This paper first appeared in the Albany Law Journal of Science and 
Technology, Volume 3, Number 1.  Care has been taken so that each
printed page has been indicated in this file (by strings of 70 "="
signs, which can be search/replaced with page breaks in most word
processors), this way the paper may be cited without the need to track
down an official printed copy.  (The only thing lost should be the
itallics and the small caps.)
 
This paper may be freely distributed under the following conditions:
 
1.  It must be distributed without alteration.
2.  It may not be distributed for a direct profit.
3.  This paper is being distributed as postcard-ware.  If you find it 
    informative or useful, please drop a note to the author and tell him
    how you got a hold of this paper.
 
       David Loundy
       465 Pleasant Ave.
       Highland Park, IL  60035
 
This paper is not intended to constitute legal advice pertaining to any
particular factual situation..  If you have a problem, or are seeking
advice as to how to avoid one, see an attorney to discuss your specific
situation.
 
 
 
======================================================================
      E-LAW: LEGAL ISSUES AFFECTING COMPUTER INFORMATION SYSTEMS AND 
                     SYSTEM OPERATOR LIABILITY[FN+]
 
                         David J. Loundy[FN*]
 
TABLE OF CONTENTS
 
    I.     Introduction....................................  81
   II.     Computer Information Systems Defined............  82
       A.     Bulletin Board Systems.......................  82
       B.     Teletext and Videotex or Videotext...........  85
       C.     Information Distribution Systems.............  85
       D.     Networks.....................................  86
       E.     Issues Involved..............................  87
       F.     Legal Analogies..............................  88
  III.     Current Regulatory Environment..................  89
       A.     Defamation...................................  90
       B.     Speech Advocating Lawless Action.............  98
       C.     Fighting Words...............................  100
       D.     Child Pornography............................  101
       E.     Computer Crime...............................  104
       F.     Computer Fraud...............................  105
       G.     Unauthorized Use of Communications Services..  107
       H.     Viruses......................................  108
       I.     Protection From Hackers......................  111
   IV.     Privacy.........................................  112
       A.     Pre-Electronic Communication Privacy Act of
              1986.    ....................................  112
       B.     Electronic Communications Privacy Act of 1986  113
--------------------------
[FN+] Copyright 1992-1993 by David Loundy All Rights Reserved
[FN*] 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, and served on the Law School Computer Committee.
The author would like to thank Christina King and Professor Nicholas
Johnson for their assistance during the writing of this paper.
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80     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
       C.     Access to Stored Communications.............   116
       D.     An Apparent Exception for Federal Records...   117
       E.     Privacy Protection Act of 1980..............   118
    V.     Obscene and Indecent Material..................   121
       A.     Obscenity...................................   121
       B.     Indecent Speech.............................   123
   VI.     Copyright Issues...............................   124
       A.     Basics of Copyrights........................   124
       B.     Copyrighted Text............................   130
       C.     Copyrighted Software........................   130
       D.     Copyrighted Pictures........................   132
  VII.     Liability for Computer Information System Content 134
       A.     Information System as Press.................   135
       B.     Information System as Republisher/
               Disseminator...............................   138
       C.     Information System as Common Carrier........   140
       D.     Information System as Traditional Mail......   143 
       E.     Information System as Traditional Bulletin 
               Board......................................   145
       F.     Information System as Broadcaster...........   149
 VIII.     Suggestions for Regulation.....................   152
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81     E-Law     Copyright 1992-1993 by David Loundy
 
                        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.[FN1] 
 
"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. 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 
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
--------------------------
[FN1] 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).
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82     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
computer information systems will 
be surveyed in brief.[FN2] 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 Ñ both defining what is 
improper and who can be held responsible Ñ 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.[FN3] 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,[FN4] usually via a telephone line.[FN5] Once connected 
to the host computer, a user can read the notes (also referred to 
as
--------------------------
[FN2] Each of the legal issues could be discussed in papers at least 
this large, so only the most important aspects will be covered.
[FN3] 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.
[FN4] A host computer is the computer on which the bulletin board 
software runs and which stores the messages left by users of the BBS.
[FN5] 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.
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83     E-Law     Copyright 1992-1993 by David Loundy
 
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.[FN6]
     Bulletin board systems can be classified in a number of ways. 
One way to classify them is by the number of users BBSs 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 upwards of fifty 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.[FN7]
     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 cater 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
--------------------------
[FN6] These "areas" may be referred to by a variety of names, such as 
forums, special interest groups (SIGs), conferences, rooms, 
newsgroups, etc.
[FN7] Because of the way a BBS is accessed, some easily have national 
or international reach. The international aspects of computer 
information systems are beyond the scope of this paper, though 
with the increasingly international reach of telecommunications it 
is important 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. 
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 France, 
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.
======================================================================
84     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
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.[FN8] 
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 Ñ privacy. Unlike the U.S. mail, electronic mail 
is almost always examinable by someone other than the sender and 
the receiver.[FN9] 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.[FN10] Third, E-mail is interactive in nature and can involve 
almost instantaneous communication, more like a telephone than 
regular mail,[FN11] 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.[FN12] 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.[FN13]
--------------------------
[FN8] Robert W. Kastenmeier et al., Communications Privacy: A 
Legislative Perspective, 1989 WIS. L. REV. 715, 727.
[FN9] Id.
[FN10] Id.
[FN11] Id.
[FN12] Downloading entails transferring files from the computer on 
which the BBS runs to the user's computer, and uploading is the reverse.
[FN13] 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, Currnt 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, ¤ 4, at 5.
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85     E-Law     Copyright 1992-1993 by David Loundy
 
            B.     Teletext and Videotex or Videotext 
 
     Another kind of computer information system is Teletext,[FN14] a 
one-way distribution system, generally run over a cable television 
system.[FN15] It sends out a continually repeating set of information 
screens.[FN16] By using a decoder, a user can select which screen he 
or she wants.[FN17] The decoder then "grabs" the requested screen and 
displays it as it cycles by.[FN18] 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[FN19] (often called 
videotext).[FN20] Videotex is a two-way service which usually uses a 
personal computer as a terminal.[FN21] 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. One common type of information distribution system 
is the database.[FN22] These services allow the user to enter a 
variety of "search terms" to look through the information the 
service has collected.[FN23] 
     Another type of information distribution system is the "file
--------------------------
[FN14] See generally Richard N. Neustadt, Symposium: Legal Issues in 
Electronic Publishing: 1. Background -- The Technology, 36 FED. COM 
L.J. 149 (1984).
[FN15] Id.
[FN16] Id.
[FN17] Id.
[FN18] Id.
[FN19] Id.
[FN20] 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].
[FN21] Neustadt, supra note 14, at 149.
[FN22] Examples include WESTLAW, LEXIS, DIALOG, ERIC, and the local 
library's card catalog. 
[FN23] 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 complexityÑfor example, in the types of search terms 
they will allow. 
======================================================================
86     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
server."[FN24] 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.[FN25] 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 for 
storing and retrieving files.[FN26]
 
                       D.     Networks
 
     A network is a series of computers, connected often by 
special types of telephone wires.[FN27] 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.[FN28] Many networks allow a much broader range of uses such 
as sending E-mail and more interactive forms of communication 
between machines,[FN29] transferring computer files, and also 
providing the same remote access and use that the simpler networks 
allow.[FN30]
     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.[FN31]
--------------------------
[FN24] See MACUSER, June 1991, at 134.
[FN25] See Glossary, supra note 20.
[FN26] 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).
[FN27] CHRISTOPHER CONDON & YALE COMPUTER CENTER, BITNET USERHELP, 1988. 
Available over Bitnet by sending the command "get bitnet userhelp" 
to NETSERV@BITNIC. Id.
[FN28] Some of the major examples of networks are Tymnet, Sprintnet, 
and specifically for WESTLAW and LEXIS users there is Westnet and 
Meadnet.
[FN29] 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.
[FN30] Some examples of these more full-service type networks include 
the Internet, Bitnet, and ARPANET.
[FN31] 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 
mailing 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 mail 
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.
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87     E-Law     Copyright 1992-1993 by David Loundy
 
                    E.     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.[FN32] 
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.[FN33]
     Privacy is another issue for users and system operators of
--------------------------
[FN32] Dawn Stover, Viruses, Worms, Trojans, and Bombs; Computer 
"Infections", POPULAR SCI., Sept. 1989, at 59.
[FN33] Id. Some people consider them such a threat that Lloyd's of 
London even offers an insurance policy that specifically covers 
viruses. Id.
======================================================================
88     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
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."[FN34] Yet, how does 
this Amendment apply to Cyberspace. Cyberspace is a vague, 
ethereal place with no readily identifiable boundaries, where 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. 
 
                    F.     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 publisher. 
Some theorists already refer to computer networks as "the printing 
presses of the 21st century."[FN35] Many publishers use BBSs to 
supplement their printed editions either by providing additional 
stories or by providing computer information services on a BBS.[FN36] 
However, other services are more like common carriers than 
publishers. Networks just pass data from one computer to another 
Ñthey do not gather and 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
--------------------------
[FN34] U.S. CONST. amend. IV.
[FN35] 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, ¤ 1, at 1.
[FN36] See generally 'Fred The Computer'; Electronic Newspaper 
Services Seen as 'Ad-Ons', COMM. DAILY, Apr. 10, 1990, at 4.
======================================================================
89     E-Law     Copyright 1992-1993 by David Loundy
 
allow many entities to deliver their messages 
simultaneously to many other entities. 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 labeling 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, E-mail, and a chat feature, 
and that makes available electronic periodicals in the BBS's file 
system, one analogy is insufficient. To regulate computer 
information systems properly, lawyers, judges, and juries need to 
understand computer information systems and how they work.
 
         III.     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.[FN37] 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."
--------------------------
[FN37] 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.).
======================================================================
90     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
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 message 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.[FN38] But 
what is defamation, and what risks and obligations does it present 
to a system operator?
     Defamation occurs in two forms Ñ 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
--------------------------
[FN38] See Gregory G. Sarno, Annotation, Libel and Slander: Defamation 
by Photograph, 52 A.L.R. 4th 488, 495 (1987).
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91     E-Law     Copyright 1992-1993 by David Loundy
 
form and "no respectable authority has ever attempted to 
justify the distinction on principle."[FN39] 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.[FN40] 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."[FN41]
     Slander is publication in a transitory form Ñ speech, for 
example, is slander.[FN42] 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."[FN43] 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.[FN44] 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 pre-meditated 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 when they are 
spoken.
     In its barest form, libel is the publication of a false, 
defamatory
--------------------------
[FN39] RESTATEMENT (SECOND) OF TORTS ¤ 568 cmt. b (1989).
[FN40] Id.
[FN41] See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. 
472 U.S. 749 (1985).
[FN42] RESTATEMENT (SECOND) OF TORTS ¤ 568(2).
[FN43] Id. ¤ 568(1).
[FN44] See Tidmore v. Mills, 32 So. 2d 769, 774 (Ala. Ct. App.), cert. 
denied, 32 So. 2d 782 (Ala. 1947).
======================================================================
92     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
and unprivileged statement to a third person.[FN45] 
"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]."[FN46] 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.[FN47] 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.[FN48] "Community" 
does not refer to the entire community, but rather to a 
"substantial and respectable minority" of the community.[FN49] Even 
more specifically, the community is not necessarily seen as the 
community at large, but rather as the "relevant" community.[FN50] 
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
--------------------------
[FN45] RESTATEMENT (SECOND) OF TORTS ¤ 558 (1989).
[FN46] Id. ¤ 559.
[FN47] Id. ¤ 559 cmt. d.
[FN48] Id.
[FN49] Id. ¤ 569 cmt. e.
[FN50] 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.
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93     E-Law     Copyright 1992-1993 by David Loundy
 
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.
     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.[FN51] This case involved an advertisement taken out in a 
newspaper expressing grievances with the treatment of blacks in 
Alabama.[FN52] An elected city commissioner sued, claiming that the 
statements made in the advertisement defamed him and that the 
advertisement contained some inaccuracies.[FN53] Justice Brennan 
argued that the case should be considered "against the background
--------------------------
[FN51] New York Times v. Sullivan, 376 U.S. 254 (1964).
[FN52] Id. at 256.
[FN53] Id.
======================================================================
94     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
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."[FN54] 
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.[FN55] Because of this, the court said 
libel laws should be relaxed where the speech pertains to the 
affairs of elected officials.[FN56] 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.[FN57] 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.[FN58] 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.[FN59] A balance between open debate and freedom 
from defamation was struck by establishing an "actual malice" 
standard of liability for the publisher.[FN60] "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.[FN61]
 
     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 not 
allowed to remain when the SYSOP or user knows of its falsity or 
has reckless
--------------------------
[FN54] Id. at 270.
[FN55] Id. at 279.
[FN56] Id.
[FN57] Id.
[FN58] Id.
[FN59] Id.
[FN60] Id. at 279-80.
[FN61] Id.
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95     E-Law     Copyright 1992-1993 by David Loundy
 
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,[FN62] and its companion case, 
Associated Press v. Walker.[FN63] 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.[FN64] 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 ... 
."[FN65] Because these people have influence in our governance, just 
as public officials do, the same "actual malice" standard should 
apply to such public figures.[FN66] 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.[FN67] In Gertz, a magazine 
published an article accusing a lawyer of being a "Communist-
fronter" and a "Marxist."[FN68] The article accused the plaintiff of 
plotting
--------------------------
[FN62] 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).
[FN63] 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).
[FN64] See 388 U.S. at 164 (Warren, C.J., concurring).
[FN65] Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). See 
infra text accompanying notes 67-79.
[FN66] 418 U.S. at 343.
[FN67] Id. at 323.
[FN68] Id.
======================================================================
96     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
against the police.[FN69] The plaintiff was a lawyer who 
played a role in the trial of a police officer who was charged 
with shooting a boy.[FN70] 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.[FN71] 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.[FN72] The Gertz court held that this expansion went too 
far,[FN73] and the court overruled Rosenbloom.[FN74] 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.[FN75] Strict liability would serve to chill the 
publisher's speech by leading to self censorship where facts are 
in doubt.[FN76] This First Amendment interest was balanced against 
the individual's interest in being compensated for defamatory 
falsehood.[FN77] 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.[FN78] 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."[FN79] 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.,[FN80] Dun 
& Bradstreet was held liable for a credit report made from 
inaccurate records contained in a database.[FN81] The court argued 
that statements on
--------------------------
[FN69] Id. at 326.
[FN70] Id. 
[FN71] See Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).
[FN72] Id. at 31-32.
[FN73] 418 U.S. at 345.
[FN74] Id. at 346.
[FN75] Id. at 340.
[FN76] Id.
[FN77] Id. at 341.
[FN78] Id. at 344.
[FN79] Id. at 347.
[FN80] 472 U.S. at 749 (involving a suit for defamation because of a 
false credit report).
[FN81] Id.; cf. Thompson v. San Antonio Retail Merchants Ass'n, 682 
F.2d. 509 (5th Cir. 1982).
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97     E-Law     Copyright 1992-1993 by David Loundy
 
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.[FN82]
     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,[FN83] 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,"[FN84] (which is not an issue 
in our hypothetical). This isolates a reporter from defamatory 
statements that he or she is reporting.[FN85] 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 the press 
to inform people of these statements without the risk of 
liability.[FN86] 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.[FN87] Protection of 
opinion is, of necessity, not absolute otherwise "a writer could 
escape liability ... simply by using, explicitly or implicitly, 
the words `I think.'"[FN88] Sam Slammer cannot defend himself by 
saying, "Well, I think Dora beats her daughter." The court in 
Cianci v. New Times
--------------------------
[FN82] 472 U.S. at 761-62.
[FN83] Id.
[FN84] See, Edwards v. National Audubon Soc'y, 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).
[FN85]763 F.2d at 68.
[FN86] 556 F.2d at 119.
[FN87] See, e.g., Greenbelt Coop. Publishing Ass'n v. Bresler, 398 
U.S. 6 (1970).
[FN88] Cianci v. New York Times Publishing Co., 636 F.2d 54, 64 (1980)
======================================================================
98     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
Publishing Co.[FN89] 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 reasona-
   bly be understood as imputing specific criminal or other wrongful
   acts.[FN90]
 
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 it 
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."[FN91] The 
First Amendment is one of the most important guarantees in the 
Bill of Rights, because speech is essential for securing other 
rights.[FN92]
--------------------------
[FN89] Id.
[FN90] 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 1299 
(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.).
[FN91] U.S. CONST. amend. I.
[FN92] Legal Overview: The Electronic Frontier and the Bill of Rights, 
available over Internet, by anonymous FTP, at FTP.EFF.ORG 
(Electronic Frontier Foundation).
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99     E-Law     Copyright 1992-1993 by David Loundy
 
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.[FN93] An example of such 
a restriction is the regulation of radio and television by the 
Federal Communications Commission.[FN94] 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,[FN95] 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.[FN96] 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.[FN97] 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."[FN98] Sam threatened to kill Dora, 
and he urged others to kill her as well. An important distinction 
is made between mere advocacy and incitement to imminent lawless 
action Ñthe 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
--------------------------
[FN93] Id.
[FN94] Hereinafter F.C.C.
[FN95] Matt Kramer, Wireless Communication Net: Dream Come True; 
Wireless Distributed Area Networks The Wide View, P.C. WEEK, Mar. 
5, 1990, at 51, 51.
[FN96] 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).
[FN97] Brandenburg v. Ohio, 395 U.S. 444 (1969).
[FN98] Id. at 447.
======================================================================
100     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
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.[FN99] 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."[FN100] 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.[FN101] 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.[FN102] 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
--------------------------
[FN99] Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942).
[FN100] Id.
[FN101] Id. at 573.
[FN102] Compare id. with 395 U.S. at 446.
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101     E-Law     Copyright 1992-1993 by David Loundy
 
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.
 
                  D.     Child Pornography
 
     Other areas of content are regulated on computer information 
systems. One is child pornography. New York v. Ferber[FN103] 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.[FN104] Second, application of the Miller standard for 
obscenity (discussed infra) is not a satisfactory solution to the 
problem of child pornography.[FN105] Third, the financial gain 
involved in selling and advertising child pornography provides 
incentive to produce such material Ñ and such activity is 
prohibited throughout the United States.[FN106] Fourth, the value of 
permitting minors to perform/appear in lewd exhibitions is 
negligible at best.[FN107] Finally, classifying child pornography as a 
form of expression outside the protection of the First Amendment 
is not incompatible with earlier court decisions.[FN108] The court 
said, "[T]he distribution of photographs and films depicting 
sexual activity by juveniles is intrinsically related to the 
sexual abuse of children ..."[FN109] 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.[FN110] Section 2252 of Title 18 of the U.S. Code 
forbids knowing foreign or interstate transportation or reception 
by any means
--------------------------
[FN103] New York v. Ferber, 458 U.S. 747 (1982).
[FN104] Id. at 756-57 (citing Globe Newspaper Co. v. Superior Court, 
457 U.S. 596, 607 (1982)).
[FN105] Id. at 759 (citing Miller v. California, 413 U.S. 15, reh'g 
denied, 414 U.S. 881 (1973)).
[FN106] Id. at 761.
[FN107] Id. at 762.
[FN108] Id. at 763.
[FN109] Id. at 759.
[FN110] See 18 U.S.C. ¤ 2252 (1978).
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102     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
including, for example, visual depictions of minors 
engaged in sexually explicit conduct which have been converted 
into a computer-readable form.[FN111]      Pictures are easily converted 
into a computer-readable form. Once in such a form, they can be 
distributed, interstate, over a computer information system. 
Pictures are put into a computer by a process called "scanning" or 
"digitizing."[FN112] Scanning is accomplished by dividing a picture up 
into little tiny elements called pixels.[FN113] 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.[FN114]
     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 
not differentiate between subject matter of pictures, the law 
does. Persons responsible for distributing child pornography could 
be prosecuted for child abuse, and such a suit could result in 
$50,000 or more in fines and damages.[FN115] 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
--------------------------
[FN111] Id. ¤ 2252(a)(1).
[FN112] See Lois F. Lunin, An Overview of Electronic Image Information, 
OPTICAL INFO. SYSS., May 1990.
[FN113] Id.
[FN114] Id.
[FN115] See 18 U.S.C. ¤ 2255(a) (1986).
======================================================================
103     E-Law     Copyright 1992-1993 by David Loundy
 
have been mailed or so shipped or transported, by means including 
computer"[FN116] can be fined and imprisoned for up to five 
years.[FN117] 
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 that 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 done 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 to hold 
Sam responsible for the knowing possession of any files that were 
formerly in his account that could still be recovered from the 
system operator's backups of Sam's data. 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
--------------------------
[FN116] ¤ 2252(a)(4)(B).
[FN117] Id. ¤ 2252(b).
======================================================================
104     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
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.[FN118] Law enforcement use 
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.[FN119]
 
                    E.     Computer Crime 
 
     Some areas of "computer crime" are regulated.[FN120] 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,[FN121] 
such as: the unauthorized accessing of a computer system;[FN122] the 
unauthorized accessing of a computer to gain certain kinds of 
information (such as defense information or financial records);[FN123] 
accessing a computer and removing, damaging, or preventing access 
to data without authorization;[FN124] trafficking in stolen computer 
passwords;[FN125] spreading computer viruses;[FN126] and a number of
other related offenses.[FN127] All of these are activities which are
often referred to as "hacking."[FN128]
--------------------------
[FN118] 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.
[FN119] See United States v. Lambey, 949 F.2d 133 (1991).
[FN120] Note, Addressing the New Hazards of the High Technology 
Workplace, 104 HARV. L. REV. 1898, 1913 (1991).
[FN121] Id. at 1898.
[FN122] See 949 F.2d 133; Jensen, supra note 7, at 222.
[FN123] See 949 F.2d 133; Note, supra note 120, at 1898; Jensen, supra 
note 7, at 222.
[FN124] See 949 F.2d 133; Note, supra note 120, at 1898; Jensen supra 
note 7, at 222.
[FN125] Note, supra note 120, at 1899; Jensen, supra note 7, at 222.
[FN126] See United States v. Morris, 928 F.2d 505 (2d Cir.), cert. 
denied, 112 S. Ct. 72 (1991).
[FN127] Jensen, supra note 7, at 222.
[FN128] Id.
======================================================================
105     E-Law     Copyright 1992-1993 by David Loundy
 
                     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.[FN129] 
 
   [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.[FN130] 
 
Access to obtain information from financial records of a financial 
institution or in a consumer file of a credit reporting agency was 
also outlawed.[Fn131] Access to use, destroy, modify or disclose 
information found in a computer system, (as well as to prevent 
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.[FN132] The 1984 Act had several 
shortcomings, and was revised in The Computer Fraud and Abuse Act 
of 1986.[FN133] The 1986 Act added three new crimes Ñ a computer fraud 
offense,[FN134] modeled after federal mail and wire fraud 
statutes;[FN135] 
an offense for the alteration, damage or destruction of 
information contained in a "federal interest computer;"[FN136] and an 
offense for trafficking in computer passwords under some 
circumstances.[FN137]
     This Computer Fraud and Abuse Act presents a powerful weapon 
for SYSOPs whose computers have been violated by hackers. It was 
made even more powerful by the first person charged with its 
violation.[Fn138] Robert T. Morris Jr. was charged with releasing a 
"worm" onto a section of the Internet computer network,[FN139] causing 
numerous government and university computers to either
--------------------------
[FN129] 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).
[FN130] Id. at 460.
[FN131] Id.
[FN132] Id. 
[FN133] The Computer Fraud and Abuse Act of 1986, 18 U.S.C. ¤ 1030 
(1988).
[FN134] Griffith, supra note 129, at 474.
[FN135] Id.
[FN136] Id.
[FN137] Id.
[FN138] United States v. Morris, 928 F.2d 504 (2d Cir.), cert. denied, 
112 S. Ct. 72 (1991).
[FN139] 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.
======================================================================
106     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
"crash" or become "catatonic."[FN140] Morris is the son of the Chief
Scientist at the National Security Agency's National Computer Security 
Center.[FN141] His father is also a former researcher at AT&T's Bell 
Laboratories where he worked on the original UNIX operating 
system.[FN142] 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.[FN143] 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 to $53,000.[FN144] District Judge Munson read 
the Computer Fraud and Abuse Act largely as defining a strict 
liability crime. The relevant language applies 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 ....[FN145]
 
Judge Munson's interpretation is that this language requires 
intent only to access the computer, not intent to cause actual 
damage.[FN146] On appeal, Munson's reading was affirmed by the Court 
of Appeals,[FN147] and the Supreme Court refused to hear further 
appeals.[FN148]
     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.[FN149] 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.
--------------------------
[FN140] 928 F.2d. at 506.
[FN141] Robin Nelson, Viruses, Pests, and Politics: State of the Art, 
20 COMPUTER & COMM. DECISIONS, Dec. 1989, at 40, 40.
[FN142] Id.
[FN143] 928 F.2d. at 504.
[FN144] Id. at 506.
[FN145] 18 U.S.C. ¤ 1030(a)(5)(A).
[FN146] 928 F.2d at 506-07.
[FN147] 328 F2d. 504 (1991).
[FN148] 112 S. Ct. at 72.
[FN149] 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.
======================================================================
107     E-Law     Copyright 1992-1993 by David Loundy
 
criminal justice system, which almost always differentiates 
between people who intend to cause harm and those who do not.[FN150] 
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.[FN151]
     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.[FN152] The jury's difficulty 
in resolving this issue is indicative of a lack of understanding 
of how computer networks work.[FN153]
 
      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.[FN154] They can also break into telephone companies' 
computers and get lists of telephone credit card numbers.[FN155] 
Trafficking of stolen credit card numbers and other kinds of 
telecommunications fraud costs long distance carriers about $1.2 
billion annually.[FN156] 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.[FN157] The major protection for the telephone 
companies is found in section 1343 of the Mail Fraud Chapter of 
the U.S. Code.[FN158] This section prohibits the use of wires, radio 
or television in order to fraudulently deprive a party of money or
--------------------------
[FN150] Id.
[FN151] 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).
[FN152] 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 whether 
Morris' actions amounted to unauthorized access or whether his 
actions exceeded authorized access. 928 F.2d at 510.
[FN153] Geneson, supra note 152, at 2.
[FN154] Cindy Skrzycki, Thieves Tap Phone Access Codes to Ring Up 
Illegal Calls, WASH. POST, Sept. 2, 1991, ¤ 1 at A1.
[FN155] Id.
[FN156] Id.
[FN157] Id.
[FN158] Fraud by Wire, Radio, or Television, 18 U.S.C. ¤ 1343 (1992). 
======================================================================
108     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
property.[FN159] This statute has been held to include fraudulent use 
of telephone services.[FN160] 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,[FN161] 
which specifically covers schemes to defraud.[FN162] Some state laws 
exist to punish theft of local telephone service or publication of 
telephone access codes.[FN163]
 
                           H.     Viruses
 
     As pointed out in the introduction, computer viruses are 
increasingly of concern Ñ 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.[FN164] Computer virus crime involves an intent to 
cause damage, "akin to vandalism on a small scale, or terrorism on 
a grand scale."[FN165] Viruses can spread through networked computers 
or by sharing disks between computers.[FN166] 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.[FN167] There are a number of different types of viruses, but 
one of the factors common to most of them is that they all copy 
themselves (or parts of themselves).[FN168] 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.[FN169] Regardless, a worm is a program
--------------------------
[FN159] Id.
[FN160] See, e.g., Brandon v. United States, 382 F.2d 607 (10th Cir. 
1967).
[FN161] 18 U.S.C. ¤ 1346. 
[FN162] Id.
[FN163] See, e.g., State v. Northwest Passage, Inc., 585 P.2d 794 
(Wash. 1978) (en banc).
[FN164] See, e.g., Daniel J. Kluth, The Computer Virus Threat: A Survey 
of Current Criminal Statutes, 13 HAMLINE L. REV. 297 (1990).
[FN165] Id.
[FN166] David R. Johnson et al., Computer Viruses: Legal and Policy 
Issues Facing Colleges and Universities. 54 EDUC. L. REP. (West) 
761 (Sept. 14, 1989).
[FN167] Id. at 762.
[FN168] Id.
[FN169] Eric Allman, Worming My Way; November 1988 Internet Worm, UNIX 
REV., January 1989, at 74.
======================================================================
109     E-Law     Copyright 1992-1993 by David Loundy
 
specifically designed to move through networks.[FN170] 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."[FN171]
     Another type of virus is the "Trojan Horse."[FN172] These are 
viruses which hide inside another seemingly harmless program.[FN173]
Once the Trojan Horse program is used on the computer system, the 
virus spreads.[FN174] The virus type which has gained the most fame 
recently has been the Time Bomb, which is a delayed action virus 
of some type.[FN175] 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 the 
artist's birthday, Michelangelo was so prevalent, it was even 
distributed accidentally by some software publishers when the 
software developers' computers became infected.[FN176]
     One concern many have about statutes dealing with computer 
viruses is the problem that the statutes need some kind of intent 
requirement.[FN177] Without some sort of intent requirement, virus 
statutes may be sufficiently overbroad so as to cover defective 
computer programs.[FN178]
     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.[FN179] If a virus also involves 
unauthorized access to an electronic communications system 
involving interstate commerce, the Electronic Communications 
Privacy Act may come into play.[FN180] Most states have statutes that 
make it a crime to
--------------------------
[FN170] Kluth, supra note 164, at 298.
[FN171] Id. at note 14.
[FN172] See Stover, supra note 32.
[FN173] Id.
[FN174] Kluth, supra note 164, at 298.
[FN175] See Stover, supra note 32.
[FN176] Electronic Mail Software Provider Reports Virus Contamination, 
UPI, Feb. 3, 1992, available in LEXIS, Nexis Library, UPI File.
[FN177] See Kluth, supra note 164.
[FN178] Id. 
[FN179] 18 U.S.C. ¤ 1030 (1984).
[FN180] Electronic Communications Privacy Act of 1986, 18 U.S.C. ¤2510 
(1984).
======================================================================
110     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
intentionally interfere with a computer 
system.[FN181] These statutes will often cover viruses as well as 
other forms of computer crime. State statutes generally work by 
affecting any of ten different areas:[FN182]
     1. Expanded definitions of "property" to include computer 
           data.[FN183]
     2. Prohibiting unlawful destruction of computer files.[FN184]
     3. Prohibiting use of a computer to commit, aid or abet 
           commission of a crime.[FN185]
     4. Creating crimes against intellectual property.[FN186]
     5. Prohibiting knowing or unauthorized use of a computer or 
           computer services.[FN187]
     6. Prohibiting unauthorized copying of computer data.[FN188]
     7. Prohibiting the prevention of authorized use.[FN189]
     8. Prohibiting unlawful insertion of material into a computer 
           or network.[FN190]
     9. Creating crimes like "Voyeurism"Ñ Unauthorized entry into 
           a computer system just to see what is there.[FN191]
     10. "Taking possession" of or exerting control of a computer 
           or software.[FN192]
     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 continual 
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.[FN193] "[A SYSOP] might still be found liable on the
--------------------------
[FN181] Johnson et al., supra note 166, 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).
[FN182] Branscomb, supra note 181, at 32.
[FN183] Id.
[FN184] Id. at 33.
[FN185] Id.
[FN186] Id. at 34.
[FN187] Id.
[FN188] Id. at 35.
[FN189] Id.
[FN190] Id.
[FN191] Id. at 36.
[FN192] Id. at 37.
[FN193] See Johnson et al., supra, note 166, at 764, 766.
======================================================================
111     E-Law     Copyright 1992-1993 by David Loundy
 
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."[FN194] The 
nature of "care" still has not been defined by court or 
statute.[FN195] 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.[FN196] There must then be a breach of that duty[FN197] Ñ the 
SYSOP must display conduct "which falls below the standard established 
by law for the protection of others against unreasonable risk of 
harm."[FN198] 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 Ñ or foreseen and 
planned for Ñ will not result in liability.[FN199] A SYSOP's duty "may 
be defined as a duty to select and implement security provisions, 
to monitor their effectiveness, and to maintain the provisions in 
accordance with changing security needs."[FN200] 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.
--------------------------
[FN194] Id. at 766.
[FN195] Id.
[FN196] W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 
¤30(1), at 164 (5th ed. 1984).
[FN197] Id. ¤ 30(2), at 164.
[FN198] Id. ¤ 31, at 169.
[FN199] Id. ¤ 29, at 162.
[FN200] 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).
======================================================================
112     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
SYSOPs also have a duty to explain to each user the extent of his or her
authorization to use the computer information service.[FN201] 
     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.
 
                        IV.     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.[FN202] Katz 
involved the use of an electronic listening device (or "bug") 
mounted on the outside of a public telephone booth.[FN203] 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.[FN204] 
However, Defendant argued that the bug was an unlawful search and 
seizure in violation of the Fourth Amendment.[FN205] 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 constitu-
--------------------------
[FN201] Id. at 188-89.
[FN202] Katz v. United States, 389 U.S. 347 (1967).
[FN203] Id. at 348.
[FN204] Id. at 351.
[FN205] Id.
======================================================================
113     E-Law     Copyright 1992-1993 by David Loundy
 
tionally protected."[FN206] 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.[FN207] 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.[FN208] 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 her privacy. If there is no reasonable expectation of privacy, 
there can be no violation of privacy, and, therefore, no Fourth 
Amendment claim.[FN209] 
     Statutory protection of the right to privacy was originally 
provided by the Federal Wiretap Statute.[FN210] However, this statute 
affected only "wire communication," which is limited to "aural 
[voice] acquisition."[FN211] In United States v. Seidlitz,[FN212] the 
court held that interception of computer transmission is not an 
"aural acquisition" and, therefore, the Wiretap Act did not 
provide protection.[FN213] Even if the Act did cover transmission, it 
still does not cover stored computer data.[FN214] 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 Amend-
--------------------------
[FN206] Id.
[FN207] See, e.g., Oliver v. U.S. 466 U.S. 170 (1984).
[FN208] See 389 U.S. at 347; see also California v. Ciraolo 476 U.S. 
207, reh'g denied, 478 U.S. 1014 (1986).
[FN209] See Ruel Hernandez, Computer Electronic Mail and Privacy, 
available over Internet, by anonymous FTP, at FTP.EFF.ORG 
(Electronic Frontier Foundation).
[FN210] 18 U.S.C. ¤ 2510 (1968).
[FN211] See Hernandez, supra note 209.
[FN212] United States v. Seidlitz, 589 F.2d 152 (4th Cir. 1978), cert. 
denied, 441 U.S. 922 (1979).
[FN213] Id. at 157.
[FN214] See Hernandez, supra note 209.
======================================================================
114     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
   ment'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.[FN215]
 
The Federal Wiretap Act was updated by the Electronic 
Communications Privacy Act of 1986.[FN216] The Electronic 
Communications Privacy Act deals specifically with the 
interception and disclosure of interstate[FN217] electronic 
communications[FN218], 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) intentionally intercepts, endeavors to intercept, 
or procures any other person to intercept or endeavor to intercept 
any wire, oral, or electronic communication"[FN219] shall be fined or 
imprisoned.[FN220] 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.[FN221] 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[FN222] 
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
--------------------------
[FN215] Robert W. Kastenmeier et al., supra note 8, at 720 (citations 
omitted).
[FN216] Electronic Communications Privacy Act of 1986, 18 U.S.C. ¤2510 
(1968).
[FN217] Id. ¤ 2510(12).
[FN218] 18 U.S.C. ¤ 2511.
[FN219] Id. ¤ 2511(1)(a).
[FN220] Id. ¤ 2511(4).
[FN221] Id. ¤ 2511(1)(c).
[FN222] Id. ¤ 2511(2)(a)(i).
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115     E-Law     Copyright 1992-1993 by David Loundy
 
   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.[FN223]
 
"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."[FN224] Further exceptions are made 
for SYSOPs of these systems when the originator or addressee of 
the message gives consent;[FN225] when the message is being given to 
another service provider to be further forwarded towards its 
destination;[FN226] where the message is inadvertently obtained by the 
SYSOP; and appears to pertain to a crime;[FN227] when the divulgence 
is being made to a law enforcement agency;[FN228] or where the message 
is configured so as to be readily accessible to the public.[FN229] 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).[FN230] This 
will probably cover the up-and-coming technologies of radio-WANS 
(Wide Area NetworksÑcomputer networks which link computers by 
radio transmission rather than wires), 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.[FN231]
     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.[FN232] 
The statute does not prohibit the use of pen registers or trap and 
trace devices.[FN233] The
--------------------------
[FN223] Id.
[FN224] Id. ¤ 2510(14).
[FN225] Id. ¤ 2511(3)(b)(ii).
[FN226] Id. ¤ 2511(3)(b)(iii).
[FN227] Id. ¤ 2511(3)(b)(iv).
[FN228] Id. ¤ 2511(3)(b)(iv).
[FN229] Id. ¤ 2511(3)(b)(i).
[FN230] Id. ¤ 2511.
[FN231] 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.
[FN232] 18 U.S.C. ¤ 2518 (1968).
[FN233] Id. ¤ 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.
======================================================================
116     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
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.[FN234] 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"[FN235] shall be subject to fines 
and/or imprisonment, or both.[FN236] Like section 2511, this section 
includes provisions prohibiting the divulgence of the stored 
messages.[FN237] Importantly, while this statute allows law 
enforcement agencies to gain access to stored communications, 
subject to a valid search warrant,[FN238] 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.[FN239] Such a statute is needed because the government 
often takes the stored data to sort through during the course of 
its investigation, as was the case in Steve Jackson Games, Inc. v. 
United States Secret Service.[FN240] 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
--------------------------
[FN234] Id. ¤ 2701.
[FN235] Id. ¤ 2701(a).
[FN236] Id. ¤ 2701(b).
[FN237] Id. ¤ 2702.
[FN238] See id. ¤ 2703.
[FN239] Id. ¤ 2703(a)
[FN240] Steve Jackson Games, Inc. v. United States Secret Serv., 816 
F. Supp. 432 (W.D. TEX. 1993).
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117     E-Law     Copyright 1992-1993 by David Loundy
 
properly the contents of the electronic mail on the 
BBS.[FN241] The court said that the evidence of good faith reliance 
on what the Secret Service believed to be a valid search warrant 
was insufficient.[FN242] 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 was by compliance with the Act, and not by seizing 
the BBS.[FN243]
     The Steve Jackson Games Case was also valuable for showing 
the interplay between protection against interception of 
electronic communication[FN244] and access to stored 
communication.[FN245] Judge Sparks held, in essence, that taking a 
whole computer is not an "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.[FN246] This 
interpretation of an intellectually complex concept[FN247] makes 
sense when the two code sections are read together.
 
      D.     An Apparent Exception for Federal Records
 
     A recent case presents an apparent exception to the 
Electronic Communications Privacy Act.[FN248] In Armstrong v. 
Executive Office of the President,[FN249] 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.[FN250] While electronic communications are 
normally
--------------------------
[FN241] Id. at 434.
[FN242] Id. at 443.
[FN243] Id. at 442-43.
[FN244] Id.; 18 U.S.C. ¤ 2510.
[FN245] 816 F. Supp. at 442-43.
[FN246] 816 F. Supp. at 441-42; 18 U.S.C. ¤ 2701.
[FN247] Stored communications may be intercepted in some sense because 
the message writer may have sent the E-mail, but it has not yet 
been read by the recipient. Also, messages being sent from one BBS 
user to another on bulletin board systems which support multiple 
users simultaneously may never be stored on the computer. By 
reading the two sections as complimentary, the complexities should 
be accounted for - communications not covered by ¤ 2510 should be 
covered by ¤ 2701 and vise versa.
[FN248] See 18 U.S.C. ¤ 2511 (1968).
[FN249] Armstrong v. Executive Office of the President, 810 F. Supp 
335 (D.C. Cir. 1993).
[FN250] Id. at 348.
======================================================================
118     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
protected under the Electronic Communications Privacy 
Act, the Federal Records Act[FN251] 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].[FN252]
 
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.[FN253] 
Printed copies of the messages contain the text of the notes, but 
only the computer records contain information such as who received 
the E-mail messages and when the communication was received.[FN254]
     A similar possible exception to the privacy of E-mail is the 
Presidential Records Act,[FN255] which requires that all records 
classified by the Act as "Presidential Records"[FN256] 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.[FN257]
 
             E.     Privacy Protection Act of 1980
 
     It is also possible that computer information systems will be
--------------------------
[FN251] Federal Records Act, 44 U.S.C. ¤¤ 2101-2118, 2901-2910, 3101-
3107, 3301-3324.
[FN252] Id. ¤ 3301.
[FN253] 810 F. Supp. at 342, 343.
[FN254] Id. at 341.
[FN255] 44 U.S.C. ¤ 2201.
[FN256] 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.
 
Id.
[FN257] Armstrong v. Bush, 924 F.2d. 282, 290 (D.C. Cir. 1991).
======================================================================
119     E-Law     Copyright 1992-1993 by David Loundy
 
protected under the Privacy Protection Act of 1980.[FN258] 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."[FN259] This 
statute was passed to overturn the decision in Zurcher v. Stanford 
Daily,[FN260] a case which held that a newspaper office could be 
searched, even when no one working at the paper was suspected of a 
crime.[FN261] 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,[FN262] or the 
immediate seizure is necessary to prevent the death or serious 
injury to a human being.[FN263] Based on the list of types of 
"publishers" covered by this statute, electronic publishers should 
fall 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.[FN264] The company also ran a BBS to gain customer feedback on 
the company's games.[FN265] 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.).[FN266] 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."[FN267] 
The raid by the Secret Service caused the company to temporarily 
shut down;[FN268] Steve Jackson Games also had to lay off half its 
employees.[FN269] The release of
--------------------------
[FN258] Privacy Protection Act of 1980, 42 U.S.C. ¤ 2000aa (1980).
[FN259] Id. ¤ 2000aa(a).
[FN260] Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
[FN261] Id. at 549.
[FN262] 42 U.S.C. ¤2000aa(a)(1).
[FN263] Id. ¤2000aa (a)(2).
[FN264] Mitchell Kaypor, Civil Liberties in Cyberspace; Computers, 
Networks and Public Policy, SCI. AM., Sept. 1991, 158, 158.
[FN265] Id.
[FN266] Steve Jackson Games, Inc. v. United States Secret Serv., 816 
F. Supp. 432, 439 (W.D. Tex. 1993).
[FN267] Id. at 439-40.
[FN268] Id. at 438.
[FN269] Id.
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120     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
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.[FN270] 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.[FN271] Steve Jackson Games was raided because one of its 
employees ran a BBS out of his home Ñ 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.[FN272] The document contained information 
which was publicly available in other forms.[FN273] The employee was 
also accused of being a part of a fraud scheme Ñ the fraud being 
the explanation in a two line message what Kermit is Ña publicly 
available communications protocol.[FN274] The employee was also co-
SYSOP of the bulletin board system at Steve Jackson Games.[FN275]
     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[FN276] 
requires, though they did know shortly after.[FN277] 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.[FN278] In the 
raid, the Secret Service seized a number of Steve Jackson's 
computers, and a number of papers.[FN279] 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.[FN280]
     While the judge did find a violation of the Privacy 
Protection Act,[FN281] he did not specify which items led to the 
violation. The vio-
--------------------------
[FN270] Legal Case Summary, May 10, 1990, available over Internet, by 
anonymous FTP, at FTP.EFF.ORG (Electronic Frontier Foundation).
[FN271] Id.
[FN272] 816 F. Supp. at 436.
[FN273] United States v. Riggs, 743 F. Supp. 556 (N.D. Ill. 1990).
[FN274] 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).
[FN275] 816 F. Supp. at 436.
[FN276] 42 U.S.C. ¤ 2000aa.
[FN277] 816 F. Supp. at 437.
[FN278] Id. 
[FN279] Id.
[FN280] Id. at 439-40.
[FN281] Id. at 441.
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121     E-Law     Copyright 1992-1993 by David Loundy
 
lation 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.[FN282] 
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.
 
           V.      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 to 
computer information systems. Differences in regulation based on 
medium are a result of differing First Amendment concerns.[FN283]
 
                       A.     Obscenity
 
     The constitutional definition of "obscenity," as a term of 
art,[FN284] was solidified in Roth v. United States.[FN285] The Roth 
definition asks if the material deals with sex in a manner 
appealing to prurient interests.[FN286] This standard was further 
explained in Miller v. California,[FN287] a case which explored the 
constitutionality of a state statute prohibiting the mailing of 
unsolicited sexually explicit material.[FN288] The court expressed 
the test for obscenity as:
 
   whether (a) the average person, applying community 
   standards
--------------------------
[FN282] Id.
[FN283] See, e.g., F.C.C. v. Pacifica Foundation, 438 U.S. 726, reh'g 
denied, 439 U.S. 883 (1978).
[FN284] 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). 
[FN285] Roth v. United States, 354 U.S. 476 (1957).
[FN286] Id. at 487.
[FN287] 413 U.S. at 15. 
[FN288] Id.
======================================================================
122     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
   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.[FN289]
 
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.[FN290] 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.[FN291] 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. 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.[FN292] Although states can regulate the availability of 
obscene material, they cannot forbid the mere possession of it in 
the home.[FN293] The justification for this is based on privacy.[FN294] 
In the now famous words of Justice Marshall in Stanley v. 
Georgia,[FN295]
 
   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, what 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.[FN296]
 
Stanley has been interpreted as establishing a "zone of privacy" 
about one's home.[FN297] 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.[FN298] However,
--------------------------
[FN289] Id. at 24.
[FN290] Pope v. Illinois, 481 U.S. 497, 500 (1987) (citing Smith v. 
United States, 431 U.S. 291 (1977)).
[FN291] Hamling v. United States, 418 U.S. 87 (1974).
[FN292] See, e.g., 413 U.S. 15; Kois v. Wisconsin, 408 U.S. 2219 
(1972).
[FN293] Stanley v. Georgia, 394 U.S. 557 (1969).
[FN294] Id. at 565.
[FN295] Id.
[FN296] Id.
[FN297] Jensen, supra note 7.
[FN298] Note that an exception would be made for child pornography, 
see discussion supra part III.D.
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123     E-Law     Copyright 1992-1993 by David Loundy
 
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.[FN299] Support for this 
argument comes from U.S. v. Orito[FN300] which held that Congress has 
the authority to prevent obscene material from entering the stream 
of commerce, either by public or private carrier.[FN301] 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.[FN302] Stanley[FN303] 
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."[FN304]
 
                  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.[FN305] 
Indecent language is that which "describes, in terms patently 
offensive as measured by community standards ... sexual or 
excretory activities and organs ..."[FN306] This language comes from 
F.C.C. v. Pacifica Foundation, Inc.,[FN307] 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 
the different legal analogies that may apply to computer 
information systems.
--------------------------
[FN299] Jensen, supra note 7.
[FN300] U.S. v. Orito, 413 U.S. 139 (1973).
[FN301] Id. at 143.
[FN302] See Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 
(S.D.N.Y. 1991).
[FN303] 394 U.S. at 565.
[FN304] Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68-69, reh'g 
denied, 414 U.S. 881 (1973).
[FN305] 438 U.S. at 726.
[FN306] Id. at 732.
[FN307] Id. at 726-27.
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124     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
                   VI.     Copyright Issues
 
                    A. Basics of Copyrights
 
     Text, pictures, sounds, software Ñ 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."[FN308] This power is 
exercised in the form of the Copyright Act, Title 17 of the U.S. 
Code.[FN309] 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."[FN310] The statute lists 
several types of works as illustrations of types of works which 
qualify for copyright protection.[FN311] Relevant to computer 
information systems, the list includes literary works; pictorial, 
graphic, and sculptural works; motion pictures and other 
audiovisual works; and sound recordings.[FN312] 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.[FN313] In fact, the notes accompanying 
this code 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."[FN314] 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.[FN315] 
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 can then be 
copyrighted.[FN316] For computer information systems,
--------------------------
[FN308] U.S. CONST. art. I, ¤ 8, cl. 8.
[FN309] Copyright Act of 1947, 17 U.S.C. ¤ 101 (1947).
[FN310] Id. ¤ 102(a).
[FN311] Id. ¤ 101.
[FN312] Id. ¤ 102(a) Other categories include musical works, dramatic 
works, pantomimes and choreographic works, and architectural works. Id.
[FN313] See ¤ 101 (Historical and Statutory Notes).
[FN314] Id.
[FN315] Id.
[FN316] Id.
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125     E-Law     Copyright 1992-1993 by David Loundy
 
this implies that conversations occurring over a computer or network
which are not stored on a disk[FN317] are unprotected by the Copyright
Act, but if any party to the conversation, or the system operator,
stores the messages, it is then possible to copyright some elements of 
the conversation.
     Copyright protection extends to works of authorship; it does 
not extend to ideas, processes, concepts, inventions and the 
like.[FN318] Distinguishing between works of authorship and processes 
can at times result in some subtle distinctions. An example of 
this 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.[FN319] 
Postscript fonts, on the other hand, consist of a computer program 
which describes the outline of the letter.[FN320] 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.[FN321] Postscript fonts are seen as computer programsÑ
the program is a work of authorship, it just so happens to draw 
letters, and they have been held to be copyrightable.[FN322]
     The Copyright Act gives the copyright holder exclusive rights 
to his or her works.[FN323] 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.[FN324] 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
--------------------------
[FN317] 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."
[FN318] Id. ¤ 102(b).
[FN319] See Charles Von Simon, Page Turns in Copyright Law with Adobe 
Typeface Ruling, COMPUTERWORLD, Feb. 5, 1990, at 120.
[FN320] Id.
[FN321] See Adobe Successfully Registers Copyright Claim for Font 
Program, COMPUTER LAWYER, Feb. 1990, at 26.
[FN322] Von Simon, supra note 319.
[FN323] Copyright Act of 1947, 17 U.S.C. ¤ 106 (1947).
[FN324] Id.
======================================================================
126     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
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 
participant in the copyright infringement by allowing the computer 
file to be distributed on his or her system.[FN325] There is no 
intent or knowledge requirement to find a copyright violation. 
Copyright infringement is a strict liability crime. 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.[FN326] Even subconscious copying has been held to be 
an infringement.[FN327]
     One protection the Copyright Act gives to a computer 
information system is a compilation copyright. A compilationn 
copyright gives the SYSOP a copyright on the data contained in the 
computer information system as a whole.[FN328] 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.[FN329] An example of this would be the 
electronic journal composed from articles submitted by users. The 
compiler 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.[FN330] 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.[FN331] This includes copies in computer readable 
form.[FN332] Thus, scanned pictures, digitized sounds, machine 
readable texts,
--------------------------
[FN325] See Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 
256 F. Supp. 399 (S.D.N.Y. 1966).
[FN326] De Acosta v. Brown, 146 F.2d 408 (2d Cir. 1944).
[FN327] Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. 
Supp. 177 (S.D.N.Y. 1976).
[FN328] 17 U.S.C. ¤ 103.
[FN329] Id.
[FN330] Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 111 
S.Ct. 1282 (1991).
[FN331] 17 U.S.C. ¤ 106.
[FN332] 17 U.S.C. ¤ 101.
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127     E-Law     Copyright 1992-1993 by David Loundy
 
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 
107-120) 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. 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.[FN333] 
     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."[FN334] 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 accessible viewing some types of files may constitute a 
public performance or display[FN335] of the copyrighted work, which 
are also protected rights.[FN336]
--------------------------
[FN333] 17 U.S.C. ¤¤ 106(1), (3).
[FN334] 17 U.S.C. ¤ 101
[FN335] Id.
[FN336] 17 U.S.C. ¤ 106
======================================================================
128     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
     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[FN337] and the "reproduction by libraries and archives" 
provision.[FN338]
 
   [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 ... ."[FN339] 
 
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.[FN340] 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.[FN341]
 
Applying these factors to the System Operator's liability for a lyric
server, the character of the use depends on whether access to the
--------------------------
[FN337] 17 U.S.C. ¤ 107.
[FN338] 17 U.S.C. ¤ 108.
[FN339] 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).
[FN340] 17 U.S.C. ¤ 107.
[FN341] Id.
======================================================================
129     E-Law     Copyright 1992-1993 by David Loundy
 
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.[FN342] 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 other possible exception to the copyright holder's 
exclusive rights is section 108 which deals with copying by 
libraries and archives.[FN343] Unlike the section 107 fair use 
provision, which in this case is more aimed at the end user, 
section 108 is aimed 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.[FN344] 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"[FN345] 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."[FN346] 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
--------------------------
[FN342] 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).
[FN343] 17 U.S.C. ¤ 108.
[FN344] 17 U.S.C. ¤ 108(a).
[FN345] 17 U.S.C. ¤ 108(d).
[FN346] Id.
======================================================================
130     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
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.[FN347]
     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.[FN348]
 
                    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.[FN349]
 
                  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
--------------------------
[FN347] 17 U.S.C. ¤ 108(f)(1).
[FN348] See 17 U.S.C. ¤ 106.
[FN349] See Screen Gems-Columbia Music, Inc. v. Mark-Fi Records, Inc., 
256 F. Supp. 523 (S.D.N.Y. 1966). 
======================================================================
131     E-Law     Copyright 1992-1993 by David Loundy
 
lawsuit if any of that copied software is copyrighted.[FN350] The SPA 
is a group established by a number of software publishers in order 
to cut down on software piracy.[FN351] The SPA monitors bulletin 
board systems for distribution of copyrighted software.[FN352] 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.[FN353] The SPA also examines office computers 
for unlicensed software.[FN354]
     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.[FN355] 
Compliance with the SPA requirements saves the offender the 
additional cost of a lawsuit.[FN356] Noncompliance will result in a 
lawsuit filed by the SPA.[FN357]
     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.[FN358] 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."[FN359] 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.[FN360] 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 Ñ use of 
shareware beyond a reasonable trial period (often specified in the 
documentation distributed with the
--------------------------
[FN350] Janet Mason, Crackdown on Software Pirates; Industry Watchdogs 
Renew Efforts to Curb Illegal Copying, COMPUTERWORLD, Feb. 5, 1990, 
at 107.
[FN351] Id.
[FN352] Id.
[FN353] Id.
[FN354] Id.
[FN355] Id.
[FN356] Id.
[FN357] Id.
[FN358] 17 U.S.C. ¤ 117(1).
[FN359] Id. ¤ 117(2).
[FN360] Steve Givens, Sharing Shareware: Non-Traditional Marketing 
Relies on Honor System, ST. LOUIS BUS. J., July 1, 1991, ¤ 2 at 1B.
======================================================================
132     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
software) without payment of 
the shareware fee is a violation of copyright law.[FN361]     
 
                  D.     Copyrighted Pictures
 
     As mentioned earlier,[FN362] 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 Ñ pictures can be scanned, and once scanned, they 
can be further altered with image processing software.[FN363] All of 
these forms are covered by the Copyright Act.[FN364] Pictures created 
on the computer using graphics or "paint box" software are in an 
original copyrightable form.[FN365] Images that are scanned are in 
violation of the original copyright holder's rights, unless 
permission to distribute the scanned image has been obtained.[FN366] 
In fact, even the unauthorized initial scan made of a copyrighted 
work is in violation of the copyright, even without further 
distribution.[FN367] 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."[FN368] 
Images which are scanned that are not copyrighted, such as works 
on which the copyright has already expired,[FN369] 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.[FN370] If a scan of a copyrighted 
picture is then altered into a new image, the modified version 
likely still falls
--------------------------
[FN361] Id.
[FN362] See supra text accompanying notes 114-16.
[FN363] Legal aspects of the doctoring of photographs are beyond the 
scope of this paper Ñ 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).
[FN364] 17 U.S.C. ¤ 102(a)(5).
[FN365] Id. ¤ 102(a).
[FN366] Id. ¤ 101 (defining a copy); id. ¤ 106 (Section 106 gives the 
copyright holder exclusive rights to make copies and derivative 
works of his or her creation.).
[FN367] Id. ¤ 101.
[FN368] Ezra Shapiro, More on Copyright; Digitizing of Copyrighted 
Images, MACWEEK, Oct. 11, 1988, at 27.
[FN369] 17 U.S.C. ¤ 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).
[FN370] 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).
======================================================================
133     E-Law     Copyright 1992-1993 by David Loundy
 
under the original copyright.[FN371] 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).[FN372]
     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 his or her name disassociated with a mutilation of his or her 
work, (along with the right to prevent such mutilations in the 
first place).[FN373] 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.[FN374] 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.[FN375] 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.[FN376]
     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 Ñ 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"[FN377]
--------------------------
[FN371] 17 U.S.C. ¤ 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).
[FN372] Id. ¤ 106A.
[FN373] Id.
[FN374] Ezra Shapiro, Copywrongs on Consumer Info Networks? Posting of 
Scanned Images on Electronic Services Infringes Copyrights, 
MACWEEK, Aug. 30, 1988, at 20.
[FN375] 17 U.S.C. ¤ 106.
[FN376] 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 plaintiff 
of a chance to sell tickets to the television viewers, since they 
had already seen his act).
[FN377] 17 U.S.C. ¤ 107.
======================================================================
134     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
exception.[FN378] 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.[FN379] 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 applies to sampled sounds, as well as 
images, stored in a computer information system; though for sounds 
it is even more difficult to determine what material is being 
distributed in violation of the copyright laws. In addition, if 
there is a false attribution as to the origin of the work and an 
element of unfairness or deception, unauthorized use of 
copyrighted material on a computer information system may 
constitute the tort of unfair competition.[FN380] Unauthorized use 
where "a plaintiff believes that the defendant, at little or no 
cost, has appropriated what the plaintiff considers the 
plaintiff's own commercially valuable property" may constitute a 
subset of unfair competition-misappropriation.[FN381]
 
  VII.     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 unresolved. To resolve such 
issues, it is necessary to understand how other media are 
regulated, and how computer information systems are similar to or 
different from those media.
--------------------------
[FN378] Shapiro, supra note 374.
[FN379] Liz Horton, Electronic Ethics of Photography; Use of Images in 
Desktop Publishing, FOLIO: THE MAG. FOR MAG. MGMT., Jan. 1990, at 71.
[FN380] Thomas C. Moglovkin, Note, Original Digital: No More Free 
Samples, 64 S. CAL. L. REV. 135, 163 (1990).
[FN381] Id. at 165.
======================================================================
135     E-Law     Copyright 1992-1993 by David Loundy
 
     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.[FN382] 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.[FN383] 
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,[FN384] the protection is not complete. All of the 
restrictions on content discussed earlier apply to publishers 
Ñadvocacy of lawless
--------------------------
[FN382] 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).
[FN383] Robert Charles, Computer Bulletin Boards and Defamation: Who 
Should be Liable? Under What Standard?, 2 J.L. & TECH 121, 131 (1987).
[FN384] U.S. CONST. amend. I.
======================================================================
136     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
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[FN385] "actual malice" standard for defamation, and a 
"knowing" standard as required by the statutes forbidding the 
transportation of material involved in child pornography.[FN386] 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."[FN387] 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.[FN388] 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."[FN389]
--------------------------
[FN385] New York Times v. United States, 403 U.S. 713 (1971).
[FN386] 18 U.S.C. ¤ 2252.
[FN387] 403 U.S. at 713.
[FN388] See, e.g., Yuhas v. Mudge, 322 A.2d 824, 825 (N.J. Super. Ct. 
App. Div. 1974).
[FN389] Id.
======================================================================
137     E-Law     Copyright 1992-1993 by David Loundy
 
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.[FN390] If a "know or have reason to know" 
standard were applied to computer information systems, offending 
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 Ñ 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 Ñ a secondary publisher generally 
has no control over the content of the message, unlike a primary 
publisher.[FN391] 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.[FN392] 
Secondary publishers are often treated synonymously with 
republishers which are discussed in the next section.
--------------------------
[FN390] Information Policy, Computer Communications Networks Face 
Identity Crisis over Their Legal Status, DAILY REP. FOR EXECUTIVES, 
Feb. 26, 1991, at A-6.
[FN391] Joseph P. Thornton, et al., Symposium: Legal Issues in 
Electronic Publishing: 5. Libel, 36 FED. COM. L.J. 178, 179 (1984).
[FN392] See RESTATEMENT (SECOND) OF TORTS ¤ 581 (1989).
======================================================================
138     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
      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."[FN393] Some computer information systems 
are like republishers because all they do is make available files, 
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."[FN394] 
     The case that first established the immunity from liability 
for distributors, breaking the common law tradition, was Smith v. 
California.[FN395] 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
--------------------------
[FN393] Jensen, supra note 7, at 3.
[FN394] Charles, supra note 383, at 131.
[FN395] Smith v. California, 361 U.S. 147 (1959), reh'g denied, 361 
U.S. 950 (1960).
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139     E-Law     Copyright 1992-1993 by David Loundy
 
   liability, thus 
   would tend to restrict the public's access to forms of the 
   printed word which the State could not constitutionally 
   suppress directly.[FN396]
 
While this case did not determine the degree of liability 
appropriate for a bookseller, it did find that strict liability 
was too restrictive.[FN397] 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.[FN398] In addition, 
secondary publishers are not required to investigate the contents 
of the messages they are delivering in order to avoid 
liability.[FN399]
      Recently, a court has applied the Smith[FN400] analysis to 
computer information systems. Cubby, Inc. v. CompuServe, Inc.[FN401] 
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.[FN402] 
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.[FN403] The groups maintaining the forums are similar to 
print publishers Ñ they take articles submitted by users and then 
publish them, 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.[FN404] CompuServe had no opportunity to review the 
periodical's contents before it was made available to CompuServe's 
subscribers.[FN405] 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
--------------------------
[FN396] Id. at 153 (citation omitted).
[FN397] Id. at 155.
[FN398] Seton v. American News Co., 133 F. Supp. 591 (N.D. Fla. 1955); 
cf. Manual Enters., Inc. v. Day, 370 U.S. 478 (1962).
[FN399] 133 F. Supp. at 593.
[FN400] 361 U.S. at 950.
[FN401] 776 F. Supp. at 135.
[FN402] Clifford Carlsen, Wide Area Bulletin Boards Emerge as Method 
of Corporate Communications, SAN FRANCISCO BUS. TIMES, Mar. 15, 1991, 
at 15.
[FN403] 776 F. Supp. at 137.
[FN404] Id. at 138.
[FN405] Id.
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140     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
contained in the periodical, CompuServe was in essence "an 
electronic, for-profit library."[FN406] 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.[FN407] 
     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 know 
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 Ñ 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.[FN408]
 
            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
--------------------------
[FN406] Id. at 140.
[FN407] Id.
[FN408] 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).
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141     E-Law     Copyright 1992-1993 by David Loundy
 
   "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.[FN409]
 
Importantly, a computer information system need not be classified 
according to only one communications analogy Ñ 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.[FN410]
     Common carriers have generally been considered secondary 
publishers,[FN411] and as such, have traditionally functioned under a 
reduced standard of liability.[FN412] That standard is, once again, a 
"know or have reason to know" standard of liability.[FN413] This 
standard has been widely adopted and applied to the electronic 
communications media: from telegraph,[FN414] to telephone,[FN415] and 
even to options such as telephone answering services.[FN416] 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.[FN417] Another reason is fairness; common carrier operators 
are not trained in what is libelous and what is not, and, even if 
they were, they would have to make many decisions at a quick rate 
Ñ not a fair burden to place on the common carrier.[FN418] And a 
third reason is privacy; by removing a need for common carriers to 
monitor content of transmissions, the likelihood is increased 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
--------------------------
[FN409] National Ass'n of Regulatory Util. Comm'rs v. F.C.C., 533 F.2d 
601, 608 (1976).
[FN410] Id. at 608.
[FN411] 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).
[FN412] RESTATEMENT (SECOND) OF TORTS ¤ 612 (1989).
[FN413] Id. ¤ 581.
[FN414] 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).
[FN415] Anderson v. New York Tel. Co., 320 N.E.2d 647 (N.Y. 1974).
[FN416] People v. Lauria, 251 Cal. App. 2d 471 (1967).
[FN417] Charles, supra note 383, at 143.
[FN418] Id. at 123.
======================================================================
142     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
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 being forwarded from an account 
on a sending machine to an account on a receiving machine. Network 
traffic may also contain confidential documents being passed from 
computer to computer. Support for a "knowing" standard is gained 
from the Electronic Communications Privacy Act of 1986[FN419] 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 telephone 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.[FN420] An exception is made for indecent telephone 
messages, so long as provisions are used to prevent minors from 
receiving these indecent messages.[FN421] 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.[FN422] 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 to 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.[FN423]
--------------------------
[FN419] Electronic Communications Privacy Act of 1986, 18 U.S.C. 
¤2510.
[FN420] 47 U.S.C. ¤ 223.
[FN421] 47 C.F.R. ¤ 64.201
[FN422] Id.
[FN423] See Sable Communications v. F.C.C., 492 U.S. 115 (1989).
======================================================================
143     E-Law     Copyright 1992-1993 by David Loundy
 
     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 by 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. 
In both cases, the material being transmitted to the caller is the 
same: for dial-a-porn the material is transmitted aurally; for 
computer porn it is transmitted over a computer screen visually. 
With a computer's ability to transmit images and sounds as well as 
text, the justification for regulating computer distributed 
indecent material is equal to or greater than the justification 
for regulating standard audio dial-a-porn. The regulations on 
dial-a-porn could simply be applied in a computer context. The 
distribution means is essentially the same Ñ 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. The means of preventing access by minors could also be 
made the same, regardless of the means of access; a password, a 
credit card, or age verification by mail could still be required 
to access the service.
 
      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.[FN424] 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[FN425] 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 been 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
--------------------------
[FN424] U.S. CONST. art. I, ¤ 8.
[FN425] 18 U.S.C. ¤ 2510.
======================================================================
144     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
   opens, secretes, embezzles, or destroys the same ... .[FN426]
 
This statute has the same effect as the statutes specifically 
geared towards electronic communications Ñ it protects both mail 
in transmission,[FN427] as well as mail being stored for the 
recipient.[FN428] Just as the Electronic Communications Privacy Act 
protects stored communications in the form of an E-mail 
recipient's "mail box,"[FN429] so does the postal service protect a 
"snail mail" recipient's mail box.[FN430] 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.[FN431] However, the reason 
for this protection from unpleasant U.S. mail Ñ based on notions 
of trespass[FN432] Ñ 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.[FN433] 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
--------------------------
[FN426] Mail, 18 U.S.C. ¤ 1702.
[FN427] Compare ¤ 1702 with E-mail, 18 U.S.C. ¤ 2510.
[FN428] Compare ¤ 1702 with ¤ 2511.
[FN429] ¤ 2511.
[FN430] ¤ 1702; see also United States Postal Serv. v. Council of 
Greenburgh Civic Ass'n, 453 U.S. 114 (1981).
[FN431] Rowan v. United States Postal Dep't, 397 U.S. 728 (1970).
[FN432] Id. at 737.
[FN433] Bolger v. Young Drug Prods. Corp., 463 U.S. 60 (1983).
======================================================================
145     E-Law     Copyright 1992-1993 by David Loundy
 
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 by a user could be denied access privileges
to the network.
 
     E.     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."[FN434] 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.[FN435] Judge Hilbery 
held that the owners of the club could be held liable as 
republishers of the defamation.[FN436] He based this conclusion on 
the fact that the club owners had complete control of the walls of 
the club;[FN437] they had seen the poem;[FN438] they could have removed 
it;[FN439] and yet they did not.[FN440] 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."[FN441]
     Courts in this country have made rulings on the posting of 
defamatory material since at least 1883. Woodling v. 
Knickerbocker[FN442] involved two placards left on a table at a 
furniture dealer,
--------------------------
[FN434] As quoted in Byrne v. Deane, 1 K.B. 818, 824 (Eng. C.A. 1937).
[FN435] Id. at 818. The case finally held against the plaintiff on the 
grounds that the message was not defamatory. Id.
[FN436] Id. at 820.
[FN437] Id. at 821.
[FN438] Id. at 838.
[FN439] Id.
[FN440] Id.
[FN441] Id.
[FN442] Woodling v. Knickerbocker, 17 N.W. 387 (Minn. 1883).
======================================================================
146     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
one which read, "[t]his was taken from Dr. 
Woodling as he would not pay for it; for sale at a bargain,"[FN443] 
and the other which read, "Moral: Beware of dead-beats."[FN444] 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.[FN445] Importantly, the court also 
discussed the liability of one of the furniture store owners who 
had not seen the defamation.[FN446] 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.[FN447] This situation was contrasted 
with that of a business involved in publishing or selling books or 
magazines.[FN448] 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.[FN449] 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.[FN450] supports this theory. In this 
case, a newspaper article defaming a ticket broker was posted in 
the defendant's railway office.[FN451] The court held that a jury 
could properly have found that the defendant, by way of its 
agents, had knowledge of what was posted in its office.[FN452] 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.[FN453]
     Hellar v. Bianco is a case in which the proprietor of an 
establish-
--------------------------
[FN443] Id.
[FN444] Id.
[FN445] Id.
[FN446] Id.
[FN447] Id.
[FN448] Id.
[FN449] Id.
[FN450] Fogg v. Boston & L. R. Co., 20 N.E. 109 (Mass. 1889).
[FN451] Id.
[FN452] Id. at 110.
[FN453] Id.
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147     E-Law     Copyright 1992-1993 by David Loundy
 
ment 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.[FN454] Hellar involved "libelous matter indicating that 
appellant was an unchaste woman who indulged in illicit amatory 
ventures"[FN455] which was scrawled on a men's room wall of a 
tavern.[FN456] After the woman who was the subject of the note began 
getting calls about the graffiti, the bartender was asked to have 
the message removed.[FN457] Later that evening, when it was not 
removed, the tavern owner was charged with republication of the 
libel.[FN458] 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.[FN459] 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.[FN460] Tacket 
involved a defamatory sign posted in a GM factory.[FN461] 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.[FN462] 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.[FN463]
     A more recent case, Scott v. Hull,[FN464] 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.[FN465] The plaintiff told the defendant about the 
graffiti and asked that it be removed; the defendant refused.[FN466] 
The court held that the building owners were not liable as 
republishers, and they were under no duty to remove the 
graffiti.[FN467] The reasoning behind this decision is
--------------------------
[FN454] Hellar v. Bianco, 244 P.2d 757 (Cal. Ct. App. 1952).
[FN455] Id. at 758.
[FN456] Id.
[FN457] Id. at 759.
[FN458] Id.
[FN459] Id.
[FN460] Tacket v. General Motors Corp., 836 F.2d 1042 (7th Cir. 1987).
[FN461] Id. at 1043-34.
[FN462] Id. at 1047.
[FN463] Id.
[FN464] Scott v. Hull, 259 N.E. 160 (Ohio Ct. App. 1970).
[FN465] Id. at 160.
[FN466] Id. at 161.
[FN467] Id. at 162.
======================================================================
148     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
that the viewing of the graffiti was not at the invitation of the
owners Ñ as it was in the earlier cases.[FN468]
     In Scott v. Hull, the graffiti was on the outside of the 
defendant's building.[FN469] It was placed there by strangers and 
read by strangers.[FN470] The defamation was not put there by an act 
of the defendant, and the court refused to find liability for 
nonfeasance in this instance.[FN471] In Hellar,[FN472] the defamation 
was "published" in the restroom on the defendant's premises. The 
graffiti was placed there by invitees of the defendant,[FN473] and 
was read by other invitees.[FN474] Byrne v. Deane,[FN475] Woodling v. 
Knickerbocker,[FN476] and Tacket v. General Motors Corp.[FN477] are 
similar to Hellar. The same was true in Fogg v. Boston & L. R. 
Co.,[FN478] 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 
several 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 of-
--------------------------
[FN468]  Id.
[FN469] Id. at 160.
[FN470] Id.
[FN471] Id. at 162.
[FN472] 244 P.2d at 757.
[FN473] Id.
[FN474] Id.
[FN475] 1 K.B. at 818.
[FN476] 17 N.W. at 387.
[FN477] 836 F.2d at 1042.
[FN478] 20 N.E. at 109.
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149     E-Law     Copyright 1992-1993 by David Loundy
 
fending message, or have someone else do it. This is 
similar to the case of graffiti in a bar Ñ 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.
 
       F.     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.[FN479] 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."[FN480] 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 
informed.[FN481] An equal concern is to protect children from 
inappropriate material; this is especially true because of radio 
and television's special reach Ñ they can even bring indecent 
messages to those children too young to read.[FN482] Radio and 
television are given special treatment, including the "channeling" 
of constitu-
--------------------------
[FN479] Communications Act of 1934, 47 U.S.C. ¤ 301.
[FN480] Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 376 (1969).
[FN481] Id. at 390.
[FN482] F.C.C. v. Pacifica Foundation, Inc., 438 U.S. 726, reh'g 
denied, 439 U.S. 883 (1978).
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150     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
tionally 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.[FN483]
 
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.[FN484]
     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.[FN485] 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
--------------------------
[FN483] Id. at 731.
[FN484] 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).
[FN485] 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.
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151     E-Law     Copyright 1992-1993 by David Loundy
 
guarantees of free speech that apply to publishers apply to 
broadcasters. For instance, a broadcaster does not have the right 
to make defamatory statements with knowing or reckless disregard 
for the truth.[FN486]
     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.[FN487] Like computer information 
systems, 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[FN488] obscenity standard 
traditionally was not extended to cable.[FN489] Recent cable 
television regulation, however, acknowledges the growth of cable, 
which now reaches nearly sixty per cent of all television 
households.[FN490] The Communications Act of 1934[FN491] 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."[FN492] 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.[FN493] 
Also, analogous to the postal service statutes, the new cable 
regulations add a provision for service users to have the service 
provider block out unsolicited sexually explicit materials on 
re-
--------------------------
[FN486] Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wyo. 1976).
[FN487] Mail, 47 U.S.C. ¤ 151; see also United States v. Midwest Video 
Corp., 406 U.S. 649 (1972).
[FN488] 438 U.S. at 726.
[FN489] Community Television, Inc. v. Roy City, 555 F. Supp. 1164 (D. 
Utah 1982); Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985).
[FN490] Cable Television Consumer Protection and Competition Act of 
1992, Pub. L. No. 102-385, ¤ 2(3), 106 Stat. 1460.
[FN491] 47 U.S.C. ¤ 532(h).
[FN492] Cable Television Consumer Protection Act of 1992, ¤10(a)(2).
[FN493] Id. ¤ 10(b).
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152     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
quest.[FN494] 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.
 
         VIII.     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 
of voyagers through Cyberspace. This has given rise to groups such 
as Computer Professionals for Social Responsibility[FN495] and the 
Electronic Frontier Foundation.[FN496] 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 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
--------------------------
[FN494] Id. ¤ 15.
[FN495] Katy Ring, Computer Professionals for Social Responsibility 
Seeks to Change Lay Preconceptions, COMPUGRAM INT'L, Oct. 9, 1990.
[FN496] John P. Barlow, Crime and Puzzlement: In Advance of the Law on 
the Electronic Frontier; Cyberspace, WHOLE EARTH REV., Sept. 22, 
1990, at 44.
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153     E-Law     Copyright 1992-1993 by David Loundy
 
   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.[FN497]
 
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 
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.
     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.[FN498] 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.[FN499] Also, it may not even be able to discover the reach 
of offending material.[FN500] Copyrighted material could be spread 
from computer to computer all over the world after just one file 
transfer.[FN501]
     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.[FN502] 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, 
tradi-
--------------------------
[FN497] Laurence Tribe Proposed Constitutional Amendment, available 
over Internet, by anonymous FTP, at FTP.EFF.ORG (Electronic 
Frontier Foundation).
[FN498] See generally Charles, supra note 383.
[FN499] Id.
[FN500] Id.
[FN501] Id.
[FN502] Johnathan Gilbert, Computer Bulletin Board Operator Liability 
for User Misuse, 54 FORDHAM L. REV. 439, 441 (1985).
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154     ALB. L. J. SCI. & TECH.  [Vol. 3 1993]
 
tion-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.[FN503] 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[FN504] works well to regulate 
electronic mail because it is modeled after the statute that 
governs the U.S. mail.[FN505] 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 Ñ 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. An example is 
trespassing. If someone hacks into a computer system, 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. The structure already exists to 
regulate the new technology, because, in essence, the new 
technology is just a new incarnation of the old.
--------------------------
[FN503] See Branscomb, supra note 181, at 7-11.
[FN504] 18 U.S.C. ¤ 2511.
[FN505] 18 U.S.C. ¤ 1702.

