Date: 02 Jul 91 19:15:10 EDT
From: "76012,300 Brad Hicks" <76012.300@COMPUSERVE.COM>
Subject: File 6-- CompuServe Responds to Policy and Operations Questions

Attn: Computer Underground Digest
In TELECOM Digest #11.507, John Higdon writes:

  > If I really am responsible for every article and pass-through
  > e-mail message that writes to my disk drive, then I lack the
  > facilities (mostly manpower) to remain an intermediate UUCP site.


John, in every meeting of four or more sysops I have been at in the
last three years, I have heard this one argued.  I have submitted this
exact question to maybe a half-dozen lawyers.  The only thing that ALL
agreed upon was that until we have three or more cases prosecuted in
the federal courts, no one knows whether you are liable or not.

Mike Godwin, the EFF's attorney, told a bunch of us that he's been
researching this exact question for most of a year, and so far it
comes down to three broad categories:

 (1) ENTIRELY PRIVATE, ONE-TO-ONE MAIL

Covered by the Electronic Communications Privacy Act.  Sysop/sysadmin
is not liable for content; may read for technical reasons such as to
check service; may not disclose to anyone for any reason without a
court order.  (Aside: Since the search warrant at Steve Jackson Games
said nothing about third-party mail, in the seizure of Illuminati BBS
the aptly-acronymed SS almost certainly violated ECPA over this very
issue.)

 (2) ENTIRELY PUBLIC MAIL ON ONLY ONE SYSTEM (local BBS messages)

Only limited case law, but it does appear that the sysop is liable in
general.  More cases or new laws will be necessary to determine WHEN
the sysop becomes liable ... e.g., if somebody posts a Sprint access
number on your BBS, you are definitely liable if it is still there a
month later.  But what about the next day?  An hour later?  Five
seconds later?  Nobody knows until the lawyers fight it out.  Godwin
thinks it comes down to "if the sysop could reasonably have known
about it"--and then some poor ignorant bunch of jurors will get to
decide how often a "resonable sysop" checks his mail.

(3) WIDELY-DISTRIBUTED PUBLIC MAIL (newsgroups, echomail, mail lists,
etc.)

No readily applicable law.  No CLEAR precedent ... but the few
half-precedents, taken from the world of ham packet-radio repeaters,
suggests that in fact, you are liable for any public message residing
on your system, even if it originated elsewhere.  If you allow your
system to forward public messages before you clear them, you may find
yourself charged with moving illegal messages across state lines.

As an ex-sysop of seven years' experience, #3 horrifies and terrifies
me.  I almost got caught in this trap myself, when a Dallas TV station
tried to persuade police that as the conference moderator on
MagickNet, I personally was responsible for a message on MagickNet
offering assistance to a man seeking to smuggle his daughter out of
the country so his inlaws couldn't take her away.  (Note: message from
someone else, to a third party outside the country, and the hue and
cry arose two days before I even saw the message.)

Maybe common sense will prevail in the courtroom.  (And maybe chickens
have teeth.)  Maybe Congress will pass clear, reasonable, technically
feasible legislation to clarify the issue and President Bush will sign
it.  (And maybe we =can= balance the budget in 1993.) Or maybe the
Rehnquist court will recognize this as an important freedom-of-speech,
freedom-of-association, freedom-of-press issue and grant appropriate
protection.  (And maybe we'll find a universally popular solution to
the abortion issue tomorrow after lunch, and everybody will agree to
it.)

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End of Computer Underground Digest #3.26