D E F A M A T I O N L I A B I L I T Y O F C O M P U T E R I Z E D B U L L E T I N B O A R D O P E R A T O R S A N D P R O B L E M S O F P R O O F
John R. Kahn CHTLJ Comment Computer Law Seminar Upper Division Writing February, 1989
D E F A M A T I O N L I A B I L I T Y O F C O M P U T E R I Z E D B U L L E T I N B O A R D O P E R A T O R S A N D P R O B L E M S O F P R O O F
John R. Kahn CHTLJ Comment/Upper Division Writing/Computer Law Seminar
A computer user sits down at her personal computer,
turns it on, and has it dial the number of a local computerized bulletin board service (BBS) where she has been exchanging opinions, information, electronic mail, and amicable conversation with other users. Upon connecting with the BBS, she enters a secret "password", presumably known only to herself and to the bulletin board operator, so as to gain access to the system.
To her surprise, she finds herself deluged with lewd
electronic mail from complete strangers and hostile messages from persons with whom she believed she was on friendly terms. The messages read: "Why did you call me a worthless son-of-a —- - yesterday? I really thought we could be friends, but I guess I was wrong"; "Hey, baby, I liked your fetish you were telling me about yesterday: call me at home, or I'll call YOU"; and, "Why didn't you get around to telling me about your venereal disease sooner?". Yet our user has not called this BBS in weeks and has never made any of these statements. Dismayed and angered, the
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user comes to realize that she is the victim of computerized bulletin board abuse.
A personal computer hobbyist (hereafter "SYSOP") who
operates a computerized bulletin board system notices a rash of heated arguments, profanity and complaints being reported to him by users on what had been a forum for the peaceful exchange of ideas. Investigating the complaints, he discovers that previously responsible users have suddenly and uncharacteristically been leaving insulting, rude and false messages about other users on the bulletin board. One user is so enraged about a public message accusing her of sexual misadventures that she is threatening to sue the computer hobbyist in libel for having permitted the message to appear. The SYSOP realizes that both he and his subscribers have suffered computerized bulletin board abuse.
The aggravating force behind both the above situations
is most likely a third user (known hereafter as "the masquerader") who maliciously exploits both his computer knowledge and his access to BBSes. Since the masquerader has discovered the password and name of the regular user, and uses them to access bulletin boards, he appears for all intents and purposes to be that regular user. The computer thus believes it has admitted a legitimate subscriber to its database when it has in fact given almost free reign to a reckless hacker. The masquerader, posing as another legitimate user, is then free to portray that user in whatever light he pleases and also to harass other users of the bulletin board.
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When validated users later discover that someone else
has been impersonating them, they invariably cancel their subscriptions to that BBS and often bring a defamation action against its SYSOP for the smearing of their good names. Conversely, the SYSOP, in an effort to avoid liability, reluctantly engages in monitoring each and every piece of information posted daily by hundreds of users. If the SYSOP chooses instead to stop running his BBS altogether, another efficient and valuable forum for ideas is lost.
What sort of defamation action may be maintained by the
wrongfully disparaged user? Is the computerized bulletin board offered by the SYSOP subject to the stricter self-scrutiny of newspapers, or does it operate under some lesser standard? How may the initial party at fault - the masquerader - be held accountable for his computerized torts?
The scope of this Comment will be to examine the
defamation liability of computerized BBS operators and evidentiary proof issues that arise in tracing computerized defamation to its true source. Other possible Tort causes of action - intentional infliction of emotional distress, invasion of privacy, trespass to chattels - are not addressed. It is assumed throughout that the plaintiff is a private person and that the issues involved are not matters of "public interest" as defined in Gertz v. Robert Welch, Inc.1
Computerized BBSes exist as a quick, easy and efficient
way to acquire and exchange information about the entire
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spectrum of interests.2 The growing popularity of these electronic forums was demonstrated in a recent study which numbered BBSes at more than 3,500 nationwide.3 The size and complexity of computerized BBSes range from relatively simple programs, run on privately-owned microcomputers with a few hundred subscribers, to vast, multi-topic database systems with nationwide lists of subscribers and operated for profit.4
The process of reaching, or "accessing" one of these
bulletin boards is quite simple: all that is required is a computer, a computer program that allows the computer to communicate over the phone lines, and a "modem" (a device which converts the computer's electrical signals into acoustic impulses, defined infra).5 Once she has accessed the BBS, the caller is free to trade useful non-copyrighted computer programs, exchange ideas on a host of topics, post electronic mail for later reading by others, and much more.6 The ease with which most BBSes may be accessed and the wealth of interests to be found there ensure that they will continue to be important sources of information and discourse.
However, the speed and efficiency of computerized BBSes
also subject them to serious, wide-ranging civil and criminal abuse. Recently a young computer user paralyzed several major computer systems across the nation by sending a harmful computer program (or "worm") to them over telephone lines. The worm quickly replicated itself in the computers' memories and thus decreased their output capacities.7 Further, certain computer abusers (known as "hackers") use the power of the computerized
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forum to ply illegal copies of copyrighted programs, bilk hundreds of millions of dollars annually from credit card and phone companies, and to wrongfully access others' data files.8 A minority of other BBSes exist mainly to circulate racist ideologies.9
What is more, it now appears that the ancient tort of
defamation is actively being practiced through the use of computerized BBSes.10 Due to the almost ethereal way computerized BBSes operate - one person may conveniently leave an electronic message for others to respond to at their leisure and there is no need for the parties to converse directly or even to know each other11 - the risk of detection when the BBS is abused is lower than that for defamation practiced in the print media.12 Difficulties arise with identifying the true party at fault and with authenticating the computer records as evidence of the defamation.13 Adding to this problem is an uncertainty in the laws concerning the appropriate liability of SYSOPs for defamatory messages on their BBSes of which they were unaware.14
The following are brief definitions of some important
technical terms connected with electronic BBSes:
SYSOP: An abbreviation for "System Operator", this is
the individual generally responsible for organizing information and for trouble-shooting on a computerized bulletin board. On larger bulletin boards covering hundreds of topics, several SYSOPS may be in charge of maintaining information contained in
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separate discrete fields.15 But when the BBS is privately owned and operated, a single SYSOP may very well oversee all aspects of the board's operations, in addition to being able to access all his users' passwords and personal information.16
Modem: An abbreviation for "Modulator/Demodulator".
This is a device which links a computer to an ordinary phone line and converts computer signals to auditory phone signals. A computer modem on the other end of the transmission then reverses the process. Computers using modems transfer data rapidly across phone lines and thus share information.17
Validation: Basically this is a set of procedures used
by responsible SYSOPs to do everything reasonably possible to verify that the personal information supplied by a user is true and correct. Common sense and emerging legal standards dictate that the SYSOP should not merely rely on the name provided by a potential user when the SYSOP does not personally know that individual. The SYSOP may be required to independently corroborate the prospective subscriber's information by first asking the potential user's name, address and phone number and then by checking that information with directory assistance.18 These procedures will hopefully aid the operator in identifying wrongdoers if misuse occurs;19 however, as will be seen, these procedures are by no means foolproof.
Database: Any collection of data in a computer for
purposes of later retrieval and use, i.e., names, addresses, phone numbers, membership codes, etc.
User: Anyone who accesses a computerized bulletin board
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system and is exposed to the information stored there. Users may be identified by their true names, by an assigned numerical code, or by colorful "handles", or "usernames."20
Operating System: This is a program which controls the
computer's basic operations and which recognizes different computer users so that their actions do not interfere with one another.21 For example, most multi-user operating systems will not allow one user to delete another's data unless the second user gives explicit permission.22 BBS system software programs perform this function through their use of "accounts" and "passwords":23 private electronic mail sent to a particular user may not be read or deleted by others. The BBS' operating system is also designed to deny access to those attempting to log on under an unvalidated or unrecognized name.24
Account/Username: As another part of BBS system
security, each user chooses an "account", or "username", consisting of one to eight letters or numbers.25 The BBS' operating system then will not allow commands issued by one user of one account to modify data created by another account;26 nor will it grant access to an account that has been terminated or invalidated.
Password: Yet another aspect of BBS system security is
the use of "passwords" as a prerequisite to accessing the computer system. Most operating systems require the user to enter both her account name and password to use the account.27 Because electronic mail cannot be sent without the username to which it is being addressed, and because the account cannot be
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used without knowledge of the password, usernames are generally public knowledge while passwords are a closely-guarded secret, known only to the user and the operating system.28
Teleprocessing: This is defined as accessing a computer
from a remote location, usually over a telephone line or similar communications channel.29
Uploading/Downloading: For purposes of exchanging
computer programs or electronic mail over the phone lines, the process of transferring information from one's personal computer to the bulletin board is called uploading. The reverse process - transferring information from a bulletin board to a personal computer - is known as downloading.30
II. DEFAMATION LIABILITY OF COMPUTERIZED BBS OPERATORS
A. Computerized Defamation: Libel or Slander?
Libel is the "publication of defamatory matter by
written or printed words, by its embodiment in physical form, or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words."31 Publication of a defamatory matter is "its communication intentionally or by a negligent act to one other than the person defamed."32 A communication is defamatory if it "tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him."33 The difference between libel and slander has traditionally depended upon the form of the communication: oral defamation generally is considered slander, while written
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defamation is generally considered libel.34 The distinction is important, because libel requires no proof of special damages and is actionable by itself, while slander generally requires proof of special damages in order to be actionable.35
However, with the advent of electronic media, the
traditional libel/slander distinctions as they apply to sight and hearing are no longer valid. For example, passing defamatory gestures and signals, though visible to sight, were considered slander;36 an ad-libbed statement on a telecast impugning a person's financial status was found to be libel.37
It has been suggested that the real distinction between
libel and slander is the threat and magnitude of harm to reputation inherent in the form of publication.38 Libel has been historically associated with writings because (1) a writing is made more deliberately than an oral statement; (2) a writing makes a greater impression to the eye than does an oral statement to the ear; (3) a writing is more permanent than speech; and (4) a writing has a wider area of dissemination than speech.39 These four qualities inherent in a writing made the possible harm to reputation greater than mere spoken words. In applying libel to the new form of computerized communication used on BBSes, the potentiality for harm to reputation is significant, and should again be considered the controlling factor.
In our hypothetical situation, the user discovered that
another user (the masquerader) had usurped her account name and password, causing her great embarrassment and humiliation. The
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act of prying into and taking another's computer information to misuse it elsewhere would indicate a certain deliberation on the actor's part to spread defamatory messages. Secondly, the defamatory message is displayed to other users on their computer monitors in the form of electronic characters, making a visual impression. Third, this electronic defamation is more permanent than mere words because it is stored in the BBS' memory until erased by the user or SYSOP. Finally, the message arguably has a wider area of dissemination than a one-to-one spoken defamation because, as a message on an electronic BBS, it has the potential of being viewed by hundreds, perhaps thousands, of users each day. Based on these four criteria, the capacity for harm to our user's reputation due to the masquerader's activities is indeed great enough to be considered libellous.
B. Defamation Liability of the SYSOP
Having established the electronic message as being
libellous, the next issue is to determine the extent of liability for the SYSOP who unknowingly permits the message to be communicated over his BBS. Case law indicates that the SYSOP's liability depends upon the type of person defamed and on the subject matter of the defamation.
1. Degree of fault required
The United States Supreme Court has addressed modern
defamation liability in two major decisions. Both conditioned the publisher's liability on the type of person defamed and on the content of the defamation. In New York Times v. Sullivan,40 the Court determined that in order for a public official to
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recover damages in a defamation action, the statement must be shown to have been made with "actual malice", i.e., with knowledge of its falsity or with reckless disregard for its truth.41 Due to society's interest in "uninhibited, robust and wide-open" debate on public issues, neither factual error nor defamatory content sufficed to remove the First Amendment's shield from criticism of an official's conduct.42
The Supreme Court further elaborated on defamation
liability standards in the private and quasi-private sphere when it decided Gertz v. Robert Welch, Inc.43 In Gertz, the publisher of a John Birch Society newsletter made certain false and inaccurate accusations concerning an attorney who represented a deceased boy's family. The family had civilly sued the policeman who murdered the boy. In rebutting what he perceived to be a secret campaign against law and order, the publisher labelled the family's attorney a "Leninist" and "Communist-fronter".44 In addition, the publisher asserted that the attorney had been a member of the National Lawyers Guild, which "'probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democratic Convention.'"45 In publishing these statements throughout Chicago, the managing editor of the Birch Society newsletter made no effort to verify or substantiate the charges against the attorney.46
The Supreme Court held in Gertz that while First
Amendment considerations protect publications about public officials47 and about "public figures"48, requiring a showing of "actual malice" before defamation damages could be recovered,
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the same was not true for defamation suits brought by private citizens49, a group to which the attorney was held to belong.50 Private citizens were seen as deserving more protections from defamation than public officials or public figures, so they were not required to show "actual malice" as a precondition to recovery.51 The Court then left it to the states to decide the precise standard of liability for defamation of private individuals, so long as liability without fault was not the standard.52
By Gertz, then, the appropriate standard of liability
for publicizing defamation of private parties falls somewhere below actual malice and above strict liability. The problem with defining the defamation standard for computerized BBS operators, however, is a lack of uniform standards. In such circumstances, the objective "reasonable person" standard will likely be applied to the SYSOP's actions.53 Several cases may be usefully applied by analogy.
The court in Hellar v. Bianco54 held that a bar
proprietor could be responsible for not removing a libellous message concerning the plaintiff's wife that appeared on the wall of the bar's washroom after having been alerted to the message's existence.55 The court noted that "persons who invite the public to their premises owe a duty to others not to knowingly permit their walls to be occupied with defamatory matter…. The theory is that by knowingly permitting such matter to remain after reasonable opportunity to remove [it], the owner of the wall or his lessee is guilty of republication
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of the libel."56 The Hellar court then left the ultimate determination of the bar owner's negligence to the jury.57 This holding seems to be in accord with the Restatement of Torts, which provides:
(2) One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication.58
Contrarily, however, the Ohio court of appeals in Scott
v. Hull59 found that the building owner and agent who had control over a building's maintenance were not responsible for libel damages for graffiti inscribed by an unknown person on an exterior wall.60 The court distinguished Hellar by noting that in Hellar the bartender constructively adopted the defamatory writing by delaying in removing it after having been expressly asked to do so:
"It may thus be observed from these cases that where liability is found to exist it is predicated upon actual publication by the defendant or on the defendant's ratification of a publication by another, the ratification in Hellar v. Bianco...consisting of at least the positive acts of the defendants in continuing to invite the public into their premises where the defamatory matter was on view after the defendants had knowledge of existence of same."61
The Scott court held that defendants could only be
responsible for publishing a libellous remark through a positive act, not nonfeasance; thus, their mere failure to remove the graffiti from the building's exterior after having it called to
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their attention was held not to be a sufficient basis of liability.62
A situation similar to Scott arose recently in Tackett
v. General Motors Corporation.63 There, an employee brought a libel suit against his employer for, inter alia, failing to remove allegedly defamatory signs from the interior wall of its manufacturing plant after having notice of their existence. One large sign remained on the wall for two to three days while a smaller one remained visible for seven to eight months.64 Instead of focussing on the Scott malfeasance/nonfeasance test,65 the Tackett court considered defendant's implied adoption of the libellous statement to be the correct basis of liability.66 While saying that failure to remove a libellous message from a publicly-viewed place may be the equivalent of adopting that statement, and noting that Indiana would follow the Restatement view "when the time comes,"67 the Tackett court held that the Restatement view could be taken too far. Citing Hellar, the court wrote:
The Restatement suggests that a tavern owner would be liable if defamatory graffiti remained on a bathroom stall a single hour after the discovery [Citation to Hellar]. The common law of washrooms is otherwise, given the steep discount that readers apply to such statements and the high cost of hourly repaintings of bathroom stalls [Citation to Scott]. The burden of constant vigilance exceeds the benefits to be had. A person is responsible for statements he makes or adopts, so the question is whether a reader may infer adoption from the presence of a statement. That inference may be unreasonable for a bathroom wall or the interior of a subway car in New York City but appropriate for the interior walls of a manufacturing
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plant, over which supervisory personnel exercise greater supervision and control. The costs of vigilance are small (most will be incurred anyway), and the benefits potentially large (because employees may attribute the statements to their employer more readily than patrons attribute graffiti to barkeeps).68 According to this reasoning, then, the location and
length of time the libel is allowed to appear plays an integral part in determining whether a given defendant has adopted the libel, and thus has published it.
An application of the foregoing analysis to the issue
at hand highlights the need for greater care in allowing the posting of electronic mail messages on a BBS. The Tackett court noted that while the content of graffitti scrawled on bathroom walls might be subject to healthy skepticism by its readers, the same might not be true for other locations such as interiors of subway cars or manufacturing plant walls.69 If this is true, then it is reasonable to assume that a defamatory message displayed in a forum for the exchange of ideas is more apt to be taken seriously by its readers - especially when the libellous
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message purports to be written by the subject of the libel.70
Further, the Tackett court indicated that the high cost
of repainting bathroom stalls by the hour outweighed its perceptible benefits. The same is not true for electronic BBSes, where the costs of prevention are minimal in light of the threat of widespread harm to users' reputations.71
Once the plaintiff establishes that the SYSOP failed to
act reasonably in removing statements known to be libellous from his BBS or in negligently failing to prevent their appearance there,72 no proof of special damages is necessary as libel is actionable per se.73 The state's interest in protecting private reputations has been held to outweigh the reduced constitutional value of speech involving matters of no public concern such that presumed and punitive damages may be recovered absent a showing of actual malice.74
The proper gauge of liability has again raised some
questions.75 One writer has noted that if the burden of proof is
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to rest on the plaintiff, she may be at a disadvantage in producing sufficient evidence to demonstrate negligent conduct on the part of the SYSOP.76 Solutions to this problem have ranged from a rebuttable presumption of negligence in favor of the plaintiff77 to adoption of a set of standards similar to those set out in the Federal Fair Credit Reporting Act.78 In either event, damage awards for computer abuse have been addressed both by federal and state law.79
Because computerized BBSes are still a relatively new
technological phenomena, consistent standards for SYSOPs' duties have yet to be developed.80 However, at least one users' group has adopted a voluntary code of standards for electronic BBSes, applicable to both users and SYSOPs of boards open to the general public:
This Minimum Code of Standards applies to both users and SYStem Operators (SYSOPs) of electronic bulletin boards available to the general public.
FREEDOM OF SPEECH AND IDEAS
Each user and SYSOP of such systems shall actively encourage and promote the free exchange and discussion of information,
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ideas, and opinions, except when the content would: - Compromise the national security of the United States. - violate proprietary rights. - violate personal privacy, - constitute a crime, - constitute libel, or - violate applicable state, federal or local laws and regulations affecting telecommunications.
Each user and SYSOP of such system will: - disclose their real name, and - fully disclose any personal, financial, or commercial interest when evaluation any specific product or service.
- review in a timely manner all publicly
accessible information, and
- delete any information which they know
or should know conflicts with this code
A 'timely manner' is defined as what is reasonable based on the potential harm that could be expected. Users are responsible for:
- ensuring that any information they
transmit to such systems adheres to this
Minimum Code of Standards, and
- upon discovering violations of the
Minimum Code of Standards, notifying the
Electronic bulletin board systems that choose to follow this Minimum Code of Standards shall notify their users by publishing this Minimum Code, as adopted by the [Capitol PC Users Group], and prominently display the following: 'This system subscribes to the Capitol PC Users Group Minimum Code of Standards for electronic bulletin board systems.'81
While non-binding on publicly-accessible BBSes, the
above guidelines furnish sound basic policies that all SYSOPs might use in shielding themselves from defamation liability. Our hypothetical at the beginning of this Comment described a situation where a malicious intruder was able to access and
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masquerade as a validated user on a BBS; the following are some additional computer security measures that the reasonable SYSOP could conduct to avoid that situation:
a. Special "screening" software: One writer has
suggested discouraging potential BBS misuse through programming the BBS to reject those messages containing common defamatory and obscene language;82 such a program would discard a message containing any of those terms and would presumably notify the SYSOP of their presence. Drawbacks to this procedure are that computer programs cannot understand all the nuances of libellous messages83 and would thus lead to the rigid deletion of many otherwise legitimate messages.84
b. Unique passwords: A more fundamental and
economical approach would be for the SYSOP to both notify all new users about the potential for computerized BBS abuse and to encourage their use of a unique password on each BBS they call. This would have the practical effect of keeping a masquerader from using the names and passwords found on one BBS to wrongfully access and masquerade on other BBSes. A drawback to this procedure is that the truly malicious masquerader may still discover a BBS' most sensitive user records by way of a renegade computer program called a "trojan horse".85 However, one could speculate that the SYSOP acts reasonably in informing potential users of the existing threat and in helping them avoid it.
c. Encryption: This is essentially a way for the
SYSOP to make the users' passwords unique for them. The power of the computer allows complex algorithms to be applied to data to
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encode it in such a way that, without the key to the code, it is virtually impossible to decode the information.86 This technique would have the added benefit of forcing the masquerader, upon accessing the BBS with a trojan horse program, to search for the secret decoding algorithm in addition to the BBS' secret user files. Indeed, it is conceivable that a special encryption or password could be devised to allow only the SYSOP access to the BBS' decoding algorithm. However, encryption involves a significant overhead - impractical for most small, privately- operated BBSes - and is more frequently used to protect messages from one system to another where the data is vulnerable to interception as it passes over transmission lines.87
d. Prompt damage control: In accord with Hellar,88
the Restatement (Second) of Torts,89 and possibly Tackett,90 a SYSOP acts reasonably in promptly assisting the libelled user to partially reverse the effects of the masquerader's actions. Recall that in those instances a defendant was held to have impliedly adopted a defamatory statement by acting unreasonably slowly in removing it from his property once having been made aware of it.91 While it may be unreasonable to expect the SYSOP to monitor each message posted every day - especially where the defamatory message appears to have been left by the true user - it is not too much to require the SYSOP to quickly remedy security flaws in his BBS as they are pointed out to him.92 To this end, the SYSOP has several options. In situations where the defaming user libels another without masquerading as the libelled party, the SYSOP could simply delete the defamer's
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account. In situations where a user masquerading as another posts a libellous message, the SYSOP could publish a retraction to all his subscribers, urging them to use a different password on each BBS they call. Further, where a masquerader published the libel, the SYSOP should offer his full cooperation to the maligned user in tracking down the time and date the libellous message was posted93 in order to better limit the SYSOP's liability.
Certain BBS SYSOPs claim that holding them liable for
information appearing on their BBSes violates their First Amendment rights by restricting their right to free speech94 and by holding them responsible for the libel perpetrated by the
From kadie Sat Oct 12 09:53:46 1991 To: cafb-mail ~Subject: Computers and Academic Freedom mailing list (batch edition) Status: R
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masquerader. It has been suggested that the SYSOP should be held to the same standard of liability as a neighborhood supermarket which furnishes a public bulletin board:95 just as the supermarket would not be liable for posting an advertisement for illicit services, so should the BBS SYSOP escape liability for libellous messages left on his board, especially when its poster appears to be a validated user.96
However, this comparison lacks merit for the reasons
given by the Seventh Circuit in Tackett v. General Motors Corporation.97 The defendant's liability in that case rested on its publication of libel by implicitly adopting the statement.98 Defendant's failure to remove a defamatory sign painted on one of the interior walls of its factory for seven or eight months after discovering its presence was such that "[a] reasonable person could conclude that Delco 'intentionally and unreasonably
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fail[ed] to remove' this sign and thereby published its contents."99
There would certainly be accomplice liability if the
supermarket unreasonably delayed removing an advertisement for illegal services from its bulletin board once it was made aware of it. The market could be seen as having adopted the ad's statements by not acting responsibly to its viewing public. Similarly, a SYSOP would be liable for defamatory messages posted on his BBS - even by what appears to be the true user - if he fails to act reasonably by using his computer skill to eviscerate the libel.100 While the computerized BBS may be nothing more than a hobby of the SYSOP, the speed with which it can disseminate potentially damaging information among its users demands the standards of responsibility described above.
C. Defamation Liability of the Masquerader
1. Degree of fault required
It should be noted that the liability and proof issues
concerning the SYSOP and masquerader are inverse. As to the SYSOP who allows libellous messages to be posted on his BBS, his liability may be inferred simply by those messages having appeared there;101 however, his degree of fault - actual malice or simple negligence - is subject to debate.102 Conversely, while the masquerader's degree of fault is clearly evident,103 tracing that fault back to him is a more elusive matter.104 The requisite degree of fault for masqueraders is set out in federal and state law.105
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Assuming arguendo that the masquerader's defamatory
publications have been successfully traced back to him by the plaintiff, actual and punitive damages may then be recovered from him based on his knowledge of the publication's falsity or reckless disregard for its truth.106 Federal and state law have also specified certain remedies.107
III PROBLEMS OF PROOF
A. Proof of SYSOP's Actions
We have seen that while the appropriate degree of fault
for a SYSOP to be liable for defamatory messages appearing on his BBS is subject to dispute,108 a showing that the defamation appeared there due to the SYSOP's negligence is much more capable of resolution.109 The jury should be made aware of the actual validation/security procedures practiced by the SYSOP and should weigh them in light of the prevailing practice.110 Several facets of an emerging standard of care for SYSOPs have already been suggested in this Comment,111 and the SYSOP's adherence to them could be shown through users' testimony.
B. Proof of Masquerader's Actions
In contrast with the degree of fault required to
establish the SYSOP's publication of the libellous message, the degree of fault for the masquerader is much less subject to debate. The masquerader's actions are not likely to be considered merely inadvertent or negligent.112 However, because the masquerader has intentionally discovered and usurped the user's name and password, he appears to be that user on all
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computer records. Tracing the masquerader's defamatory publication back to him thus encounters some important evidentiary barriers: the maligned user is forced to rely on computerized records produced by the BBS and phone company in trying to link the masquerader's libellous publication back to him.113 We turn now to consider the evidentiary hurdles to be overcome in tracing the libellous communication to its true source.
1. The Hearsay Rule & Business Records Exception
The first evidentiary obstacle to connecting the
masquerader with his libellous publication is the hearsay rule. As defined by the Federal Rules of Evidence, hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted";114 as such, it is inadmissible as evidence at trial.115 Computer-generated evidence is subject to the hearsay rule, not because it is the "statement of a computer", but because it is the statement of a human being who entered the data.116 To the extent the plaintiff user relies on computer-generated records to show that a call was placed from the masquerader to the BBS at the time and date in question, then, her evidence may be excluded.
However, numerous exceptions to the hearsay rule have
developed over the years such that evidence which might otherwise be excluded is deemed admissible. The most pertinent hearsay exception as applied to computerized evidence is the "business records exception", which admits into evidence any
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 25
records or data compilations, so long as (1) they were made reasonably contemporaneously with the events they record; (2) they were prepared/kept in the course of a regularly conducted business activity; and (3) the business entity creating these records relied on them in conducting its operations.117 The veracity of the computer records and of the actual business practices are shown by the record custodian's or other qualified witness' testimony, unless the circumstances indicate lack of trustworthiness.118 The term "business" as used in this rule includes callings of every kind, whether or not conducted for profit.119
Statutes and judicial decisions in several states have
gradually recognized that the business records exception extends to include computer-generated records.120 This is largely due to (1) modern business' widespread reliance on computerized record- keeping, (2) the impracticability of calling as witnesses every person having direct personal knowledge of the records' creation, and (3) the presumption that if a business was willing to rely on such records, there is little reason to doubt their accuracy.121
Using this exception to the hearsay rule, plaintiff
user would most likely seek to admit the BBS' computer-generated username/password log-in records plus the phone company's call records to establish the connection between the masquerader's telephone and the BBS at the precise instant the libellous message was posted.122 As an initial matter, however, plaintiff
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 26
must first lay a foundation for both the BBS' and phone company's computer-generated business records.
A sufficient foundation for computer-generated records
was found recently to exist in People v. Lugashi.123 There, the California Court of Appeal affirmed a conviction of grand theft based on evidence adduced from computer-generated bank records. Defendant, an oriental rug store owner, had been convicted of fraudulently registering thirty-seven sales on counterfeit credit cards. The issuing banks became suspicious of criminal activity when charge card sales data from defendant's store showed 44 fraudulent uses of charge cards at defendant's store within only five weeks.124 As each fraudulent credit card transaction was completed, defendant registered the sale simultaneously with the banks' computers.125 Each night, as standard bank practice, the banks then reduced the computer records of credit card transactions to microfiche. Information gleaned from these microfiche records was entered against defendant at trial.126
The California Court of Appeal recognized the trial
court judge's wide discretion in determining whether a sufficient foundation to qualify evidence as a business record has been laid.127 It held that defendant's allocations of error were without merit since defendant himself had acknowledged that the bank's computer entries memorialized in the microfiche record were entered simultaneously as they occurred in the regular course of business.128 Further, the Court of Appeals dismissed defendant's claim that only a computer expert could
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 27
supply testimony concerning the reliability of the computer record:
Appellant's proposed test incorrectly presumes computer data to be unreliable, and, unlike any other business record, requires its proponent to disprove the possibility of error, not to convince the trier of fact to accept it, but merely to meet the minimal showing required for admission.... The time required to produce this additional [expert] testimony would unduly burden our already crowded trial courts to no real benefit.129
The Lugashi court then followed the bulk of other
jurisdictions adopting similar analyses and upholding admission of computer records with similar or less foundational showings over similar objections.130
As to admission into evidence of telephone companies'
computer-generated call records under the business records exception, courts have evinced a similar attitude to that in Lugashi. In State v. Armstead,131 a prosecution for obscene phone calls, the trial court was held to have properly admitted computer printouts showing that calls had been made from defendant's mother's telephone, despite defendant's contention that the witness who was called to lay the foundation had not been personally responsible for making the record.132 Because the printout represented a simultaneous self-generated record of computer operation, the court held it was therefore not hearsay.133
In an Ohio prosecution for interstate telephone
harassment, it was held no error was committed in admitting defendant's computerized phone statement under the Business Records exception which showed that telephone calls had been
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 28
made from defendant's phone in Ohio to various numbers in Texas.134 A sufficient foundation for the admission of business records under Federal Rules of Evidence 803(6) was established when a telephone company witness identified the records as authentic and testified they were made in the regular course of business.135
Applying the foregoing analyses to BBSes, the plaintiff
user would establish a foundation for the correlated BBS136 and telephone company phone logs by showing that (1) they were made contemporaneously with the posting of the libellous message;137 (2) they were prepared/kept in the course of a regularly conducted business activity, since both the BBS and telephone company consistently maintain accounts of all persons who use their services; and (3) the BBS and telephone company relied on those records for billing purposes.138 Once such a foundation is laid, the trial court has wide discretion in admitting business records into evidence.139
2. Authentication & the Voluminous Records Exception
The second evidentiary barrier encountered in tracing
the masquerader's libellous messages back to him is proving his authorship of the libel, or "authenticating" the computerized records.140 The computer-generated phone and BBS records showing that a call from a certain phone number at a particular date and time resulted in a libellous message being published must somehow be linked to the masquerader.
The Federal Rules of Evidence provide in pertinent
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 29
(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:... (6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone....141
The question of whether a writing is properly
authenticated is primarily one of law for the court; if the court decides the question affirmatively, it is ultimately for the jury.142 The court will make no assumptions as to the authenticity of documents in deciding their initial admissibility.143 The difficulty presented here is that the Federal Rules of Evidence seem to require authentication of telephone calls by reference to their specific content.144 The specific content of a given phone call is not demonstrated by phone logs showing merely the date and time the call occurred.
The authentication of extrinsic documents may be
subject to a "best evidence rule" objection. As stated in Federal Rule of Evidence 1002:
REQUIREMENT OF ORIGINAL: To prove the contents of a
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 30
writing, recording, or photograph, the original of that writing, recording, or photograph is required, unless provided otherwise in these rules or by an act of Congress.145
Since its introduction in the 18th century, various
rationales have been posited for this rule.146 While earlier writers asserted that the rule is intended to prevent fraud, most modern commentators agree that the rule's main purpose is to convey to the court the exact operative effect of the writing's contents.147
However, at least one jurisdiction has implicitly
equated compliance with the business records exception with the Best Evidence Rule. In Louisiana v. Hodgeson,148 the defendant in a manslaughter trial contended that a printout of her telephone bill, offered to show communications between her and a third party, was not authenticated.149 The court, while making no specific reference to the authentication point, rejected defendant's contention, noting that the information from the computer's storage was the company's business record and that it was accessible only by printout.150
Similarly, in an Indiana bank robbery prosecution,151
the state offered microfiche copies of the telephone company's computerized records showing certain telephone calls from defendant. On appeal, defendant argued that these documents were not authenticated because they were not the "original or first permanent entry," and that they therefore should not have been admitted into evidence. The court disagreed, saying that a duplicate was admissible to the same extent as an original
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 31
unless a "genuine issue" were raised as to the authenticity of the original.152
By these precedents, then, provided plaintiff user
establishes that both the telephone and BBS user records were prepared in accordance with the business records exception,153 the fact that a call from the masquerader's phone is shown to have occurred at the same instant the libellous message was posted may be sufficient to authenticate that the call was made by the masquerader. Other circumstantial evidence adduced by plaintiff user would strengthen this inference.154
Another authentication hurdle in plaintiff's case is
the requirement that the entire original record sought to be authenticated be produced.155 This requirement can prove highly impractical in situations where there are vast numbers of individual records extending over long periods of time.156 Requiring plaintiff to produce the entire body of these records would be unduly expensive and time-consuming. What is more, if plaintiff were to attempt to summarize vast computerized business data compilations so as to introduce those summaries into evidence without producing the complete body of computer records, such summaries might not be admissible on the grounds that they were not made "in the regular course of business."157
However, an exception to strict authentication
requirements of the Federal Rules of Evidence has been developed. Rule 1006 provides:
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary,
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 32
or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.158
In Cotton v. John W. Eshelman & Sons, Inc.,159
summaries of certain computerized records were held properly admitted into evidence on the theory that "[w]hen pertinent and essential facts can be ascertained only by an examination of a large number of entries in books of account, an auditor or expert examiner who has made an examination and analysis of the books and figures may testify as a witness and give summarized statements of what the books show as a result of his investigation, provided the books themselves are accessible to the court and to the parties."160 Under this precedent, plaintiff user would only need to produce the pertinent parts of the computerized records, as determined by an impartial auditor. IV. CONCLUSION
It is difficult to overestimate the ease with which
computers now enable us to compile and exchange information. Computerized "bulletin boards" run on personal microcomputers by private persons and businesses are examples of this enhanced form of communication. Users can trade computer programs and exchange a wealth of ideas, opinions, and personal information through such forums.
The advantages of this process break down, however,
when malicious users abuse the system and BBS SYSOPS intentionally or negligently allow this to occur. The nature of computerized data is such that tortious misinformation may
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 33
easily be spread to thousands of users before it is discovered. Because the potential for harm to reputation is so tremendous, appropriate standards of liability and methods of proof must be addressed.
The requisite degree of fault in libelling private
persons is less than that for libelling public officials/public figures, and may be established as against a SYSOP by a simple showing of his negligent failure to observe reasonably minimal computer security measures. The basis of liability for a masquerader who intentionally misappropriates another's private information is even less subject to debate.
Two main evidentiary hurdles face the plaintiff seeking
to link the masquerader with his libellous message through reliance on computer-generated records. First, the hearsay rule automatically excludes all evidence produced out-of-court that is being offered to prove the truth of the matter at hand. Second, the authentication requirement demands that the masquerader's connection to the entire body of proffered computer records be established.
However, certain exception to both of these limitations
ease the plaintiff's burden. First, the business records exception to the hearsay rule admits computer records into evidence if they (1) were made reasonably contemporaneously with the events they record; (2) were prepared/kept in the course of a regularly conducted business activity; and (3) the business entity creating these records relied on them in conducting its operations. Both BBS and telephone company records may come
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 34
under this exception. Second, the voluminous writings exception allows the contents of voluminous computerized records which cannot conveniently be examined in court to be presented in the form of a summary. So long as the original records or duplicates thereof are available for examination by other parties at reasonable times and places, the entire data compilation need not be produced. Plaintiff should employ both of these exceptions in an effort to convince a jury by a preponderance of the evidence that the masquerader has abused his computer skills and has damaged plaintiff's reputation.
id AA20305; Fri, 20 Apr 90 12:46:45 PDT
~Date: Fri, 20 Apr 90 12:42:02 PDT ~From: Lang Zerner firstname.lastname@example.org Message-Id: 9004201942.AA08069@khayyam.EBay.Sun.COM ~Subject: Sysops and libel liability – endnotes Resent-Date: Sat, 21 Apr 90 0:05:23 CDT Resent-From: email@example.com Resent-To: ptownson@gaak.LCS.MIT.EDU Status: RO Here are the endnotes to the paper I submitted in a separate message. Be seeing you… ==Lang
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 35
1. 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
2. These interests can cover anything from science fiction
to gourmet cooking. Uyehara, Computer Bulletin Boards: Let the Operator Beware, 14 Student Lawyer 28 (1986).
3. Id., at 30.
4. The data service Compuserve is one such national BBS
run for profit by business organizations. Uyehara, at 28. Other examples of large databases of interest to the legal profession are computerized research services such as LEXIS and WESTLAW.
5. Uyehara, at 28; Manning, Bulletin Boards: Everybody's
Online Services, Online, Nov. 1984, at 8,9. "Modem" is defined infra, note 17 and accompanying text.
6. "…computer bulletin boards offer their users
important benefits. An individual can use a bulletin board to express his opinion on a matter of public interest. He may find a review of a product he is considering buying. He may find a useful piece of software. An individual might also use the bulletin board to ask a technical question about a specific computer program." Note, Computer Bulletin Board Operator Liability For User Misuse, 54 Fordham L.Rev. 439, 440 (1985) (Authored by Jonathan Gilbert); see also Lasden, Of Bytes And Bulletin Boards, N.Y.Times, August 4, 1985, sec. 6, at 34, col. 1, where the author notes computer users may now use BBSes to voice their opinions directly to State Senators' offices.
7. "Virus" Hits Nation's Research Computers, San Jose
Mercury News, Nov. 4, 1988, at 1, col. 1.
8. "It is estimated that the theft of long-distance
services and software piracy each approximate $100 million a year; credit card fraud via computers costs about $200 million annually." Pittman, Computer Security In Insurance Companies, 85 Best's Rev. - Life- Health Ins. Edition, Apr. 1985 at 92.
9. Schiffres, The Shadowy World of Computer "Hackers,"
U.S. News & World Report, June 3, 1985, at 58.
10. Pollack, Free Speech Issues Surround Computer Bulletin
Board Use, N.Y. Times, Nov. 12, 1984, note 1, at D4, col. 6.
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 36
11. Note, 54 Fordham L.Rev. 440-441 (1985).
12. Poore and Brockman, 8 Nat'l L.J. 14, (1985).
13. See infra, Topic III, Problems of Proof.
14. The uncertainty revolves around how to define BBSes.
When viewed as analogous to newspapers and other media, SYSOPS would be responsible for any message posted on their systems, much as newspaper editors are responsible for articles appearing in their medium. Uyehara, 14 Student Lawyer 30 (1986). But when BBSes are compared to a bulletin board found in a public hall or supermarket, the liability issue is focused more on those actually posting the messages rather than on the board's owner. Id., at 30. This Comment suggests that BBS SYSOPs be held to a reasonable standard of care emerging specifically for their endeavors. See infra, Topic II.
15. Poore and Brockman, 8 Nat'l L.J. 14, (1985). Another
writer has noted that Compuserve now has over 200,000 users making use of nearly 100 diverse databases. Lasden, Of Bytes And Bulletin Boards, N.Y. Times, August 4, 1985, sec. 6, at 34, col. 1.
16. Poore and Brockman, 8 Nat'l L.J. 14 (1985).
17. 14 Am Jur. POF 2d Computer-Generated Evidence Sec. 11
18. Note, 54 Fordham L.Rev. 439, 446 (1985).
20. See "Account," infra, note 25 and accompanying text.
21. Garfinkel, An Introduction to Computer Security, 33
Prac. Law.41-42 (1987).
23. See infra, notes 25 and 27 and accompanying text.
24. Some more sophisticated operating systems provide
greater access control by (1) recording unauthorized attempts at entry; (2) recording those attempts and sending a warning to the perpetrator; and (3) keeping the perpetrartor off the system permanently until he/she is reinstated by the computer's security administrator or SYSOP. Balding, Computer Breaking and Entering: The Anatomy of Liability, 5 Computer Lawyer, Jan. 1988, at 6.
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 37
25. Garfinkel, An Introduction to Computer Security, 33
Prac. Law. 42 (1987).
27. Id. "A password is a secret word or phrase that should
be known only to the user and the computer. When the user first attempts to use the computer, he must first enter the password. The computer then compares the typed password to the stored password and, if they match, allows the user access."
28. Id., at 42 and 46.
29. 14 Am. Jur. POF 2d Computer-Generated Evidence Sec. 11
30. 54 Fordham L.Rev. 439, note 2 (1985).
31. Restatement (Second) of Torts Sec. 568(1) (1976).
32. Restatement (Second) of Torts Sec. 577(1) (1976).
33. Restatement (Second) of Torts Sec.559 (1976).
34. Veeder, The History and Theory of the Law of
Defamation, 3 Colum. L.Rev. 546, 569-571 (1903).
35. Restatement (Second) of Torts Sec. 622 (1976).
36. Restatement, Torts Sec. 568, comment d (1938).
37. Shor v. Billingley, 4 Misc.2d 857, 158 N.Y.S.2d 476
(Sup. Ct. 1956), aff'd mem., 4 App.Div. 2d 1017, 169 N.Y.S.2d 416 (1st Dep't. 1957).
38. Torts: Defamation: Libel-Slander Distinction:
Extemporaneous Remarks Made on Television Broadcast: Shor v. Billingley, 4 Misc. 2d 857, 158 N.Y.S.2d 476 (Sup.Ct. N.Y. County 1957), 43 Cornell L.Q. 320, 322 (1957) (Authored by Stephen A. Hochman).
40. 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964),
motion denied 376 U.S. 967, 84 S.Ct. 1130, 12 L.Ed.2d 83.
41. 376 U.S. 254, 273.
42. 376 U.S. 254, 280.
43. 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 38
44. Gertz v. Robert Welch, Inc., 418 U.S. 323, 326.
46. Id., at 327.
47. "…those who hold governmental office may recover for
injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342. "An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in pubic affairs. He runs the risk of closer public scrutiny than might otherwise be the case." Id., at 344.
48. "…[A]n individual may attain such pervasive fame and
notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions." 418 U.S. 323, 351.
49. "Even if the foregoing generalities do not obtain in
every circumstance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to the increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an 'influential role in ordering society.' Curtis Publishing Co. v. Butts, 388 U.S., at 164 ...He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by the defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery." Id., at 345.
50. "…[P]etitioner was not a public figure. He … plainly did not thrust himself into the vortex of this
public issue, nor did he engage the public's attention in an attempt to influence its outcome." Id., at 352.
51. Justice Powell noted for the Court that
"[T]he communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 39
concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an 'influential role in ordering society....' He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted be defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery." Id., at 345.
52. Id., at 347.
53. Keeton, Dobbs, Keeton and Owen, Prosser and Keeton on
Torts, sec. 32, p.174. See also Vaughn v. Menlove, 3 Bing. (N.C.) 467, 132 Eng.Rep. 490 (1837).
54. 111 Cal. App. 2d 424, 244 P.2d 757, 28 ALR2d 451
55. 111 Cal. App. 2d 424, 427.
56. Id., at 426.
57. Id, at 427.
58. Restatement (Second) of Torts Sec. 577(2) (1976).
59. 22 Ohio App.2d 141, 259 N.E.2d 160 (1970).
60. Scott v. Hull, 259 N.E.2d 160, 162 (1970).
61. Id., at 161.
62. Id., at 162.
63. 836 F.2d 1042 (7th Cir. 1987).
From kadie Sat Oct 12 09:54:35 1991 To: cafb-mail ~Subject: Computers and Academic Freedom mailing list (batch edition) Status: R
Computers and Academic Freedom mailing list (batch edition) Sat Oct 12 09:54:16 EDT 1991
[For information on how to get a much smaller edited version of the list, send email to firstname.lastname@example.org. Include the line:
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In this issue:
The addresses for the list are now:
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64. Id., at 1047.
65. The Court of Appeals noted the Restatement view and
observed that Indiana law had neither embraced nor rejected that approach. Id., at 1046.
68. Id., at 1046-47.
70. Recall that in our hypothetical a third user — Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 40
masquerading as another is transmitting messages to others, revealing embarassing and false information.
71. BBS systems security and other preventative measures
are discussed more fully infra, Topic 3.d.
72. Issues in proving the SYSOP's role in publishing the
libellous statement are discussed more fully in Topic III. A., infra.
73. Sydney v. MacFadden Newspaper Publishing Corp., 242
N.Y. 208, 151 N.E. 209, 44 A.L.R. 1419 (1926). See also Restatement (Second) of Torts Sec. 621 (1976) ("One who is liable for a defamatory communication is liable for the proved, actual harm caused to the reputation of the person defamed.")
74. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472
U.S. 749, 86 L.Ed.2d 593, 105 S.Ct. 2939 (1985).
75. See supra, note 53 and accompanying text.
76. Note, Protecting the Subjects of Credit Reports, 80
Yale L.J. 1035, 1051-52, n.88 (1971).
77. Gertz did not rule out an assumption of defendant's
negligence. See Eaton, The American Law of Defamation Through Gertz V. Robert Welch, Inc., and Beyond: An Analytical Primer, 61 Va. L.Rev. 1349 (1975).
78. 15 U.S.C.A. Sec. 1681 et seq. (1974). Two standards are
proposed there: the first, willful noncompliance, is defined as equivalent to the New York Times "actual malice" standard, and violators are liable for actual and punitive damages. Sec. 1681(n), supra. Presumably this would apply to the situation where the SYSOP is dilatory in removing the libellous message. The second proposed standard, negligent noncompliance, occurs in the absence of willfulness and results in liability only for actual damages. Sec. 1681(o), supra. Situations where the SYSOP failed to adopt reasonable computer security measures might come under this category.
79. 18 U.S.C.S. Sec. 2707(b),© (Law. Co-op 1979 & Supp.
1988) provides in pertinent part: (b) Relief. In a civil action under this section, appropriate relief includes - (1) Such preliminary and other equitable or declaratory relief as may be appropriate; (2) damages under subsection (c); and (3) a reasonable attorney's fee and other litigation costs reasonably incurred. (c) Damages. The court may assess as damages in a
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 41
civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. 18 U.S.C.S. Sec. 2707(e) (Law. Co-op 1979 & Supp. 1988) limits the civil action under this section to two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation. As to damage provisions supplied by state law, see California Penal Code 502(e)(1),(2) (West Pub. 1988): (e)(1) In addition to any civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data may bring a civil action against any person convicted under this section for compensatory damages, including any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was not altered, damaged, or deleted by the access. For purposes of actions authorized by this subdivision, the conduct of an unemancipated minor shall be imputed to the parent or legal guardian having control or custody of the minor, pursuant to the provisions of Section 1714.1 of the Civil Code. (2) In any action brought pursuant to this subdivision the court may award reasonable attorney's fees to a prevailing party.
80. A lawsuit recently filed in the United States District
Court for the Southern District of Indiana may break new ground in enunciating precisely what BBS SYSOPs' reasonable duties of care are. Thompson v. Predaina, Civil Action #IP-88 93C (S.D. Ind. filed 1988). The complaint alleges, inter alia, invasion of plaintiff user's privacy, libel, and wrongful denial of access to the BBS in violation of U.S.C. Title 18, ss 2701 (a)(2). As to statutory damages available, see infra, note 105.
81. Gemignani, Computer Law 33:7 (Lawyers Co-op 1985, Supp.
1988) (quoting Capitol PC Users Group Minimum Code of Standards for electronic Bulletin Board Systems, reprinted in 4 Computer Law Reptr. 89).
82. Note, 54 Fordham L.Rev. 439, 449 (1985) (Authored by
83. Id., at 449.
84. Id., at 449-50. — Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 42
85. A "trojan horse" program takes control of the BBS and
allows its sender to access and steal its most sensitive information. Fites, Johnston and Kratz, The Computer Virus Crisis, Van Nortrand/Reinhold (1989), at 39 and 45.
86. Balding, Computer Breaking and Entering: The Anatomy of
Liability, 5 Computer Law. (January 1988), at 6.
88. Hellar v. Bianco, 244 P.2d 757. See supra, note 54 and
89. Restatement (Second) of Torts Sec. 577(2) (1976). See
supra, note 58 and accompanying text.
90. Tackett v. General Motors Corporation, 836 F.2d 1042
(7th Cir. 1987). See supra, note 63 and accompanying text.
91. See note 53, supra, and accompanying text.
92. It has been suggested that this would be the rough
equivalent of a newspaper publishing a retraction after discovering what it had printed was defamatory. Note, 54 Fordham L.Rev. 439, note 55 (1985). BBS operators should not be held liable in this situation insofar as they did not know of the nature of the statement at the time it was made. Restatement (Second) of Torts Sec. 581 (1977).
93. Proving the masquerader's actions is discussed more
fully infra, Topic III. B.
94. Stipp, Computer Bulletin Board Operators Fret Over
Liability for Stolen Data, Wall St. J. Nov. 9, 1984, at 33, col. 1.
96. See Topic I., supra, where the masquerader has
discovered and uses the password and name of the regular user; he appears for all intents and purposes to be that regular user.
97. 836 F.2d 1042 (7th Cir. 1987).
98. Id., at 1047.
100. Indeed, U.S.C. Title 18, Sec. 2702 (Law. Co-op 1979 & — Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 43
Supp. 1988) proscribes the knowing dissemination of an electronically stored communication by the SYSOP: Sec. 2702. Disclosure of contents (a) Prohibitions. Except as provided in subsection (b)- (1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage on that service; and (2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service- (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmissions from), a subscriber or customer of such service; and (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing. A similar provision is embodied in Cal. Pen. Code sec. 502(c)(6) (West Pub. 1988), which provides: (c) Except as provided in subdivision (i), any person who commits any of the following acts is guilty of a public offense: (6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.
101. The doctrine of res ipsa loquitor, or "the thing speaks
for itself" warrants the inference of the SYSOP's negligence, which the jury may draw or not as its judgement dictates. See Sullivan v. Crabtree, 36 Tenn.App. 469, 258 S.W.2d 782 (1953).
102. See discussion under Topic II. B., supra.
103. As someone who intentionally accesses confidential
password information to masquerade as other users on other BBSes, the masquerader falls well within the pale
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 44
of "actual malice" defined in Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, supra, note 43 and accompanying text (a defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth).
104. Evidentiary problems involved with proving the
masquerader's actions are discussed more in Topic III. B., infra.
105. 18 U.S.C.S. Sec. 2707(a) (Law. Co-op 1979 & Supp. 1988)
describes the masquerader's fault thus: (a) Cause of action. Except as provided in section 2703(e), any provider of electronic communication service, subscriber, or customer aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity which engaged in that violation such relief as may be appropriate. California Penal Code sec. 502(c) et seq. (West Pub. 1988) is even more specific: (c) Except as provided in subdivision (i), any person who commits any of the following acts is guilty of a public offense: (1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artiface to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property or data. * * * (3) Knowingly and without permission uses or causes to be used computer services. (4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network. * * * (7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.
106. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342.
107. In addition to the remedies set forth in note 105, — Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 45
supra, the following federal and state penalties may apply: 18 U.S.C.S. Sec. 2701(b),(c) (Law. Co-op 1979 & Supp. 1988): (b) Punishment. The punishment for an offense under subsection (a) of this seciton is - (1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain - (A) a fine not more than &250,000 or imprisonment for not more than one year, or both, in the case of a first offense under this subparagraph; and (B) a fine under this title or imprisonment for not more than two years, or both, for any subsequent offense under this subparagraph; and (2) a fine of not more than $5,000 or imprisonment for not more than six months, or both, in any other case. (c) Exceptions. Subsection (a) of this section does not apply with respect to conduct authorized- (1) by the person or entity providing a wire or electronic communications service; (2) by a user of that service with respect to a communication of or intended for that user; or (3) in section 2703, 2704, or 2518 of this title. For an example of state-mandated damages provisions on this subject, see California Penal Code sec. 502(d) et seq. (West Pub. 1988).
108. See discussion under Topic II. B., supra.
109. See note 101, supra.
110. "Custom…bears upon what other will expect the actor
to do, and what, therefore, reasonable care may require the actor to do, upon the feasibility of taking precautions, the difficulty of change, and the actor's opportunity to learn the risks and what is called for to meet them. If the actor does only what everyone else has done, there is at least an inference that the actor is conforming to the community's idea of reasonable behavior." Keeton, Dobbs, Keeton and Owen, Prosser and Keeton on Torts, sec. 33, p.194. See also James, Particularizing Standards of Conduct in Negligence Trials, 5 Vand. L. Rev. 697, 709-714 (1952); Ploetz v. Big Discount Panel Center, Inc., 402 So.2d 64 (Fla. App. 1981).
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 46
111. See notes 80-93, supra, and accompanying text.
112. See note 103, supra.
113. See Pfau and Keane, Computer Logs Can Pinpoint Illegal
Transactions, Legal Times of Washington, vol. 6, p.16 (May 14, 1984): "Computers can monitor their own use. Unlike other such forms of physical evidence such as guns, computers can keep track of individual users and other identifying data. Imagine a gun that logs every instance it is fired or even handled, and shows the date, time, and activity. Recovery of such a weapon would be essential to the prosecution. "Most computers have long had built-in logging capabilities....The log function was designed to facilitate billing for the use of computer resources rather than to assist crime detection. To the extent that the owner of a smaller computer does not charge for its use, he or she has no incentive to purchase a self-executing log. Still, such logs keep surprisingly accurate records of who is using the computer."
114. Fed. R. Evid. 801©.
115. Fed. R. Evid. 802: "Hearsay is not admissible except as
provided by these rules or by other rules precribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Exclusion of hearsay evidence is grounded on: (1) nonavailability of the declarant for cross-examination and observance of demeanor; (2) absence of an oath by the person making the statement; amd (3) significant risk that the person that the witness may report proffered statements inaccurately. 2 Bender, Computer Law, sec. 6.01.
116. Gemignani, The Data Detectives: Building A Case From
Computer Files, 3 Nat'l L.J. 29 (1981).
117. Fed. R. Evid. 803(6). See also 2 Bender, Computer Law,
sec. 6.01 (1988).
118. Fed. R. Evid. 803(6).
119. Id. In current practice records kept by nonprofit
organizations, such as churches, have long been held to be admissible. Ford v. State, 82 Tex.Cr.R. 638, 200 S.W. 841 (1918). It is at least arguable that a computerized BBS, although run as a hobby, falls under the same classification.
120. See Iowa Code Ann. Sec. 622.28; People v. Lugashi, 252
Cal.Rptr 434 (Cal.App. 2 Dist. 1988).
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121. See 14 Am.Jur. POF2d Sec. 15 (1977, Supp. 1988). Cf.
United States v. De Georgia, 420 F.2d 889, 2 CLSR 479, 484 (1969, CA9 Ariz), where it was held that it is immaterial whether a business record is maintained in a computer rather than in company books regarding admissibility of those records, so long as (1) the trial court requires the proponent of the computerized records to lay a foundation as to their trustworthiness, and (2) the opposing party is given the same opportunity to inquire into the computer's accuracy as he would have to inquire into the accuracy of written business records.
122. The BBS program run on the SYSOP's computer ordinarily
"stamps" the date and time of day each user logs onto the BBS. A corresponding record is automatically affixed to each piece of electronic mail posted so that the reader knows when it was added to the database. Similarly, the telephone company maintains copious records of the date and time each phone call is connected in its dialing area. The caller has no control over either of these processes.
123. 252 Cal.Rptr. 434 (Cal.App. 2 Dist. 1988).
124. Id., at 437.
127. Id., at 439.
128. Id., at 437.
129. Id., at 440.
130. Id., at 442. See also United States v. Russo, 480 F.2d
1228 (CA6 Mich, 1973), cert den 414 U.S. 1157, 94 S.Ct. 915, 39 L.Ed.2d 109; Capital Marine Supply, Inc. v. M/V Roland Thomas II, 719 F.2d 104 (1983 CA5 La), 104 Fed Rules Evid Serv 731; Peoples Cas & Coke Co. v. Barrett, 118 Ill.App.3d 52, 73 Ill. Dec. 400, 455 N.E.2d 829 (1983).
131. 432 So.2d 837 (La., 1983).
132. Id., at 839-40.
133. Id., at 839.
134. United States v. Verlin, 466 F.Supp. 155 (ND Tex,
— Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 48
135. Id., at 158.
136. The reasonable SYSOP should offer his full cooperation
in aiding the maligned user to regain her good name by providing her with his BBS' phone-in records made at the time the libellous message appeared. See note 93, supra.
137. See note 123, supra.
138. Cf. note 118, supra. As to an electronic BBS being
classified as a "business" for hearsay purposes, see note 120, supra.
139. See note 128, supra.
140. Authentication has been broadly described thus: "[W]hen
a claim or offer involves impliedly or expressly any element of personal connection with a corporeal object, that connection must be made to appear...." Wigmore, Evidence, Sec. 2129 at 564 (2d ed. 1972). This requirement is also known as the "Best Evidence Rule."
141. Fed. R. Evid. 901(a),(b)(6).
142. 2 Bender, Computer Law, sec. 5.03[a] (1988).
144. See Fed. R. Evid. 901(b)(6): "(6) Telephone
conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if *** (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone...." (emphasis added).
145. Fed. R. Evid. 1002.
146. E.W. Cleary, McCormick on Evidence, sec. 231 (2nd. Ed.
147. Id. Further rationales for the rule are risks of
inaccuracy contained in commonly used copying techniques and heightened chances of witness' forgetfulness through oral testimony. Id., sec. 231.
148. 305 So.2d 421, 7 C.L.S.R. 1238 (La. 1974).
149. 305 So.2d 421, 427.
150. Id., at 428. — Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 49
151. Brandon v. Indiana, 396 N.E.2d 365 (Ind. 1979).
152. Id., at 370.
153. See note 121, supra, and accompanying text.
154. Other circumstantial evidence might include, among
other things: possible motive for the masquerader to defame plaintiff; plaintiff's own inability to call from the phone number from which the defamatory message is shown to have originated; or even an electronic "fingerprint" left by the particular computer from which the defamatory message originated. Pfau and Keane, Computer Logs Can Pinpoint Illegal Trasactions, Legal Times of Washington, vol. 6, p.16 (May 14, 1984).
155. Fed. R. Evid. 1002 provides:
REQUIREMENT OF ORIGINAL. To prove the content of a writing, recording, or photograph, the original of that writing, recording or photograph is required, unless provided otherwise in these rules or by an Act of Congress.
156. Examples of this situation are the telephone company's
keeping of hundreds of thousands of individual computerized records of each telephone call made within a certain dialing area, or a BBS' extensive history of subscriber use compiled for billing purposes.
157. See Harned v. Credit Bureau of Gilette, 513 P2d 650, 5
CLSR 394 (1973).
158. Fed. R. Evid. 1006.
159. 137 Ga.App. 360, 223 S.E.2d 757 (1976).
160. 223 S.E.2d 757, 760.