[262] Like section 2511, this section includes
provisions prohibiting the divulgence of the stored messages.[263]
Importantly, while this statute allows law enforcement agencies to gain
access to stored communications, subject to a valid search warrant,[264]
it does specifically allow the government to permit the system operator to
first make backup copies of stored computer data, so that the electronic
communications may be preserved for use outside of the investigation.[265]
Such a statute is needed because the government often takes the stored
data to sort through during the course of its investigation, as wa s the
case in *Steve Jackson Games, Inc. v. United States Secret Service*.[266]
In this case, the Secret Service raided a publisher and seized its
bulletin board system, electronic mail and all.  The court held that the
government had to go through the procedures established by section 2701 et
seq., covering stored wire and electronic communications, in order to
discover properly the contents of the electronic mail on the BBS.[267] The
court said that the evidence of good faith reliance on what the Secret
Service believed to be a valid search warrant was insufficient.[268] The
government *knew* that the computer had private electronic communications
stored on it, and therefore the only means they could legally use to gain
access to those communications wa s by compliance with the Act, and not by
seizing the BBS.[269] The Steve Jackson Games Case was also valuable for
showing the interplay between protection against interception of
electronic communication [270] and access to stored communication.[271]
Judge Sparks held, in essence, that taking a whole computer is not a n
"interception" as contemplated by section 2510 et seq., especially in
light of the protection of stored communication by section 1701 et seq.
He analogized the situation to the seizure of a tape recording of a
telephone conversation and said that the " aural acquisition" occurs when
the tape is made, not each time the tape is played back by the
police.[272] This interpretation is being appealed on the grounds that
since the messages had been sent, and not yet received, they were
intercepted-just as if someone had picked up and carried off a blue postal
service mailbox from the side of the street.[273] The argument is that the
Judge's requirement that the message actually be transversing the wire
when the interception occurs is too narrow a reading of the term
"interception."[274]

D.  An Apparent Exception for Federal Records

A fairly recent case presents an apparent exception to the Electronic
Communications Privacy Act.[275] In *Armstrong v. Executive Office of the
President*,[276] while not mentioning the Electronic Communications
Privacy Act, the court required certain electronic mail and stored data to
be saved and made available for the National Archives.[277] While
electronic communications are normally protected under the Electronic
Communications Privacy Act, the Federal Records Act [278] requires that:

"all ... machine readable materials, or other documentary materials,
regardless of physical form or characteristics, made or received by an
agency of the United States under Federal law or in connection with the
transaction of public business and preserved or appropriated for
preservation by that agency ... as evidence of the organization,
functions, policies, decisions, procedures, operations, or other
activities of the Government or because of the informational value of the
data in them [be preserved]."[279]

The court held that the actual computer records must be saved, not just
paper copies of the electronically mailed notes, because the computer
records contain more information than printouts.[280] Printed copies of
the messages contain the text of the note s, but only the computer records
contain information such as who received the E-mail messages and when the
communication was received.[281] A similar possible exception to the
privacy of E-mail is the Presidential Records Act,[282] which requires
that all records classified by the Act as "Presidential Records"[283] be
preserved for historical researchers.  However, the only case to apply
this statute to Presidential E-mail held that the Presidential Records Act
impliedly precludes judicial review of the President's compliance with the
Act.[284]

E.  Privacy Protection Act of 1980

It is also possible that computer information systems will be protected
under the Privacy Protection Act of 1980.[285] The Privacy Protection Act
immunizes from law enforcement search and seizure any "work product
materials possessed by a person reasonably believed to have a purpose to
disseminate to the public a newspaper, book, broadcast, or other similar
form of public communication, in or affecting interstate commerce."[286]
This statute was passed to overturn the decision in *Zurcher v. Stanford
Daily*,[287] a case which held that a newspaper office could be searched,
even when no one working at the paper was suspected of a crime.[288] The
only exceptions to the law's prohibition on searches of publishers are the
following: probable cause to believe that the person possessing the
materials has committed or is committing the crime to which the materials
relate,[289] or the immediate seizure is necessary to prevent the death or
serious injury to a human being.[290] A computer information system could
f all under this statute when it is being used in the aid of a print
publisher, such as when the service is used in a publisher's office or to
transmit materials to a publisher.[291] More importantly for the System
Operator, based on the list of types of "publishers" covered by this
statute, electronic publishers should fall directly under this section.

The first case that attempted to apply this statute to electronic
publishers was the *Steve Jackson Games* case, mentioned in the preceding
section.  It is a good case study in law enforcement violations of
electronic data privacy. Steve Jackson Games is a small publisher of
fantasy role-playing games in Texas.[292] The company also ran a BBS to
gain customer feedback on the company's games.[293] The Secret Service
took all of the company's computers, both their regular business computers
and the one on which they were running the company's BBS (private
electronic mail etc.).[294] They also took all of the copies of their
latest game, GURPS Cyberpunk, which one of the Secret Service agents
referred to as "a handbook for computer crime."[295] The raid by t he
Secret Service caused the company to temporarily shut down;[296] Steve
Jackson Games also had to lay off half its employees.[297] The release of
the game was delayed for months, since the Government took all of the word
processing disks as well as all of the printed drafts of the game.[298]
The Electronic Frontier Foundation, which provided legal counsel for Steve
Jackson, likened the Secret Service's action to an indiscriminant seizure
of all of a business's filing cabinets and printing presses.[299] Steve
Jackson Games was raided because one of its employees ran a BBS out of his
home-one out of a possible several thousand around the country that
distributed the electronic journal "Phrack," in which a stolen telephone
company document was published.[300] The document contained information
which was publicly available in other forms.[301] The employee was also
accused of being a part of a fraud scheme-the fraud being the explanation
in a two line message what Kermit is-a publicly available communications
protocol.[302] The employee was also co-SYSOP of the bulletin board system
at Steve Jackson Games.[303] The case held that at the time of the raid,
the Secret Service did not know that Steve Jackson Games was a publisher
(even though they should have), as the Privacy Protection Act [304]
requires, though they did know shortly after.[305] Judge Sparks said the
continued refusal to return the publisher's work product, once the Secret
Service had been informed that Steve Jackson Games was a publisher,
amounted to a violation of the Act.[306] In the raid, the Secret Service
seized a number of Steve Jackson's computers, and a number of papers.[307]
As mentioned, this included the company's BBS, which contained public
comments on newspaper articles submitted for review, public announcements,
and other public and private communications.[308]

While the judge did find a violation of the Privacy Protection Act,[309]
he did not specify which items led to the violation.  The violation could
have been the seizure of the papers, the computers used for word
processing, or the BBS.  Thus, the question still remains unanswered as to
whether the seizure of the BBS alone, which was being used to generate
work product for the publisher, would have amounted to a violation of the
Act.  Importantly, other users of the BBS who had posted public comments
about Steve Jackson's Games were also plaintiffs in the case.  They were
not allowed recovery based on the Privacy Protection Act.[310] Therefore,
either the individual message posters were not considered to be publishers
themselves (only perhaps authors of works published in electronic form by
Steve Jackson Games' BBS) or their messages were not considered to be work
product subject to protection.


VII.  OBSCENE AND INDECENT MATERIAL

Computer information systems can contain obscene or indecent material in
the form of text files, pictures, or sounds (such as the sampled recording
of an indecent or obscene text).  Different degrees of liability depend on
which legal analogy is applied t o computer information systems.
Differences in regulation based on medium are a result of differing First
Amendment concerns.[311]

A.  Obscenity

The constitutional definition of "obscenity," as a term of art,[312] was
solidified in *Roth v. United States*.[313] The *Roth* definition asks if
the material deals with sex in a manner appealing to prurient
interests.[314] This standard was further explained in *Miller v.
California*,[315] a case which explored the constitutionality of a state
statute prohibiting the mailing of unsolicited sexually explicit
material.[316] The court expressed the test for obscenity as:

"whether
(a) the average person, applying community standards would
find that the work, taken as a whole, appeals to the prurient
interest,
(b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable
state law; and
(c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value."[317]

The first two prongs of this test have been held to be issues left to
local juries, while the last prong is to be determined by the court.[318]
Courts have been unwilling to find a national standard for obscenity, and
have held that a carrier of obscenity must be wary of differences in
definition between the states.[319] This has profound implications for
computer information systems which have a national reach.  It means SYSOPs
must be aware of not only one standard of obscenity, but fifty.  (More if
the service has international users.) SYSOPs must be aware of the
different standards because the Constitution's protection of free speech
does not extend to obscenity, and states are free to make laws severely
restricting its availability, especially to children.[320] Although states
can regulate the availability of obscene material, they cannot forbid the
mere possession of it in the home.[321] The justification for this is
based on privacy.[322] In the now famous words of Justice Marshall in
*Stanley v.  Georgia*,[323]

Whatever may be the justifications for other statutes regarding obscenity,
we do not think they reach the privacy of one's home.  If the First
Amendment means anything, it means that a State has no business telling a
man, sitting alone in his own house, w hat books he may read, or what
films he may watch.  Our whole constitutional heritage rebels at the
thought of giving government the power to control men's minds.[324]

Stanley has been interpreted as establishing a "zone of privacy" about
one's home.[325] Many computer information system users are connected to
the system by modem from their homes. Because of this, any pornographic
material they have stored on their home computers is protected from
government regulation.[326] However, connecting to a remote computer
information system entails moving obscene material in and out of this zone
of privacy, and therefore may not be insulated from state
legislation.[327] Support for this argument comes from *U.S. v.
Orito*[328] which held that Congress has the authority to prevent obscene
material from entering the stream of commerce, either by public or private
carrier.[329] While a person's disk drive on his or her computer is
analogous to his or her home library, connecting to a computer information
system can be seen as analogous to going out to a bookstore.[330]

*Stanley*[331] may protect a person's private library, but "[c]ommercial
exploitation of depictions, descriptions, or exhibitions of obscene
conduct on commercial premises open to the adult public falls within a
State's broad power to regulate commerce and protect the public
environment."[332]

B.  Indecent Speech

Speech which is not considered obscene may qualify as indecent.  In
*F.C.C. v. Pacifica Foundation, Inc.*, the court held that indecent speech
is protected by the First Amendment, unlike obscene and pornographic
material, though it can still be regulated where there is a sufficient
governmental interest.[333] Indecent language is that which "describes, in
terms patently offensive as measured by community standards ... sexual or
excretory activities and organs ..."[334] This language comes from *F.C.C.
v.  Pacifica Foundation, Inc.*,[335] a broadcasting case which upheld the
channeling of indecent language into time periods when it was not as
likely that children would be in the audience.  Discussion of indecent
speech will be continued in the analysis of t he different legal analogies
that may apply to computer information systems.


VIII.     COPYRIGHT ISSUES

A. Basics of Copyrights

Text, pictures, sounds, software - all of these can be distributed by
computer information systems, and all can be copyrighted.  The
Constitution guarantees Congress the power to "promote the Progress of
Science and Useful Arts, by securing for limited Times to Authors and
Inventors the exclusive right to their respective Writings and
Discoveries."[336] This power is exercised in the form of the Copyright
Act, Title 17 of the U.S. Code.[337] Section 102 of the Copyright Act
allows protection of "original works of authorship fixed in any tangible
medium of expression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly or with
the aid of a machine or device."[338] The statute lists several types of
works as illustrations of types of works which qualify for copyright
protection.[339] Relevant to computer information systems, the list
includes literary works; pictorial, graphic, and sculptural works; motion
pictures and other audiovisual works; and sound recordings.[340] The "now
known or later developed" language allows expansion of copyright coverage
to meet any new means of expression, such as those available over a
computer information system.[341] In fact, the notes accompanying this cod
e section acknowledge that copyright protection applies to a work "whether
embodied in a physical object in written, printed, photographic,
sculptural, punched, magnetic, or any other stable form."[342] The element
of fixation is important in the copyright statute; a work which is not
fixed is not covered by the statute, and any possible protection must come
from local common law.[343] This can lead to some strange results.  A live
concert cannot be copyrighted under this statute, but if the performer
records the concert while he or she performs, the concert is then
copyrighted.[344] For computer information systems, this implies that
conversations occurring over a computer or network which are not stored on
a disk [345] are unprotected by the Copyright Ac t, but if any party to
the conversation, or the system operator, stores the messages, it is then
possible that some elements of the conversation are copyrighted.

Copyright protection extends to works of authorship; it does not extend to
ideas, processes, concepts, inventions and the like.[346] Distinguishing
between works of authorship and processes can at times result in some
subtle distinctions.  An example of t his is computer typefaces, or fonts
(which can often be found available for downloading on file servers or
bulletin board systems).  There are two major kinds of type faces,
bit-mapped and postscript.  Bit-mapped fonts are composed of data
describing where points are drawn in order to make out the shape of the
letter.[347] Postscript fonts, on the other hand, consist of a computer
program which describes the outline of the letter.[348] Digital typefaces
are not considered copyrightable, because they are seen as just a copy of
the underlying letter design, a process for drawing a representation of a
letter, and thus bit-mapped fonts are not copyrightable.[349] Postscript
fonts are seen as computer programs-the program is a work of authorship,
it just so happens to draw letters, and they have been held to be
copyrightable.[350] The Copyright Act gives the copyright holder exclusive
rights to his or her works.[351] This allows the author to reproduce,
perform, display, or create derivative works as he or she pleases, and to
do so to the exclusion of all others.[352] This means a computer
information system can distribute only material that is either not
copyrighted, or for which the SYSOP has permission to copy.  This presents
no problem for material the system operator acquires personally, but two
problems exist regarding material that users upload to the computer
system.  First, even if the SYSOP sees that the material a user has
uploaded is copyrighted, how is the SYSOP to know that permission has not
been granted by the copyright holder?  Second, copyright notices can be
removed by the person posting copyrighted material, in which case the
SYSOP may have no way to know if the data is copyrighted.  A SYSOP cannot
just ignore a suspicion that a work is copyrighted, because such an act
could lead to the conclusion that the SYSOP was a contributor to the
copyright infringement by allowing the computer file to be distributed on
his or her system.[353] There is no intent or knowledge requirement to
find a copyright violation. Copyright infringement is a strict liability
crime.  Intent is only a factor in calculating damages.  When a work is
copied, even if the person making the copy does not know or have reason to
know, that the work is copyrighted, an infringement may still be
found.[354] Even subconscious copying has been held to be an
infringement.[355]

One protection the Copyright Act gives to a computer information system is
a compilation copyright.  A compilation copyright gives the SYSOP a
copyright on the data contained in the computer information system as a
whole.[356] This does not give the SYSOP a copyright to the individual
copyrighted elements carried on the system, but it does allow a copyright
for the way the material is organized.[357] An example of this would be
the electronic journal composed from articles submitted by users.  The
compile r of the journal would not own a copyright to the individual
articles, but he or she would own a copyright in those elements which are
original to the compiler, for example, to the arrangement of the articles
which makes up the periodical as a whole.[358] A bulletin board system
could presumably also copyright its entire message base.

As mentioned, the Copyright Act gives an author the exclusive rights to
make copies of his or her works, as well as create derivative works.[359]
This includes copies in computer readable form.[360] Thus, scanned
pictures, digitized sounds, machine readable texts, and computer programs
are all subject to an author's copyright.  Any attempt to turn original
material into one of these computer-readable forms without the author's
permission (and unless the copy falls under one of the exceptions in
sections 1 07-120) is a violation of the author's copyright.

With decreasing costs of data storage, and increasing access to computer
networks, comes an increase in the number of computer archives.  These
computer archives store various types of data which can be searched by the
archive user.  The archive site can be searched, and the information can
be copied by anyone with sufficient access to the archive.  This ease with
which information can be accessed and duplicated has some profound
copyright implications.[361] I will use as an example a "lyric server," an
archive that stores lyrics to songs by assorted artists.  Other types of
information that can be distributed will be discussed shortly.

In my lyric server example, if someone is sitting down with an album
jacket and typing the lyrics into the computer for distribution in the
archive, the translation of the lyrics from the album jacket to a computer
text file constitutes an unauthorized copy.  Similarly, if someone else
types in the file and a System Operator then puts the file into the
archive for distribution, the SYSOP has violated the author's right to
make and distribute copies of his or her work.[362]

Once the file is in the archive for distribution, every time the
information is copied, there may be a copyright violation.  There is a
difference here between copying and viewing.  As mentioned, the Copyright
Act protects against unauthorized copying of a work.  The Act defines a
copy as a fixation "from which the work can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine or
device."[363] Thus, if someone connects to the computer information system
and just peruses the archive, if the information is not "downloaded,"
"screen captured," or otherwise recorded on computer disk, tape, or
printout, then no fixation is made and thus, no copy.  However, while the
archive user may not be making a copy, if the archive is publicly
accessibld, viewing some types of files may possibly constitute a public
performance or display [364] of the copyrighted work, which are also
protected rights.[365] To infringe these display and performance rights,
it should be necessary that the computer information system makes the
copyrighted work available in a manner so that the work is immediately
shown, recited, rendered, played or the like directly to the user.  To not
require this immediate accessibility would be to confuse the right to
distribute copies with the right to display or perform a work.  By
allowing the transmission of raw data, the System Operator is making
available a public place in which to copy, not display, the work.  Without
some activity beyond merely transmitting the work in a raw data form, to
hold a SYSOP liable for violating a display right would be analogous to
holding a place-such as a library, a newsstand, or a waiting room, or any
other place which has copyrighted works available to the public-liable for
violating the copyright holder's display or performance rights.[366]
Whether the unauthorized archiving of a copyrighted work or whether
further copying of a protected work by the archive user constitutes a
violation of section 106 of the Copyright Act is also determined by
whether the copying falls under one of the Act's exceptions.  The two
relevant exceptions are the "fair use" provision [367] and the
"reproduction by libraries and archives" provision.[368] [F]air use was
traditionally a means of promoting educational and critical uses.  Fair
use, then, is an exception to the general rule that the public's interest
in a large body of intellectual products coincides with the author's
interest in exclusive control of his work, and it is decided in each case
as a matter of equity ... ."[369]

The fair use provision contains a list of uses that are presumed to be
acceptable uses of copyrighted works, and a list of four factors that must
be taken into account to determine if the use constitutes a fair use of
the work.  The list includes use for criticism, comment, news reporting,
teaching, scholarship, or research.[380] This list may provide some
guidance as to what constitutes legal use for the *user* of a computer
information system, but not for the *provider* of the archive.  The
archive user may be safe in copying song lyrics from the lyric server if
he or she is using the lyrics for the purpose of commentary, for example,
but the SYSOP who provides the service may not have the same defense.

The four factors to be applied in deciding whether the use of a
copyrighted work in each case constitutes fair use are:

(1) the purpose and character of the use, including whether such use
is of commercial nature or is for nonprofit purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or the value
of the copyrighted work.[371]

Applying these factors to the System Operator's liability for a lyric
server, the character of the use depends on whether access to the lyrics
is available for free, or as a profit making venture.  The nature of the
work is song lyrics, likely intended for commercial sale.  The amount
used, is the entire lyrics to each copyrighted song.[372] A use of the
copyrighted work which makes the original obsolete will obviously be more
likely to be found an unfair use than a use which brings more notoriety to
the original.  And finally, placing copyrighted lyrics on a publicly
accessible computer information system may have a profound impact on the
potential market for the computerized distribution of lyrics, depending
upon the potential number of users of the lyric server.  The impact on a
potential market is potentially substantial.  For example, in a case where
Playboy sued a BBS for distributing scanned images from Playboy's
magazine, the BBS was found to be taking in $3 million a year, which
Playboy might be able to make off of its own proposed electronic
service.[373]

The other possible exception to the copyright holder's exclusive rights is
section 108 which deals with copying by libraries and archives.[374]
Unlike the section 107 fair use provision, which in this case is more
aimed at the end user, section 108 is aim ed more at the information
provider.  Section 108 allows the archive itself to reproduce or
distribute no more than one copy or phonorecord of a work, and as long as
the archive is available to the public or to researchers not affiliated
with the library or archive, the archive does not get direct or indirect
profit from making or distributing the copy, and the copy contains a
notice of copyright.[375] It is reasonable to argue that when the user
requests a host computer to send a text file containing the lyrics to a
specific song, the archive is making this type of copy. Section 108 allows
the user to request copies of "no more than one article or other
contribution to a copyrighted collection or periodical issue, or ... a
small part of any other copyrighted work"[376] as long as the copy becomes
the property of the user, the archive has no notice that the copy is to be
used for anything other than study, scholarship, or research, and as long
as the archive displays prominently "at the place where orders are
accepted, and includes on its order form, a warning of copyright in
accordance with requirements that the Register of Copyrights shall
prescribe by regulation."[377] This requirement of the posting of
copyright notice would clearly apply to the lyric server, just as it does
to a library photocopier.  Even if a passive computer system is held to be
more like a self-serve copier, and the SYSOP plays no part in the copying
by the user, if the archive is made available so that copying may occur,
the system operator is still subject to a copyright infringement claim if
the "reproducing equipment" does not bear a notice that any copies made
may be subject to copyright law.[378]

To summarize with the lyric server example, while a system operator may
not be liable for the use to which users put any copyrighted text they
copy off of the computer information system, the SYSOP still must be wary
of some obstacles.  Copyright notice must be provided, and, specifically,
the notice that is prescribed by the Register of Copyrights may require
that each file have its own copyright notice. Access to the archive must
be fairly open.  The archive must not directly or indirectly profit from
distributing the copyrighted works.  Potentially the biggest hurdle is
that care must be taken in assembling the archive so that any materials
that need to be converted into a computer-readable form are converted
without violating the author's section 106 rights.[379]

B.  Copyrighted Text


Copyrighted text can appear on computer information systems as either
files in a file server or database; or it can appear in an E-mail message
or post on a BBS; or it can be worked into an E-journal.  The most obvious
place to find copyrighted text is on information systems such as
LEXIS/NEXIS, WESTLAW and Dialog.  Textual material, such as electronically
stored journals, gets a fairly straightforward copyright analysis; the
hardest job for a SYSOP may be discovering what text is copyrighted.  Once
infringing text is discovered, the SYSOP must remove it, or risk being
held as a conspirator in the copyright infringement.[380]

C.  Copyrighted Software

Bulletin board systems, network file servers, and main-frame computers
that use FTP (File Transfer Protocol) all offer the opportunity to copy
software.  The Software Publisher's Association (SPA) offers the
opportunity to be on the receiving end of a law suit if any of that copied
software is copyrighted.[381] The SPA is a group established by a number
of software publishers in order to cut down on software piracy.[382] The
SPA monitors bulletin board systems for distribution of copyrighted
software.[383] They warn SYSOPs that they will be monitored, giving the
SYSOP the opportunity to remove any software he or she does not have the
right to distribute.[384] The SPA also examines office computers for
unlicensed software.[385] Violators are asked to remove illegally held
software, purchase legally licensed copies, and pay a fine equal to the
amount of the purchase price of the software package.[386] Compliance with
the SPA requirements saves the offender the additional cost of a
lawsuit.[387] Noncompliance will result in a lawsuit filed by the
SPA.[388]

As mentioned, not all copying of copyrighted software is illegal.  Two
exceptions are worth noting.  One is for the making of backup copies.  The
Copyright Act allows a copy of legally licensed software to be made if
such a copy is needed to use the software.[389] The Act also allows a copy
to be made for archival purposes, as long as the copy is destroyed "in the
event that continued possession of the computer program should cease to be
rightful."[390] The other exception is shareware.  Shareware is a popular
method of software publishing which allows a software programmer to
distribute his or her work without all of the marketing costs, often via a
computer information system.[391] A user can call up a BBS, download
software, and try it out for a while.  If the user likes the software, he
or she sends the programmer a shareware fee.  The difference between
shareware and public domain software is that public-domain software is
freely distributed with the consent of the copyright owner, while
shareware is not distributed without restriction - use of shareware beyond
a reasonable trial period (often specified in the documentation
distributed with the software) without payment of the shareware fee is a
violation of copyright law.[392]

Crackdowns on software pirates are becoming more visible in the recent
past, both in the United States and internationally.  In May of 1994, the
Italian police raided 119 SYSOPs who had computers on the Fidonet
network.[393] The SYSOPs were all under suspicion of being software
pirates.  The prosecutor in charge of the investigation said that
"[s]oftware piracy has become a national sport in Italy."[394]

In the U.S., David Lamacchia was indicted in April of 1994 on one felony
count of conspiring to commit wire fraud, based on his running two
bulletin board systems on a computer at M.I.T. for distributing pirated
software.[395] He was not charged with computer fraud or with software
piracy.  Instead he was charged under a statute used to outlaw interstate
fraud schemes via telephone wires.[396] This case will test whether a
SYSOP can be held liable for simply running a system which is
substantially devoted to illegal activity, namely software theft, even
though the SYSOP does not physically do any of the software copying and
does not derive a profit from the activity.

One recent cases has held a SYSOP can be held liable for copyright
infringement where he played a part in the distribution of copyrighted
software via his BBS.[397] At issue in *Sega*, was a members-only bulletin
board system used to distribute copyrighted video games.[398] Access was
given either in exchange for money, for supplying copyrighted games, or to
the defendant's customers who had bought devices used to read the software
off of the original game cartridges.[399] The court held that the
defendant knew and encouraged the use of his system for the copying of
Sega's copyrighted works.[400] The court held that unauthorized copies of
the videogames were made every time a game was uploaded to or downloaded
from the bulletin board,[401] and that once downloaded, other copies were
then made by the BBS users.[402] This additional copying was facilitated
and encouraged by the BBS administration, and "[o]ne who, with knowledge
of the infringing activity, induces, causes or materially contributes to
the in fringing conduct of another,' may be held liable as a contributory
infringer."[403] The court dismissed the defendant's fair use argument, by
pointing out how each of the fair use factors weighed against the
defendant's use being a fair one (and also pointing out that in order to
employ the fair use exception, one must possess a legal copy to start
with).[404]

Importantly, the *Sega* court found that the distribution of copyrighted
video game software also amounted to both a violation of Sega's trademark
rights and to unfair competition under the federal trademark law.[405] The
court stated that every time a game was downloaded and subsequently played
Sega's trademark was used (as well as being used in the file descriptors
of the games stored on the BBS).[406] These downloaded games then enter
the stream of commerce, potentially causing confusion as to their
origin.[407] This deprives Sega of revenue, makes available (in the case
of some of the BBS files) confidential pre-release versions of some of the
games, and makes available games without proper packaging and
instructions.[408] All of which damages Sega's business and reputation in
violation of the Trademark Act.[409]

D.  Copyrighted Pictures

As mentioned earlier,[410] pictures can be scanned into a computer and
stored. Pictures can also be drawn directly on a computer by means of
graphics software.  A hybrid of the two is also possible - pictures can be
scanned, and once scanned, they can be further altered with image
processing software.[411] All of these forms are covered by the Copyright
Act.[412] Pictures created on the computer using graphics or "paint box"
software are in an original copyrightable form.[413] Images that are
scanned are in violation of the original copyright holder's rights, unless
permission to distribute the scanned image has been obtained.[414] In
fact, even the unauthorized initial scan made of a copyrighted work is in
violation of the copyright, even without further distribution.[415] As one
author said, "[t]he law is quite straightforward; a copy is a copy,
period.  There is no wording that differentiates among images produced by
scanners, by photocopiers, or by crocheting them into toilet seat
covers."[416] Images which are scanned that are not copyrighted, such as
works on which the copyright has already expired,[417] do not violate the
Copyright Act, and, if sufficient creativity is contributed in the
scanning process, the images may be eligible for copyright protection in
their own right.[418] If a scan of a copyrighted picture is then altered
into a new image, the modified version likely still falls under the
original copyright.[419] It therefore enjoys no protection on its own, and
copyright release must be obtained from the holder of the copyright in
order to distribute the image (or to modify it in the first place).[420]

Once again, one of the most difficult tasks for a system operator is
determining which images are copyrighted.  The Copyright Act provides an
author with the right to have his or her name associated with his or her
own work, as well as the right to have h is or her name disassociated with
a mutilation of his or her work, (along with the right to prevent such
mutilations in the first place).[421] Based on these rights, a SYSOP
should be especially careful of images which appear to be doctored.  Many
of the larger computer information services settle the dilemma over
establishing copyright status by allowing the images under the assumption
that no one will mistake a scanned copy for an original, and that
therefore no one is being hurt.[422] This argument has no basis in the law
of copyrights.  The Copyright Act gives the author the right to make
copies of his or her work, and this includes bad copies.[423] Also, the
claim that no damage is being done is an unreasonably narrow view.  The
copyright holder, and not the public, is allowed exclusive control of the
channels through which his or her work reaches the market.[424]

Computerized images present a whole new market for an artist's work, and
widespread, unauthorized distribution can destroy the potential to
disseminate the work in the computer market - a right clearly given to the
author of the work.  Some computer information services also defend the
possibility that some of their stored images are provided on the basis of
the "fair use"[425] exception.[426] Relying on fair use is also not a very
realistic position to take.  One artist found some of his work scanned and
available on a BBS, only after he was told of its presence by a friend.
The artist's name and copyright notice had been cropped off.  By the time
the artist protested, 240 people had downloaded his images.[427] Such wide
infringement into a potentially new market for the artist is not likely to
be found by a court to constitute "fair" use.  For a SYSOP to be free from
liability, the only thing he or she can do is to make sure the image is
either not protected by copyright, or that the use of the image has been
approved by the copyright holder.

The above analysis was put to the test in *Playboy Enterprises, Inc. v.
Frena*.[428] In this case, a BBS made available scanned images from
Playboy magazine.  The System Operator claims that he did not place any of
these scanned images on his system.[429] The court stated that copying can
be inferred where the defendant had access to the copyrighted work, where
the alleged infringing work (the scanned pictures) are substantially
similar to the copyrighted work, and where one of the statutory rights
guaranteed to the copyright owner is impaired by the SYSOP's actions.[430]
In the case of scans made directly from a magazine publishing over 3.4
million copies each month in the United States, the first two elements of
the test were easily met.[431] Even though Frena stated that he did not
put the copies on his system, the court held that the statutory right of
exclusive distribution was violated because "Frena supplied a product
containing unauthorized copies of a copyrighted work."[432] Frena argued
that any copies of Playboy's pictures constituted fair use.  Employing the
four fair use factors (see supra), the court held that
1. Frena's use was clearly commercial and would likely produce future
harm to Playboy's market;
2. the copyrighted works are works of fiction or fantasy-entertainment
rather than factual works;
3. the pictures copied from each magazine constituted an essential part
of the copyrighted work (the magazine); and
4. the effect of copying the Plaintiff's work would be detrimental to
the potential market of the copyrighted work.[433]

As the *Sega* case held in the software context, the *Frena* court found
that the System Operator's use of the Plaintiff's trademarked works
violated Playboy's trademark rights [434], and constituted unfair
competition.[435]

E.  Copyrighted Sound

Following a similar analysis to that of copyrighted pictures, copyrighted
sounds can also be distributed by computer information system.  This may
take the form of sounds and music converted into digital form, or it may
take the form of MIDI files.[436] The first lawsuit involving the copying
and performing of music files from a computer information system has
recently been filed by Franklin Music Corp. against CompuServe.[437] In
this case, Franklin claims that CompuServe allowed people to download MIDI
files of music to which it holds the rights, resulting in nearly 700
instances of copyright infringement.[438] CompuServe claims they only
provided access to databases maintained by other companies, and that the
other companies should be responsible for any royalties.[439] Once this
case is decided, it will help clarify the issue of SYSOP liability for
these files, as the Plaintiff is specifically going after the distribution
medium, as opposed to the users who are actually downloading the files.
Reportedly 140 other music publishers are ready to join in and turn the
suit into a class action.[440]


IX.  LIABILITY FOR COMPUTER INFORMATION SYSTEM CONTENT

In order to determine who is liable for illegal activity of the kind so
far discussed, it is necessary to know how computer information systems
are viewed by the law.  Computer information systems may be seen by the
law as analogous to one of the other communications media, such as
newspapers or common carriers, or they may be seen as unique media.
Specific legislation geared towards the computer media has already been
discussed. However, the law still leaves some issues unre{olved.  To
resolve suchissues, it is necessary to understand how other media are
regulated, and how computer information systems are similar to or
different from those media.

In all cases where the law would hold a party guilty for actions carried
out on a computer information system, this paper assumes that the SYSOP is
liable if he or she is the initial cause of that violation because the
law, by its terms, would clearly apply to the system operator.  The
primary question at issue here is the extent of a SYSOP's liability for
illegal conduct conducted by the users of the computer information system.

A.  Information System as Press

Many services on a computer information system are similar to those of
print publishers.  Just as there are magazines and newspapers, there are
electronic periodicals.  Just as there are street corner pamphleteers, so
are there E-mail activists.  Just as First Amendment privileges apply to
the print media, so, one can argue, they should apply to the electronic
press.  Often the only practical difference between print media and
electronic media is paper.  In fact, with electronic word processing and
page layout programs used by most print publishers, even printed
periodicals at one stage exist in the same form as electronic journals do
when they are published.

Even bulletin board operators sometimes see themselves as being analogous
to print publishers.  Prodigy is an example of a service that sees itself
as a publisher.  In fact, Prodigy refers to the people who screen messages
posted in their conferences as " editors" and not censors, and Prodigy
claims all of them have journalism backgrounds.[441] Both Prodigy and the
local newspaper take "articles" by "authors" and "publish" them in their
respective media for the consumption of their "subscribers."

There are two types of publishers, primary and secondary.  A primary
publisher is presumed to play a part in the creative process of creating
the message which is then disseminated.[442] Primary publishers are what
one generally thinks of when thinking of publishers. Prodigy claims to be
such a publisher.  While the Constitution provides some protection to the
editor's judgment as to what to print,[443] the protection is not
complete.  All of the restrictions on content discussed earlier apply to
publishers-advocacy of lawless action, child pornography, obscenity,
defamation, etc.  The SYSOP, as an electronic publisher, shares the same
liability as a print publisher would, for example, the *New York
Times*[444] "actual malice" standard for defamation, and a "knowing"
standard as required by the statutes forbidding the transportation of
material involved in child pornography.[445] The publisher is generally
held to know what is being published because he or she has editorial
control over the material that is published.

The question then becomes, is knowledge enough to result in liability?
This is determined by the actual crime with which the publisher is
charged.  Defamation generally requires the publisher to have published
the defamation with "knowing or reckless disregard for the truth."[446]
For a SYSOP, at least a "know or have reason to know" standard would be
necessary.  A publisher generally knows he or she is publishing, as well
as what is being published.  A SYSOP for a large computer information
system with a lot of users may not be able to keep track of all of the
electronic journals and messages on bulletin boards which are being run on
his or her system.  While a SYSOP may have the same editorial control that
a print publisher has, the sheer size may effectively prohibit actual
editorial control over what is being published over the computer system.
For this reason, it would be unfair to hold a SYSOP to a standard that
requires less than a "knowing or reason to know" standard.

An argument for this minimum requirement is supported by some cases, for
example, those which do not allow the publisher to be held liable for
everything in his or her periodical, such as the safety of products sold
by their advertisers.[447] As the court in *Yuhas v. Mudge* held,

"[t]o impose the [duty to check the truth of the claims of all of their
advertisers] upon publishers of nationally circulated magazines,
newspapers and other publications would not only be impractical and
unrealistic, but would have a staggering adverse effect on the commercial
world and our economic system.  For the law to permit such exposure to
those in the publishing business ... would open the doors to 'liability in
an indeterminate amount for an indeterminate time, to an indeterminate
class.'"[448]

The converse of *Yuhas v. Mudge* also supports this proposition.  In
*Braun v. Soldier of Fortune Magazine, Inc*.[449] a magazine was held
liable for the results of running a personal services advertisement for,
what turned to be, an assassin.[450] The court said the publisher knew of
the likelihood that criminal activity would result from an ad such as the
one at issue, as many newspaper and magazine articles had linked past
*Soldier of Fortune* personal services ads with criminal convictions.[451]
The t est the court used was "whether the burden on the defendant of
adopting adequate precautions is less than the probability of harm from
the defendant's unmodified conduct multiplied by the gravity of the injury
that might result from the defendant's unmodified conduct."[452] Employing
this test, the court said the proper balance should hold the publisher
liable when "the advertisement on its face would have alerted a reasonably
prudent publisher of the clearly identifiable unreasonable risk of harm to
the public that the advertisements posed."[453] The court, in accord with
*Yuhas v. Mudge*, said that the publisher's First Amendment concerns
should be protected by not requiring the publisher to actually investigate
the advertisements, and to only impose liability where a reasonably
prudent publisher would determine that an ad "on its face" posed "a
clearly identifiable unreasonable risk that the offer in the ad is one to
commit a serious violent crime."[454]

Operators of large systems are quick to support the view that the job of
monitoring every communication on their systems would be a prohibitively
large task.[455] If a "know or have reason to know" standard were applied
to computer information systems, of fending material reported to a SYSOP
would have to be dealt with under threat of liability.  Also, any
offending material discovered by the SYSOP would need to be removed.  A
SYSOP also could not avoid monitoring for improper content, knowing such
content is present, and then later claim ignorance.  However, holding a
SYSOP responsible even for material that he or she did not know was on the
computer system would require a much larger time commitment on the part of
the SYSOP or the hiring of staff to supervise the activities taking place
on the computer system.  Most small hobbyists running bulletin board
systems would not be able to support this additional commitment and would
be forced to cease operating out of fear of liability.  Larger commercial
services would have to either increase costs to the users or decide that
providing some services are no longer worth the expense.  The net result
would be a contracting of the number of outlets for free expression by
means of computer.  By requiring at least a "reason to know" standard, a
balance can be struck-the service can be provided, but a SYSOP could not
hide his or her head in the sand to avoid liability.  Any problem brought
to the SYSOP's attention would have to be addressed; any problem the SYSOP
discovered would also need to be taken care of; and any problem likely to
be present could not be ignored by the SYSOP.

A secondary publisher is someone who is involved in the publication
process, such as a press operator, mail carrier, or radio and television
engineer, who usually does not know when a statement he or she transmits
is defamatory and is usually not in a position to prevent the harm-a
secondary publisher generally has no control over the content of the
message, unlike a primary publisher.[456] Unless the secondary publishers
know or have reason to know of the defamatory nature of the material they
are transmitting, they are free from liability for defamation.[457]
Secondary publishers are often treated synonymously with republishers
which are discussed in the next section.

B.  Information System as Republisher/Disseminator

A republisher, or disseminator, is defined as "someone who circulates,
sells, or otherwise deals in the physical embodiment of the published
material."[458] Some computer information systems are like republishers
because all they do is make available file s, just like a book seller or
library makes texts available.  A librarian cannot be expected to read
every book in the library, just as the system operator of a service may
not be able to read every text file stored on the computer system.  File
servers and data bases can be large enough to store complete texts of
books and periodicals, as users of services such as WESTLAW and
LEXIS/NEXIS are well aware.  Computer information systems can also contain
massive quantities of software, E-mail and electronic journals, all stored
ready for users to peruse like a library book. One of the characteristics
of secondary publishers; is that they are "presumed, by definition, to be
ignorant of the defamatory nature of the matter published or to be unable
to modify the defamatory message in order to prevent the harm."[459]

The case that first established the immunity from liability for
distributors, breaking the common law tradition, was *Smith v.
California*.[460] *Smith* involved a bookseller who was convicted of
violating a statute that made it illegal to deal in obscene materials.
The lower court held violators of the statute strictly liable.  However,
the court held that a law which holds a bookseller strictly liable for the
contents of the books he or she sells is unconstitutional.  Justice
Brennan stated his reasons as follows:

"For if the bookseller is criminally liable without knowledge of the
contents ... he will tend to restrict the books he sells to the ones he
has inspected; and thus the State will have imposed a restriction upon the
distribution of constitutionally protected as well as obscene literature.
It has been well observed of a statute construed as dispensing with any
requirement of scienter that:  'Every bookseller would be placed under an
obligation to make himself aware of the contents of every book in his shop
 It would be unreasonable to demand so near an approach to omniscience.'
And the bookseller's burden would become the public's burden ... .  The
bookseller's limitation in the amount of reading material with which he
could familiarize himself, and his timidity in the face of absolute
criminal liability, thus would tend to restrict the public's access to
forms of the printed word which the State could not constitutionally
suppress directly."[461]

While this case did not determine the degree of liability appropriate for
a bookseller, it did find that strict liability was too restrictive.[462]
Later courts, however, were willing to set a minimum standard of
liability, and that standard was set to a "know or have reason to know"
standard.[463] In addition, secondary publishers are not required to
investigate the contents of the messages they are delivering in order to
avoid liability.[464] So far, one court has applied the *Smith*[465]
analysis to computer information systems. *Cubby, Inc. v. CompuServe,
Inc.*[466] is a major decision supporting the analogy of the computer
information system as a republisher or disseminator of media.  CompuServe
was one of the first public computer information systems, founded in 1969
as a time-sharing system by H&R Block in order to make use of some of its
surplus computer facilities.[467] CompuServe is now so large that it
contracts out its editorial control of various discussion groups to other
companies, who maintain the forum in accordance with CompuServe's general
guidelines.[468] The groups maintaining the forums are similar to print
publishers-they take articles submitted by users and then publish t hem,
exerting editorial control over the material where necessary.  CompuServe
works, in essence, like an electronic book store.  CompuServe sells to its
users the materials that the discussion groups publish.  In *Cubby*, one
of the forums uploaded and made available an on-line publication which
defamed the plaintiff.[469] CompuServe had no opportunity to review the
periodical's contents before it was made available to CompuServe's
subscribers.[470] District Judge Leisure held that, since CompuServe had
no editorial control over the periodical, and CompuServe did not know or
have reason to know of the defamation contained in the periodical,
CompuServe was in essence "an electronic, for-profit library."[471] Like a
bookstore or library, CompuServe had the option to carry or not to carry
the periodical, but once the decision was made CompuServe had no editorial
control over the periodical.  The court recognized the function of
technology and admitted that a computer database is the functional
equivalent to a news distributor or a public library, and therefore, so as
not to impede the flow of information, the same "know or have reason to
know" standard should apply.[472]

This holding has a number of profound implications for the law governing
computer information systems.  First, it establishes a clear determination
of SYSOP liability: where the SYSOP does not exert editorial control, and
does not know or have reason to k now of the dissemination of offensive
material, he or she cannot be held liable.  This also implies that once a
SYSOP is made aware, or has reason to believe, that the computer system is
being used for illegal purposes, he or she is obligated to remedy the
situation under penalty of liability.  It also implies that a SYSOP can
reduce potential liability by avoiding awareness of message content on his
or her system, limited by the "reason to know" element-a SYSOP could not,
however, escape liability by sticking his or her head in the sand while
knowing that the computer information system was likely being used for
illicit purposes.  The scope of this holding is arguably broad, especially
since the court relied on an obscenity case to determine a defamation
issue.  This means that the same standard may now apply in both defamation
and obscenity cases involving computer systems whose operators do not
exert editorial control.[473] However, the decision also may be limited to
systems so large that the System Operator could not monitor the entire
system's content.


C.  Information System as Common Carrier

Network transmissions, E-mail, and some other features of a computer
information systems such as "chat" features all work in a way similar to a
common carrier.  A common carrier is a service that:

"is [of] a quasi-public character, which arises out of the undertaking 'to
carry for all people indifferently ... .'  This does not mean that the
particular services offered must practically be available to the entire
public; a specialized carrier whose service is of possible use to only a
fraction of the population may nonetheless be a common carrier if he [or
she] holds himself [or herself] out to serve indifferently all potential
users."[474]

Importantly, a computer information system need not be classified
according to only one communications analogy - a system can act at times
like a publisher, and at times like a common carrier. A service is defined
as a common carrier when it acts as such based on the way it conducts its
activities.[475]

Common carriers have generally been considered secondary publishers,[476]
and as such, have traditionally functioned under a reduced standard of
liability.[477] That standard is, once again, a "know or have reason to
know" standard of liability.[478] This standard has been widely adopted
and applied to the electronic communications media: from telegraph,[479]
to telephone,[480] and even to options such as telephone answering
services.[481] There are a number of reasons for applying a knowing
standard to a common carrier.

One reason is efficiency; service providers would not be able to do their
job transmitting as well if they also had to monitor content.[482] Another
reason is fairness; common carrier operators are not trained in what is
libelous and what is not, and, eve n if they were, they would have to make
many decisions at a quick rate-not a fair burden to place on the common
carrier.[483] And a third reason is privacy; by removing a need for common
carriers to monitor content of transmissions, the likelihood is incr eased
that transmissions will be held private.  A "know or have reason to know"
standard makes a lot of sense for computer networks, as all of the above
interests would be served by regulating a network as a common carrier.

Like a common carrier, computer networks carry data from one computer to
another with no regard for the information being transferred.  Data that
is transferred over a computer network often consists of electronic mail
passively being forwarded from an ac count on a sending machine to an
account on a receiving machine.  Network traffic may also contain
confidential documents being passed from computer to computer.  Even faxes
may be sent by E-mail to distant fax machines to then be sent out over the
teleph one system as a local call.[484] Support for a "knowing" standard
is gained from the Electronic Communications Privacy Act of 1986[485]
which statutorily applies this standard to the interception and use of
intercepted E-mail and network communications.  For a SYSOP to be liable
for a user's illegal use of the system, the SYSOP would have to know or
guess that the illegal use was going on, and he or she would then be under
an obligation to prevent such a use.

It is worth mentioning at this point that not all communications over a
common carrier are unregulated.  There are some uses of electronic common
carriers which are forbidden: an example is obscenity by phone.  A recent
issue with the growth of 900 teleph one numbers has been "dial-a-porn,"
where people can call a number and hear sexually oriented messages.  The
use of a telephone to convey obscene, indecent, or harassing messages is
outlawed.[486] An exception is made for indecent telephone messages, so
long as provisions are used to prevent minors from receiving these
indecent messages.[487] Allowable safeguards include: scrambling messages
so they cannot be understood without a descrambler, issuing a password by
mail with age verification, or requiring a credit card number before
transmission of the message.[488] While this statute applies only to
communication over a telephone, it does not distinguish between aural and
data communications.  Without making this distinction, the statute may
also cover connecting to a bulletin board system or other service which
provides indecent material.  If this statute were applied to computer
information systems, as it is applied to dial-a-porn, SYSOPs would have to
employ one of the same means of preventing access t o minors, and would
have to make sure that the service offered met the standards of
constitutionally protected indecency and that it did not cross the line
into prohibited obscenity.[489]

As discussed earlier, there is no national standard for obscenity.  A
SYSOP would have to be careful not to break the obscenity laws in any
state to which the computer information system reached.  With the ease of
access of a computer information system b y means of a long distance
telephone call, this would make computer information systems subject to
the obscenity laws of every state.  It is not hard to see how computer
porn services should be subject to regulation in the same form as
dial-a-porn.  With a computer's ability to transmit images and sounds as
well as text, the justification for regulating computer distributed
indecent or obscene material is equal to or greater than the justification
for regulating standard audio dial-a-porn.  The distribution means is
essentially the same-a wire connection from the sender to the receiver.
In the case of dial-a-porn, this wire is a telephone line.  In the case of
material transmitted by computer, the wire is either a telephone line or a
network connection.  This similarity, in essence, is what one court has
recently found and used to convict two system operators.[490]

Using two statutes similar to the one just mentioned covering transmitting
obscenity by telephone,[491] a court in Tennessee has recently found two
SYSOPs guilty of violating a statute outlawing the transportation of
obscene material in interstate or foreign commerce,[492] and one that
outlaws transporting obscene material via common carrier.[493] In the
case,[494] a postal inspector in Tennessee ordered sexually explicit
materials from the SYSOPs by way of their California bulletin board
system.[495] Some of the material was delivered by UPS (a common carrier),
and some was delivered by modem via the telephone system (also a common
carrier).[496] A jury in Memphis found the material to be pornographic,
and the SYSOPs were convicted on eleven counts of distributing pornography
in violation of the two statutes.[497] This case is potentially very
important for system operators.  Although there is no national obscenity
standard, there is potential liability anywhere in the nation (or world)
for the SYSOP who does not either, 1. limit access to people from
locations where material stored on the computer information system might
be found obscene or 2. make sure that any material accessible would not be
found obscene from anywhere in which the information may b e accessed.
Simply put, this case made explicit the current state of liability for
obscene material-a SYSOP must either avoid distributing questionable
material, restrict access to people from more restrictive communities, or
risk being held accountable to the courts anywhere were there is a
telephone or network connection.  As one court put it (in a defamation
context):  Through the use of computers, corporations can now transact
business and communicate with individuals in several states
simultaneously.  Unlike communication by mail or telephone, messages sent
through computers are available to the recipient and anyone else who may
be watching.  Thus, while modern technology has made nationwide commercial
transactions simpler and more feasible, even for small businesses, it must
broaden correspondingly the permissible scope of jurisdiction exercised by
the courts.[498]


D.  Information System as Traditional Mail

Since a major use for computer information systems is sending E-mail, it
is only sensible to compare such a use to the U.S. mail.  The U.S. mail is
a type of common carrier mandated expressly by the Constitution.[499] U.S.
mail, or "snail mail" is governed by a statute which gives "regular" mail
the same kind of privacy that the Electronic Communications Privacy Act
[500] gives E-mail.  The postal service act punishes

"[w]hoever takes any letter ... out of any post office or any authorized
depository for mail matter, or from any mail carrier, or which has been in
any post office or authorized depository, or in the custody of any letter
or mail carrier, before it has bee n delivered to the person to whom it
was directed, with design to obstruct the correspondence, or to pry into
the business or secrets of another, or opens, secretes, embezzles, or
destroys the same ... "[501]

This statute has the same effect as the statutes specifically geared
towards electronic communications - it protects both mail in
transmission,[502] as well as mail being stored for the recipient.[503]
Just as the Electronic Communications Privacy Act protects stored
communications in the form of an E-mail recipient's "mail box,"[504] so
does the postal service protect a "snail mail" recipient's mail box.[505]
U.S. mail recipients have certain protections which E-mail recipients may
also create for themselves. U.S. mail recipients can ask the post office
to block mail from particular senders who are distributing what the
receiver sees as sexually offensive mail.[506] However, the reason for
this protection from unpleasant U.S. mail - based on notions of trespass
[507] - could easily apply to E-mail and network communications as well.
In the case of electronic mail, a computer program could be set up to
automatically reject incoming mail from certain senders.  A program could
also be used to search through the text of an incoming message and reject
any message which contained certain terms which would indicate that the
message's contents were something which the receiver did not want to see.

The same similarity analysis between E-mail and the U.S. Mail would work
to preserve an advertiser's right to send out E-mail for commercial
purposes, just as commercial U.S. mail enjoys some Constitutional
protection.[508] The one significant bar to the creation of a large junk
E-mail industry is access.  The U.S. mail is a true common carrier and as
such they do not prohibit material based on advertising content.  E-mail
in many contexts may appear to be a common carrier, but if it is sent over
a company's computer system, for instance, there may be no way for an
advertiser to gain access to the company's E-mail system.  Similarly,
large networks, such as the Internet, exist for educational purposes.
While network authorities do not censor E-mail, in keeping the network in
line with the definition of a common carrier, a user could still report a
company which was trying to advertise over the network.  Since the
Internet is not meant to be used for profit making purposes, an offending
company reported b y a user could be denied access privileges to the
network.

E.  Information System as Traditional Public Forum

For centuries, when people had ideas to communicate, they did so in public
fora, such as parks, streets and sidewalks, and the local town square.
These areas are usually owned by the government.  In many ways, computer
information systems, such as bullet in board systems, are becoming the new
public fora.[509] These are mostly operated by individual citizens and
corporations.

The First Amendment [510] (and the Fourteenth Amendment [511]) to the U.S.
Constitution prohibits the government from restricting content based
speech, or even expressive conduct because of the ideas expressed.[512]
Governments can proscribe speech based on some of its aspects, such as
obscenity and fighting words, but not on the basis of viewpoint.[513] The
government may also impose reasonable time, place and manner restrictions
on speech, as long as they are "justified" and the restrictions do not
refer to the content of the regulated speech.[514] The law governing
speech restrictions pertaining to state owned fora, or fora with
sufficient government entanglement to constitute state-action, presumably
should follow these First Amendment established principles.  This has
traditionally left government owned publicly accessible locations as
places in which to engage in free speech activity, a right generally not
enjoyed on private property.  Of particular concern to the SYSOPs of
privately run computer information systems, are the limits imposed on
control of speech occurring on private property held open for public use.
"Ownership does not always mean absolute dominion.  The more an owner, for
his advantage, opens up his property for use by the public in general, the
more do his rights become circumscribed by the statutory and
constitutional rights of those who use it."[ 515] *Marsh* held that a
woman could not be prevented from passing out leaflets in a town shopping
district which was freely open to the public.[516] What made this
situation unusual was that the town in which the woman wanted to pass out
her leaflets (Chickasaw, Alabama) was then owned by the Gulf Shipping
Corporation.[517] The court held that, because the privately owned town
provided all of the services and facilities that would normally be
provided by a publicly owned town-such as streets and sewers and the
like-and because the company-owned town was otherwise indistinguishable
from any other town, the company must also provide for the First Amendment
right of the people who wanted to use the "public" areas in their normal
fashion.[518] *Marsh* has be en interpreted expansively, and has been
extended to shopping centers.[519] In *Logan Valley*, the Supreme Court
held that a shopping mall is just like the business district of a company
town- both are open to the community and to those passing through, an d
both serve the same purpose.[520] The Court held that "the State may not
delegate the power, through the use of its trespass laws, wholly to
exclude those members of the public wishing to exercise their First
Amendment rights on the premises in a manner and for a purpose generally
consonant with the use to which this property is actually put."[521]
*Marsh* and *Logan Valley* suggest that, if a SYSOP makes his or her
system wide open to anyone for any purpose, anyone who wishes to express
himself or hers elf on the system may not be censored based on content,
just as the government could not restrict speech on content-based grounds.
The more the SYSOP limits use of the system, the more weight the SYSOP's
ownership interest will have over the user's First Amendment rights.

These cases were not all the Supreme Court had to say on the issue,
however.  In *Lloyd Corporation, Ltd. v. Tanner*[522], another shopping
center case, the Supreme Court held that, when there is another outlet for
speech, not on private property, to be heard, a landowner does not need to
provide its own private property for the speaker.[523] The Court noted
that *Marsh* held only that where "private interests were substituting for
and performing the customary functions of government, First Amendment free
doms could not be denied where exercised in the customary manner...
"[524] This decision was refined yet further in *Hudgens v.
N.L.R.B.*[525], which held that *Marsh* applies only to cases where
privately owned property has taken on *all* of the attrib utes of a
town-such as residential buildings, streets, a system of sewers, a sewage
disposal plant, and a "business block."[526] The Court held that the only
way a speaker's First Amendment rights may trump the property rights of
the owner of, say, a shop ping center, is when that shopping center is the
functional equivalent to an entire town, complete with the above listed
services.[527] *Hudgens* reflects the current state of private forum law.
However, using a traditional private forum model, with this "functional
equivalent to the entire town" standard in place, regardless of the extent
to which a communications system takes on the aspects of a "community,"
and no matter how open the system is , until the Supreme Court
fundamentally changes its analysis, a user only has speech rights at the
sufferance of the System Operator.[528] If the computer information system
was the functional equivalent to a town, the user may have greater First
Amendment rights, but since computer information systems do not provide a
system of sewers and streets, the system operator retains control over how
speech is exercised on his or her system.  This is especially likely to be
true where the System Operator requires a service contract before access
to the system is given.  In this case, not only is the SYSOP not providing
the required sewage treatment plants and residential buildings, but the
system is also arguably not even open to the public.

F.  Information System as Traditional Bulletin Board

For centuries courts have been looking at liability for notices posted on
bulletin boards, bathroom walls, sides of buildings, and wherever else
defamatory material can be posted.  In the past few hundred years there
has been little debate about proprietor liability for the content of the
"bulletin boards" under its control.  The law of Great Britain, as parent
to the U.S. legal system, is illustrative.  The English Star Chamber in
*Halliwood's Case* (1601) held that "if one finds a libel, and would keep
himself out of danger, if it be composed against a private man, the finder
may either burn it or deliver it to a magistrate."[529] A fairly modern
case (1937) which is cited more frequently in this country is *Byrne v.
Deane*.  This case involved a poem, placed on the wall of a private golf
club, which was alleged to be defamatory of one of the club's
members.[530] Judge Hilbery held that the owners of the club could be held
liable as republishers of the defamation.[531] He based this conclusion on
the fact that the club owners had complete control of the walls of the
club;[532] they had seen the poem;[533] they could have removed it;[534]
and yet they did not.[535] In the words of Judge Greer, "by allowing the
defamatory statement ... to rest upon their wall and not to remove it,
with the knowledge that they must have had that by not removing it it
would be read by people to whom it would convey such meaning as it had,
were taking part in the publication of it."[536] Courts in this country
have made rulings on the posting of defamatory material since at least
1883.  *Woodling v. Knickerbocker*[537] involved two placards left on a
table at a furniture dealer, one which read, "[t]his was taken from Dr.
Woodling as he would not pay for it; for sale at a bargain,"[538] and the
other which read, "Moral: Beware of dead-beats."[539] The court found for
the plaintiff, holding that regardless of who left the sign, anyone who
allowed or encouraged its placement, or who had authority to remove the
sign after it was placed, could be held liable for its publication.[540]
Importantly, the court also discussed the liability of one of the
furniture store owners who had not seen the defamation.[541] The court
said that she could not be held liable for her partner's nonfeasance in
removing the sign because there was no way to imply that she had given him
authority to act as a publisher of defamatory material, and this was
beyond the scope of their business.[542] This situation was contrasted
with that of a business involved in publishing or selling books or
magazines.[543] In the case of a publisher or seller, all of the partners
are to be regarded as having given authority to the other partners in
deciding what to publish or sell, and therefore all of the partners are to
be held liable for defamation.[544] This implies that a SYSOP who either
does not monitor the content of publicly accessible parts of the system
under his or her control, or a SYSOP or computer information system owner
who delegates such responsibility may still be held liable for defamatory
material.  *Fogg v. Boston & L. R. Co.*[545] supports this theory.  In
this case, a newspaper article defaming a ticket broker was posted in the
defendant's railway office.[546] The court held that a jury could properly
have found that the defendant, by way of its a gents, had knowledge of
what was posted in its office.[547] Also, by not having it removed in a
timely manner the company could be construed as having endorsed or
ratified the posting of the defamatory article, even if it had not been
responsible for its posting in the first place.[548]

*Hellar v. Bianco* is a case in which the proprietor of an establishment
was originally unaware of the defamation, and this case raised the issue
as to what constituted a reasonable time to remove defamatory posts once a
proprietor is made aware of their existence.[549] *Hellar* involved
"libelous matter indicating that appellant was an unchaste woman who
indulged in illicit amatory ventures"[550] which was scrawled on a men's
room wall of a tavern.[551] After the woman who was the subject of the
note beg an getting calls about the graffiti, the bartender was asked to
have the message removed.[552] Later that evening, when it was not
removed, the tavern owner was charged with republication of the
libel.[553] The court held that republication occurred when the bartender
knew of the libel, and had an opportunity to remove it, but did not do
so.[554] In this set of circumstances, a short period of time was
sufficient to constitute republication.  A longer period of time was found
not to constitute republication in *Tacket v. General Motors Corp*.[555]
Tacket involved a defamatory sign posted in a GM factory.[556] The court
said that it was conceivable that it could take three days to remove a
sign because of the speed at which large bureaucracies work.[557] The
court did say that a second sign which had been posted for seven or eight
months was different and that a lengthy time of posting without removal
could be found by a jury to be republication by implied ratification.[558]

A more recent case, *Scott v. Hull*,[559] appears, at first glance, to
hold in a manner contrary to these earlier cases.  In *Scott*, graffiti
defaming the plaintiff was written on the side of a building.[560] The
plaintiff told the defendant about the graffiti and asked that it be
removed; the defendant refused.[561] The court held that the building
owners were not liable as republishers, and they were under no duty to
remove the graffiti.[562] The reasoning behind this decision is that the
viewing of the graffiti was not at the invitation of the owners - as it
was in the earlier cases.[563] In *Scott v. Hull*, the graffiti was on the
outside of the defendant's building.[564] It was placed there by strangers
and read by strangers.[565] The defamation was not put there by an act of
the defendant, and the court refused to find liability for nonfeasance in
this instance.[566] In *Hellar*,[567] the defamation was "published" in
the restroom on the defendant's premises.  The graffiti was placed there
by invitees of the defendant,[568] and was read by other invitees.[569]
*Byrne v. Deane*,[570] *Woodling v. Knickerbocker*,[571] and *Tacket v.
General Motors Corp*.[572] are similar to Hellar. The same was true in
*Fogg v. Boston & L. R. Co.*,[573] except there the defamation was even
related to the defendant's business.

Invitee analysis of defamation raises two issues involving computer
information systems. First, can someone post "outside" of a computer?  An
example of this might be someone who defames someone by electronic mail
sent from one user on a computer to sever al others.  If the injured party
sued the operator of a bulletin board which also runs on that computer,
the invitee analysis would indicate that the BBS operator could not be
held liable.  This would make sense assuming the BBS SYSOP has nothing to
do with the electronic mail, and has no control over the mail system.
Although the offending message is on the same computer as the bulletin
board system, the mail does not appear on the computer at the request of
the BBS operator, unlike a post left by a user invited to use the BBS.
Messages sent by E-mail would go beyond the scope of the BBS's invitation;
therefore it would be unreasonable to hold the bulletin board operator
liable as responsibility would fall on the operator of the mail system.
If, however, the BBS operator had been given the power to remove an
offending message left anywhere on the computer system, then an agency
argument would say that the BBS SYSOP has the duty to remove the offending
message, or have someone else do it.  This is similar to the case of
graffiti in a bar - a bartender could not easily claim immunity from a
defamation charge with the argument that removing graffiti was not the job
of a the bartender.  If the bartender is not hired to clean, the bartender
could at least inform someone who was, rather than leave the defamatory
graffiti in place.

The second issue the invitee analysis raises is messages posted by someone
who is clearly not an invitee, for instance, a computer hacker who is
essentially a trespasser.  In this situation, a SYSOP should likely be
required to remove any defamatory messages left by a hacker under the same
reasoning as the above cited cases.  These cases all assume that the
writing was left by an invitee raising the presumption that the SYSOP is
aware of the message, so just because defamatory messages are left by a
trespasser does not mean the SYSOP or building owner should be any less
liable if they know of the message, have the opportunity to remove it, and
yet do not do so.

G.  Information System as Broadcaster

With the rise of packet radio and radio WANS (wireless networks), the
analogy of a computer information system as broadcaster is also of growing
importance.  Authority to govern broadcasting is given to the F.C.C. under
the Communications Act of 1934.[574 ] The justification for content
regulation over the airwaves is "spectrum scarcity."  There are only so
many radio and television stations that can be on the air at once.
"Without government control, the medium would be of little use because of
the cacophony of competing voices, none of which could be clearly and
predictably heard."[575] In order to preserve the "market place of ideas"
from monopolization, the F.C.C. governs the use of the airwaves to
preserve the rights of viewers and listeners to be in formed.[576] An
equal concern is to protect children from inappropriate material; this is
especially true because of radio and television's special reach - they can
even bring indecent messages to those children too young to read.[577]
Radio and television are given special treatment, including the
"channeling" of constitutionally protected speech, because:

1. children have access to radios and in many cases are
unsupervised by parents;
2. radio receivers are in the home, a place where people's privacy interest
is entitled to extra deference;
3. unconsenting adults may tune in a station without any warning that
offensive language is being or will be broadcast; and
4. there is a scarcity of spectrum space, the use of which the government must
therefore license in the public interest.[578]

These facts allow the F.C.C. to promulgate rules to channel
constitutionally protected "indecent" speech to times of the day when
children are not as likely to be in the listening audience, but the F.C.C.
may not altogether prohibit indecent speech.[579] The four factors
justifying channeling of speech do not work very well when applied to
wired computer communication, such as computer information systems.  No
spectrum scarcity issue is involved when calling a computer information
system.  Any indecent material available via computer must be actively
sought, as there is a reduced risk of having the telephone ring and being
spontaneously assaulted by a computer spewing lewd data.[580] While
computers, like radio receivers, are in the home, it takes an active
effort to obtain indecent material via computer, so the risks of
accidental exposure to such material at issue in the broadcasting
situation are just not present.  Finally, although children do have
unsupervised access to computers, they also may have some potential
unsupervised access to dial-a-porn and cable television.  Neither
dial-a-porn nor cable are restricted as severely as broadcasting.  As far
as the four factors justifying channeling of indecent speech applying to
wireless data transmission (packet radio, radio-WAN), the element of
spectrum scarcity comes back into play, giving the F.C.C. more of a reason
to regulate computer communications sent via the airwaves.  However, it is
less likely that offensive material will accidentally be received, since
data being broadcast may be encrypted in order to avoid its unauthorized
interception by minors.

As well as channeling indecent speech, the other exceptions and guarantees
of free speech that apply to publishers also apply to broadcasters.  For
instance, a broadcaster does not have the right to make defamatory
statements with knowing or reckless disregard for the truth.[581]

Cable television and cable audio signals are governed in a similar fashion
to regular broadcasting.  These services are seen as an "ancillary"
services to broadcasting, and therefore fall under the F.C.C.'s
authority.[582] Like computer information system s, but unlike
broadcasting, cable television must be actively brought into the home.
Because of this, cable television traditionally was not seen as being as
"pervasive" as broadcasting, and therefore the *Pacifica*[583] obscenity
standard traditionally was not extended to cable.[584] Recent cable
television regulation, however, acknowledges the growth of cable, which
now reaches nearly sixty per cent of all television households.[585] The
Communications Act of 1934[586] allowed a cable franchising authority to
prohibit or restrict any service that "in the judgment of the franchising
authority is obscene, or is in conflict with community standards in that
it is lewd, lascivious, filthy, or indecent or is otherwise unprotected by
the Constitution of the United States."  The 1992 amendments to the
Communications Act allow a cable operator to establish a policy of
excluding "programming that the cable operator reasonably believes
describes or depicts sexual or excretory activities or organs in a
patently offensive manner as measured by contemporary community
standards."[587] Thus, this standard taken from *Pacifica* now can be
applied to cable television.  The new amendments require the F.C.C. to
create regulations to channel indecent material onto a single cable
channel which must then be blocked out unless requested in writing by the
subscriber, thus preventing access by minors.[588] Also, analogous to the
postal service statutes, the new cable regulations add a provision for
service users to have the ser vice provider block out unsolicited sexually
explicit materials on request.[589] Because wired computer networks are
more like cable, cable provides a better analogy than broadcasting.  In
fact, as mentioned earlier, teletext services are usually provided over
cable television.

The use of computers over the air waves is currently limited, but it
promises to increase in the future as technology advances.  In any case,
because computer data can be easily encrypted, radio networks do not share
the same need for content restrictions that broadcasters require.  While
cable television is a better analogy for traditional computer information
systems than is broadcasting, some of the other regulatory schemes still
fit computer information systems more tightly.  This is because computer
information systems do not provide the same sorts of services as cable
television.  Rather, computers are used as the common carriers, bulletin
boards, and electronic presses that have already been discussed.


X.  SUGGESTIONS FOR REGULATION

Now that the current regulatory environment of computer information
systems has been discussed, we are left wondering how well the regulations
function to control Cyberspace.  Many people fear that the current law
does not effectively protect the rights o f voyagers through Cyberspace.
This has given rise to groups such as Computer Professionals for Social
Responsibility [590] and the Electronic Frontier Foundation.[591] Groups
such as these work to increase access to technology for the general
masses; to help legislatures understand what it is they are regulating; to
help aid in the passing of responsible, workable, laws; and, where
necessary, to help defend people whose rights are being violated because
of legislation which does not properly cover computer information systems.
Constitutional law professor Laurence Tribe has even proposed a new
amendment to the U. S. Constitution to protect individuals from such
violations of their rights.  His proposed amendment reads:

"This Constitution's protections for the freedoms of speech, press,
petition, and assembly, and its protections against unreasonable searches
and seizures and the deprivation of life, liberty, or property without due
process of law, shall be construed as fully applicable without regard to
the technological method or medium through which information content is
generated, stored, altered, transmitted, or controlled."[592]

This amendment would serve to ensure that the speech and privacy right
that we currently enjoy in other media would be applied to electronic
communications as well.  An amendment such as this would hopefully avoid
incidents like the raid on Steve Jackson Games.  This amendment would
serve to guarantee that a computer bulletin board publishing the
contemporary editor's message would enjoy the same constitutional
protection as the print publisher's printing press.  This is particularly
important as electronic publishing and electronic document delivery become
the norm, rather than the exception.[593]

Some authors focus more on how liability should be assessed and damages
determined in a new medium which offers the opportunity for violation of
rights on an instantaneous, global scale.  For example, one author
believes that SYSOPs should be at least jointly liable with the poster of
the offending material.[594] He argues that the average subscriber to a
BBS does not have the resources to compensate adequately for injuries
caused by the potentially widespread reach of offending material.[595]
Also, it may not even be able to discover the reach of offending
material.[596] Copyrighted material could be spread from computer to
computer all over the world after just one file transfer.[597]

Others want to simplify the issue of system operator liability by holding
the SYSOP liable, in addition to the original poster, as a means of
compensating victims and deterring computer crime.[598] These people argue
that SYSOPs should be liable for content because they are easier to track
down than the users who posted the offending material, and also, by
holding them liable, SYSOPs are more likely to work at deterring others
from the use of their service for inappropriate purposes.

What is necessary to regulate computer information system content and
system operator liability is, first and foremost, an understanding of the
technology.  The law is a slow evolving, tradition-bound beast.  Computers
are an upstart technology pioneered by people who do things like create
viruses to let loose on their friends in order to hone their programming
skills.[599] If judges, juries, lawyers and legislators do not understand
current technology, the technology will have changed before the law
catches up to it.  Many of our current laws will work well if adapted to
computer information systems.  The Electronic Communications Privacy Act
of 1986[600] works well to regulate electronic mail because it is modeled
after the statute that governs the U.S.  mail.[601] For many people, these
new communications fora are direct replacements for the ones that they
represent; therefore they should be regulated like the ones they
represent.  This may entail using several different regulatory schemes,
but this should not be too difficult to employ by people who understand
the technology at issue - simply regulate E-mail like U.S. mail, regulate
networks like common carriers, etc.  It would not be difficult to employ
the correct legal analogy if the computer information service at issue is
looked at from the point of view of the user.  Where novel legislation is
needed is in defining terms to be used in the developing law, and in
filling in any gaps.  An example is trespassing.  If someone hacks into a
computer sys tem, is he or she breaking and entering, or is the situation
more analogous to someone making a prank telephone call?

Tribe's proposed Constitutional amendment is similar to a modern day
spelling out of a natural law concept.  The law already exists, so it
should be assumed that the Constitution covers all technologies equally,
including Cyberspace.  In theory an amendment to the Constitution is not
necessary; however, a new amendment would leave no doubts and would make
for streamlined judicial decisions.  As computer information systems grow
in popularity and scope, older media will pass away.  New laws will have
to be added, and old laws will have to evolve to conform with the specific
demands of the new media.  A growing imperative will also be international
coordination of laws.  "The point is that pretty soon you'll have no more
idea of what computer you are using than you have of where your
electricity is generated when you turn on the light."[602] For a dial-up
accessible BBS or a networked computer information system, access can be
had from anywhere there is a network connection or a telephone.  Often,
there is little or no easy way to determine in which state or country the
computer you are using is located.  In our interconnected society, there
may not even be a clear way to establish which sovereign's laws will
apply.  International cooperation will become essential in resolving
matters such as conflicts of laws if the legal environment is to be truly
clear and understandable to guide the behavior of System Operators.

ENDNOTES

+ Copyright 1992-1994 by David Loundy All Rights Reserved

* The author has a J.D. from the University of Iowa Law School and has a
B.A. in Telecommunications from Purdue University.  He has been active in
the use and administration of computer bulletin board systems for a number
of years.  The author would like to thank Christina King Loundy, Professor
Nicholas Johnson, Bellanca Fletcher, and Vallerie Salerno for their
assistance during the writing of this paper.  This paper is an updated and
revised version of the paper "E-Law: Legal Issues Affecting Computer
Information Systems and System Operator Liability" which appeared in
Volume 3, Number 1, of the Albany Law Journal of Science and Technology.

1. Mitchell Kapor & John P. Barlow, *Across the Electronic Frontier*,
July 10, 1990, available over Internet, by anonymous FTP, at
FTP.EFF.ORG (Electronic Frontier Foundation).
2.  For example, in 1987 there were approximately 6,000 bulletin board
systems in the United States.  In 1992 this amount was up to
approximately 45,000 in the U.S. alone.  See Jack Rickard, *Home-Grown
BB$*, WIRED, 1.4, Sept./Oct., 1993.
3.  Each of the legal issues could be discussed in papers at least
this large, so only the most important aspects will be covered.  4.
To run a computer bulletin board system, three things are needed
beginning with a computer.  Bulletin board systems can be run on
virtually any size computer, from a small personal computer costing a
few hundred dollars, to a large mainframe computer  affordable only to
large corporations and universities.  In addition to the computer,
bulletin board software is also needed, which is obtainable either
commercially or free.  Finally, you need a way for people (usually
called "users" in computer jargon)  to access your bulletin board.
This is accomplished via a modem or by connection to a computer
network.
5.  A host computer is the computer on which the bulletin board
software runs and which stores the messages left by users of the BBS.
6.  Connection via a telephone line may be accomplished by a modem, a
device which converts computer data to an audio signal which can then
be transferred over a standard telephone wire where it is received by
another computer, also equipped with a modem,  which then converts the
signal back into a form comprehensible to the receiving computer.
More and more often computers may be found connected together in a
network, such as computers in a lab at a university, or office
computers which share resources.
7.  These "areas" may be referred to by a variety of names, such as
forums, special interest groups (SIGs), conferences, rooms,
newsgroups, etc.
8.  Because of the way a BBS is accessed, some easily have national or
international reach.  The international aspects of computer
information systems are largely beyond the scope of this paper, though
with the increasingly international reach of
telecommunications it is crucial to keep in mind that some computer
systems may be used by people in other countries as easily as they may
be used by people in their home countries.  This international reach
of telecommunications has a potentially profound impact  on United
States law and System Operator liability.
Bulletin board systems originally started on a small scale, used by
local computer "hackers" to exchange information among themselves. The
term "hacker" is used in a number of different ways. It was originally
used to refer to someone who uses his or her  computer knowledge to
break into other computer systems. See Eric C. Jensen, *An Electronic
Soapbox: Computer Bulletin Boards and the First Amendment*, 39 FED.
COM. L.J. 217 n.50 (1987). With the rise of national and international
computer networks, BBSs  are becoming more accessible to the general
populace not just for local users, but also for users all over the
world. Some countries already provide their citizens easy access to
state-endorsed computer information systems. The world leader has been
Franc e, which has provided its "Minitel" service since 1982. Wallys
W. Conhaim, *Maturing French Videotext becomes Key International
Business Tool*,
9 INFO. TODAY 28 (1992). Minitel has grown to a system of about six
million terminals as of the end of 1991, and it includes access to
over 16,000 information services. Carol Wilson, *The Myths and Magic
of Minitel; France's Minitel Videotex Service*, TELEPHONY, Dec. 2,
1991, at 52, 52. 9.  Robert W. Kastenmeier et al., *Communications
Privacy: A Legislative Perspective*, 1989 WIS. L. REV. 715, 727.
10. Id.
11. Id.
12. Id.
13. Downloading entails transferring files from the computer on which
the BBS runs to the user's computer, and uploading is the reverse.
14. This operates as a way to get information more directly from other
people and even to meet new friends.  In fact, for some people a BBS
is a major social outlet, allowing communication on equal terms
without first impressions being formed by physical  appearances.  Some
people have even decided to get married to other users, solely based
on the messages they have exchanged.  John Johnston, *Looking for
Log-On Love*, Gannett News Service, Mar. 25, 1992, available in LEXIS,
Nexis Library, Current file.  Others are not looking for information
or casual conversation, but rather for "net sex."  Chat features can
be used much like telephone 900 number dial-a-porn services. Before
cracking down on them, the French Minitel system determined that sex
oriented messages constituted nearly 20 percent of the usage of its
conferencing system.  John Markoff, *The Nation; The Latest Technology
Fuels the Oldest of Drives*, N.Y. TIMES, Mar. 22, 1992, s. 4, at 5.
15. See generally Richard N. Neustadt, *Symposium: Legal Issues in
Electronic Publishing: 1. Background -- The Technology*, 36 FED. COM
L.J. 149 (1984).
16. Id.
17. Id.
18. Id.
19. Id.
20. Id.
21. The final "t" is often left off because on many computers,
filenames are limited to eight characters.  See *A Glossary of
Computer Technology Terms*, AM. BANKER, Oct. 25, 1989, at 10
[hereinafter *Glossary*].
22. *Neustadt*, supra note 14, at 149.
23. Examples include WESTLAW, LEXIS, DIALOG, ERIC, and the local
library's card catalog.
24. Some of these services are quite large, and may contain the whole
text of books and periodicals, though some may contain only citations
requiring the user to look elsewhere to find the actual material
desired. These services differ significantly in their degree of
complexity-for example, in the types of search terms they will allow.
25. See MACUSER, June 1991, at 134.
26. See *Glossary*, supra note 21.
27. On large networks, such as the Internet, there are even databases
called "archies," which index file servers available all over the
network. They have small descriptions of available software, and give
a listing of what machines on the network have the file available.
Alan Emtage, *What Is 'Archie'*, EFFECTOR ONLINE, Oct. 18, 1991,
available over Internet, by anonymous FTP, at FTP.EFF.ORG  (Electronic
Frontier Foundation)(Vol. 1, No. 12). 28. DAM C. ENGST, INTERNET
STARTER KIT 104 (1993)
29. Id. at 100-101.
30. Id. at 107.
31. Id.
32. CHRISTOPHER CONDON & YALE COMPUTER CENTER, BITNET USERHELP, 1988.
Available over Bitnet by sending the command "get bitnet userhelp" to
NETSERV@BITNIC. Id.
33. Some of the major examples of networks are Tymnet, Sprintnet, and
specifically for WESTLAW and LEXIS users there is Westnet and Meadnet.
34. An example of such interactive communication is the UNIX "Talk"
command which allows a person to talk instantaneously with a remote
user.  Both users can type simultaneously; one user's text appears on
the top of his or her computer screen while the other user's text
appears on the bottom.
35. Some examples of these more full-service type networks include the
Internet, Bitnet, and ARPANET.
36. One such special use is the electronic forum, basically an
automated mailing list.  A message is sent to a "LISTSERVER" where it
is then automatically distributed to other people on its electronic
mailing list.  A LISTSERVER is an automated computer m ailing program
running out of a computer account.  Mail is sent to the account; the
LISTSERVER then redistributes the message.  The people on the list
then receive the message as E-mail.  They can respond by sending a
reply back to the LISTSERVER which then distributes that message to
its list, which includes the first message sender.  This works, in
effect, like a group of people standing around discussing a topic,
though some people are left behind in the discussion if they do not
log on to read their m ail regularly.  CONDON & YALE COMPUTER CENTER,
supra, note 27.  A similar type of electronic publication is the
electronic digest; a message is sent to the LISTSERVER, but, instead
of being automatically sent out, it is held.  A "moderator" then sorts
through and edits the material for distribution to the people on the
digest's mailing list.  Id.  The most formal type of electronic
publishing is the Electronic magazine or journal, often called the
E-journal.  These are "real" magazines, just like print magazines, but
they are distributed electronically, rather than in hard copy.  Id.
37. Dawn Stover, *Viruses, Worms, Trojans, and Bombs; Computer
"Infections"*, POPULAR SCI., Sept. 1989, at 59.
38. Id. Some people consider them such a threat that Lloyd's of London
even offers an insurance policy that specifically covers viruses. Id.
39. U.S. CONST. amend. IV.
40. M.I.T. Professor Ithiel de Sola Pool, quoted in John Markoff,
*Some Computer Conversation Is Changing Human Contact*, N.Y. TIMES,
May 13, 1990, s. 1, at 1.
41. See generally *'Fred The Computer'; Electronic Newspaper Services
Seen as 'Ad-Ons'*, COMM. DAILY, Apr. 10, 1990, at 4.  42. Electric
Word*, WIRED, 2.07, July, 1994, at 30.
43. Second Computer Inquiry 61 F.C.C.2d 103 (1976) (Amendment of
Section 64.702 of the Commission's Rules and Regulations, Notice of
Inquiry and Proposed Rulemaking). See also Second Computer Inquiry, 77
F.C.C.2d 384, 420-21 (1980) (Final Decision) (The talks directly
discuss BBSs as enhanced services.).
44. See Gregory G. Sarno, Annotation, *Libel and Slander: Defamation
by Photograph*, 52 A.L.R. 4th 488, 495 (1987).  45. RESTATEMENT
(SECOND) OF TORTS s. 568 cmt. b (1989).
46. Id.
47. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. 472
U.S. 749 (1985). 48. RESTATEMENT (SECOND) OF TORTS s. 568(2).
49. Id. s. 568(1).
50. See Tidmore v. Mills, 32 So. 2d 769, 774 (Ala. Ct. App.), cert.
denied, 32 So. 2d 782 (Ala. 1947).
51. RESTATEMENT (SECOND) OF TORTS s. 558 (1989).
52. Id. s. 559.
53. Id. s. 559 cmt. d.
54. Id.
55. Id. s. 569 cmt. e.
56. See, e.g., Ben-Oliel v. Press Publishing Co., 167 N.E. 432 (N.Y.
1929). This case involved a newspaper article on Palestinian art and
custom which was mistakenly credited to the plaintiff, an expert in
the field.  The article contained a number of
inaccuracies that, while still impressive to the lay reader, would
embarrass the plaintiff among other experts.
57. Rindos v. Hardwick, Supreme Court of Western Australia,
unreported, March 31, 1994, 1994 /1993, SCLN #940164 .
58. Id.
59. Id.
60. Id.
61. Lance Rose, *When Modems Squawk, Wall Street Listens*, WIRED, 1.3,
July/August, 1993, at 30.
62. Joshua Quittner, *Bulletin Board Libel?  Company Says Prodigy User
Posted Lies*, NEWSDAY, March 30, 1993 at 37.
63. New York Times v. Sullivan, 376 U.S. 254 (1964).
64. Id. at 256.
65. Id.
66. Id. at 270.
67. Id. at 279.
68. Id.
69. Id.
70. Id.
71. Id.
72. Id. at 279-80.
73. Id.
74. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967), aff'g 351
F.2d 702 (5th Cir. 1965), reh'g denied, 389 U.S. 889 (1967).  75.
Associated Press v. Walker, 388 U.S. 130 (1967), rev'g 393 S.W.2d 671
(Tex. Civ. App. 1965), reh'g denied, 389 U.S. 889 (1967).
76. See 388 U.S. at 164 (Warren, C.J., concurring).
77. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). See infra
text accompanying notes 75-87.
78. 418 U.S. at 343.
79. Id. at 323.
80. Id.
81. Id. at 326.
82. Id.
83. See Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).  84. Id.
at 31-32.
85. 418 U.S. at 345.
86. Id. at 346.
87. Id. at 340.
88. Id.
89. Id. at 341.
90. Id. at 344.
91. Id. at 347.
92. 472 U.S. at 749 (involving a suit for defamation because of a
false credit report).
93. Id.; cf. Thompson v. San Antonio Retail Merchants Ass'n, 682 F.2d.
509 (5th Cir. 1982).
94. 472 U.S. at 761-62.
95. Id.
96. See, Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d.
Cir. 1977). See also Time, Inc. v. Pape, 401 U.S. 279, reh'g denied,
401 U.S. 1015 (1971) (Newspaper's coverage of a government report
which, due to inaccuracies, defamed a public official, could not
result in liability unless the newspaper published the story with
actual malice); Beary v. West Publishing Co., 763 F.2d 66 (2d Cir.
1985) (holding a publisher that exactly reprinted a court opinion was
absolutely privileged for any defamatory comments in the court
opinion).
97. 763 F.2d at 68.
98. 556 F.2d at 119.
99. See, e.g., Greenbelt Coop. Publishing Ass'n v. Bresler, 398 U.S. 6
(1970).
100. Cianci v. New York Times Publishing Co., 636 F.2d 54, 64 (1980).
101. Id.
102. Id. (referring to Greenbelt Coop. Letter Carriers v. Austin, 418
U.S. 264 (1974); Gertz v. Robert Welsh 418 U.S. 323 (1974); Buckley v.
Littell, 539 F2d 882, cert. denied, 429 U.S. 1062 (1977); Rinaldi v.
Holt, Rinehart & Winston, Inc., 366 N.E.2d 12 99 (N.Y.), cert. denied,
434 U.S. 969 (1977)) (The court in Cianci held the privilege
inapplicable to a situation in which the plaintiff was clearly accused
of committing a criminal act.).  103. U.S. CONST. amend. I.
104. *Legal Overview: The Electronic Frontier and the Bill of Rights*,
available over Internet, by anonymous FTP, at FTP.EFF.ORG (Electronic
Frontier Foundation).
105. Id.
106. Hereinafter F.C.C.
107. Matt Kramer, *Wireless Communication Net: Dream Come True;
Wireless Distributed Area Networks The Wide View*, P.C. WEEK, Mar. 5,
1990, at 51, 51.
108. Harvey Silverglate, *Legal Overview, The Electronic Frontier and
the Bill of Rights*,available over Internet, by anonymous FTP, at
FTP.EFF.ORG (Electronic Frontier Foundation).
109. Brandenburg v. Ohio, 395 U.S. 444 (1969).
110. Id. at 447.
111. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942).
112. Id.
113. Id. at 573.
114. Compare Id. with 395 U.S. at 446.
115. 18 U.S.C. s.871 et seq.
116. 18 U.S.C. s.875 (b).
117. *In Jail for E-Mail*, WIRED, 2.10, October, 1994, at 33.  118.
Id.
119. 18 U.S.C. s.871.
120. New York v. Ferber, 458 U.S. 747 (1982).
121. Id. at 756-57 (citing Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 607 (1982)).
122. Id. at 759 (citing Miller v. California, 413 U.S. 15, reh'g
denied, 414 U.S. 881 (1973)).
123. Id. at 761.
124. Id. at 762.
125. Id. at 763.
126. Id. at 759.
127. See 18 U.S.C. s. 2252 (1978).
128. Id. s. 2252(a)(1).
129. U.S. Customs Closes Network Transmitting Pornography*, GLOBAL
TELECOM REPORT, March 22, 1993.
130. See Lois F. Lunin, *An Overview of Electronic Image
Information*, OPTICAL INFO. SYSS., May 1990.
131. Id.
132. Id.
133. See 18 U.S.C. s. 2255(a) (1986).
134. s. 2252(a)(4)(B).
135. Id. s. 2252(b).
136. s.2252(a)(4)(B).
137. See, Jim Doyle, *FBI Probing Child Porn On Computers: Fremont Man
Complains of Illicit Mail*, SAN FRANCISCO CHRON., Dec. 5, 1991 at A23.
See also, Robert F. Howe, *Va. Man Pleads Guilty in Child Sex Film
Plot; Computer Ads Led to Youth Volunteer's Arrest*, WASH. POST., Nov.
30, 1989, at C1.; Robert L. Jackson, *Child Molesters Use Electronic
Networks; Computer-Crime Sleuths Go Undercover*, L.A. TIMES, Oct. 1,
1989, at 20.
138. See United States v. Lambey, 949 F.2d 133 (1991), United States
v. DePew, 751 F. Supp. 1195 (E.D. Va. 1990).
139. Note, *Addressing the New Hazards of the High Technology
Workplace*, 104 HARV. L. REV. 1898, 1913 (1991).
140. Id. at 1898.
141. See 949 F.2d 133; Jensen, supra note 8, at 222.
142. See 949 F.2d 133; Note, supra note 132, at 1898; Jensen, supra
note 8, at 222.
143. See 949 F.2d 133; Note, supra note 132, at 1898; Jensen supra
note 8, at 222.
144. Note, supra note 132, at 1899; Jensen, supra note 8, at 222. 145.
See United States v. Morris, 928 F.2d 505 (2d Cir.), cert. denied, 112
S. Ct. 72 (1991).
146. Jensen, supra note 8, at 222.
147. Id.  Purists argue that the term "cracking" be used where a
destructive intent is present, while "hacking" is used in the
exploratory sense.  For the sake of convenience only, the term
"hacking" will be used here to refer to both types of activities.
148. Dodd S. Griffith, *The Computer Fraud and Abuse Act of 1986: A
Measured Response to a Growing Problem*, 43 VAND. L. REV. 453, 455
(1990).
149. Id. at 460.
150. Id.
151. Id.
152. The Computer Fraud and Abuse Act of 1986, 18 U.S.C. s. 1030
(1988).
153. Griffith, supra note 141, at 474.
154. Id.
155. 18 U.S.C. s. 1030.
156. 18 U.S.C. s. 1029.
157. Id.
158. United States v. Fernandez, 1993 WL 88197 (S.D.N.Y, 1993). 159.
United States v. Morris, 928 F.2d 504 (2d Cir.), cert. denied, 112 S.
Ct. 72 (1991).
160. Id.; Nicholas Martin, *Revenge of the Nerds; The Real Problem
with Computer Viruses Isn't Genius Programmers, It's Careless Ones*,
PSYCHOL. TODAY, Jan. 1989, at 21.
161. 928 F.2d. at 506.
162. Robin Nelson, *Viruses, Pests, and Politics: State of the Art*,
20 COMPUTER & COMM. DECISIONS, Dec. 1989, at 40, 40.  163. Id.
164. 928 F.2d. at 504.
165. Id. at 506.
166. 8 U.S.C. s. 1030(a)(5)(A).
167. 928 F.2d at 506-07.
168. 328 F2d. 504 (1991).
169. 112 S. Ct. at 72.
170. Thomas A. Guidoboni, *What's Wrong with the Computer Crime
Statute?; Defense and Prosecution Agree the 1986 Computer Fraud and
Abuse Act is Flawed but Differ on How to Fix It*, COMPUTERWORLD, Feb.
17, 1992, at 33, 33.
171. Id.
172. Mike Godwin, *Editorial: Amendments Would Undue Damage of Morris
Decision*, EFFECTOR ONLINE, Oct. 18, 1991, available over Internet, by
anonymous FTP, at FTP.EFF.ORG (Electronic Frontier Foundation).
173. David F. Geneson, *Recent Developments in the Investigation and
Prosecution of Computer Crime*, 301 PLI/Pat 45, at 2. The difficulty
arises from the fact that Morris had authorized access to some
computers but not others, presenting the question whet her Morris'
actions amounted to unauthorized access or whether his actions
exceeded authorized access. 928 F.2d at 510.
174. Computer Abuse Amendments of 1994, Pub. L. No. 103-322, s.290001,
(September 13, 1994).
175. Id, s.290001 (b).
176. Id.
177. Id.
178. Id.
179. Id.
180. Cindy Skrzycki, *Thieves Tap Phone Access Codes to Ring Up
Illegal Calls*, WASH. POST, Sept. 2, 1991, s. 1 at A1.
181. Id.
182. Id.
183. Id.
184. Fraud by Wire, Radio, or Television, 18 U.S.C. s. 1343 (1992).
185. Id.
186. See, e.g., Brandon v. United States, 382 F.2d 607 (10th Cir.
1967).
187. 18 U.S.C. s. 1346.
188. Id.
189. See, e.g., State v. Northwest Passage, Inc., 585 P.2d 794 (Wash.
1978) (en banc).
190. See, e.g., Daniel J. Kluth, *The Computer Virus Threat: A Survey
of Current Criminal Statutes*, 13 HAMLINE L. REV. 297 (1990).
191. Id.
192. David R. Johnson et al., *Computer Viruses: Legal and Policy
Issues Facing Colleges and Universities*. 54 EDUC. L. REP. (West) 761
(Sept. 14, 1989).
193. Id. at 762.
194. Id.
195. Eric Allman, *Worming My Way; November 1988 Internet Worm*, UNIX
REV., January 1989, at 74.
196. Kluth, supra note 183, at 298.
197. Id. at note 14.
198. See Stover, supra note 32.
199. Id.
200. Kluth, supra note 183, at 298.
201. See Stover, supra note 32.
202. *Electronic Mail Software Provider Reports Virus
Contamination*, UPI, Feb. 3, 1992, available in LEXIS, Nexis Library,
UPI File.
203. See Kluth, supra note 183.
204. Id.
205. 18 U.S.C. s. 1030 (1984).
206. Electronic Communications Privacy Act of 1986, 18 U.S.C. s.2510
(1984).
207. Johnson et al., supra note 178, at 764. See Anne W. Branscomb,
*Rogue Computer Programs and Computer Rogues: Tailoring the Punishment
to Fit the Crime*, 16 RUTGERS COMPUTER TECH. L.J. 1, 30-31, 61 (1990).
208. Branscomb, supra note 200, at 32.
209. Id.
210. Id. at 33.
211. Id.
212. Id. at 34.
213. Id.
214. Id. at 35.
215. Id.
216. Id.
217. Id. at 36.
218. Id. at 37.
219. See Johnson et al., supra, note 185, at 764, 766.
220. Id. at 766.
221. Id.
222. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS
s.30(1), at 164 (5th ed. 1984).
223. Id. s. 30(2), at 164.
224. Id. s. 31, at 169.
225. Id. s. 29, at 162.
226. Cheryl S. Massingale & A. Faye Borthick, *Risk Allocation for
Computer System Security Breaches: Potential Liability for Providers
of Computer Services*, 12 W. NEW ENG. L. REV. 167, 187 (1990).
227. Id. at 188-89.
228. Katz v. United States, 389 U.S. 347 (1967).
229. Id. at 348.
230. Id. at 351.
231. Id.
232. Id.
233. See, e.g., Oliver v. U.S. 466 U.S. 170 (1984).
234. See 389 U.S. at 347; See also California v. Ciraolo 476 U.S. 207,
reh'g denied, 478 U.S. 1014 (1986).
235. See Ruel Hernandez, *Computer Electronic Mail and Privacy*,
available over Internet, by anonymous FTP, at FTP.EFF.ORG (Electronic
Frontier Foundation).
236. 18 U.S.C. s. 2510 (1968).
237. See Hernandez, supra note 228.
238. United States v. Seidlitz, 589 F.2d 152 (4th Cir. 1978), cert.
denied, 441 U.S. 922 (1979).
239. Id. at 157.
240. See Hernandez, supra note 228.
241. Robert W. Kastenmeier et al., supra note 9, at 720 (citations
omitted).
242. Electronic Communications Privacy Act of 1986, 18 U.S.C. s.2510
(1968).
243. Id. s. 2510(12).
244. 18 U.S.C. s. 2511.
245. Id. s. 2511(1)(a).
246. Id. s. 2511(4).
247. Id. s. 2511(1)(c).
248. Id. s. 2511(2)(a)(i).
249. Id.
250. Id. s. 2510(14).
251. Id. s. 2511(3)(b)(ii).
252. Id. s. 2511(3)(b)(iii).
253. Id. s. 2511(3)(b)(iv).
254. Id. s. 2511(3)(b)(iv).
255. Id. s. 2511(3)(b)(i).
256. Id. s. 2511.
257. Encryption is in essence a coding of the data so it cannot be
understood by anyone without the equipment or knowledge necessary to
decode the transmission.
258. 18 U.S.C. s. 2518 (1968).
259. Id. s. 2511(2)(h)(i). A pen register is a device which records
the telephone numbers called *from* a specific telephone; a trap and
trace device records the phone originating calls *to* a specific
telephone.
260. Id. s. 2701.
261 .Id. s. 2701(a).
262. Id.!s. 2701(b).
263. Id. s. 2702.
264. See id. s. 2703.
265. Id. s. 2703(a)
266. Steve Jackson Games, Inc. v. United States Secret Serv., 816 F.
Supp. 432 (W.D. TEX. 1993).
267. Id. at 434.
268.!Id. at 443.
269. Id. at 442-43.
270. Id.; 18 U.S.C. s. 2510.
271. 816 F. Supp. at 442-43.
272. 816 F. Supp. at 441-42; 18 U.S.C. s. 2701.
273. See the file, *sjg_appeal.brief*, available over Internet, by
anonymous FTP, at FTP.EFF.ORG (Electronic Frontier Foundation). 274.
Id.
275. See 18 U.S.C. s. 2511 (1968).
276. Armstrong v. Executive Office of the President, 810 F. Supp 335
(D.C. Cir. 1993).
277. Id. at 348.
278. Federal Records Act, 44 U.S.C. s.s. 2101-2118, 2901-2910,
3101-3107, 3301-3324.
279. Id. s. 3301.
280. 810 F. Supp. at 342, 343.
281. Id. at 341.
282. 44 U.S.C. s. 2201.
283. Section 2201(2) of the Act defines a Presidential record as:
documentary materials ... created or received by the President, his
immediate staff, or a unit or individual in the Executive Office of
the President whose function is to advise and assist the President, in
the course of conducting activities which relate  to or have an affect
upon the carrying out of the constitutional, statutory, or other
official or ceremonial duties of the President.
284. Armstrong v. Bush, 924 F.2d. 282, 290 (D.C. Cir. 1991).  285.
Privacy Protection Act of 1980, 42 U.S.C. s. 2000aa (1980). 286. Id.
s. 2000aa(a).
287. Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
288. Id. at 549.
289. 42 U.S.C. s.2000aa(a)(1).
290. Id. s.2000aa (a)(2).
291. For example., journalists reporting from a war zone can use a
laptop computer and a satellite telephone to transmit an article to an
E-mail service, where the article can then be sent to the publisher.
See, *Electric Word*,  WIRED, 1.6, Dec., 1993 a t 27. 292. Mitchell
Kaypor, *Civil Liberties in Cyberspace; Computers, Networks and Public
Policy*, SCI. AM., Sept. 1991, 158, 158.  293. Id.
294. Steve Jackson Games, Inc. v. United States Secret Serv., 816 F.
Supp. 432, 439 (W.D. Tex. 1993).
295. Id. at 439-40.
296. Id. at 438.
297. Id.
298. *Legal Case Summary*, May 10, 1990, available over Internet, by
anonymous FTP, at FTP.EFF.ORG (Electronic Frontier Foundation). 299.
Id.
300. 816 F. Supp. at 436.
301. United States v. Riggs, 743 F. Supp. 556 (N.D. Ill. 1990). 302.
*Special Issue: Search Affidavit for Steve Jackson Games*, COMPUTER
UNDERGROUND DIG., Nov. 13, 1990, available over Internet, by anonymous
FTP, at FTP.EFF.ORG (Electronic Frontier Foundation). 303. 816 F.
Supp. at 436.
304. 42 U.S.C. s. 2000aa.
305. 816 F. Supp. at 437.
306. Id.
307. Id.
308. Id. at 439-40.
309. Id. at 441.
310. Id.
311. See, e.g., F.C.C. v. Pacifica Foundation, 438 U.S. 726, reh'g
denied, 439 U.S. 883 (1978).
312. The term "obscene material" is used synonymously with
"pornographic material." See Miller v. California, 413 U.S. 15, n.2,
reh'g denied, 414 U.S. 881 (1973).
313. Roth v. United States, 354 U.S. 476 (1957).
314. Id. at 487.
315. 413 U.S. at 15.
316. Id.
317. Id. at 24.
318. Pope v. Illinois, 481 U.S. 497, 500 (1987) (citing Smith v.
United States, 431 U.S. 291 (1977)).
319. Hamling v. United States, 418 U.S. 87 (1974).
320. See, e.g., 413 U.S. 15; Kois v. Wisconsin, 408 U.S. 2219 (1972).
321. Stanley v. Georgia, 394 U.S. 557 (1969).
322. Id. at 565.
323. Id.
324. Id.
325. Jensen, supra note 8.
326. Note that an exception would be made for child pornography, See
discussion supra part III.D.
327. Jensen, supra note 8.
328. U.S. v. Orito, 413 U.S. 139 (1973).
329. Id. at 143.
330. See Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y.
1991).
331. 394 U.S. at 565.
332. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68-69, reh'g
denied, 414 U.S. 881 (1973).
333. 438 U.S. at 726.
334. Id. at 732.
335. Id. at 726-27.
336. U.S. CONST. art. I, s. 8, cl. 8.
337. Copyright Act of 1947, 17 U.S.C. s. 101 (1947).
338. Id. s. 102(a).
339. Id. s. 101.
340. Id. s. 102(a) Other categories include musical works, dramatic
works, pantomimes and choreographic works, and architectural works.
Id.
341. See s. 101 (Historical and Statutory Notes).
342. Id.
343. Id.
344. Id.
345. Data which is not stored on a disk is kept in a computer's "RAM"
(Random Access Memory). RAM is a volatile information store where the
computer keeps the information it is actively processing. When the
computer is turned off, all of this data is lost ; thus, anything
stored in RAM is missing the required element of "fixation."
346. Id. s. 102(b).
347. See Charles Von Simon, *Page Turns in Copyright Law with Adobe
Typeface Ruling*, COMPUTERWORLD, Feb. 5, 1990, at 120.
348. Id.
349. See *Adobe Successfully Registers Copyright Claim for Font
Program*, COMPUTER LAWYER, Feb. 1990, at 26.
350. Von Simon, supra note 340.
351. Copyright Act of 1947, 17 U.S.C. s. 106 (1947).
352. Id.
353. See Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc.,
256 F. Supp. 399 (S.D.N.Y. 1966).
354. De Acosta v. Brown, 146 F.2d 408 (2d Cir. 1944).
355. Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp.
177 (S.D.N.Y. 1976).
356. 17 U.S.C. s. 103.
357. Id.
358. Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 111 S.Ct.
1282 (1991).
359. 17 U.S.C. s. 106.
360. 17 U.S.C. s. 101.
361. Some of these issues will need to be addressed in the near future
thanks to a portion of the High Performance Computing Act of 1991 (15
U.S.C. s.5512) which mandates the creation of a national research and
education computing network (NREN).  This section also requires that
the network "have accounting mechanisms which allow users or groups of
users to be charged for their usage of copyrighted materials available
over the Network and, where appropriate and technically feasible, for
their usage of the  Network."  15 U.S.C. s. 5512 (c) (6).
362. 17 U.S.C. s.s. 106(1), (3).
363. 17 U.S.C. s. 101.
364. Id.
365. 17 U.S.C. s. 106.
366. Unfortunately, one court has made exactly this mistake.  See
Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552, 1556 (M.D. Fla.
1993).
367. 17 U.S.C. s. 107.
368. 17 U.S.C. s. 108.
369. Bruce J. McGiverin, Note, *Digital Sound Sampling, Copyright and
Publicity: Protecting Against the Electronic Appropriation of Sounds*,
87 COLUM. L. REV. 1723, 1736 (1987) (citations omitted). 370. 17
U.S.C. s. 107.
371. Id.
372. While the use of the entire song's lyrics weighs heavily against
the use being a fair use,, the Supreme Court has held that use of the
entire work can be a fair use. See Sony Corp. of Am. v. Universal City
Studios, Inc., 464 U.S. 417 (1984).
373. Electric Word*, WIRED, 1.1, Premiere Issue, 1993, at 24.  374. 17
U.S.C. s. 108.
375. 17 U.S.C. s. 108(a).
376. 17 U.S.C. s. 108(d).
377. Id.
378. 17 U.S.C. s. 108(f)(1).
379. See 17 U.S.C. s. 106.
380. See Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc.,
256 F. Supp. 523 (S.D.N.Y. 1966).
381. Janet Mason, *Crackdown on Software Pirates; Industry Watchdogs
Renew Efforts to Curb Illegal Copying*, COMPUTERWORLD, Feb. 5, 1990,
at 107.
382. Id.
383. Id.
384. Id.
385. Id.
386. Id.
387. Id.
388. Id.
389. 17 U.S.C. s. 117(1).
390. Id. s. 117(2).
391. Steve Givens, *Sharing Shareware: Non-Traditional Marketing
Relies on Honor System*, ST. LOUIS BUS. J., July 1, 1991, s. 2 at 1B.
392. Id.
393. David Pescovitz, *Hacker Crackdown, Italian Style*, WIRED, 2.08,
August 1994 at 29.
394. Id.
395. See *lamacchia_case.docs* file, available over Internet, by
anonymous FTP, at FTP.EFF.ORG (Electronic Frontier Foundation). 396.
Id.
397. Sega Enterprises v. Maphia, _F. Supp. _ (N.D. Cal. 1994) (March
28, 1994) 1994 U.S. Dist. LEXIS 5266, 1994 WL 378641 (C93-4262)
[hereinafter *Sega*].
398. Id. at 7.
399. Id. at 6.  One of the defendants sold "copiers" which are devices
used to read the software off of a game cartridge for saving to a
floppy disk, or for playing software from a disk on one of Sega's game
consoles.
400. Id. at 7.
401. Id. at 17.
402. Id.
403. Id. at 18 (citing Casella v. Morris, 820 F.2d 362, 365 (11th Cir.
1987)).
404. Id. at 20-23.
405. 15 U.S.C. s. 1051 et seq.
406. *Sega*, supra note 390 at 9.
407. Id. at 24.
408. Id. at 26.
409. Id.
410. See supra text accompanying notes 121-23.
411. Legal aspects of the doctoring of photographs are beyond the
scope of this paper - for a good discussion of such issues, see
Benjamin Seecof, *Scanning into the Future of Copyrightable Images:
Computer-Based Image Processing Poses a Present Threat*,  5 HIGH TECH.
L.J. 371 (1990).
412. 17 U.S.C. s. 102(a)(5).
413. Id. s. 102(a).
414. Id. s. 101 (defining a copy); Id. s. 106 (Section 106 gives the
copyright holder exclusive rights to make copies and derivative works
of his or her creation.).
415. Id. s. 101.
416. Ezra Shapiro, *More on Copyright; Digitizing of Copyrighted
Images*, MACWEEK, Oct. 11, 1988, at 27.
417. 17 U.S.C. s. 302 (applying to works created after Jan. 1, 1978,
provides that a copyright shall expire 50 years after the death of the
author of the work).
418. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53
(1984) (holding that photographs are copyrightable by virtue of the
creativity that goes into arranging the subject elements and
photographic variables into a distinct picture).
419. 17 U.S.C. s. 106; See Gracen v. Bradford Exch., 698 F. 2d. 300,
(7th Cir. 1983); cf. Copyright Registration for Colorized Versions of
Black and White Motion Pictures, 37 C.F.R. 202 (1987). 420. Id. s.
106A.
421. Id.
422. Ezra Shapiro, *Copywrongs on Consumer Info Networks? Posting of
Scanned Images on Electronic Services Infringes Copyrights*, MACWEEK,
Aug. 30, 1988, at 20.
423. 17 U.S.C. s. 106.
424. Franklin Mint Corp. v. National Wildlife Art Exch., 575 F.2d 62
(3d Cir. 1978); See also Zaccini v. Scripps-Howard Broadcasting Co.,
433 U.S. 562 (1977) (involved TV station covering the plaintiff's
entire act (human cannonball), depriving the plaint iff of a chance to
sell tickets to the television viewers, since they had already seen
his act).
425. 17 U.S.C. s. 107.
426. Shapiro, supra note 415.
427. Liz Horton, *Electronic Ethics of Photography; Use of Images in
Desktop Publishing*, FOLIO: THE MAG. FOR MAG. MGMT., Jan. 1990, at 71.
428. 839 F. Supp. 1552 (M.D. Fla. 1993) [hereinafter, *Frena*]. 429.
Id. at 1554.
430. Id. at 1556.
431. Id.
432. Id.
433. Id. at 1558.
434. Id. at 1561.
435. Id. at 1562.  This part of the court's holding is
questionable, as the Judge infers activity to the Defendant which the
defendant denies engaging in.  Since the case involves a motion for
summary judgement requested by Playboy, the Judge is required  to draw
all inferences in the light  most favorable to the nonmovant.  The
judge obviously did not do this if he inferred activity which the
Defendant denies engaging in. Id. at 1555, 1562. 436. MIDI stands for
Musical Instrument Digital Interface, and is used for recording
computer data for playing back electronic instruments.  See, BRUCE
BARTLET, INTRODUCTION TO PROFESSIONAL RECORDING TECHNIQUES 276-277
(1987).
437. Edward R. Silverman, *Legal Beat*, WIRED, 2.07, July, 1994 at 32.
438. Id.
439. Id.
440. Id.
441. Mitchell Kapor, *A Day in the Life of Prodigy*, EFFECTOR ONLINE,
available over Internet, by anonymous FTP, at FTP.EFF.ORG (Electronic
Frontier Foundation) (Vol. 1, No. 5).
442. Robert Charles, *Computer Bulletin Boards and Defamation: Who
Should be Liable? Under What Standard?*, 2 J.L. & TECH 121, 131
(1987).
443. U.S. CONST. amend. I.
444. New York Times v. United States, 403 U.S. 713 (1971). 445. 18
U.S.C. s. 2252.
446. 403 U.S. at 713.
447. See, e.g., Yuhas v. Mudge, 322 A.2d 824, 825 (N.J. Super. Ct.
App. Div. 1974).
448. Id.
449. 968 F. 2d. 1110 (11th Cir. 1992) cert denied 122 L.Ed 173, 113
S.Ct. 1028 (1993).
450. The advertisement read:  "GUN FOR HIRE: 37 year old
professional mercenary desires jobs.  Vietnam Veteran.  Discrete [sic]
and very private.  Body guard, courier, and other special skills.  All
jobs considered.  ..."  Id., at 1112.
451. Id.
452. Id at 1115 citing United States v. Carroll Towing Co., 159 F. 2d.
169 (2nd Cir. 1947).
453. Id. at 1115.
454. Id. at 1118.  To point out the difficulty with this test, one of
the three Justices dissented because although he agreed with the
court's test, he found the particular ad ambiguous.  Id. at 1122. 455.
*Information Policy, Computer Communications Networks Face Identity
Crisis over Their Legal Status*, DAILY REP. FOR
EXECUTIVES, Feb. 26, 1991, at A-6.
456. Joseph P. Thornton, et al., *Symposium: Legal Issues in
Electronic Publishing: 5. Libel*, 36 FED. COM. L.J. 178, 179 (1984).
457. See RESTATEMENT (SECOND) OF TORTS s. 581 (1989).
458. Jensen, supra note 8, at 3.
459. Charles, supra note 435 , at 131.
460. Smith v. California, 361 U.S. 147 (1959), reh'g denied, 361 U.S.
950 (1960).
461. Id. at 153 (citation omitted).
462. Id. at 155.
463. Seton v. American News Co., 133 F. Supp. 591 (N.D. Fla. 1955);
cf. Manual Enters., Inc. v. Day, 370 U.S. 478 (1962).
464. 133 F. Supp. at 593.
465. 361 U.S. at 950.
466. 776 F. Supp. at 135.
467. Clifford Carlsen, *Wide Area Bulletin Boards Emerge as Method of
Corporate Communications*, SAN FRANCISCO BUS. TIMES, Mar. 15, 1991, at
15.
468. 776 F. Supp. at 137.
469. Id. at 138.
470. Id.
471. Id. at 140.
472. Id.
473. *The Compuserve Case: A Step Forward in First Amendment
Protection for Online Services*, EFFECTOR ONLINE, Jan. 7, 1992,
available over Internet, by anonymous FTP, at FTP.EFF.ORG (Electronic
Frontier Foundation) (Vol. 2, No. 3).
474. National Ass'n of Regulatory Util. Commrs v. F.C.C., 533 F.2d
601, 608 (1976).
475. Id. at 608.
476. E.g., Von Meysenbug v. Western Union Tel. Co., 54 F. Supp 100
(S.D. Fla. 1944); Mason v. Western Union Tel. Co., 52 Cal. App. 3d
429, (1975).
477. RESTATEMENT (SECOND) OF TORTS s. 612 (1989).
478. Id. s. 581.
479. 54 F. Supp at 100; Western Union Tel. Co. v. Lesesne, 182 F.2d
135 (4th Cir. 1950); O'Brien v. Western Union Tel. Co., 113 F.2d 539
(1st Cir. 1940).
480. Anderson v. New York Tel. Co., 320 N.E.2d 647 (N.Y. 1974). 481.
People v. Lauria, 251 Cal. App. 2d 471 (1967).
482. Charles, supra note 435, at 143.
483. Id. at 123.
484. See, *Electric Word*, WIRED, 1.4, Sept./Oct., 1993, at 26-31,
discussing a project using the Internet's global decentralized
structure as an "Experiment in Remote Printing."
485. Electronic Communications Privacy Act of 1986, 18 U.S.C. s.2510.
486. 47 U.S.C. s. 223.
487. 47 C.F.R. s. 64.201
488. Id.
489. See Sable Communications v. F.C.C., 492 U.S. 115 (1989).  490.
See coverage, for e.g., in David Loundy, *Whose Standards?  Whose
Community?*, CHICAGO DAILY LAW BULLETIN, AUGUST 1, 1994, at 5.
491. Supra, note 479.
492. 18 U.S.C. s.1465.
493. 18 U.S.C. s.1462.
494. See supra, note 483.
495. Id.
496. Id.
497. Id.
498. California Software, Inc. v. Reliability Research, Inc., 631 F.
Supp. 1356 (C.D. Cal. 1986).
499. U.S. CONST. art. I, s. 8.
500. 18 U.S.C. s. 2510.
501. Mail, 18 U.S.C. s. 1702.
502. Compare s. 1702 with E-mail, 18 U.S.C. s. 2510.
503. Compare s. 1702 with s. 2511.
504. s. 2511.
505. s. 1702; See also United States Postal Serv. v. Council of
Greenburgh Civic Ass'n, 453 U.S. 114 (1981).
506. Rowan v. United States Postal Dep't, 397 U.S. 728 (1970).  507.
Id. at 737.
508. Bolger v. Young Drug Prods. Corp., 463 U.S. 60 (1983).  509. See,
e.g., Edward J. Naughton, Note, *Is Cyberspace a Public Forum?
Computer Bulletin Boards, Free Speech, and State Action*, 81 GEO. L.J.
409 (1992).
510. U.S. CONST. amend. I.
511. U.S. CONST. amend. XIV
512. See, e.g., R. A. V. v. City of St. Paul Minn., 112 S. Ct. 2538
(1992).
513. Id., at 2544.
514. Id. (citing Ward v. Rock Against Racism, 491 U.S. 781 (1989)).
515. Marsh v. State of Alabama, 326 U.S. 501, 66 S. Ct. 276, 278
(1946) [hereinafter *Marsh*].
516. Id.
517. Id.
518. Id.
519. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza,
Inc., 391 U.S. 308, 88 S.Ct. 1601 (1968) [hereinafter Logan Valley].
520. Id.  at 1608.
521. Id. at 1609.
522. 7 U.S. 551, 33 L.Ed.2d. 131, 92 S.Ct. 2219 (1972).
523. Id.
524. Id. at 2225.
525. 424 U.S. 507, 96 S.Ct. 1029 (1976) [hereinafter *Hudgens*]. 526.
Id. at 1035.
527. Id. at 1036-1037.
528. It is worth pointing out that individual states can provide
greater speech protection than is provided for by U.S.
Constitution.  For example, California has a constitutional provision
which has been held to permit individuals to exercise free speech  and
petition rights on the property of privately owned shopping centers to
which the public is invited.  See Pruneyard Shopping Center v. Robins,
447 U.S. 75, 100 S.Ct. 2035 (1980).  529. As quoted in Byrne v. Deane,
1 K.B. 818, 824 (Eng. C.A. 1937). 530. Id. at 818. The case finally
held against the plaintiff on the grounds that the message was not
defamatory. Id.
531. Id. at 820.
532. Id. at 821.
533. Id. at 838.
534. Id.
535. Id.
536. Id.
537. Woodling v. Knickerbocker, 17 N.W. 387 (Minn. 1883). 538. Id.
539. Id.
540. Id.
541. Id.
542. Id.
543. Id.
544. Id.
545. Fogg v. Boston & L. R. Co., 20 N.E. 109 (Mass. 1889). 546. Id.
547. Id. at 110.
548. Id.
549. Hellar v. Bianco, 244 P.2d 757 (Cal. Ct. App. 1952). 550. Id. at
758.
551. Id.
552. Id. at 759.
553. Id.
554. Id.
555. Tacket v. General Motors Corp., 836 F.2d 1042 (7th Cir. 1987).
556. Id. at 1043-34.
557. Id. at 1047.
558. Id.
559. Scott v. Hull, 259 N.E. 160 (Ohio Ct. App. 1970).
560. Id. at 160.
561. Id. at 161.
562. Id. at 162.
563. Id.
564. Id. at 160.
565. Id.
566. Id. at 162.
567. 244 P.2d at 757.
568. Id.
569. Id.
570. 1 K.B. at 818.
571. 17 N.W. at 387.
572. 836 F.2d at 1042.
573. 20 N.E. at 109.
574. Communications Act of 1934, 47 U.S.C. s. 301.
575. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 376 (1969).
576. Id. at 390.
577. F.C.C. v. Pacifica Foundation, Inc., 438 U.S. 726, reh'g denied,
439 U.S. 883 (1978).
578. Id. at 731.
579. Action for Children's Television v. F.C.C., 932 F.2d. 1504 (D.C.
Cir), reh'g denied, 1991 U.S. App. LEXIS 25527, reh'g denied 1991 U.S.
App. LEXIS 25425 (1991) (en banc).
580. It is possible for telemarketers to use computers for phone
solicitation; it is similarly possible for an individual to prompt a
computer to make lewd or obscene phone calls.
581. Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wyo. 1976).
582. Mail, 47 U.S.C. s. 151; See also United States v. Midwest Video
Corp., 406 U.S. 649 (1972).
583. 438 U.S. at 726.
584. Community Television, Inc. v. Roy City, 555 F. Supp. 1164 (D.
Utah 1982); Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985).  585. Cable
Television Consumer Protection and Competition Act of 1992, Pub. L.
No. 102-385, s. 2(3), 106 Stat. 1460.
586. 47 U.S.C. s. 532(h).
587. Cable Television Consumer Protection Act of 1992, s.10(a)(2).
588. Id. s. 10(b).
589. Id. s. 15.
590. Katy Ring, *Computer Professionals for Social Responsibility
Seeks to Change Lay Preconceptions*, COMPUGRAM INT'L, Oct. 9, 1990.
591. John P. Barlow, *Crime and Puzzlement: In Advance of the Law on
the Electronic Frontier; Cyberspace*, WHOLE EARTH REV., Sept. 22,
1990, at 44.
592. *Laurence Tribe Proposed Constitutional Amendment*, available
over Internet, by anonymous FTP, at FTP.EFF.ORG (Electronic Frontier
Foundation).
593. See generally John Browning, *Libraries Without Walls for Books
Without Pages*, WIRED, 1.1, Premiere Issue, 1993, at 65, discussing
the Bibliotheque de France's digital scanning of "100,000 great works
of the 20th century as chosen by a committee of  notable French
citizens."
594. See generally Charles, supra note 435.
595. Id.
596. Id.
597. Id.
598. Johnathan Gilbert, *Computer Bulletin Board Operator Liability
for User Misuse*, 54 FORDHAM L. REV. 439, 441 (1985).
599. See Branscomb, supra note 200, at 7-11.
600. 18 U.S.C. s. 2511.
601. 18 U.S.C. s. 1702.
602. Danny Hillis, *Kay + Hillis*, WIRED, 2.01, Jan., 1994, at 103.

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