A CLASS LIKE NONE OTHER:  HOW THE TRADITIONAL MEDIA CLASSIFICATIONS              FAIL TO PROTECT IN THE ELECTRONIC FRONTIER                           by Jonathan BellAugust 4, 1993Mass Communications Law and EthicsDwight Teeter - Summer 1993Imagine the mass communications functions of publisher, distributor,broadcaster, advertiser and utility rolled into one and you might findthat the beast before you is being operated out of your own home -- orat least that of a friend or neighbor.  The computer bulletin board(BBS) offers a variety of services to its users: shopping, electronicmail, public discussion of hot topics, free software, free advice,news. All that may sound idealistic but it is here. The only thingendangering BBS' and their system operators' (sysops') ability to runthem is a legal system unclear and uneducated about the FirstAmendment held dearly by those who keep them going, whether they arethe users or the operators.Exactly where BBS' stand in the legal structure has not beendefinitively decided by anyone. Getting sysops to agree has yet to beaccomplished, users see things differently and lawyers and governmentoften have views widely divergent from the thoughts of the other two.The simple fact that the proper status of bulletin boards has yet tobe answered reasonably opens up the dire need for a new mediaclassification system. No one sees eye to eye, and assurances that theright thing will always be done do not work.Professor Laurence Tribe is an advocate of an amendment to the U.S.Constitution guaranteeing First Amendment protection for Americansregardless of the technical means by which we disseminate our views.1His proposal is an admirable step to solving the problems of BBS'. Itis not the only one as these problems suggest:Discussions on computer bulletin boards and information systems varygreatly. Topics cover everything imaginable and then some:  generalpolitics, vegetarianism, religion, UFOs, software, technology, movies,television, writing, law, aviation, chocolate and soap operas.2 Nodiscussion area, or conference, is immune from wild and freewheelingtalk that at one time or another will inevitably fall from lively talkinto abusive, childish and defamatory personal attacks, otherwiseknown as a flame war.Unfortunately for those who like to participate in computerdiscussions, these issues come up much too often. Technicalconferences wherein users seem to be headed on the path of anoperating system war (DOS, Windows v. Macintosh, NT v. OS/2, UNIX v.VMS) quickly find the heavy hand of the moderator resting upon theirshoulder.3 Or in the case of social issues, avoiding arguments overthe rights and wrongs of homosexuality would probably be hopeless.4And the evils of liberalism or conservatism is a sure bet as well.In one instance an argument developed among participants of the ILinknetwork's Opinion conference. What began as a conversation over civilrights for gays turned into questioning the legal nature of statesodomy laws, gay marriages, etc.5 Eventually one user, a former gayactivist, decided to appease other participants and explain in detailwhat homosexuals (the men at least) do in bed.6 Not unsurprisingly aparent chimed in to note that his preteen son had access to thematerial on his own. He threatened to sue ILink and anyone else hecould think of, presumably on the grounds that the material -- graphicsexuality and profane language -- was inappropriate for minors.7That unfortunately was not all. The conference took a turn against theactivist because of what eventually bore out as his rude, indignant,even childish behavior. The activist took the ensuing debate againsthim as anti-gay, when in fact they were decidedly "anti-Gary." Eventhe conference moderator, well known on the network as a lesbian,could find no way to support his allegations. The activist eventuallywon himself a "vacation" from the ILink Opinion conference forviolating network user guidelines.8Any casual look at electronic systems should reveal to an observerthat the common user knows not one wit about copyright law. Usersroutinely post copyrighted material, whether it be an article from TheNew York Times,9 news briefs from Prodigy10 or the full text frommagazine articles.11 People seem to think that "fair use" meansreprinting much, if not all, of an article with no additionalcommentary to solicit comments,12 or that reprinting is permissible solong as the copyright notice is intact.13 Generally, publishers arenot likely to care, although repeated copying from a single source mayresult in a stiff word or two from a representative.14 The BerneConvention is misunderstood sometimes to mean that mere quoting ofcopyrighted material is illegal without permission.15Some users have managed to find themselves committing acts akin tosexual harassment simply by continuing a thread, titled "GalacticBreasts," that female readers found offensive.16 The topic began asworthy comment and criticism of Star Trek: The Next Generation, whichbegan its first season placing Marina Sirtis in a costume whichdisplayed a great deal of cleavage.17 In the absence of a visiblemoderator, the discussion turned from borderline sexual harassment toname calling to claims of discriminatory treatment and accusationsthat other users had lied about the goings-on of the "discussion."18These problems tend to crop up often. Unlike the traditional mediaclassifications, there is often no one to screen what passes throughthe system before material that is defamatory, obscene, infringing orharassing reaches participants. Sysops generally do not have the timeto monitor everything on their own boards: Dealing with hardware andsoftware glitches, managing file directories, weeding out piratedsoftware and scanned images from Penthouse, and still maintaining aday job and domestic necessities takes time from what is usually ahobby.In cases where messages will leave the local bulletin board and"echo"19 across the country or to other countries, selective removalof messages by local sysops can lead to fragmentation of discussionswhere some people have seen certain messages and others have not.20Theoretically, a user might log in one day to see replies to repliesof a message which were deleted before they reached the board heuses.21Even if the resources to screen every message before posting it to theboard were possible, a sysop would likely be falling prey tocensorship, much as if a broadcaster used a delay device to ward offlibel suits when a caller to a talk radio show could not refrain fromusing specific words or simply chose to say something that wasconjecture or simply not true. In the 1976 case Adams v. FrontierBroadcasting Co.,22 the Wyoming Supreme Court held that screeningcalls to a talk show subverts a broadcaster's own First Amendmentprinciples:"... broadcasters, to protect themselves from judgments for damages,would feel compelled to adopt and regularly use one of the tools ofcensorship, an electronic delay system. While using such a system abroadcaster would be charged with the responsibility of concludingthat some comments should be edited or not broadcast at all.Furthermore, we must recognize the possibility that the requirementfor the use of such equipment might, on occasion, tempt thebroadcaster to screen out the comments of those with whom thebroadcaster ... did not agree and then broadcast only the comments ofthose with whom the broadcaster did agree."23Forcing callers to adhere to the broadcaster's views essentiallydestroys the purpose of open debate. Electronic systems are wide opento debate based solely on their existence and the invitation of theoperators to friends and the public to join in. No one should beforced to agree, and no one will agree.  Disputes are common andexpected. But with free expression comes the danger of oversteppingthe bounds of the First Amendment:  obscenity, distributing materialnot appropriate for minors, defamation,24 copyright infringement, andmore.The level of ignorance and lack of courtesy or taste on computernetworks is astounding. Though not the heart of electronic discourse,the problems exist enough to pose a problem for sysops, moderators andnetwork administrators.Traditional media classifications carry varying levels ofresponsibility and liability. What the law considers grounds for courtaction against a broadcaster might have no bearing to a newspaperpublisher. A library or bookstore would likely have even lessresponsibility.Unfortunately, computer information systems and bulletin boards fitnone of the classic molds nicely. In some ways they are nothing morethan distributors, but in others they actively behave as publishers.In the case of the echo networks mentioned above, they behave to somedegree as republishers, although responsibility for removing orlessening the damage of problematic material is shifted.25Users who have found the rules of electronic networks restrictivesometimes advocate the common carrier principle.26 Such a standard hasbeen denounced as an intrusion on the rights of owners to operatetheir private property as they desire27 and impractical28; impracticalbecause as a common carrier, they would then be obligated to carryeverything posted to the boards.This might be fine if computer operators had an unlimited supply ofdisk space and money. They do not. Many systems are operated as ahobby with no fees charged of users. Sysops foot the bill to shuttleinformation around a volunteer network.29 Under those restrictions,moderators attempt to maintain as high a signal to noise ratio as theypossibly can, cutting off chitchat, directing off-topic conversationsto a more appropriate venue, ending disputes and attacks before theyturn into virtual brawls or a flame war with no end in sight.Evidence of what happens when the stops are removed exists on USENETin the alt.* hierarchy of newsgroups. These "alt" groups have nomoderators to prescreen posts or discipline unruly participants.30They are anarchy at work.31 If proof of how uncivilized these groupscan become is required, any interested party is directed towardalt.flame, the USENET equivalent of a grudge match. Some newsgroupsunder the alt.flame heading carry the names of legendary netpersonalities.32 Others such as alt.flame.fucking.faggots have beenturned by heterosexuals to attack those who would call themselveshomophobic and proud of it, undoubtedly to the dismay of the peoplewho created it.No mistake should be made here: Those who are "wired" to the realm ofcomputer networks often start them or volunteer and are aware ofnetworks such as USENET, where "In a few groups, the postings lack anycoherence at all, and make you wonder what, er, stimulants wereinfluencing the authors."33Such anarchy would not be permitted on other networks, which eitherdue to cost or technical capabilities can not allow their facilitiesto be roamed freely by what passes as atmosphere or lively discussionelsewhere.34 An example of this is Prodigy.  When Prodigy's electronicbulletin boards became exceedingly popular they drew all manner ofdiscussions. They became popular enough to overload a network intendedfor the transmission of repetitive information (i.e. advertising,shopping, news, etc.) not E-mail and bulletin board messages whichdiffer from one another.35 Prodigy, in a public relations disaster in1990, announced the imposition of new fees on private electronic mailto help hold off the costs incurred by heavy E-mail use by some of itsusers.36In its role as a "family" network, Prodigy also prescreened messages37that did not fit the mold of something available to both children andskin-thinned adults. Prodigy's computers routinely scanned messagesfor key words often used as profanity or a pejorative.38Unfortunately, this caused problems for people using the wordslegitimately. Disguised words, those with letters replaced by *&%$#characters, were acceptable.39 Users were also not allowed to nameother users in their posts regardless of the topic. In one case thename in question referred not to Roosevelt Dime, a halfback for theChicago Bears as Prodigy insisted, but to a Roosevelt dime the userwas looking to add to his coin collection.40The network has from the beginning considered itself a publisher,choosing to allow some discussions and not others. In late 1989 whenarguments broke out in a Health Spa bulletin board,41 Prodigydiscontinued the area outright, saying that public interest had waned.One Prodigy member who was evicted from the network for his protestsagainst its E-mail fee policy noted: "It was this wild debate betweenfundamentalist Christians and gay activists. ... This is the kind ofthing that happens on a bulletin board. You wouldn't get this tohappen in a room."42In a much more highly publicized incident, Prodigy recovered fromcomplaints against it by the Anti-Defamation League of the B'naiB'rith when users in another area posted statements that the Holocaustnever happened43 or that if Hitler removed the Jews, we could "go along ways toward avoiding much trouble."44 Afterwards, Prodigy issuedits policy that it would no longer prescreen messages for content(except for language)45 but would delete discussions it considered"grossly repugnant to community standards."46Such policies may be fine for Prodigy which directs itself tofamilies, but others contend that they are open to just aboutanything. They act as libraries. In this category is CompuServe, asystem already legally classified by the New York courts as adistributor:47After Rumorville USA, an electronic publication on CompuServe'sJournalism Forum,48 claimed that its competitor Skuttlebut was a"start-up scam,"49 the plaintiff filed a suit against not onlyRumorville's publisher but also CompuServe itself. District CourtJudge Peter Leisure granted a summary judgment to CompuServe on thebasis that as a distributor it could be held liable only if it knew orhad reason to know of the defamatory statements:"Technology is rapidly transforming the information industry. Acomputerized database is the functional equivalent of a moretraditional news vendor, and the inconsistent application of a lowerstandard of liability to an electronic news distributor such asCompuServe than that which is applied to a public library, book store,or newsstand would impose an undue burden on the free flow ofinformation."Industry observers naturally hailed Leisure's decision. Had the judgeruled differently, CompuServe likely may have had to begin censoringits boards,50 which like the Prodigy incidents outrages users andviolates the First Amendment principles so long defended by othercourts.To an individual sysop without the resources of Prodigy, this wouldbecome a nightmare, significantly slowing down the flow ofinformation. Lawyers on the electronic frontier suggest that should ahobby bulletin board lose its privileges as a distributor they almostunquestionably would shut down or "face the Hobson's choice of either