Cyberspace, the Free Market and the Free Marketplace of Ideas by EricGoldman

Cyberspace, the Free Market and the Free Marketplace of Ideas:

Recognizing Legal Differences in Computer Bulletin Board Functions



The Essay originally appeared in Hastings_Communications_and_Entertainment_Law_Journal (Comm/Ent) [16

Hastings Comm/Ent L.J. 87 (1994)].  Questions and reprints: (415) 565-4731;


The author can be reached at


Table of Contents

I. Difficult Issues Resulting from Changing Technologies

A. The Emergence of BBSs as a Communication Medium

B. The Need for a Law of Cyberspace

C. The Quest for the Appropriate Legal Analogy Applicable to


II. Breaking Down Computer Bulletin Board Systems Into Their Key


A. Who is the Sysop?

B. The Sysop’s Control

C. BBS Functions

1. Message Functions

2. User/System Interaction and Information Services

3. “Gateways”

III. Analysis of the Implications of Various Legal Analogies as Applied

to the BBS Context

A. Synopses of the Rights and Obligations Involved with Each


1. The Extent of Government Regulation

2. Owner’s Extent of Control/User’s Right to Access

3. Owner’s Liability for the Statements or Actions of Others

B. State Actors and the Public Forum Doctrine

C. Policy Considerations–The Merits of BBSs and Interest


IV. Application of Existing Legal Doctrines to Specific BBS Functions

A. First and Fourth Amendment Cross-Functional Constitutional


1. Unreasonable Search and Seizure/Prior Restraint

2. Associational Interests

B. Function-Specific Analogies

1. Message Posting

2. Electronic Mail

3. Real-Time Conferencing

4. Information Resources Dissemination

5. Software Distribution and Commercial Services

6. Gateways

V. Conclusions



Difficult Issues Resulting from Changing Technologies


The digital revolution.  Net surfing.  Five hundred channels.

Multimedia.  Global village.  Cyberspace.[1]  The information superhigh-

way/information infrastructure.  These and other buzzwords have

proliferated in recent years, describing technology that promises to

change our lives.


The past year has brought an explosion of joint ventures and

mergers among various media and entertainment entities, computer

companies, and telecommunications providers.[2] These projects reflect

the increasing convergence of computers, communications, and the media.


Computer bulletin board systems (BBSs)[3] represent a key

technology at the intersection of these disciplines, occupying an

increasingly important role in today’s mass communications.[4]  A BBS is

an electronic network of computers.  At the heart of the BBS is the

central computer,[5] set up and operated by the system operator

(commonly called the “sysop”).[6] Users link their computers to the

central BBS computer by modem.[7]  Once users have accessed the BBS,

they may communicate with other users, obtain information from

databases, obtain software, or perform other activities.[8]



A.      The Emergence of BBSs as a Communication Medium


Over the past fifteen years,[9] BBS usage has grown exponentially.

The United States has as many as 60,000 public and commercial BBSs,[10]

120,000 private and corporate BBSs,[11] and ten million users.[12]  This

popularity can be primarily attributed to two factors. First, BBSs are

inexpensive to set up[13] and use.[14]  This makes them one of the

lowest cost mass media.[15]  Second, because users retain some

anonymity[16] or because of the ease and power of BBS communication,

users may lower their psychological barriers[17] and “open up,

connecting [them] even more intimately to others in society.”[18]


As a result of these and other factors, BBSs have taken a place

alongside “traditional” media as a major force for intellectual,

political, and informational exchanges.[19]  For example, during global

crises, BBS communication has become an important source of news

information.[20]  BBSs also support political expression, creating new

ways for politicians to receive feedback from their constituents[21] and

increasing citizens’ opportunities to discuss and debate issues.[22]

For example, when one Colorado sysop, concerned about a proposed but

unpublicized city ordinance, typed the ordinance’s text into his BBS,

175 people showed up at the next city council meeting to express their

opinions on the ordinance.[23]


However, as with any emerging technology, users have also

exploited the technology’s dark side.  Because BBSs are tremendously

powerful tools for communication, they empower individuals to engage in

socially-undesirable speech or anti-social behavior.  There are a number

of ways that BBSs can support illegal activity, such as through the

illegal distribution of telephone card numbers[24] or copyrighted

software.[25]  BBSs also are used to propagate harmful speech such as

defamation,[26] child pornography,[27] hate speech and anti-

Semitism,[28] and to facilitate hate crimes[29] and copyright

infringement.[30]  The power of this new technology has caused some

private and state actors to respond aggressively, overreacting to weak

threats and inhibiting legitimate conduct.[31]


Ambiguities arise as old law is applied to new technologies.  With

the inherent ambiguities of cyberspace, the need to define its

boundaries for legal purposes becomes even more critical.  For example,

the boundaries on permissible Fourth Amendment searches and seizures can

be murky even in physical space.  The absence of such boundaries in

cyberspace can result in searches far beyond the necessary scope.  For

example, in Operation Sun Devil, when government agents seized BBS

computers, they searched entire hard drives, reading private electronic

mail (“e-mail”) not associated with the crimes alleged on the search



Furthermore, while the technology has empowered users and induced

a strong response from government, it has also empowered sysops to

control the flow of information.  For example, Prodigy, a large

commercial BBS, has censored users for various reasons.  Prodigy has

prohibited users from posting public messages critical of Prodigy and

ultimately ejected some users who failed to comply.[33]  Prodigy has

also regularly edited and refused to post submissions.[34]



B.      The Need for a Law of Cyberspace


Presently, there is significant uncertainty regarding which laws

govern the situations described above and how those laws would be

applied.  Although laws have begun to address primary criminal and civil

liability, the extent of vicarious sysop liability for users’ actions

remains undetermined.  One reason sysop liability is tricky is that

communication on BBSs presents a unique set of interests to balance.[35]

More significantly, however, the Constitution “tends to carve up the

social, legal, and political universe along the lines of `physical

place’ or `temporal proximity.'”[36]  As a result, “[w]hen the lines

along which our Constitution is drawn warp or vanish, what happens to

the Constitution itself?”[37]  Without physical or temporal boundaries,

both substantive and procedural legal issues such as jurisdiction,

choice of law, and enforcement are problematic.[38]


As future legislation and court rulings address BBSs’ unique

aspects and as BBS technology proliferates,[39] legislators and jurists

will find it increasingly appropriate to discuss the law of cyberspace,

the electronic version of physical space.[40]  As the courts and

legislatures start mapping the contours of law in cyberspace, the powers

of the cyberspace media and its keepers (the sysops) will create

numerous questions of constitutional and tort jurisprudence.  How should

the bundle of individual constitutional rights contained in the Bill of

Rights be protected from government infringement in cyberspace?  How

extensively should the government regulate private sysop conduct?

Should the government prohibit private actors from determining the types

of conversations or activities that take place on private BBSs, or who

can gain access?  What combination of direct regulation and tort

liability will provide a socially desirable level of control over

private BBS owners?  How can we as a society strike a satisfactory

balance between private autonomy and appropriate government




C.      The Quest for the Appropriate Legal Analogy Applicable to Sysops


Unfortunately, the law has difficulty adapting to major

advancements in communications technology.[41]  This is particularly

true in the case of BBS technology, in which the traditional legal

trifurcation of print, broadcasting, and common carriage is collapsed

into one medium.[42] However, the uniqueness of BBSs does not mean that

new legal rules must be fashioned to govern sysops’ legal rights and

responsibilities; rather, the proper application of existing legal rules

will reach satisfactory legal results without judicial activism or

legislative intervention.[43]


Commentators on BBS legal issues have sought to apply existing

legal doctrine to sysops from the very beginning.[44]  Sysops have been

analogized to:


* newspaper publishers and editors;


* “secondary publishers,” such as libraries and booksellers;


* broadcast media, such as radio or television;


* common carriers, such as telephones and postal mail; and


* private real property owners.


However, most commentators have proposed these analogies to solve single

legal problems, without considering how these analogies apply to other

problems that will inevitably arise on BBSs.  Unfortunately, the “law of

unintended consequences” applies:  In trying to solve an isolated

problem, the “solution” creates other problems.  For example, many

commentators have argued, and continue to argue, that to protect BBSs

from prior restraints effected by BBS seizures, sysops should be

analogized to print publishers.  On the other hand, Prodigy has been

repeatedly criticized for claiming it has editorial control similar to

that of print publishers which allows it to discriminate on the basis of

content and deny access to users.


The complexity and versatility of BBSs suggest that no single

legal model or analogy will prove satisfactory.[45]  Consequently, some

have argued for the development of a hybrid model.[46]  This Essay

proposes a hybrid model that combines specific pieces of existing

jurisprudence, each based on an appropriate analogy for a particular BBS

function.  To do so, this Essay breaks down the entity “computer

bulletin board” into three categories[47] that will serve as the

building blocks for synthesizing the law of cyberspace from existing

legal rules:


(1) the identity of the owner/sysop;[48]


(2) the sysop’s knowledge of, and control over, users’

actions;[49] and


(3) the way the BBS is being used.[50]


Ultimately, all three characteristics are essential to tailoring

existing legal doctrine to fit the myriad of legal difficulties that

arise on BBSs.


Part II of this Essay addresses the current state of the BBS

industry with respect to each of the three dimensions, illustrating the

diversity of BBSs and sysops.  Part III summarizes the jurisprudence

that has developed for each of the relevant legal analogies proposed.

Part III of the Essay demonstrates how legal rights and responsibilities

vary with the amount of editorial control available to and exercised by

the entities’ owners.  Part IV then methodically applies the conclusions

of part III, developing the law of cyberspace by outlining appropriate

analogies for each function.  Significantly, part IV shows that sysops

can and should have the choice to determine the amount of editorial

control they exercise and the concomitant bundle of legal rights and

responsibilities.  Finally, part V concludes by discussing the

interaction between the freedom to contract and the marketplace of

ideas, arguing that a policy of permitting sysops to choose their bundle

of rights and responsibilities, combined with a properly functioning

market, will foster the free marketplace of ideas.






Breaking Down Computer Bulletin Board Systems Into Their Key



This part separates computer bulletin board systems into three

significant components: BBS ownership, sysop control, and BBS functions.

The analysis will prove useful as this Essay reconstructs the BBS

industry along various dimensions to develop appropriate legal doctrine.



A.      Who is the Sysop?


BBSs may be categorized as national and regional commercial BBSs,

public and private free BBSs, corporate BBSs, and state-owned BBSs.

Wide area electronic networks link BBSs and warrant special mention.


Some commercial BBSs have taken a “mass market” approach,

developing a national user base and providing a comprehensive set of

functions.  For example, one large commercial BBS, Prodigy, is a joint

venture of Sears Roebuck & Co. and International Business Machines

Corporation[51] and has approximately one million subscribers.[52]

Prodigy distinguishes itself from other commercial BBSs in three ways:

(1) by promoting an on-line “family” atmosphere;[53] (2) by routinely

removing messages that do not meet its subjective standards;[54]and (3)

by displaying advertising on virtually every computer screen.[55]


Other national commercial BBSs include GEnie,[56] America On-

line,[57] and CompuServe, which has 1.4 million subscribers[58] and is

the oldest[59] commercial BBS. Although these BBSs have segmented the

market somewhat, there is significant competition among them, especially

based on pricing.[60]


In addition to the handful of national commercial BBSs, there are

many regional commercial BBSs.[61]  A typical regional BBS is the

Channel 1 BBS in Cambridge, Massachusetts.  Channel 1 has 250 forums and

over four gigabytes of downloadable files, uses eighty-five telephone

lines, receives 2500 calls a day, and has annual revenues of

$250,000.[62]  One of the most prominent regional BBSs, and a frequent

trendsetter for the industry, is the Sausalito, California-based WELL

(Whole Earth ‘Lectronic Link), which has 6000 subscribers.[63]


Supplementing the commercial BBSs are the free BBSs, which

constitute a major portion of the overall BBS industry.[64]  With the

appropriate computer hardware, telephone lines, and software, anyone can

set up a free public BBS.  Sysops establish BBSs to serve the communi-

ty,[65] support discussion of a topic of interest,[66] or just for

fun.[67]  Private free BBSs are similar to public BBSs, except that

access is restricted, often to people known to the sysop.[68]


BBSs set up for corporation- or organization-specific purposes are

yet another segment of the BBS industry.  The flexibility of BBS

technology has supported numerous organizational uses.  BBS technology

can integrate a company through electronic mail systems for employees or

through centralized information databases.[69]  Companies can also use

BBSs as twenty-four-hour customer service lines[70] or to facilitate the

exchange of messages and documents between clients and the company.[71]

BBSs have also begun to play a special role in “making markets” by

facilitating the connections of buyers and sellers.[72]


In addition to the proliferation of BBSs throughout the private

sector, government has found uses for BBSs at the federal,[73]

state,[74] and municipal levels, such as Santa Monica’s Public

Electronic Network (PEN).[75]  Some universities use BBSs as well.[76]


Wide area networks (WANs), the final segment of the BBS industry

discussed here, are not technically BBS technology but are so integral

to the functioning of BBSs that they deserve mention.  WANs

electronically connect stand-alone computer systems and networks

nationally and internationally.[77]  The most prominent WAN is

Internet,[78] which has evolved from networks established by the

Department of Defense and the National Science Foundation.[79] Internet

connects various government, university, and corporate entities,[80]

spans 137 nations, and has at least fifteen million users.[81]  Through

the USENET BBS, carried over Internet, and other on-line resources,

Internet users can perform all the functions available to BBS users.[82]


Other WANs include BITNET, a network sponsored by the City

University of New York,[83] and FidoNet, a “virtual network” of 10,000

BBSs that automatically exchange private e-mail and public messages.[84]


WANs will become increasingly important given the passage in 1991

of Vice President (then Senator) Gore’s National Research and Education

Network (NREN) legislation.[85] NREN will create a national information

infrastructure, or electronic superhighway, for high-volume information

transmission.  This infrastructure may provide linkages between all BBSs

and electronic networks nationwide.  It may also support the development

of entrepreneurial for-profit network nodes, where BBSs or other

information providers can cost-effectively access the national market.

This could lead to a major increase in entrepreneurial activity in the

BBS industry.



B.      The Sysop’s Control


As part of the process of establishing and maintaining a BBS, a

sysop must make business judgments in a number of areas.[86]  These

areas range from financial and mechanical, such as the types of hardware

and software used, to operational, such as access[87] and monitoring

policies, to the BBS’s culture and “space.”[88]  Although certain sysop

profiles recur, it is impossible to describe a meaningful or legally

useful “typical” sysop,[89] because each sysop makes a different

combination of choices.[90]



C.      BBS Functions


Many different functions are available to BBS users.  As this

Essay will later develop,[91] these functions prove critical in

determining sysops’ and users’ legal rights and obligations.



1.      Message Functions


One of the most popular BBS functions is the ability to post

public messages instantaneously.  Users can opine, share information, or

engage in spirited discussions with other users on a dazzling diversity

of topics.[92]  After reviewing a list of discussion topics, the user

can post a message under either a general topic, accessible by the

entire BBS user base, or under one of the special interest topics.  The

posted messages then become part of an archive, and subsequent users may

browse old messages and trace the “threads” of various debates and lines

of conversation.


In addition to public message posting, users may send private

electronic messages to other users directly, either internally to users

of other BBSs or to global networks.  For example, CompuServe’s e-mail

system can communicate externally with systems such as Internet, MCI

Mail, Telex, and AT&T Mail, and can fax documents to any fax ma-

chine.[93] Although e-mail is generally private, the difference in

audience between publicly-posted messages and private e-mail can be

slight when users send e-mails to mass electronic mailing lists[94] or

list servers.[95]


Although the public and private message functions described above

are asynchronous, many BBSs also allow users to communicate with each

other in “real time.”[96]  Real-time conferences can range from informal

user-to-user “chatter”[97] to committee meetings or press

conferences.[98]  Although one of the attractions of real-time

conferencing is spontaneity, some sysops exercise control over these

conferences.[99]  However, users may exercise control themselves by

taking a real-time discussion into a private “room.”[100]  On many BBSs,

users may also interact with each other in real-time through on-line




2.      User/System Interaction and Information Services


The messaging functions listed above involve users communicating

with other users, but BBSs also allow users to interact with the

computer system.  Such interaction may be one of five types:

advertising, shopping, information databases, information storage, and

software distribution.


The first type of user/system interaction is advertising.  BBS

technology supports both direct company advertising and product

announcements.  Virtually every Prodigy computer screen has an

advertisement,[102] and some companies use their own BBSs to advertise

their products.[103]


Shopping is a second category of user/system interaction.  Most

national commercial BBSs have “shopping malls” or electronic catalogues

that allow users to buy a range of products and services.[104]  For

example, CompuServe has an electronic shopping mall with 100

retailers,[105] on-line airline, car, and hotel reservations, and

on-line stockbrokers who can execute buy or sell orders.[106]


Information databases are a third type of user/system interaction.

CompuServe provides access to investment services,[107] news

services,[108] the full text of 700 publications,[109] MEDLINE,[110] a

database of movie reviews, Census Bureau demographic data, national

white page and yellow page telephone number directories, and Department

of State travel advisories.[111]  In addition, some BBSs develop

databases exclusively for their users.[112]


A partial survey of the resources available on Internet

demonstrates the power of BBSs to distribute information.  Accessible

databases include reference works such as the

Concise_Oxford_English_Dictionary, Oxford_Thesaurus, and

Peterson’s_College_Directory, electronic journals and newsletters, and

computer-encoded books such as Moby_Dick, The_Federalist_Papers,

The_Book_of_Mormon, and the complete works of Shakespeare.[113]


Data storage is a fourth type of user/system interaction.  Most

BBSs allow users to store information and data on the system computer.

This information can be either electronically transmitted to the user

from an external source, downloaded (received)[114] from the BBS’s

databases, or uploaded (sent)[115] by the user to the BBS computer’s

hard drive.


Software exchange is the fifth and final category of user/system

interaction.  Most BBSs allow users to upload and download

software.[116]  Because of this, BBSs have become major software

distributors.[117]  BBSs often build their reputations on the quality

and quantity of their downloadable software.[118]  While much of the

software available is “public domain,” “freeware,” or “shareware,”[119]

copyrighted software that has been illegally copied can be found on some

BBSs.[120]  Other problems with the distribution of software by BBSs

include the spread of computer viruses[121] and the presence of files

which users may find indecent, pornographic, or obscene.



3.      “Gateways”


One of the unique features of a BBS, compared with other technolo-

gies, is the ability to act as a gateway.  A gateway allows the computer

to communicate electronically with other computers, so that the BBS user

can perform activities on the external computer system.[122] Information

passing through the gateway computer is briefly processed by the

gateway’s computer hardware before being sent to the intermediate or

destination computer for further processing.[123]  When CompuServe users

access another company’s proprietary database (such as Dow Jones),

CompuServe is acting as a gateway between the user and the Dow Jones

database.  Similarly, when CompuServe users access the Internet,

CompuServe is a gateway to the Internet gateway, which connects the

user’s computer to a destination network system.[124]





Analysis of the Implications of Various Legal Analogies as Applied to

the BBS Context



A.      Synopses of the Rights and Obligations Involved with Each Analogy


Having offered some background into the functional and industry

context of BBSs in the previous part, this Essay will now outline the

law that applies in analogous situations.[125]  The Essay focuses on

three categories:  (1) the extent of the government regulatory scheme;

(2) the owner’s right of control and the user’s right to access; and (3)

the owner’s liability for the statements of others.  This subpart will

provide a common framework of the general rules, but will not explore

the nuances of various legal models.  Once the framework is established,

the next subpart will evaluate each analogy’s strengths and weaknesses

from a policy perspective, as applied to both users and sysops.[126]


The types of entities considered as analogous to BBSs include

print publishers (primary publishers and republishers), secondary

publishers (including booksellers, news distributors, libraries, and,

for defamation liability purposes, telegraph companies),[127]

broadcasters, common carriers, and private real and personal property

owners.[128]  At the end of this subpart, an analysis of the public

forum doctrine outlines some rules that apply to state actors.



1.      The Extent of Government Regulation


Some media, such as broadcasters and common carriers, are subject

to extensive government regulation.  For example, because of perceived

spectrum scarcity, the FCC allocates the broadcast spectrum to ensure

that it is being used to benefit the public.[129]  The FCC only grants

licenses for a limited time period[130] and may restrict ownership.[131]

In response to the potential for monopolistic situations, Congress has

similarly enacted a broad scheme of telephone and telegraph



In contrast, government intrusion into print publishing is

severely restricted both constitutionally and statutorily.  For

instance, the U.S. Supreme Court held that a use tax on ink and paper,

with its detrimental impact on print publishers, was an unconstitutional

infringement of print publishers’ freedom.[133]  Before searching or

seizing print publishers’ work product or documentary materials, the

government must make a heightened showing of need.[134] Congress,

recognizing the important role of newspapers, has exempted newspapers

from some antitrust prohibitions.[135]

Similarly, whether based on the owner’s First Amendment

protections or the Fifth Amendment Takings Clause, the government is

also prohibited from dictating the use of private property for

communications purposes.[136]



2.      Owner’s Extent of Control/User’s Right to Access


In general, there is a sliding scale of control in relation to

forced access.  At one end of the scale are primary publishers, who have

virtually unrestrained discretion over what they print or to whom they

give access to disseminate information.[137]  Also on this end are

owners of private property, who are similarly protected from mandatory

or forced access.[138]  In some cases, government-mandated access could

be considered a taking.[139]  However, the rights of private property

owners have been restricted in one key respect.  As an extension of the

public forum doctrine, if private property resembles a traditional

government-owned or -controlled public forum, the Court has been willing

to consider permitting government-mandated access.[140]  Thus, although

speakers do not have a right of access to private property under the

U.S. Constitution,[141] the Court has held that states may, on indepen-

dent state grounds, require private owners to permit individuals to

exercise free speech on private property in limited circumstances.[142]


Further along the sliding scale of control and forced access lies

broadcasting, about which Laurence Tribe has noted, “[f]rom the

beginning, the federal government–by its licensing practices and by

rules directed at the substantive content of broadcasting–has strongly

influenced what broadcasters have had to say.”[143]  For example, under

the Equal Opportunities Doctrine, broadcasters who provide access to one

political candidate must offer equal opportunity to competing candidates

and may not censor these broadcasts.[144]  Broadcasters have discretion

to reject editorial advertising,[145] but the FCC may revoke a station’s

license if it does not provide “reasonable access” to candidates for

federal office.[146]  Additionally, broadcasters have no discretion to

accept cigarette advertising.[147]  Finally, the FCC may control

content, such as the publication of indecent words.[148]


At the other end of the sliding scale from primary publishers are

common carriers, who by definition must be available to all comers and

cannot refuse to provide service in a discriminatory fashion.[149]  This

open access generally means that the carrier cannot distinguish between

customers based on content, and government control over the right of

access is restricted.  Therefore, in Sable_Communication_v._FCC,[150]

the U.S. Supreme Court found that the FCC’s ban of “indecent” telephone

communications[151] was unconstitutional, since it exceeded what was

necessary to serve the compelling government interests involved.[152]


In some respects, secondary publishers are similar to common

carriers, because secondary publishers also do not exercise editorial

control over content.  However, this analogy is not complete, because

secondary publishers do not necessarily have to allow unrestricted

access.  For example, in Board_of_Education_v._Pico,[153] the Court

permitted school libraries to exercise some discretion over which books

are placed on their shelves, but once a book is placed on its shelves,

the library may not remove the book merely because the library disagrees

with the book’s contents.[154]  While Pico was limited to state actors,

a broad reading of the rule could apply to private secondary publishers,

who would be permitted to choose who gets access but, once an entity is

given access, could not censor content for arbitrary reasons. However,

in the absence of such a broad reading of Pico, there is no general

right of access to private secondary publishers.



3.      Owner’s Liability for the Statements or Actions of Others


The sliding scale of control and access described in the previous

subpart also applies here:  Those entities with more editorial control

generally also have greater exposure to tort liability for the

statements or actions of others.  Therefore, primary publishers, who

have the greatest control, also have the greatest exposure to defamation

liability.  Primary publishers may be liable for defamation in the case

of public officials and other public figures only if they have actual

malice (including recklessness);[155] otherwise, states may hold primary

publishers liable under a negligence standard.[156]  In

Dun_&_Bradstreet,_Inc._v._Greenmoss_Builders,_Inc.,[157] the Court held

that a private commercial information distributor could be held liable

for presumed damages without a showing of “actual malice” if the issue

was not a public concern.[158]  Although the strict standards of

defamation liability have historically applied only to news media

entities, language in Dun_&_Bradstreet indicates that the rules will be

applied consistently to both media and nonmedia primary publishers.[159]


In addition to defamation liability, primary publishers may be

liable for other types of statements.  For example, a print publisher

may be liable for compensatory damages for publishing commercial

advertisements that pose a substantial danger of causing harm if the

danger is apparent on the advertisement’s face.[160]


However, where primary publishers exercise only limited editorial

control, traditional standards may not apply.  In other words, when

primary publishers act as a conduit for other people’s statements, such

as when they report defamatory statements as news, primary publishers

may benefit from a more lenient standard.  For example, in

Edwards_v._National_Audubon_Society,_Inc.,[161] the Second Circuit Court

of Appeals held that The_New_York_Times was not liable for defamation

when it merely reported defamatory allegations made by the “responsible

[and] prominent” National Audubon Society, even if the publisher did not

independently investigate the allegations.[162]


Most broadcasters exercise editorial control as vigorously as do

primary publishers.  As a result, broadcasters’ liability for defamation

does not differ from print publishers’ liability,[163] and the scienter

requirements are the same.[164]  However, in contexts where broadcasters

have only limited control, their liability also appears to scale back

proportionately. Therefore, in

Farmers_Education_and_Cooperative_Union_v._WDAY,_Inc.,[165] the Court

held that, because the Equal Opportunities Doctrine[166] required the

defendant radio station effectively to turn control of the broadcast

content over to the candidate making defamatory statements, the station

was not liable for these statements.[167]


Continuing on the sliding scale, private property owners who have

extensive control over the use of their property for communication

purposes can be liable for defamation if they meet the requirements for

becoming a republisher.  Therefore, private property owners can be

liable for the defamatory statements of others if they control land or

chattels and intentionally and unreasonably fail to remove defamatory

matter that they know is exhibited.[168]


With no real editorial control, secondary publishers are liable

for defamatory statements by others only if they “knew or had reason to

know of the existence of defamatory material contained in the matter

published . . . [unless] (a) the originator had a privilege or (b) the

disseminator reasonably believed that the originator had a

privilege.”[169]  This general immunity from liability for others’

statements applies in other contexts, such as the transmission of

obscenity.  In Smith_v._California,[170] the Court struck down a Los

Angeles municipal ordinance that held booksellers strictly liable for

possessing obscene material, reasoning that requiring booksellers to

review all the books they sold would decrease public access to books,

including books containing constitutionally protected expression.[171]

This illustrates that the basis for finding an absence of liability for

other people’s statements is partly a concern that imposing liability

would lead to greater control which, in turn, would inhibit

constitutionally protected speech.


Finally, common carriers, such as telephone companies, mail

carriers, and other non-content providers like equipment providers,[172]

also lack substantial editorial control and generally are considered

immune from liability for the statements of others in the absence of

some aggravating circumstance.[173]  Therefore, in

Anderson_v._New_York_Telephone_Co.,[174] the telephone company was not

liable for a user’s defamatory answering machine message even when the

telephone company knew about the defamatory statements.  Without this

type of immunity, common carriers would be forced to prescreen, which

would cause them to operate less efficiently and would be contrary to

the users’ expectations of privacy.[175]



B.      State Actors and the Public Forum Doctrine


The public forum doctrine[176] applies only to “state owned,

operated, or sponsored computer systems.”[177]  If the BBS is a state

actor, the BBS’s ability to act will be determined by the type of forum

it is deemed to be.  The three type of forums described by the U.S.

Supreme Court are:[178]


(1) The “traditional public forum.”  Based primarily on historical

usage, traditional public forums are narrowly defined as parks, public

streets and sidewalks,[179] not BBSs.[180]  In traditional public

forums, the Court applies strict scrutiny[181] to content-based

restrictions on speech and intermediate scrutiny[182] to content-neutral

time, place, and manner restrictions.[183]


(2) The “limited public forum.”  Limited public forums exist when

the state actor intentionally creates a forum and makes it available to

the public.[184]  The Court applies strict scrutiny to content-based

restrictions in limited public forums.[185]  Time, place, and manner

restrictions in such forums must be reasonable.[186]  State-owned BBSs

set up for the purpose of facilitating interactive communication with

the government and other citizens could be considered limited public

forums, subject to the state actor’s right to shut down the forum and to

impose time, place, and manner restrictions.[187]


(3) The “nonpublic forum.”  A nonpublic forum is defined as

“[p]ublic property which is not by tradition or designation a forum for

public communication.”[188]  State actors can restrict access and impose

reasonable regulations, including those which discriminate on the basis

of content.[189]



C.      Policy Considerations–The Merits of BBSs and Interest Balancing


Given the range of legal rights and obligations outlined in

subparts A and B above, an important issue is determining which

distinguishing characteristics of BBSs warrant special consideration in

selecting the appropriate levels of legal rights and obligations.  One

commentator has posited BBSs are unique because of the speed and low

cost of BBS-based communication.[190]  Certainly speed is no small

factor.  The fact that speakers may disseminate their ideas on demand,

and in some cases interact with each other contemporaneously, compares

favorably with “slow” technologies such as publishing and broadcasting.

The fast speed also allows faulty or imprecise information to be

corrected rapidly, creating a dynamic information marketplace.[191]


The low cost of BBSs is another important factor, particularly

regarding free BBSs that are essentially electronic “traditional public

forums.”[192]  Indeed, as the poor person’s mass media vehicle, BBSs can

be the only cost-effective and meaningful way for some individuals to

command the attention of an audience.[193]  The low cost can also help

create “inverted pyramids,” where individuals who have low status in the

physical world can gain prominence and notoriety in the on-line



In addition to beneficial effects on communication, the speed and

cost-effectiveness of BBSs can lead to the instantaneous and low-cost

formation of interest-based groups, without regard to any user’s

geography or demographic characteristics.[195]  BBS users can cost-

-effectively find others with whom to affiliate and can engage in

wide-ranging, socially-enriching dialogue,[196] in effect creating a

decentralized information economy.[197]  These decentralized and

geographically disparate groups frequently develop altruistic community

norms, which are even found in situations in which the cost for

individuals to assist other users exceeds their personal benefits.[198]

The combination of a global scope of communication, altruism contrary to

economic theory, and immediate on-line intimacy makes the BBS an

empowering tool.[199]


Finally, in addition to their communication and group dynamics,

BBSs are also one-stop electronic convenience stores, offering the

ability to access experts or celebrities,[200] to tap into tremendous

information databases, to obtain software, to store information, and to

shop.[201] Everything that can be done in cyberspace can be done in the

physical world, but the convenience and speed[202] of BBSs can convert

otherwise burdensome tasks into accessible ones.

As the above discussion indicates, BBSs have many special features

that deserve protection.  However, the electronic power that allows

users to achieve so much that is positive also allows users to engage in

social wrongs.[203]  Eventually, through either tort or criminal

liability for sysops, society will decide how much BBS activity it will

circumscribe both directly and indirectly.


In ascribing tort liability, it is axiomatic that the tortious

user should be liable.[204] However, if society considers sysops part of

the causal link in user wrongdoing, then the tort goals of deterrence

and victim compensation indicate that sysops should also be liable.[205]

In contrast, if society decides that BBSs have more social benefits than

are reflected by BBS revenues, society should subsidize BBSs by

restricting the sysop’s tort liability.[206]


It has been proposed that sysops should be subject to criminal

liability for users’ actions.[207]  However, criminal liability poses

the dangers that sysops may inadvertently be held strictly liable for

users’ criminal behavior,[208] or that law enforcement officials, either

afraid[209] or ignorant[210] of computers, will use criminal liability

to harass sysops and breach constitutional protections.[211]  While it

is beyond the scope of this Essay to fully map the contours of sysops’

criminal liability for the statements or actions of their users,[212] a

mens_rea of recklessness, at the least, should be required to impose

liability, in order to avoid a chilling effect.[213]


Beyond the sysops’ civil and criminal liability, there is an

underlying issue of how extensively the government should intervene in

the mechanical operation of private media ventures.  For example, if the

government does not mandate media access, then access may be restricted

to powerful or wealthy individuals.[214]  Indeed, print publisher

jurisprudence has acknowledged this reality.  In

Miami_Herald_Publishing_Co._v._Tornillo,[215] the Court noted that

“economic factors . . . have made entry into the marketplace of ideas

served by the print media almost impossible.”[216]  However, if new BBSs

may freely enter the market, power concentration or restricted access is

less of a problem because users can vote with their modems or become

sysops themselves.[217]  Therefore, functioning market mechanisms

obviate the need for government’s heavy hand.


Indeed, government intervention or excessive sysop liability may

cause a chilling effect that will shrink all speech, not necessarily

just speech unprotected by the Constitution.[218]  The dangerous effect

of government intrusion is most obvious in the prospect of Congressional

authorization of FCC control over the BBS industry.[219]  FCC regulation

poses several dangers:  Sysops may exit or refuse to enter the industry

rather than comply with licensing obligations,[220] private entities

have the incentive to use FCC requirements as a way to stifle or

eliminate potentially socially desirable speech,[221] and the FCC may

ultimately promulgate content regulations.[222]  Further, the

theoretical underpinnings supporting FCC regulation of BBSs seem shaky:

BBS-based communication does not have sonic or visual interference and

telephone line scarcity can be resolved given present technology.[223]

Additionally, there are limited circumstances where unconsenting users

can be exposed to offensive materials because users must affirmatively

seek out access to BBSs,[224] which can institute screening mecha-

nisms.[225]  While these conditions may change over time,[226] until

they do, there seems to be many dangers in, and few justifications for,

FCC regulation of BBSs.


State-owned BBSs have different policy considerations.  While

there are many state-owned BBSs specifically designed for internal

government uses or one-way communication, state-owned BBSs designed to

facilitate public and interactive communication are difficult to

distinguish from traditional public forums.  Furthermore, users may

reasonably expect significant user autonomy and liberal access.  As

state-owned BBSs proliferate, the courts should be vigilant about

treating these BBSs as tools for tremendous communicative powers that

should be protected and encouraged.


As a final consideration, there has been some discussion about

whether legal doctrines applicable to BBSs should be rigid and

well-articulated or determined on an ad hoc basis.[227] The advantage to

rigid rules is that they are predictable and can be applied

consistently,[228] which may result in judicial economy.[229]  One

commentator argues that a federal solution is imperative, because state

regulation will cause BBSs to locate in unregulated states.[230] Another

commentator has argued that the best approach to the choice of law

problem in defamation cases is to create a federal common law.[231]

However, the problems these “global” solutions are trying to solve do

not warrant such drastic measures; in fact, in some ways these

“problems” work to the benefit of the technology.  Although BBS users

may be located nationwide, state regulation of BBSs might result in

socially desirable variations in government-mandated access, privacy and

associational protections, or state-specific substantive laws.[232]

Therefore, variations by state, despite the implicit confusion, may at

this early point in the growth of the technology prove to extend

substantive and procedural protections further than a homogenous federal



More importantly, because the BBS industry is still maturing, ad

hoc determinations may defer the formation of difficult-to-change rules

until after the BBS technology is well-established,[233] when the true

policy implications are clear.  Rather than adopting hard-to-change

global rules, this Essay seeks to craft rules that are narrowly tailored

to the specific factual situations by focusing on the functional

capabilities of BBSs.[234]  If this approach is used, there is a reduced

chance that judges, trying to craft a decision that will account for all

of the variations in BBSs, will fashion sweeping rules that will prove

difficult to dislodge after the technology has evolved.[235]






Application of Existing Legal Doctrines to Specific BBS Functions


This part breaks BBSs down into their component functions to

search for the appropriate legal analogies for each function.  This

function specific approach may seem odd, given that other communication

technologies appear to “fit” in the publisher/broadcaster/common carrier

legal tripartite.  However, as has been shown, there is a sliding scale

of editorial control and tort liability; if a media technology does not

or cannot exercise its typical level of editorial control, then tort

liabilities also abate.  For example, in both Edwards and WDAY,[236] the

courts did not apply the prevailing defamation liability standard

because the media did not exercise typical editorial control over the

defamatory material.[237]  The versatility and multiple functions of

BBSs, and other technologies such as cable television (which can act

both as broadcasters and common carriers), stretch the usual boundaries

because the level of editorial control can and should vary with the way

the technology is being used.  Therefore, function-specific legal rules

for BBSs are not a radical jurisprudential approach, but rather

explicitly reflect the fact that communications laws already adjust to

the media’s specific function.



A.      First and Fourth Amendment Cross-Functional Constitutional



Because the constitutional protections of the Fourth Amendment

against search and seizure and of the First Amendment freedom to

associate apply across all media technologies, these protections warrant

special consideration and should apply to BBSs regardless of how the BBS

is being used functionally.



1.      Unreasonable Search and Seizure/Prior Restraint


Seizures of BBSs pose special problems because seizure eliminates

the BBS’s ability to communicate and, in essence, effects a prior

restraint.[238]  Prior restraints are disfavored in all media (except

common carriers[239]):  To obtain a prepublication restraint, the

government must prove the “unprotected character of the particular

speech with certainty,” and “the irreparable nature of the harm that

would occur if a prepublication restraint were not imposed, at least

where timing is an important factor.”[240]  The government should bear

this burden if it wants to seize or otherwise preemptively restrain

BBS-based communication.


Furthermore, if the government seizes a computer, it can search

through the computer’s entire hard drive, easily extending the search

beyond the boundaries of the search warrant. Because such “shotgun”

searches are disfavored,[241] they should be deemed unconstitutional and

courts should require significant specificity in granting and upholding

search warrants related to computer seizures.[242]



2.      Associational Interests


BBSs warrant consideration as private clubs, organized around

mutual interests, that meet electronically.  Indeed, electronic

communication has increased group activity.[243]  Therefore, courts

should carefully protect both the sysop’s right to associate and the

user’s associational privacy.


As a general rule, sysops have the right to associate or not

associate with whomever they choose.[244]  Because sysops may become

liable for their users’ actions, sysops should have the right to choose

their users and to deny access to users who harm others or reduce the

quality of the BBS.[245]


Nevertheless, states may partially circumscribe the sysop’s

freedom to associate.  The U.S. Supreme Court has upheld state

legislation that compromises the right to associate or not associate if

the state has a compelling state interest and chooses the least

restrictive means to achieve the state’s end.[246]  Therefore, as a

default, sysops may freely choose their members, but individual states,

reflecting various state interests, may place some limitations on the

sysop’s associational freedom.


The users also have important associational interests.  For

example, users may not be willing to associate with BBSs if sysops

cannot keep BBS membership lists private.[247]  In

Gibson_v._Florida_Legislative_Investigation_Committee,[248] the U.S.

Supreme Court held that state-mandated disclosure of membership lists

requires that the state show a “substantial relation” between the

membership list and a compelling state interest.[249]  Therefore,

government mandated disclosure of membership lists should be strictly



More generally, the Gibson approach should apply not only to BBS

membership lists, but also to disclosure of all the users’ actions on

BBSs.  Most BBS computers can and do track users’ electronic actions and

can store and retrieve this information.  In effect, users who assume

that private electronic acts or statements are untraceable may find,

over time, that their actions were tracked and can be disclosed through

government intervention.[251]  Specifically, the historical ability to

recreate users’ electronic movements and statements accurately,

something the government cannot easily do in physical space, has the

potential to lead to embarrassing or harmful disclosures.[252]  This

ability of third parties to obtain information about users’ actions,

especially if users do not want such information to be known publicly,

presents a real likelihood that users’ willingness to participate in

BBSs will be inhibited.  Therefore, as this monitoring becomes more

commonplace, it may be appropriate to expand Gibson’s approach to

include privacy of associational actions, or to combine associational

privacy with the other zones of privacy created in the Fourth, Fifth,

and Sixth Amendments and require strict scrutiny of government-mandated

disclosure of this class of information.


However, even expanded First Amendment associational privacy will

not prohibit private-party sysops from voluntarily disclosing membership

lists or users’ actions to third parties.  Perhaps, over time, sysops

will voluntarily and routinely insert a non-disclosure or

confidentiality provision in their contracts with users.[253]  An

expansive approach to the tort of invasion of privacy may also inhibit

sysop disclosure.[254]



B.      Function-Specific Analogies


In examining the different aspects of involvement that would

warrant imposing sysop liability for users’ actions, the analysis

ultimately depends on the level of sysop knowledge and control.[255]

For purposes of this part, it is necessary to establish working

definitions of these terms.


“Knowledge.”  If the sysop has actual knowledge of users’ actions,

it is easier but not necessarily appropriate to impose liability.[256]

The more difficult inquiry surrounds the situation in which the sysop

has imputed or constructive knowledge of users’ actions (i.e., the sysop

should have known).  Because BBSs sometimes “operate without

intervention for days or weeks at a time,”[257] requiring all sysops to

monitor their BBSs continually, even those operating “normally,” could

be unduly burdensome.  Therefore, for the purposes of this part, sysops

do not have “knowledge” unless they have actual knowledge[258] or were

negligent in monitoring the contents of their BBS.  Because negligence

depends on the function being used and the sysop’s status (commercial

versus hobbyist), and will evolve over time as the technology or

industry practices change, an appropriate negligence standard would look

at what a “reasonable sysop similarly situated” would have done given

all the facts and circumstances. This may or may not include monitoring

or other sorts of inquiry, depending on how the industry evolves.[259]


“Control.”  Sysops can exercise control over users’ actions in one

of several ways:[260] warning users that others may have posted harmful

messages,[261] instructing users not to harm others intentionally,[262]

reacting to users’ actions by removing harmful material,[263] or

preventing users from acting harmfully by prescreening their actions or

denying access.  For the purposes of this part, “editorial control” is

defined as either (a) prescreening and exercising proactive control over

the content of users’ statements and actions, or (b) “customizing” the

contents of the BBS, through the deletion of users’ messages or the

undoing of users’ actions under a standard that is substantially more

subjective[264] than that required to avoid criminal or civil liability.

However, editing and removing material not pertinent to the discussion

is vital to avoid “clogged channels”[265] and should not be considered

editorial control.[266]



1.      Message Posting


Public message posting has proven the most difficult BBS function

to analogize because it involves communication from many people to many

people. It resembles the one-to-many communication of publication and

broadcasting,[267] not the one-to-one communication of telephones.[268]

The ability of any user to post messages at any time, however,

differentiates the abilities of sysops from those of publishers and

broadcasters.[269]  Indeed, the volume of information on BBSs often

effectively prevents sysops from monitoring all postings.[270]


In response to the easy access and high volume of public message

posting, BBSs have sought different levels of control over, and

responsibility for, users’ messages.  Prodigy states that it is

responsible for its users’ messages and therefore has the rights of a

print publisher not to print every message submitted.[271]  CompuServe

and GEnie remove obscene, illegal, or abusive messages as well as other

messages based on user complaints.[272]  The WELL’s policy is that users

own their words and are individually responsible for what they say.[273]


Given that sysops have different objectives, the legal rules

should allow sysops to choose the level of rights and responsibilities

needed to carry them out effectively.[274]  From a policy perspective,

sysops should be able to choose between being primary and secondary

publishers so long as they accept the commensurate liability[275] and

the market is free so that users can choose between competing BBSs.[276]

Therefore, Prodigy can choose to become a primary publisher and gain the

benefits of editorial discretion,[277] but Prodigy will also be exposed

to greater liability and possible consumer resistance.  On the other

hand, if sysops choose to become secondary publishers and intervene in

users’ actions only when they know that the actions are causing harm,

the law should support this decision by granting them enhanced

protection from liability in exchange for the free speech they



Prodigy has argued that BBSs should be liable for users’

statements only if the BBS “endorses” the users’ statements,[279] an

argument that amounts to editorial control without legal liability for

those statements Prodigy does not “endorse.”  This legal doctrine is

perilous because it disengages the social costs from the private costs

of Prodigy’s actions.  By exercising editorial control, Prodigy is

making decisions that may impose costs on others. To make socially

optimal decisions, however, Prodigy must internalize these social costs,

which include the harm proximately caused as passed through by the tort

system.  If Prodigy is making decisions through the exercise of

editorial control, but is not bearing tort liability for these actions,

Prodigy will make its decisions based on its private costs, not the

social costs, resulting in economic inefficiency.  Therefore, Prodigy’s

“endorsement” or “control-without-liability” approach should be rejected

because it prevents the tort system from effectively conveying the costs

of poor social choices.


The non-interventionist approach is also problematic.  If BBSs

such as the WELL do not intervene at all, injured parties such as

defamed individuals or copyright holders lack the ability to mitigate

further damage.[280]  No other media, except common carriers, may

knowingly allow harmful statements to be exchanged.  However, unlike

common carriers, such as telephone companies, removal of extant harmful

materials from BBSs can prevent further harm without effecting a prior

restraint or chilling constitutionally protected speech.  Therefore,

non-interventionist sysops, along with sysops who are categorized as

secondary publishers, should have an obligation to remove tortious

postings they know exist.[281]


Some have argued that allowing sysops to choose their own level of

rights and responsibilities will induce all sysops to “run [their]

system[s] blindly,”[282] effectively minimizing their contact with the

BBS to reduce their exposure.  This argument incorrectly presumes that

the market will refuse to compensate the sysop for the sysop’s greater

exposure.[283]  Further, this Essay suggests numerous places where the

sysop cannot turn a blind eye, such as in the presence of postings the

sysop knows are harmful.  Therefore, since liability depends on whether

the sysop exercises editorial control, sysops seeking application of the

secondary publisher model will not be punished for, nor have incentives

to refrain from, engaging in beneficial activities on BBSs.


Finally, state actors deserve a different analysis.  To the extent

that a state-owned BBS is intended to promote interactive communication

and therefore acts as a limited public forum,[284] the courts should

strictly scrutinize content-based discrimination, and restrictions on

access should be reasonable.[285]  On the other hand, a BBS not intended

to promote interactive communication (i.e., BBSs that primarily transmit

information one way to users) should be treated as a nonpublic forum,

and the state should have wide latitude in its ability to restrict

communication and user access.  In either case, the state actors may

have tort immunity by statute or common law.



2.      Electronic Mail


Electronic mail differs from public message posting in that e-mail

is one-to-one or one-to-many communication, in the sense that the sender

specifically identifies one or more recipients.  Congress has regulated

e-mail somewhat,[286] but these regulations do not protect e-mail as

extensively as mail carried by the United States Postal Service.  Sysops

may not disclose electronic communications to third parties without

permission[287] or unless faced with valid search warrant,[288] but the

statute does not prohibit sysops from reading correspondence,[289] even

if the e-mail is transmitted on company-owned BBSs and employers access

employees’ e-mail.[290]  Further, gateways can electronically copy e-

mail as the gateway processes the information, and sysops and system

administrators can access these back-ups.[291]


Some BBSs have gone beyond the statute and instituted a policy

against reading private e-mail.[292]  Others, acknowledging their power

under the statute, have instituted a “no privacy” policy, stating that

the sysop will read e-mail on occasion and, therefore, the user should

not expect e-mail privacy.[293]


Under the Electronic Communications Privacy Act, either approach

is permissible,[294] but in the absence of a contractual agreement to

the contrary, e-mail should be accorded the full legal protections

afforded to physical mail.  In particular, government entities should

not have additional access to private e-mail simply because the

information passes through a state-owned BBS; such power would give the

government significantly greater access then it is allowed with physical

mail protected by an envelope.  In these situations, the state actor

sysop should routinely destroy any back-ups or copies without any use or




3.      Real-Time Conferencing


Real-time conferencing is a many-to-many medium and is instanta-

neously interactive. When the sysop’s involvement is limited to merely

providing the hardware, real-time conferencing is functionally

equivalent to telephone conference calls.  In these situations, the

sysop should be treated like a common law common carrier.[295]  They

should neither be liable for users’ actions, nor have the power to deny

users access.[296]


When sysops exercise some control over real-time conferences,[297]

it is inappropriate to allow them to claim the shield of either the

common carrier or secondary publisher models. However, because the

sysop’s control fluctuates as users enter or exit the conference or

private rooms, to hold the sysop liable in these situations is

problematic.  Further, when users are interacting instantaneously,

sysops cannot affirmatively control users.  They can only react to

problems by deleting messages once they have been transmitted and by

ejecting users from the conference.


Holding sysops who exercise control on real-time conferences

automatically liable for users’ actions would either inhibit sysops from

trying to control interactive conferences or would force sysops to

abandon the immediacy of conferencing for a system that permits sysops

to screen communications prior to posting.  The better approach is to

treat real-time conferences as a committee meeting chaired by the sysop.

In this analogy, the chairperson/sysop may exercise control by refusing

to recognize certain members or ejecting troublesome users from the

conference, but is not responsible for prescreening the opinions of the

audience.  This approach acknowledges the sysop’s limited control

without forcing sysops to abandon the technology.



4.      Information Resources Dissemination


Several cases have addressed the legal status of on-line

databases.  The cases indicate that database creators are treated as

primary publishers, while database disseminators are treated as

secondary publishers.


In Legi-Tech,_Inc._v._Keiper,[298] the State of New York sold a

computerized database of legislative materials.  Legi-Tech, a for-profit

company, sought unlimited access to the database to serve as source

material for its own commercial computerized database.  The state argued

that, because it was not required to offer the computerized service, it

could offer the service in a discriminatory way.[299]  The court

rejected this argument and treated Legi-Tech as a press entity, holding

that differential treatment of the press was unconstitutional unless

there is some “special characteristic.”[300]


In Daniel_v._Dow_Jones_&_Co.,[301] the plaintiff sued the database

creator for negligently making false statements.[302]  New York common

law had held news services not liable for negligently making false

statements unless the parties had a special relationship.[303]  The

court rejected plaintiff’s claim because the parties did not have a

special relationship beyond the ordinary buyer/seller relationship:

“There is no functional difference between defendant’s service and the

distribution of a moderate circulation newspaper or subscription

newsletter. . . .  [I]f the substance of a transaction has not changed,

new technology does not require a new legal rule merely because of its

novelty.”[304]  Therefore, the court’s holding that computerized on-line

databases could not be held liable is predicated on the fact that

newspapers could not be held liable under the common law or under the

First Amendment for negligent omissions.[305]


In contrast, in Cubby,_Inc._v._CompuServe,_Inc.,[306] the court

analyzed CompuServe’sliability for defamation differently because

CompuServe was the electronic distributor of a magazine, not the author.

CompuServe contracted with Cameron Communications, Inc., an organization

wholly independent from CompuServe, to have Cameron manage the

“Journalism Forum” subject to standards developed by CompuServe.[307]

Don Fitzpatrick Associates (“DFA”) contracted with Cameron to provide a

daily newsletter to the Journalism Forum entitled Rumorville_USA.

Plaintiffs initiated a rival newsletter and sued for libel, business

disparagement, and unfair competition based on statements Rumorville

made about plaintiffs.


The court enumerated the restraints on CompuServe’s control over

Rumorville:  (1) CompuServe users subscribed directly with DFA for

Rumorville; (2) DFA uploaded Rumorville to CompuServe’s computers

without giving CompuServe opportunity to review it; (3) CompuServe

received no revenues directly from users’ subscription to Rumorville;

and (4) CompuServe claimed that it had not received any complaints about

the magazine.[308]


Plaintiffs claimed that CompuServe was a publisher.  CompuServe

moved for summary judgment, claiming that it acted as a news

distributor.  Following Smith_v._California,[309] the Court held:


CompuServe[] . . . is in essence an electronic, for-profit library that

carries a vast number of publications and collects usage and membership

fees from its subscribers in return for access to the publications. . .

. While CompuServe may decline to carry a given publication altogether,

in reality, once it does decide to carry a publication, it will have

little or no editorial control over that publication’s contents.  This

is especially so when CompuServe carries the publication as part of a

forum that is managed by a company unrelated to CompuServe. . . .

CompuServe has no more editorial control over [Rumorville] than does a

public library, book store, or newsstand, and it would be no more

feasible for CompuServe to examine every publication it carries for

potentially defamatory statements than it would be for any other

distributor to do so.[310]


Therefore, recognizing CompuServe’s nonexistent editorial control over

the defamatory material, the Cubby court held that CompuServe warranted

more favorable legal treatment as a secondary publisher.


Collectively, the case holdings indicate that BBSs/sysops that

develop electronic databases will be treated as primary publishers,

while BBSs/sysops that act as a “conduit” for other database developers

or publishers will be treated as secondary publishers.  From a policy

perspective, these outcomes are appropriate.  Giving sysops the

opportunity to shield themselves from liability (by acting as an

information disseminator) allows sysops to provide additional

information services and increases overall access to information.  On

the other hand, sysops that want to be primary publishers[311] will have

the power to do so, but at the cost of greater exposure to tort (and

possibly contract) liability.[312]



5.      Software Distribution and Commercial Services


Software dissemination on BBSs poses two general problems.  First,

software exchanges are many-to-many forums, and the volume of software

uploaded makes monitoring by the sysops difficult.  Second, in providing

software or other commercial services such as information storage or

electronic shopping, BBSs are essentially selling products.  Therefore,

in some respects, sysops act as vendors or distributors.


In these situations, the allocation of tort liability should turn

on whether the BBS is a vendor.  In other words, commercial BBSs that

tout their reputation for software files and are perceived as software

distributors should be treated as such for tort purposes, as should

those BBSs that provide other types of commercial services.[313]

Liability imposes greater responsibility on these BBSs and, to a lesser

extent, all commercial BBSs (which, even if not vendors, will have to

obtain insurance or raise fees to reflect the costs of possible

liability), but this liability is appropriately borne by the users

through the BBSs’ fees.  However, because these sysops should have a

reasonable opportunity to remove uploaded copyrighted software, the

liability standard should be negligence,[314] not strict liability.


In contrast, free BBSs cannot pass on the cost of tort liability

to their users.  Therefore, in allocating losses between these sysops

and their user, the tort laws should favor the sysops.[315]  Indeed,

legal solicitude toward services like software distribution on free BBSs

is especially important given that users can obtain freeware and

shareware on these BBSs, which, over time, could increase access to

computer technology by the disenfranchised.


However, in the case of software distribution, because copyright

violations harm third parties, even free BBSs must bear some

responsibility.  Since it is difficult for sysops to monitor software

uploading, they should not be liable unless they have knowledge of the

copyright violation and failed to exercise control by removing the

copyrighted software.[316]  With this standard, copyright holders will

be able to mitigate their damages,[317] but sysops of free BBSs will

receive ample protection from liability.



6.      Gateways


Computers acting as gateways by definition do not have either

knowledge or control of the information being transmitted.  In this

respect, gateways act as common law common carriers and it would be

unreasonable to hold the BBS or network liable for users’ actions,[318]

for much the same reasons as those articulated in SmithÊand Pico. In

contrast, if liability is imposed, it will encourage information

conduits to censor or reduce the flow of information.[319]  However, as

common carriers, the BBS gateways may not discriminate either in user

access or in transmitting the information.  This lack of discrimination

will be essential to the imminent development of a single national

information network, which should be required to carry any and all BBSs

that choose to affiliate with that network.[320]








By examining computer bulletin boards in their relevant

constituent components, this Essay has sought to show that existing

legal precedents can be used on a function-specific basis to protect the

rights of both sysops and users and to further important policies.[321]

As legal fact finders analyze BBSs, judicious use of existing legal

precedents can promote the development of the BBS industry.


However, this Essay has also argued that sysop liability should

depend on the amount of knowledge and control a sysop exercises for the

specific function in question.  On a function-specific basis, sysops can

choose the level of knowledge and control they want, with the

concomitant rights and responsibilities.[322]


As a default state of the law, this legal conclusion may not be

particularly significant if sysops and users choose to resolve these

issues contractually.[323]  So long as the BBS industry remains

characterized by easy entry and exit, sysops and users should have the

ability to negotiate any one of the myriad of contractual allocations of

rights and responsibilities available, if the contractual resolutions

sufficiently protect the interests of third parties.[324]  With a

competitive free market and proper cost pass-through,[325] users will

provide appropriate market incentives to allow the BBS industry to

achieve a free market equilibrium[326] without extensive government

intervention, regulation, or judicial overreaching.[327]  Given the

current robustness and dynamism of the marketplace, there are strong

indicia that the free market is currently functioning normally.[328]


Of course, as with any emergent technology, future situations

could undermine the assumptions underlying the free market.  For

example, this free marketplace analysis assumes that users provide the

primary source of benefits.  If user revenues become less important to

sysops than other revenue sources, then BBSs will cater to these other

sources, not to users.[329] Advertiser-driven content regulation by BBSs

will not be a problem if noncommercial BBSs retain their vitality;

however, should Prodigy’s model of advertising on every screen become

more prevalent, then the free market analysis must be retooled to

examine sysops’ relationship with advertisers.[330]


More likely, should the BBS industry consolidate to the point that

individual BBSs command market power,[331] or should the BBS industry

become an indispensable link in the nation’s communications chain, then

we can anticipate that the current legal doctrines will be insufficient

to meet our policy objectives.  At that time, it may be appropriate to

reevaluate government intervention[332] or the identification of these

BBSs as state actors,[333] as these actions may prove best to protect

the rights and interests of sysops, users, and third parties.











[*]     M.B.A. 1994, UCLA; J.D. 1994, UCLA; B.A. 1988, UCLA.  The author

gratefully acknowledges the special contributions and assistance of John

Brice, Esq., Mike Godwin, Esq., Sandra Goldstein Hirsh, Gail Schlachter,

Marc Smith and Professor Tracy Westen.  The author is especially

appreciative of the thorough and competent work of the COMM/ENT editors

and staff.


The author invites interested readers to initiate a cyberspace

dialogue.  He can be reached at his Internet address:  He also refers interested readers to a related

article, entitled “Computer Bulletin Board Technology: Sysop Control and

Liability in a Decentralized Information Economy,” in the conference

proceedings for the International Symposium on Technology and Society

1993 (available from the Institute of Electrical and Electronics

Engineers, Inc., IEEE Catalog Number 93CH3263-1, or the author).



[1]     The phrase “cyberspace” was initially popularized by William

Gibson in his 1984 book, Neuromancer.  For a detailed look at Gibson’s

definition of cyberspace throughout his various novels, see David G.W.

Birch & S. Peter Buck, What_is_Cyberspace?, available_in Internet via



The definition of cyberspace can be conceptually difficult and

amorphous, reflecting the ethereal nature of the technology.  However, a

reasonably descriptive definition was posited by Michael Benedikt, chair

of University of Texas at Austin’s Department of Architecture:


Cyberspace is a globally networked, computer-sustained,

computer-accessed, and computer-generated, multi-dimensional,

artificial, or “virtual” reality.  In this world, onto which every

computer screen is a window, actual, geographic distance is irrelevant.

Objects seen or heard are neither physical nor, necessarily,

presentations of physical objects, but are rather–in form, character,

and action–made up of data, of pure information.  This information is

derived in part from the operation of the natural, physical world, but

is derived primarily from the immense traffic of symbolic information,

images, sounds, and people, that constitute human enterprise in science,

art, business, and culture.


Willard Uncapher, Trouble_in_Cyberspace, Humanist, Sept.-Oct. 1991, at

5, 9.


The cyberspace analogy is based on the fact that most physical

space actions have electronic space (i.e., cyberspace) equivalents.  See

Jack Rickard, Preface_to_the_Second_Edition of Lance Rose & Jonathan

Wallace, Syslaw at xiii (2d ed. 1992) (“At an increasing pace, real

world transactions are being `translated’ into online analogs.”); John

Arnold, The_Medium_is_Messages, Miami Herald, Sept. 28, 1985, at 1D

(“[BBSs] contain the equivalent of want ads and graffiti, reminders and

requests, jokes and personal messages.”); cf.

Pair_Weds_Via_Computer_Link, S.F. Examiner, Nov. 14, 1993, at A12

(describing an on-line wedding between a couple that also met on-line).


[2]     See, e.g., Lawrence M. Fisher, News_Corp._Buys_On-Line_Network,

N.Y. Times, Sept. 2, 1993, at D4 (reporting that News Corp. purchased

Delphi BBS as a way to expand its distribution channels); William

Glaberson, Times_Mirror_to_Go_On-Line_Through_Prodigy, S.F. Chron., Aug.

5, 1993, at D1 (explaining Prodigy’s arrangement with the Times Mirror

Co. and Cox Newspapers to offer their newspapers’ contents, plus

background and source material, on-line); Carla Lazzareschi,

The_Scramble_Is_on_to_Find_New_PartnersÑOr_Be_Left_in_the_Dust, L.A.

Times, Oct. 14, 1993, at D1 (describing how the merger between Bell

Atlantic Corp. and Tele-Communications, Inc. set off soul searching by

phone companies and cable companies over the need for alliances); Cindy

Skrzycki & Paul Fahri,


ations_Giants_Looking_for_Deals–and_Billions_in_Future_Profits, Wash.

Post, May 23, 1993, at H1 (listing numerous deals, including U.S. West

telephone company’s $2.5 billion investment in Time Warner, Southwestern

Bell’s $650 million purchase of Virginia cable television systems, and a

joint venture between Microsoft, Intel Corp., and General Instrument

Corp. to develop television converter boxes that will be compatible with

personal computers); Jonathan Weber, AT&T_Takes_the_Cellular_Lead, L.A.

Times, Aug. 17, 1993, at D1 (describing AT&T’s recent investments,

including its $12.6 billion bid to take over McCaw Communications and

its investments in 3DO Co., a home multimedia manufacturer, Sierra

Network, General Magic, Inc., a developer of operating system software,

Eo Inc., a manufacturer of personal digital assistants (PDAs), and Go

Corp., a developer of PDA software).


[3]     To avoid confusion, this Essay uses the term “computer bulletin

board system” generically to include computer bulletin boards,

electronic bulletin boards, network nodes, on-line services, information

services, electronic information services, videotext services,

electronic publishers, electronic mail systems, and electronic networks.

This Essay integrates the legal analysis applied to these entities

because current technology and usage indicate that each of these

electronic communication methods performs essentially the same functions

(or, that the distinctions in the functions performed are not legally

significant).  See Philip L. Becker et al., Introduction to PC

Communications 76 (1992) [hereinafter Becker, PC Communications].


[4]     “[T]he BBS has become the most common form of mass communication

in the country.” T.R. Reid,

Mass_Communicate_Your_Messages_at_Little_Cost, Wash. Pos. Dec.Ê2 1991,

at F18 [hereinafter Reid, Mass_Communicate].


[5]     For a description of some of the computer hardware requirements of

BBSs, see Loftus E. Becker, Jr.,


_by_Others, 22 Conn. L. Rev. 203, 207-08 (1989) [hereinafter Becker,



[6]     Douglas C. McGill, Newest_City_Meeting_Places_are_in_Computers,

N.Y. Times, Mar. 21, 1984, at B1.  Sysops range from individuals to

large corporations to government entities. See infra part II.A.  In

general, this Essay does not distinguish between BBS owners, sysops, and

system administrators.  Where BBS owners have retained sysops as

independent contractors (see infra note 307), this Essay’s analysis

applies only to the sysop.


[7]     A modem is a device that allows computers to communicate over

telephone lines. Becker, PC Communications, supra note 3, at 31.

See_generally Jay R. McDaniel, Note,


ation, 18 Rutgers Computer & Tech. L.J. 773, 781 (1992) (describing how

modems operate).


[8]     See infra part II.C.


[9]     The first BBS was established in 1978 when a computer enthusiast

transferred the physical contents of his computer club’s bulletin board

onto his computer and made the electronic files accessible to other club

members.  Becker, PC Communications, supra note 3, at 73-74; see_also

Janet L. Balas, Bulletin_Board_Systems:__A_Nostalgic_Look_Back,

Computers in Libr., May 1993, at 24 (elaborating on the history).


[10]    Judith Berck,

It’s_No_Longer_Just_Techno-Hobbyists_Who_Meet_by_Modem, N.Y. Times, July

19, 1992, S. 3, at 12.  In 1985, the estimated number of active BBSs was

3500 to 4500. John T. Soma et al.,

Legal_Analysis_of_Electronic_Bulletin_Board_Activities, 7 W. New Eng. L.

Rev. 571, 572 (1985).


[11]    Berck, supra note 10, at 12.


[12]    Id.


[13]    In 1989, a sysop could set up a basic BBS for as little as $500.

Becker, Bulletin_Board_Operators, supra note 5, at 203 n.2.  In 1987,

the cost was estimated at $2000.  Robert Beall, Note,


ards, 7 Computer/L.J. 499, 501 (1987).


[14]    Membership in a commercial BBS costs as little as $15 annually,

and there are many free BBSs.  See infra notes 61, 64-65 and

accompanying text.


[15]    “[BBSs are] the lowest entry-barrier mass-communication system in

history . . . . [A]nybody can come up with the capital needed to start a

bulletin board.”  Reid, Mass_Communicate, supra note 4, at F18 (quoting

Ralph Nader); see_also Freedom_and_the_New_Age, L.A. Times, Nov. 27,

1985, at B4 (“[BBSs] are the vanguard of the democratization of

communication. . . .”).

The low cost of entry into the BBS industry has significant

implications for the perception that media access depends on media

ownership.  See infra text accompanying notes 214-17.


[16]    There are two types of anonymity:  (1) complete anonymity, such as

that gained by the use of passwords or code names, and (2) social

anonymity, where there is a minimal chance of physical contact or

subsequent significant interaction.  While many BBSs previously allowed

users to access their BBS using only code names, so that users had

complete anonymity (see Beall, supra note 13, at 512 n.100), most BBSs

now deny complete anonymity by requiring users to register their names

and phone numbers accurately.  Becker, PC Communications, supra note 3,

at 333.  But_see William M. Bulkeley,

Censorship_Fights_Heat_up_on_Academic_Networks, Wall St. J., May 24,

1993, at B1, B6 (explaining that some BBSs “strip” users’ names before

sending messages to other BBSs).  However, users who do not have

absolute anonymity often retain social anonymity.  See Terri A. Cutrera,

Computer_Networks,_Libel_and_the_First_Amendment, 11 Computer/L.J. 555,

557, 559-60 (1992) [hereinafter Cutrera, Computer_Networks] (describing

how social anonymity can result in misunderstandings); Martin Lasden,

Of_Bytes_and_Bulletin_Boards, N.Y. Times, Aug. 4, 1985, S. 6, at 34, 36

(noting that, unlike the typical exchange of letters between persons

known to each other, “familiarity is the exception rather than the rule”

in BBS communication).


Anonymity allows users to adopt new personas.  John Markoff,

The_Latest_Technology_Fuels_the_Oldest_of_Drives, N.Y. Times, Mar. 22,

1992, S. 4, at 5 [hereinafter Markoff, The_Latest_Technology] (noting

that a user may assume a different identity, role, gender, and age).

While this freedom may allow timid users to find new avenues of

expression, it can also result in gender-bending or mythical

experiences.  See, e.g., Michael Schrage,

Forget_the_Message,_The_Medium_is_a_Mask, L.A. Times, June 7, 1990, at

D1 (describing men who have signed on-line as women).


[17]    See Gina M. Garramone et al., Uses_of_Political_Bulletin_Boards,

30 J. of Broadcasting & Electronic Media 325, 329 (1986); see_also

Arnold, supra note 1, at 3D (“It allows people to sound off.”) (quoting

Bob Sherman, sysop of The Big Apple BBS); Robert O’Harrow, Jr.,


Many_Residents_with_Comfort,_Communication, Wash. Post, Dec. 27, 1992,

at B1 (quoting one user as describing how BBSs have “almost a

confessional atmosphere”); Janny Scott, On-Line,_and_Maybe_Out_of_Line,

L.A. Times, Sept. 24, 1993, at A1 (explaining that on-line communication

tends to be intimate, democratic, and playful, but because of the

“disinhibition” of the medium, it can also be blunt, extreme and



[18]    Garramone et al., supra note 17, at 329; see_also M. Ethan Katsh,


age, 57 Geo. Wash. L. Rev. 1459, 1481 (1989) [hereinafter Katsh,

The_First_Amendment_and_Technological_Change] (explaining how electronic

communication promotes self-fulfillment); Eric C. Jensen, Comment,


, 39 Fed. Comm. L.J. 217, 224 (1987) (“[A]nonymity allows the timid to

flower:  identity, appearance, possibly even personality, become

unimportant.”) (footnote omitted); Joel Garreau,


Knit_Family’s_Computer_Network, Wash. Post, Nov. 25, 1993, at B1

(describing the Fetternet, a network set up by an extended family that

has brought the family closer and led to unusual cross-generational

connections); Julie Pitta, Electronic_Democracy, Forbes, Oct. 1, 1990,

at 132 (quoting a Santa Monica city official as saying that Santa

Monica’s public electronic network “adds to our sense of community”);

Don Stanley, One_World,_One_Modem, Sacramento Bee, Nov. 18, 1993, at SC1

(describing how BBSs have encouraged introverts to increase their social

connections); cf. Ithiel de Sola Pool, Technologies of Freedom 229

(1983) (explaining that virtual elimination of cost constraints on

global communication means people will interact based on affinity, not



However, this freedom of intimacy carries some implicit

responsibilities:  The Dial-Your-Match BBS reminds users that “[j]ust as

it is not acceptable to walk up to a stranger and describe your sexual

desires in graphic detail, it is not correct here.”

For_Every_Taste,_a_Bulletin_Board, U.S. News & World Rep., June 3, 1985,

at 59 [hereinafter For_Every_Taste]; cf. Becker, PC Communications,

supra note 3, at 334 (“Most BBS etiquette is just common sense and

follows the same rules as any social interaction.”); Marc Silver,

Action_on_the_Boards, U.S. News & World Rep., Nov. 18, 1991, at 96

(explaining that rule number one of an eight-rule etiquette guide for

BBS users is “[t]here aren’t many rules, so don’t break them”).


[19]    Edward J. Naughton, Note,


d_State_Action, 81 Geo. L.J. 409, 413 (1992) (“[C]omputer bulletin

boards are rapidly supplanting traditional media as the least expensive

and most effective means of communicating to a large audience.”)

(footnote omitted).


[20]    The electronic network Internet provided the quickest and most

reliable source of news information during the Tiananmen Square

demonstrations of 1989 and the Russian coup attempt of 1991.  See Rose &

Wallace, supra note 1, at 2; see_also Gladys D. Ganley,

Power_to_the_People_via_Personal_Electronic_Media, Wash. Q., Spring

1991, at 5, 10-12 (describing the various ways the Chinese protesters

used computer technology).  During the 1994 Northridge earthquake,

electronic communication played a pivotal role in disseminating news,

allowing friends and relatives to bypass the telephone system to reach

loved ones, and  providing solace to isolated and distressed residents.

Miles Corwin, Many_Find_Comfort_and_Help_On-Line, L.A. Times, Jan. 21,

1994, at A3.  Some users use BBSs as a way to bypass the “media

filters.” Greme Browning, Hot-Wiring_Washington, 25 Nat’l J. 1624



[21]    See Garramone et al., supra note 17, at 326; Lawrence J. Magid,

White_House_is_Definitely_Plugged_in, L.A. Times, Mar. 19, 1993, at D3

(describing how the White House and Congress can be reached through

electronic mail and how constituents can increase their political

involvement and awareness through electronic resources); Pitta, supra

note 18, at 132 (explaining that many of the messages U.S.

Representative Mel Levine received on Santa Monica’s public electronic

network were from constituents who would not otherwise participate in

the political process).


[22]    See Garramone et al., supra note 17, at 326; see_also Katsh,

The_First_Amendment_and_Technological_Change, supra note 18, at 1482-83

(noting that BBSs allow for more rapid expression of political

grievances and concerns); Browning, supra note 20, at 1624 (“Computer-

to-computer communications . . . are revolutionizing the way Americans

interact with their government.”); Mitchell Kapor,


Sci. Am., Sept. 1991, at 158, 160 (“[C]omputer-based bulletin boards and

conferencing systems support some of the most vigorous exercise of the

First Amendment freedoms of expression and association that this country

has ever seen.”).


[23]    Lasden, supra note 16, at 37; see_also Howard Rheingold,

The_Great_Equalizer, Whole Earth Rev., Summer 1991, at 5, 9.


[24]    For example, in 1984, sysop Thomas Tcimpidis was arrested because

a user had posted stolen telephone credit card numbers on Tcimpidis’s

BBS without his knowledge.  Lynn Becker,


ry, 13 Fordham Urb. L.J. 801, 801-06 (1985) [hereinafter Becker,

Electronic_Publishing]; Kim Uyehara,

Computer_Bulletin_Boards:__Let_the_Operator_Beware, Student Law., Apr.

1986, at 28, 30.  Telephone credit cards have played a significant role

in BBSs because users must pay toll charges for the time they are logged

on to the BBS.  See Beall, supra note 13, at 501; cf. Berck, supra note

10, at 12 (noting that at least one telephone company includes a list of

BBSs in its phone bills as a way of encouraging use and generating

additional revenue).  As a result, some users have sought ways to avoid

paying telephone charges while accessing BBSs nationwide.  See_generally

Soma et al., supra note 10, at 573-74 (describing some of the ways that

“phreakers,” people who play with the telephone system, attempt to avoid

long-distance telephone charges).


Congress responded with 18 U.S.C. S. 1029 (1988), making it a

misdemeanor to transfer computer passwords to another with the intent to

defraud.  Some states have similar prohibitions. See, e.g., Cal. Penal

Code S. 484j (West 1988) (prohibiting “publishing” access numbers,

computer passwords, and bank account numbers with the intent to defraud

on BBSs).  See_generally Rose & Wallace, supra note 1, at 285-89

(listing state computer crime laws); Michael P. Dierks,

Computer_Network_Abuse, 6 Harv. J.L. & Tech. 307, 324 n.64 (1993)

(enumerating state computer abuse statutes); Soma et al., supra note 10

(analyzing direct and indirect state regulation of computer crime);

Michael T. Friedman, Comment,


erstate_Commerce:__How_Well_Do_Our_Present_Laws_Address_the_Issue?, 4

Software L.J. 529, 553 n.143 (1991) (listing state computer crime laws);

Note, Addressing_the_New_Hazards_of_the_High_Technology_Workplace, 104

Harv. L. Rev. 1898, 1899-1902 (1991) (outlining some of the issues and

history of computer crime legislation).


[25]    See Lasden, supra note 16, at 42 (suggesting that, in 1983, almost

half of the BBSs traded “pirated” copyrighted software).


[26]    For example, Medphone Corp. sued Peter DeNigris for defamation and

securities fraud because DeNigris made comments on Prodigy’s Money Talk

discussion forum that allegedly drove down the price of Medphone’s

stock.  Amy Harmon, New_Legal_Frontier:__Cyberspace, L.A. Times, Mar.

19, 1993, at A1 [hereinafter Harmon, New_Legal_Frontier].  See_generally

Mike Godwin, What’s_Important_About_the_Medphone_Libel_Case?, EFFector

Online (Electronic Frontier Foundation, Washington, D.C.), Apr. 2, 1993,

available_in Internet via gopher,  The Medphone case was

ultimately settled for one dollar.  Fred Vogelstein,

Computer_Bulletin_Board_Libel_Suit_Settled_for_$1, L.A. Times, Dec. 28,

1993, at D7.


[27]    In 1991, an America Online user complained that he received

digitized photos of child pornography sent to his private electronic

mailbox.  Jim Doyle,


lectronic_Mail, S.F. Chron., Dec. 5, 1991, at A23.  America Online said

that, because the photos were transmitted as a private communication, it

had no knowledge of the transmissions.  Id.


In 1989, the San Jose police and the FBI arrested two men who used

BBSs to find a 12 year old boy whom they planned to rape and then murder

on videotape.  Robert L. Jackson,


rcover, L.A. Times, Oct. 1, 1989, at A20, A20-A21; see United States v.

DePew, 751 F. Supp. 1195, 1195-98 (E.D. Va. 1990) (describing some of

the conversations between the agents and the defendants).


[28]    In 1988, Stanford University cancelled its subscription to a

USENET discussion forum that contained racist jokes.  After a computer

science professor made the forum available on his own computer, the

University changed its decision.  See W. John Moore, Taming_Cyberspace,

24 Nat’l J. 745, 748 (1992) [hereinafter Moore, Taming_Cyberspace];

see_also Bill Workman, Unplugging_Racist_Jokes_Starts_Furor_at_Stanford,

S.F. Chron., Feb. 1, 1989, at A4.


In 1991, the Anti-Defamation League of B’nai B’rith criticized

Prodigy for allowing anti-Semitic messages to be sent on the system.  It

was later shown that the worst messages had been sent as private

electronic mail, which Prodigy transmits without reading, and Prodigy’s

censors had repeatedly rejected these messages for public posting as

offensive.  Barnaby J. Feder,

Towards_Defining_Free_Speech_in_the_Computer_Age, N.Y. Times, Nov. 3,

1991, S. 4, at 5.  See_generally Edward V. Di Lello,


ter_Bulletin_Boards, 26 Colum. J.L. & Soc. Probs. 199, 208 (1993)

(describing the incident); Naughton, supra note 19, at 411 (also

describing the incident).


[29]    The Aryan Brotherhood Youth Movement reportedly used the Liberty

BBS network to compile a list of homosexuals as potential targets of

hate crimes.  Jackson, supra note 27, at A20.


[30]    Playboy magazine was granted summary judgment against George

Frena, sysop of the Techs Warehouse Board, for copyright infringement,

trademark infringement, and Lanham Act violations because users had

digitized and uploaded 170 photographs from Playboy.  Playboy Enters.,

Inc. v. Frena, No. 93-489-CIV-J-20, 1993 WL 522892 (M.D. Fla. Dec. 9,

1993).  See_also Rick Karlin,


nder_Siege_by_the_Government, Times Union, June 2, 1991, at T6 (fearing

copyright infringement, Rensselaer Polytechnic Institute officials

stopped subscribing to an electronic forum that contained digitized

photographs from Playboy and Sports_Illustrated).  See_generally Charles



rds, 15 Rutgers Computer & Tech. L.J. 265 (1989); Benjamin R. Seecof,


Processing_Poses_a_Present_Threat, 5 High Tech. L.J. 371 (1990).


[31]    The 1990 raid of Steve Jackson Games, Inc. is a well-known example

of government’s aggressive approach.  In response to their belief that a

company employee was a hacker who kept his documents on the company BBS,

Secret Service agents seized the company’s computer, files, and disks

that were being used to write a role playing game.  Michael Alexander,

Suit_Seeks_to_Define_User_Rights, Computerworld, May 6, 1991, at 1, 4.

See_generally John Perry Barlow, Crime_and_Puzzlement, Whole Earth Rev.,

Fall 1990, at 44, 51-52 (describing the story); Kapor, supra note 22, at

158-60 (enumerating the errors made by the Secret Service in dealing

with Steve Jackson).  As a result of the seizure, the company lost

$125,000 in revenue, had to lay off eight employees, and delayed

publication of a book for six weeks.  Alexander, supra, at 4.

Admonishing the Secret Service for its “sloppiness,” a federal district

court judge awarded Steve Jackson Games $8781 in expenses and $42,259 in

lost revenue under the Privacy Protection Act, and $1000 per plaintiff

under the Electronic Communications Privacy Act.  Steve Jackson Games,

Inc. v. Secret Serv., 816 F. Supp. 432 (W.D. Tex. 1993).


Another prominent incident involved Craig Neidorf, who distributed

an electronic newsletter called Phrack over his BBS.  Government

officials prosecuted Neidorf for publishing in Phrack a telephone

company document regarding the emergency 911 system that,  allegedly,

had been stolen.  See, e.g., United States v. Riggs, 743 F. Supp. 556,

558-59 (N.D. Ill. 1990); United States v. Riggs, 739 F. Supp. 414,

416-18 (N.D. Ill. 1990).  The case was dropped when evidence was

introduced that the same document, allegedly worth $79,449, was publicly

available for sale for $13.  Joshua Quittner,


_on_Hackers, Newsday, Sept. 4, 1990, Discovery, at 1.  See_generally

Barlow, supra, at 49-51.


[32]    See, e.g., Jim Sulski,

Crackdown_on_Crime_is_Raising_Question_of_Computer_Rights, Chi. Trib.,

Nov. 18, 1990, at C17.  See_generally Barlow, supra note 31, at 48-52

(describing Operation Sun Devil, in particular how police used tactics

such as forcible entry with guns drawn in situations which seemingly did

not require such shows of force).


[33]    The incident began when Prodigy instituted a charge (in addition

to its regular monthly fee) of 25 cents for every electronic letter over

30 per month.  Marianne Taylor,

Users_Say_Computer_Network_is_Muzzling_Their_Give-and-Take, Chi. Trib.,

Jan. 7, 1991, at C1.  Prodigy stated its actions were based on the fact

that its e-mail volume was increasing by 20% each_month.  John Markoff,

Home-Computer_Network_Criticized_for_Limiting_Users, N.Y. Times, Nov.

27, 1990, at D1, D5 [hereinafter Markoff, Home-Computer_Network].

Outraged users sent electronic complaint letters to other users and to

the companies that advertised on Prodigy. Prodigy responded by

cancelling the subscriptions of 12 of the worst complainers, although

after intervention by the ACLU, these subscribers were invited back as

long as they agreed to some guidelines.  Michael R. Zimmerman,

Prodigy_Offers_Olive_Branch,_of_Sorts,_to_Protesting_Users, PC Week,

Dec. 3, 1990, at 13.  See_generally Di Lello, supra note 28, at 207-08

(describing the incident).

[34]    In a letter to the New_York_Times, Prodigy’s director of market

programs and communications gave some examples of submissions that

Prodigy chose not to publish:


`I’m thinking of killing myself.  Which is less painful:  hanging or

slashing my wrists?’

`My neighbor, William, embezzled $10,000 from his company and is still

stealing to this day.’

`Little girls in tight jeans and T-shirts are a real turn-on to guys

like me.  Write to me at P.O. Box . . . .’

`Here’s how to avoid paying for HBO:  Climb the telephone pole outside

your house and . . . .’

`You can’t get pregnant if you don’t have an orgasm.’


Geoffrey Moore, The_1st_Amendment_is_Safe_at_Prodigy, N.Y. Times, Dec.

16, 1990, S. 3, at 13 [hereinafter Moore, 1st_Amendment].


While Prodigy’s decision not to publish those submissions may not

be especially controversial, Prodigy came under fire for cancelling the

“Health Spa” discussion forum in 1989, which began as a forum for

discussing gay sexual practices but developed into a heated debate

between religious fundamentalists and gays.  See Moore,

Taming_Cyberspace, supra note 28, at 748.  Users have also complained

about Prodigy’s refusal to post messages using the term “death

certificate” or questioning the Catholic church’s stand on birth control

in the context of a debate about abortion.  Chris Reidy,

Computer_Flap:__Is_Speech_Free_on_Prodigy?, Boston Globe, Jan. 30, 1991,

at 35.  Apparently, fewer users were upset when Prodigy cancelled its

“Frank Discussion” forum, which was intended to support discussion on

alternative lifestyles but occasionally degenerated into explicit and

scatological discussions that some users found offensive.  See

Sex_Talk_Prompts_Prodigy_to_Shutter_Bulletin_Board, Chi. Trib., Feb. 1,

1993, at C2.

Although the controversy surrounding Prodigy has received the most

attention, Prodigy is only one of many entities that have privately

censored user transmissions.  For example, some Canadian universities

cancelled access to Internet forums such as “sex.bestiality,”

“sex.torture,” and “sex.bondage,” which often supported academic

discussions but occasionally degenerated into more graphic discussions.

Bulkeley, supra note 16, at B6.


In a different type of private censorship, an academician,

frustrated with anonymous abusive messages on the USENET BBS, developed

and briefly utilized a computer program that effectively killed any

anonymously posted messages.  David L. Wilson,


Chron. Higher Educ., May 12, 1993, at A21.  Anonymous messages are

disfavored on USENET because normally the freely functioning market

responds to unpopular messages by flooding the sender’s mailbox with

disapproving messages, which cannot be done if the sender is anonymous.

Id. at A21, A25. On the other hand, killing the messages, so that no one

may see them, also distorts the free marketplace of ideas.  However,

this does not stop users from deploying “bozo filters,” also known as

the command “kill-file,” which allows users to instruct the computer not

to receive messages from individually specified users.  Id. at A25.


[35]    For further discussion of the policy considerations in the BBS

industry, see infra part III.C.


[36]    Laurence Tribe,


rontier, Humanist, Sept.-Oct. 1991, at 15 [hereinafter Tribe,



[37]    Id.


[38]    See Anne W. Branscomb, Common_Law_for_the_Electronic_Frontier,

Sci. Am., Sept. 1991, at 154, 158; see_also Lance Rose,

The_Boy_Who_Cried_Wolfenstein, Boardwatch Mag., Sept. 1992 (describing

how CompuServe and other United States BBSs removed a game containing

Nazi imagery for fear that German residents would obtain a copy in

violation of German laws);


Vancouver Sun, Sept. 12, 1992, at A4 (reporting that Canadian officials

are having difficulty enforcing a law against material depicting child

pornography, sexual violence, or sexual degradation because much of this

material is digitized in the United States and sent electronically to

Canadian BBSs).  See_generally Di Lello, supra note 28, at 234-39

(analyzing choice of law issues in a hypothetical class action suit

against Prodigy); John D. Faucher, Comment,


oard_Defamation_Cases, 26 U.C. Davis L. Rev. 1045 (1993) (analyzing

different choice of law models as applied in cyberspace).


[39]    One commentator has estimated, perhaps hyperbolically, that the

United States will have one million BBSs by the year 2000.  See Becker,

PC Communications, supra note 3, at 341. In any case, at some point the

ubiquity and importance of computer-based communication may radically

alter current communication dynamics.  See Michael L. Taviss, Editorial



tronic_Forum, 60 U. Cin. L. Rev. 757, 788-89 (1992) (suggesting that

BBSs may play a “major, if not decisive, role in disseminating

expression” and could make alternative modes of communication “scarce or

impractical”); O’Harrow, supra note 17, at B1 (“`Things are now reaching

a threshold . . . [BBSs are] being positioned, I guess, to permeate

every part of society.'”) (quoting Fred Wood of the Office of Technology

Assessment); see_also infra part V.


[40]    See Taviss, supra note 39, at 760 n.22; see_also Carla

Lazzareschi, The_Rights_of_Computer_Users, L.A. Times, Aug. 26, 1990, at

D9 [hereinafter Lazzareschi, Computer_Users] (interview with Mitch

Kapor, founder of the Electronic Frontier Foundation).


[41]    See Pool, supra note 18, at 7 (noting the inherent difficulties of

analogizing new technology to existing legal precedents); Laurence H.

Tribe, American Constitutional Law 1007 (2d ed. 1988) [hereinafter

Tribe, American Constitutional Law] (“The rate of technological change

has outstripped the ability of the law, lurching from one precedent to

another, to address new realities.”).


[42]    See Katsh, The_First_Amendment_and_Technological_Change, supra

note 18, at 1480-81 (explaining how electronic information processing

has blurred the traditional lines between First Amendment “boxes”);

McDaniel, supra note 7, at 784 (“Videotext is many types of services

bundled together.”); cf. Kevin M. Savetz, Plug_in,_Log_on,_Tune_in,

Microtimes, May 31, 1993, at 154 (describing the distribution of an

electronic talk “radio” program, complete with advertising sponsors,

through the Internet).


As a result, BBS technology may transcend the trifurcation and

warrant a new legal approach.  See Taviss, supra note 39, at 789

(“Eventually, computer-based expression may require a . . . drastic

break with First Amendment tradition, and the courts and legislatures

may have to craft completely new laws to protect it.”) (footnote

omitted); Tribe, The_Constitution_in_Cyberspace, supra note 36, at 17

(“The Constitution’s architecture can easily come to seem quaintly

irrelevantÑor at least impossible to take very seriouslyÑin the world as

reconstituted by the microchip.”).


[43]    To illustrate the adequacy of existing law if interpreted

correctly, Laurence Tribe has proposed a Twenty-Seventh Amendment:


This Constitution’s protections for the freedoms of speech, press,

petition, and assembly, and its protection against unreasonable searches

and seizures and the deprivation of life, liberty, or property without

due process of law, shall be construed as fully applicable without

regard to the technological method or medium through which information

content is generated, stored, altered, transmitted, or controlled.


Tribe, The_Constitution_in_Cyberspace, supra note 36, at 39; see

Freedom_and_the_New_Age, supra note 15, at B4 (“The Constitution

protects electronic words as much as spoken or written ones . . . .

Whatever is legal to publish on paper should also be legal to publish

electronically.”); see_also Pool, supra note 18, at 246; McDaniel, supra

note 7.  See_generally Jim Warren,

Guaranteeing_Constitutional_Freedoms_into_the_21st_Century, Microtimes,

Mar. 2, 1992, at 26, 26 (suggesting applications of Tribe’s proposed

amendment in various legal situations).


[44]    This law-by-analogy approach is not new.  See Pool, supra note 18,

at 103 (noting how courts applied the law of railroads to telegraphy

because telegraphy was seen as the successor to railroads and the law of

telegraphy was applied to telephones for the same reason).


[45]    See, e.g., David J. Loundy, E-


erator_Liability, 3 Alb. L.J. Sci. & Tech. 79, 89 (1993) (“[W]hen a

service has a number of communication options . . . one analogy is

insufficient.”);  Don Oldenburg, The_Law:__Lost_in_Cyberspace, Wash.

Post, Oct. 1, 1991, at E5 [hereinafter Oldenburg, The_Law] (“A lot of

metaphors have been thrown around, all of which raise interesting legal

thoughts . . . .  But no one metaphor covers the whole territory.”)

(quoting Lance Rose).


[46]    See, e.g., Kapor, supra note 22, at 162.


[47]    See Becker, Bulletin_Board_Operators, supra note 5, at 206 (“[I]t

is a mistake to turn the legal rules on whether or not an entity is

called a computer bulletin board . . . .  We should not be misled by a

label into thinking that all communication through computer bulletin

boards is the same.”); Ethan Katsh,

Law_in_a_Digital_World:__Computer_Networks_and_Cyberspace, 38 Vill. L.

Rev. 403 (1993) [hereinafter Katsh, Law_in_a_Digital_World] (noting how

the terms used for analogies often seem antiquated as the technology

evolves); Naughton, supra note 19, at 412-13 (focusing only on the

public messaging function “[i]n order to offer a coherent analogy”);

Anthony J. Sassan, Note, Cubby, Inc. v. CompuServe, Inc.:

Comparing_Apples_to_Oranges:__The_Need_for_a_New_Media_Classification, 5

Software L.J. 821, 833 (1992); cf. Mark S. Nadel,


munications_Media, 43 Fed. Comm. L.J. 157 (1991) (arguing for new access

rules that are based on the economic accessibility of the media rather

than on “historical categories”).


[48]    One distinction is whether the BBS is owned and operated by public

or private entities. See infra part II.A.


[49]    See infra part II.B.


[50]    Uses include posting public messages, sending private e-mail, and

accessing information databases.  See infra part II.C.


[51]    Becker, PC Communications, supra note 3, at 259.


[52]    Growth_Off_for_On-Line_Services, Wash. Post, Sept. 27, 1993, at

F17 [hereinafter Growth_Off].


[53]    Prodigy claims to be the “Disney Channel” of BBSs.  Moore,

1st_Amendment, supra note 34, at 13.


[54]    Because Prodigy receives 175,000 postings a day, it has an

automated screening process. Harmon, New_Legal_Frontier, supra note 26,

at A24.  First, Prodigy’s computer scans each message for any of several

dozen obscene or offensive words or phrases, and then Prodigy’s

screeners review flagged messages.  Sandra Sugawara,

Computer_Networks_and_the_First_Amendment, Wash. Post, Oct. 26, 1991, at

A12.  The subjectivity of this process is reflected in the fact that at

least one user would resubmit rejected messages until they were accepted

by Prodigy.  Adam Gaffin, Prodigy:__Where_Is_It_Going?, 1991,

available_in Internet via gopher,


Because uploaded software is even more difficult to screen,

Prodigy does not allow users to exchange software.  See Becker, PC

Communications, supra note 3, at 201.


[55]    Becker, PC Communications, supra note 3, at 201; see infra note

102.  Prodigy takes a 10% commission on every purchase made through the

system.  Censor_Nonsense, Economist, Dec. 1, 1990, at 24.


[56]    GEnie is owned by General Electric Information Services and has

400,000 subscribers. See Laurie Flynn, Solving_the_On-Linear_Equation,

San Jose Mercury News, Jan. 17, 1993, at 1F.


[57]    America Online has approximately 350,000 subscribers.  Growth_Off,

supra note 52, at F17.  America Online is publicly held, although the

Chicago Tribune owns 11% of the outstanding stock.  Mark Potts,


mputer_Users, Wash. Post, July 27, 1992, at F1.


[58]    Growth_Off, supra note 52, at F17.


[59]    CompuServe was founded in 1979.  Flynn, supra note 56, at 1F.

CompuServe is owned by H&R Block Inc.  Potts, supra note 57, at F1.


[60]    In comparing commercial BBSs, users must evaluate a complicated

fee structure.  There are at least six types of fees:  set-up charges,

monthly fees, hourly connect time charges based on the service accessed

or the time of day, user volume charges, hourly charges based on the

speed of the user’s modem, and hourly communications surcharges based on

long distance telephone access.  The lack of standardized pricing makes

cost comparison between BBSs very difficult.  See_generally Amy Harmon,

Price_War_Erupts_Among_On-Line_Computer_Services, L.A. Times, Apr. 21,

1993, at D1 [hereinafter Harmon, Price_War] (describing recent changes

in national BBS pricing structures).


[61]    Regional commercial BBSs charge annual fees of $15 or more.

Berck, supra note 10, at 12.  The term “regional” is a partial misnomer

since these BBSs can have a national user base.  However, it suggests

the smaller scale of these BBSs.


[62]    Id; see_also

A_`Poor_Man’s_CompuServe’_Can_Put_Cash_in_Your_Pocket, PC/Computing,

Mar. 1991, at 286.


[63]    Jacques Leslie, Hacking_Away_at_a_’Virtual_Vacation’, L.A. Times,

Dec. 6, 1992, at L5, L20; see, e.g., Amy Harmon, For_GenX,_the Angst

is_On-Line, L.A. Times, Apr. 28, 1993, at A1 (describing the phenomenon

of the post-Baby Boomers, labeled Generation X, as reflected in the

culture and communication dynamics on the WELL’s “Generation X”

discussion forum).


[64]    The exact percentage is hard to pin down.  Compare Berck, supra

note 10, at 12 (over one-third of all BBSs do not charge an access fee)

with Becker, Bulletin_Board_Operators, supra note 5, at 227 n.119 (in

1989, “the majority of bulletin boards [were] not commercial

operations”) and Feder, supra note 28, at 5 (in 1991, 90% of BBSs were

not commercial).  Free BBSs are also occasionally referred to as “hobby

BBSs.”  See Becker, PC Communications, supra note 3, at 325.


[65]    See For_Every_Taste, supra note 18, at 59 (explaining that Tom

Mack, sysop for the Second Ring BBS, runs the BBS as a public service

because he feels he should “give something back for all the things I’ve



Some non-profit entities establish free BBSs to extend their reach

into the community. Steve Snow, Join_the_Community, San Jose Mercury

News, June 20, 1993, at 1F.  One of these BBSs, the Cleveland Free-Net,

has 30,000 users and costs the sponsoring organizations upwards of

$100,000 to start and $100,000 annually to maintain.  Id. at 5F.


[66]    See Taviss, supra note 39, at 766 (explaining how sysops normally

set up BBSs related to their interests).


[67]    See Rose & Wallace, supra note 1, at 91 (explaining sysops may

start a BBS because they want to interact regularly with people);

Arnold, supra note 1, at 3D (describing the Kendall BBS, operated by an

auto mechanic and his wife because running the board is “a lot of fun”).

[68]    Some BBSs have both public and private sections; general users may

have limited access to BBS functions, while users known to the sysop

will be given additional access.  Jensen, supra note 18, at 221; see

Manuel Schiffres, The_Shadowy_World_of_Computer_`Hackers’, U.S. News &

World Rep., June 3, 1985, at 58, 59 (describing the private Off the Wall

BBS, where the first level contains innocuous material, the second level

supports discussions on software trading and X-rated material, and the

final level provides illegal passwords and access codes).  See_generally

Soma et al., supra note 10, at 572 n.3 (explaining that it is difficult

to obtain an accurate count of the number of BBSs, since many are



[69]    For example, Blue Cross and Blue Shield use a BBS to collect,

process, and submit Medicaid claims to the government.  Berck, supra

note 10, at 12.  Nikon Precision Inc. uses a BBS to transmit information

between corporate headquarters and 12 satellite offices, id., while some

franchising companies use BBSs to collect information from franchise

locations and to manage inventory and resources.  Becker, PC

Communications, supra note 3, at 75.  Argus Chemical uses the Internet

instead of Federal Express to distribute research reports company-wide,

while Unocal disseminates maps and land surveys to all of its

international offices through the Internet.  Carla Lazzareschi,

Wired:__Businesses_Create_Cyberspace_Land_Rush_on_the_Internet, L.A.

Times, Aug. 22, 1993, at D1 [hereinafter Lazzareschi, Wired].


[70]    Berck, supra note 10, at 12; see John Eckhouse,

Internet:__The_Information_Superhighway_Goes_Commercial, S.F. Chron.,

June 1, 1993, at C1, C7 (explaining how Apple Computer provides

technical support over the Internet); Chris Oakes,


ou, Computer Currents, July 20, 1993, at 30, 33 (describing that many

companies now provide product support through the Internet).


[71]    James Evans, Practicing_Law_on_America’s_Electronic_Highways, S.F.

Daily J., JuneÊ2, 1993, at 1, 8; Jim Meyer,

Let_Your_Fingers_Do_the_Talking, A.B.A. J., Sept. 1993, at 106.


[72]    See Paul McCarthy,

Going_Once:__Computer_Technology_Puts_Art_on_the_Auction_Block, Omni,

Sept. 1993, at 18 (observing how art buyers can now purchase art on

various BBSs); Thomas A. Stewart, Boom_Time_on_the_New_Frontier,

Fortune, Autumn 1993, at 153 (describing how a New York-based medical

products company used a BBS to find a Chinese supplier).


[73]    See, e.g., 22 U.S.C. S. 5511 (Supp. II 1990) (directing the

Secretary of State to establish a BBS to make information contained in

the Bureau of Diplomatic Security’s Overseas Security BBS available to

the public); 35 U.S.C. S. 41(i)(2) (Supp. IV 1992) (requiring the Patent

and Trademark Office to use a BBS to allow for public searches);

O’Harrow, supra note 17, at B1 (noting that federal BBS topics include

entry-level jobs and space shuttle flights);

U.S._Agency_Made_Computer_Virus_Programs_Available_to_Public, San Jose

Mercury News, June 19, 1993, at 10D (describing how a Treasury

Department BBS made the source code for viruses and hackers tools

available to the public).  To facilitate access to the various federal

BBSs, a unit of the Commerce Department sponsors the FedWorld Gateway, a

gateway to over 100 different federal BBSs.  Browning, supra note 20, at



[74]    See, e.g., Iowa Code S. 159.37 (1990) (establishing a BBS to make


market in specialty grains, by allowing buyers and sellers to post their

requirements); Mont. Code Ann. S.2-17-322 (1992) (using a BBS to

facilitate citizen access by distributing information from state

agencies).  California recently passed legislation to make extensive

legislative materials available on-line free of charge.  Jim Warren,


Law, Microtimes, Nov. 1, 1993, at 27.


[75]    Pitta, supra note 18, at 132.  This public electronic network has

300 topics, not limited to political discussions, and residents without

computers can access a public computer terminal at the county library.

Id.  PEN is an active BBS that receives approximately 7000 calls per

month.  Pancho Doll,


ion_of_County_Users, L.A. Times, Sept. 30, 1993, Ventura West edition,

at J6 (comparing response to Ojai’s community BBS, which received only

288 calls in its first year.)  In Fairfax County, Virginia, elementary

school principals communicate using a BBS.  O’Harrow, supra note 17, at

B1.  See generally Tom Abate, Bay_Area_Cities_Going_On-


Tech_Phone_Systems_Keep_Government_Open_24_Hours_a_Day, S.F. Examiner,

Nov. 7, 1993, at B1 (describing the numerous efforts by Bay Area cities

to establish BBSs or on-line access).


[76]    For example, the University of Tennessee, Knoxville, supports the

Health & Safety Systems BBS, which distributes health information.

Becker, Bulletin_Board_Operators, supra note 5, at 208 n.23.


[77]    One of the advantages of a network like the Internet is that users

can communicate nationwide and internationally without incurring long

distance telephone charges.  Berck, supra note 10, at 12.


[78]    Internet connects over 12,000 stand-alone computer networks.

Lazzareschi, Wired, supra note 69, at D2.


[79]    Carol Tenopir, Online_Searching_with_Internet, Libr. J., Dec.

1992, at 102.


[80]    Oakes, supra note 70, at 30.


[81]    John Markoff, Thing;_The_Internet, N.Y. Times, Sept. 5, 1993, S.9,

at 11; see Jim Warren, The_Online_Presidential_Debate, Microtimes, July

20, 1992, at 30 (estimating that the USENET BBS, carried over the

Internet, has one to three million users).


[82]    See Tenopir, supra note 79, at 102, 104.


[83]    BITNET connects 2500 campus-based networks.  Becker, PC

Communications, supra note 3, at 367.


[84]    See id. at 367-68, 370-71 (explaining that FidoNet has 500,000

users worldwide and carries three megabytes of information a day);

see_also Balas, supra note 9, at 26 (describing the history of FidoNet

and Echomail); Alex Barnum,


etwork”, San Jose Mercury News, Oct. 4, 1987, at 1F; Ric Manning,


re, PC Week, Sept. 29, 1987, at C22 (describing the use of

Fido-compatible BBS software for the National Park Service’s BBS for the

Western region).


[85]    See The High-Performance Computing Act of 1991, 15 U.S.C. S.S.

5501-5528 (Supp. III 1991).


[86]    See_generally Becker, PC Communications, supra note 3, at 341-60;

Rose & Wallace, supra note 1, at 17-23.


[87]    See_generally Becker, PC Communications, supra note 3, at 333.


[88]    David R. Johnson & Kevin A. Marks,


hould_We_Let_Our_Conscience_(and_Our_Contracts)_Be_Our_Guide? 38 Vill.

L. Rev. 487, 511-12 (1993) (“[A] sysop can, in general, first decide how

he or she wants the electronic `space’ to be configured . . . .”).


[89]    One commentator suggested that all sysops have the following

characteristics:  (1) they invest time and money to establish the BBS,

(2) they set up the BBS but otherwise do not participate in the

information exchange between members, and (3) they do not know who the

members are.  See Beall, supra note 13, at 512; see_also McDaniel, supra

note 7 (developing rules to apply generically to all BBSs).


These stereotypes are not necessarily accurate.  Some sysops set

up their BBS so that they can interact with other users, see supra notes

66-67, and systems like Prodigy interact with every user on every

message through their screening mechanism.  See supra note 54.  Also,

most BBSs no longer accept anonymous users.  See supra note 16.

Therefore, the variability of sysop behavior poses some problems when

rigid rules are intended to apply to all sysops.


[90]    See Cutrera, Computer_Networks, supra note 16, at 569.


[91]    See infra part IV.B.


[92]    See T.R. Reid,


ittle-Regulated, Wash. Post, July 19, 1985, at A4 [hereinafter Reid,

Nation’s_Bulletin_Board].  For example, CompuServe discussion forums

include:  “aquaria/fish,” “astronomy,” “cancer,” “comic book,”

“disabilities,” “food/wine,” “gardening,” “human sexuality,” “model

aviation,” “new age,” “pets,” “photography,” “religion,” and “science

fiction.”  CompuServe: The Information Service You Won’t Outgrow (1992)

[hereinafter CompuServe Brochure].  However, the topics available are

practically unlimited. For example, in response to the USENET user who

created the program that kills anonymous messages, see supra note 34,

critics created a mocking USENET forum entitled “”

which soon supported heavy traffic of angry and expletive-laced

postings.  Wilson, supra note 34, at A25.

[93]    CompuServe Brochure, supra note 92.  Most national BBSs now

support some level of Internet access.  Oakes, supra note 70, at 30.


[94]    For example, in response to what was considered onerous screening

in Prodigy discussion forums, users created mailing lists that had up to

1500 readers and were distributed regularly. Gaffin, supra note 54.


[95]    Unmoderated list servers automatically forward messages sent to

the server to a mailing list created either by an individual or

subscribed to by interested parties.  In many ways, the mechanics of an

unmoderated list server resemble gateways.  See infra part II.C.3.


[96]    The differences between public message posting, electronic mail,

and real-time conferencing may blur as the technology evolves.  Becker,

PC Communications, supra noteÊ3, at 185.


[97]    For example, CompuServe’s CB Simulator has a communication dynamic

similar to that on citizens’ band radios.  See Becker,

Bulletin_Board_Operators, supra note 5, at 212.  Another analogy is

“900” telephone party lines, where people call in and converse while

everyone else listens.


The different applications of real-time conferencing can be seen

by comparing the formality of GEnie’s Real-Time Conferencing system,

where users can send scrambled messages, kill the statements of

troublesome users, identify the real names of users, and see who is in

other private conferences, with GEnie’s more casual LiveWire Chatlines,

where users adopt a “handle” (pseudonym) to conceal their true

identities and choose from 40 different channels. See Becker, PC

Communications, supra note 3, at 310-11.


[98]    Becker, Bulletin_Board_Operators, supra note 5, at 212.  MENSA,

the national high IQ society, has on-line meetings on CompuServe.

CompuServe Brochure, supra note 92.


[99]    See Becker, PC Communications, supra note 3, at 308-09 (explaining

that GEnie’s real-time conferences have leaders who can deny access to

users, eject users from the conference, and require speakers to be

recognized before they are allowed to post messages).

[100]   Becker, Bulletin_Board_Operators, supra note 5, at 212 n.38.


[101]   See Becker, PC Communications, supra note 3, at 143.  On Prodigy,

interactive games include GUTS, a nationwide trivia contest, and CEO, a

simulation where players manage their own companies in an interactive

economy.  Prodigy Brochure (1992); see Potts, supra note 57, at F1

(describing how CompuServe, Prodigy, and America Online offer

interactive baseball fantasy leagues and role-playing games).


The Internet also supports real-time communications and games.

Some of the more bizarre offerings of the Internet are multi-user

dungeons (MUDs), which attempt to create real-time virtual reality where

users assume personas and explore “rooms” through a progressive series

of questions and answers.  See Ellen Germain, In_the_Jungle_of_MUD,

Time, Sept. 13, 1993, at 61; Oakes, supra note 70, at 33.


[102]   Advertising occupies approximately one quarter of each screen.

Reidy, supra note 34, at 35.  The advertising is interspersed with

substantive text, much like print media mixes text and advertising on

the same page or television commercials interrupt a television show.

When users ask for more information about an advertised product, the

advertiser pays a fee to Prodigy. Markoff, Home-Computer_Network, supra

note 33, at D5.


[103]   See Barnum, supra note 84, at 1F (describing a BBS set up by a

software vendor for customer service that advertises the company’s



[104]   When acting as a conduit between the user and the retailer, the

BBS functions as a gateway.  See infra part II.C.3.


[105]   Flynn, supra note 56, at 1F.  CompuServe also has a “new car

showroom,” a classified ads section, and a discount shopping club called

“Shoppers Advantage.”  CompuServe Brochure, supra note 92.


[106]   CompuServe Brochure, supra note 92.


[107]   These include Disclosure (financial statements), FundWatch Online,

Standard & Poor’s, and Value Line.  Id.


[108]   These include AP, The_Washington_Post, Reuters, UPI, ITAR, Kyodo

News Service, Xinhua News Agency, and Deutsche Press-Agentur.  Id.


[109]   These publications include the Rumorville newsletter that was at

issue in Cubby, Inc.Êv.ÊCompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y.

1991).  See infra text accompanying notes 306-10.  CompuServe also has

its own hard copy news magazine, CompuServe_Magazine.


[110]   CompuServe Brochure, supra note 92.


[111]   Id.


[112]   These databases can include lists of other BBSs that act as

gateways for certain networks, lists of viruses, and BBS membership

lists.  Rose & Wallace, supra note 1, at 57.


[113]   Tenopir, supra note 79, at 102, 104.


[114]   “Downloading” occurs when the user copies information or software

from the BBS onto the user’s computer.


[115]   “Uploading” occurs when the user copies information or software

from the user’s computer to the BBS.


[116]   Software includes computer programs, clip art, digitized

photographs, and digitized sound.  Becker, Bulletin_Board_Operators,

supra note 5, at 212-13.


[117]   “Because shareware depends largely on [BBSs] for its distribution

and advertising, the continued growth of the BBS community will provide

a stronger and more widespread network for the distribution of archived

shareware.  Many bulletin boards boast shareware libraries that fill

several hundred megabytes of hard disk space.”  Becker, PC Communi-

cations, supra noteÊ3, at 104.


BBS etiquette dictates that users who download software should

upload software in return.  See id. at 334; cf. Becker,

Bulletin_Board_Operators, supra note 5, at 210 n.28 (describing how one

“pirate” BBS conditioned access to software on the user having

contributed pirated software).  See_generally Rose & Wallace, supra note

1, at 29 (discussing how some sysops impose upload/download ratio



[118]   Many BBSs advertise the extent of their software files.  For

example, GEnie advertises that it has three times more software

available than other major BBSs.  GEnie Brochure (1992).


[119]   “Public domain software” is software that the programmer does not

copyright and dedicates to the public domain.  “Freeware” is software

that the programmer copyrights but makes available for free.

“Shareware” is copyrighted software that the programmer makes available

without charge; those users who keep and use the software are obligated,

however, to pay the programmer for the software.  See Becker, PC

Communications, supra note 3, at 81-84.


[120]   See, e.g., Joe Abernathy,

Federal_Agents_Raid_Dorms,_Seize_Computer_Equipment, Hous. Chron., Dec.

17, 1992, at A1 (“There are a lot of underground sites on the Internet .

. .  [that] have tons of software available to download–gigabytes of

software . . . .  There’s no way that one agency or authority can go

through and try to sweep all the bad software off the Internet, because

the Internet’s too big.”) (quoting Scott Chasin, a computer security



[121]   Viruses cause the user’s computer to do something unexpected and

unwanted, ranging from the innocuous (e.g., displaying the name of the

virus’s author) to the catastrophic (e.g., erasing the entire contents

of a user’s hard disk).  See Becker, PC Communications, supra note 3, at

107-09.  See_generally Rose & Wallace, supra note 1, at 155-57

(distinguishing between viruses, trojans, worms, and time bombs).


Because BBSs historically have been a major transmitter of

viruses, many BBSs automatically scan uploaded software to detect

viruses.  Becker, PC Communications, supra note 3, at 112.


[122]   See Becker, PC Communications, supra note 3, at 169, 368.


[123]   Id. at 362.


[124]   The Internet acts as a gateway in connecting e-mail users on

different systems, but it can also provide a gateway to commercial

information databases such as Dialog.  Tenopir, supra note 79, at 102,



[125]   Commentators have also analogized BBSs to:


¡ Radio or television talk shows.  Robert Charles, Note,


at_Standard?, 2 J.L. & Tech. 121, 143-44 (1987).


¡ Corner pubs, in that BBSs tend to attract regular users who

develop their own subculture and social norms.  Michael Freitag,


N.Y. Times, Apr. 2, 1989, S. 1, at 38.  The WELL analogizes itself to a

“saloon,” with the sysop as the “barkeeper.”


tatus, Daily Rep. for Executives, Feb. 26, 1991, at A6 [hereinafter

Computer_Communications] (quoting Cliff Figallo, former director of the

WELL); see also Doll, supra note 75 (quoting a Ventura County-based

sysop who also used the bar analogy).  This analogy seems apt, given

that the SF Net has installed terminals in coffeehouses as an extension

of an on-line coffeehouse atmosphere. Katherine Bishop,

The_Electronic_Coffeehouse, N.Y. Times, Aug. 2, 1992, S. 9, at 3.


¡ “[A]n electronic version of Hyde Park’s Speakers’ Corner, `in

which anyone with information or opinions to share may publish them for

the review of his peers.'”  Freitag, supra, at 38 (quoting Tom Mack,

sysop of the Second Ring BBS).


[126]   This is important to protect both the sysops’ freedom and the

users’ right to free speech, although these rights necessarily conflict.

Cf. Henry H. Perritt, Jr.,


orks, 5 Harv. J.L. & Tech. 65, 71 (1992) [hereinafter Perritt,

Tort_Liability] (enumerating such goals as diversity of opinions, low

access barriers, and victim compensation).  Currently, the law favors

owners’ First Amendment rights and there is a danger that focusing on

sysop liability will reinforce this existing favoritism to the detriment

of the First Amendment rights of listeners or users.  See Pool, supra

note 18, at 133; Rose & Wallace, supra note 1, at 19.

[127]   For the purposes of defamation, telegraph companies are included

as secondary publishers.  See W. Page Keeton et al., Prosser and Keeton

on the Law of Torts S.113, at 811-12 (5th ed. 1984); Restatement


of Torts S. 581(1), cmt. f (1976); see_also Becker,

Bulletin_Board_Operators, supra note 5, at 214.


[128]   Other analogies also could be considered, such as enhanced service

providers (as defined by the FCC) and cablecasters, but for the relevant

analysis these other situations merge with one of the five types



[129]   See Tribe, American Constitutional Law, supra note 41, at 1004.


[130]   47 U.S.C. S. 307(c) (1988).  The power to license can take the


of content regulation.  See Pool, supra note 18, at 134-35; infra notes

148, 222 and accompanying text.


[131]   47 U.S.C. S. 310 (1988) (restricting foreigners from obtaining

broadcasting licenses); id. S. 533(a) (restricting single entities from

owning television stations and cable television systems in the same



[132]   Id. S.S. 201-224.  Pool also notes that Congress allows taxes on

phone bills but the Supreme Court prohibited an identical tax on

newspapers in Minneapolis Star & Tribune Co. v. Minnesota Commissioner

of Revenue, 460 U.S. 575 (1983).  Pool, supra note 18, at 106.


[133]   Minneapolis_Star_&_Tribune_Co., 460 U.S. 575.


[134]   Privacy Protection Act of 1980, 42 U.S.C. S. 2000aa (1988).


[135]   The Newspaper Preservation Act, 15 U.S.C. S.S. 1801-1804 (1988)

(permitting newspapers serving the same market to merge).


[136]   See Wooley v. Maynard, 430 U.S. 705, 715 (1977) (striking down New

Hampshire’s “Live Free or Die” license plate because the state had

compelled its citizens to “use their private property as a `mobile

billboard’ for the State’s ideological message”).


[137]   See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 261

(1974) (White, J., concurring) (“[G]overnment may not force a newspaper

to print copy which, in its journalistic discretion, it chooses to leave

on the newsroom floor.”).


[138]   See Pacific Gas & Elec. Co. v. Public Util. Comm’n, 475 U.S. 1

(1986) (private utility company could refuse to allow private groups

access to utility company billing statement); cf. Wooley, 430 U.S. at



[139]   See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419

(1982) (holding that a New York law requiring apartment buildings to

give access to cable companies constituted a taking).  However, the

Court may be more deferential to government-imposed burdens in

cyberspace (as opposed to takings in physical space).  Cf. Tribe,

American Constitutional Law, supra note 41, at 1008 (noting that the

Equal Opportunities Doctrine, which requires broadcasters to allow

political candidates to use the broadcasting facilities, apparently does

not raise a takings issue).


[140]   PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980).


[141]   Hudgens v. NLRB, 424 U.S. 507 (1976).  In Hudgens, the Court

rejected a First Amendment challenge to a private shopping center

owner’s restrictions on a labor union that wanted to picket a store in

the center.  Tribe argues that the Hudgens court was sympathetic to the

First Amendment interests of shopping center owners not to use their

property to support someone else’s ideology.  See Tribe, American

Constitutional Law, supra note 41, at 1000.


[142]   PruneYard, 447 U.S. 74.  The Court gave three reasons:  (1) the

states’ inability to mandate access could greatly restrain speakers’

ability to communicate their messages; (2) if the mandated access was

content-neutral, there would be no discrimination problem; and (3)

shopping centers are generally considered inherently public, so

audiences will not perceive the owner as the speaker.  Id. at 87.

See_generally Di Lello, supra note 28, at 225-26 (outlining which

states’ laws favor property owners and which states’ laws favor



[143]   Tribe, American Constitutional Law, supra note 41, at 1002 n.35.

Tribe continued: “The first amendment’s sweeping guarantees have been

most compromised in the realm of .Ê.Ê. electronic broadcasting.”  Id. at



[144]   47 U.S.C. S. 315(a) (1988).  The Equal Opportunities Doctrine also

restricts the amount that can be charged to these candidates for their

use of broadcast stations.  Id. S. 315(b).


The FCC has also applied the Fairness Doctrine, which conditioned

the renewal of licenses on discussion of issues of public concern and

fair coverage of different viewpoints.  See Philip H. Miller, Note,


Electronic_Information_Services, 61 Fordham L. Rev. 1147, 1156-57

(1993).  A First Amendment challenge to the Fairness Doctrine by

broadcasters, involving a person’s right to respond to an attack, was

rejected in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).

But_see Miller, supra, at 1157 n.67 (Fairness Doctrine abandoned).


[145]   See CBS, Inc. v. Democratic Nat’l Comm., 412 U.S. 94 (1973).


[146]   47 U.S.C. S. 312(a)(7) (1988).  The Court rejected a


challenge to the statute in CBS, Inc. v. FCC, 453 U.S. 367 (1981).


[147]   15 U.S.C. S. 1335 (1988).


[148]   In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Court

rejected a constitutional challenge to the FCC’s power, based on the

concerns that captive audiences and children would be subjected to

offensive material.

[149]   See National Ass’n of Regulatory Util. Comm’rs v. FCC, 525 F.2d

630, 641-42 (D.C. Cir.), cert._denied_sub_nom. National Ass’n of Radio

Tel. Sys. v. FCC, 425 U.S. 992 (1976) (holding that cellular telephone

systems could be considered common carriers and therefore regulated by

the FCC if they offered service to the public indiscriminately).  In

general, these rules have developed to protect the public’s expectations

and to deter monopolization.  Perritt, Tort_Liability, supra note 126,

at 77.


[150]   492 U.S. 115 (1989).


[151]   47 U.S.C. S. 223(b) (1988).


[152]   Distinguishing FCC v. Pacifica Foundation, 438 U.S. 726, and the

regulation of indecency in broadcasting, the Court noted that accessing

telephone services requires affirmative action on the part of users, so

there is not a captive audience problem.  492 U.S. at 127-28.


[153]   457 U.S. 853 (1982).


[154]   Id. at 870-72 (Brennan, J., plurality opinion).


[155]   New York Times Co. v. Sullivan, 376 U.S. 254 (1964).


[156]   Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (imposing

liability where defamatory statement created apparent substantial danger

to reputation).


[157]   472 U.S. 749 (1985).


[158]   Id. at 761 (Powell, J., plurality opinion).  The private/public

distinction is less tenable now that the type of credit information at

issue in Greenmoss_Builders is routinely made available on-line to

thousands of subscribers.  Tribe, American Constitutional Law, supra

note 41, at 1009 n.76.


[159]   472 U.S. at 773 (White, J., concurring in the judgment); accord

id. at 782 n.7 (Brennan,ÊJ., dissenting) (“[T]here has been an

increasing convergence of what might be labeled `media’ and



[160]   Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1119

(11th Cir. 1992), cert._denied, 113 S. Ct. 1028 (1993).  See generally

Brian J. Cullen, Note, Putting_a_`Chill’_on_Contract_Murder:  Braun v.

Soldier of Fortune and_Tort_Liability_for_Negligent_Publishing, 38 Vill.

L. Rev. 625 (1993).


[161]   556 F.2d 113 (2d Cir.), cert._denied, 434 U.S. 1002 (1977).


[162]   Id. at 120.  In Edwards, the New_York_Times was sued after it

reported allegedly defamatory statements.  The National Audubon Society

had challenged statistics regarding the effects of the pesticide DDT on

the bird population and said that any scientist who used the evidence to

support the continued use of DDT “is being paid to lie, or is parroting

something he knows little about.”  Id. at 118.


[163]   Becker, Electronic_Publishing, supra note 24, at 849.


[164]   Restatement (Second) of Torts S. 581 (1977); accord Keeton et al.,

supra note 127, at 812.


[165]   360 U.S. 525 (1959).  The Court’s holding apparently applies even

if the broadcaster could have used an electronic delay system.  Keeton

et al., supra note 127, at 812.


[166]   The Equal Opportunities Doctrine at issue in WDAY was similar to

47 U.S.C. S. 315(a).


[167]   360 U.S. at 531.


[168]   Restatement (Second) of Torts S. 577(2) (1976); see, e.g., Hellar

v. Bianco, 244 P.2d 757 (Cal. Ct. App. 1952).  In Hellar, the defamatory

statement involved was “ask for Isabelle” and a phone number, written on

the bathroom wall of a bar.  After a patron called the woman in

question, the woman’s husband demanded that the statement be removed,

which the bartender failed to do “after some delay.”  Id. at 758-59.

The court held that, in places of public accommodation, the landlord

must remove publicly visible defamatory statements within a reasonable

time or the landlord may be held liable for republication.  Id.; see

Restatement (Second) of Torts S. 577(2), cmt. p & illus. 15 (1976)

(noting, however, that landlords do not have a duty to police the

property or chattel).  But_see Scott v. Hull, 259 N.E.2d 160 (Ohio Ct.

App. 1970) (explaining that even if owner has notice, owner is not

liable for visible defamatory graffiti, since nonfeasance does not

create defamation liability).


Numerous commentators have tried to reconcile the conflicting

Hellar and Hull approaches.  See,_e.g., John R. Kahn,


ms_of_Proof, Feb. 1989, available_in Internet via gopher,; Loundy, supra note 45, at 146-48.


[169]   Keeton et al., supra note 127, at 811; see Restatement (Second) of

Torts S. 612 (1976).


[170]   361 U.S. 147 (1959).


[171]   Id. at 153-54.  However, by expressly limiting its holding to

strict liability in a criminal context, the Court did not preclude

criminal liability based on scienter.  Id. at 154.  Further, Smith would

not apply to a question of civil liability based on scienter.  See,

e.g., Perritt, Tort_Liability, supra note 126, at 105 (giving a

hypothetical situation in which a bookseller knew a book contained

defamatory statements, and presuming such knowledge would make the

bookseller liable as a republisher).


[172]   See Perritt, Tort_Liability, supra note 126, at 103 n.195;

McDaniel, supra note 7, at 824 (treating “contract printers” as

secondary publishers).


[173]   See Restatement (Second) of Torts S. 612(2) (1976); see_also

Charles, supra note 125, at 132 n.72 (listing cases that hold a common

carrier is not liable for defamation).


[174]   320 N.E.2d 647 (N.Y. 1974).


[175]   Charles, supra note 125, at 143.


[176]   A forum has the following elements:  “(1) a location, (2)

accessible to, (3) segments of the population, (4) where the discussion

of issues occurs.”  Taviss, supra note 39, at 760. Although BBSs lack a

physical location, id., so do public forums such as government

publications and mail systems.  Therefore, a BBS can and should be

considered a forum located in cyberspace.  See supra note 1.


[177]   Taviss, supra note 39, at 781-82.  For purposes of public forum

analysis, private actors are state actors if either the private actor

performs a public function or the state is entangled with private

actors.  Id. at 767-68 & n.69.  Taviss concludes that privately-owned

BBSs do not perform a public function because the state does not

traditionally own BBSs, id. at 770, and they will not be entangled

unless the state is extensively involved in operating the BBS or

affirmatively exercises licensing power.  Id. at 772-73.  Even if

gateways such as Internet are state actors, this is not sufficient to

entangle all communication transmitted by the gateway.  Id. at 784-85.


Taviss concludes that the increasing importance and ubiquity of

computer-based communication could eventually lead to enough

entanglement to make all BBSs state actors.  Id. at 791; accord Pool,

supra note 18, at 41; Oldenburg, The_Law, supra note 45, at E5 (quoting

Laurence Tribe).  Alternatively, Congress could convert private BBSs

into state actors using the Commerce Clause.  Taviss, supra note 39, at

792 & n.264; cf. Di Lello, supra note 28, at 241 (arguing for Congress

to enact legislation, using the Commerce Clause, to prohibit commercial

BBSs from censoring or ejecting users).  But_cf. Pool, supra note 18, at

91-92 (early regulation of telegraphy under the Commerce Clause probably

should have been subordinated to First Amendment interests).


[178]   Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,

45-46 (1983); see_also International Soc’y for Krishna Consciousness v.

Lee, 112 S. Ct. 2701 (1992) (reaffirming and applying the Perry



[179]   Perry, 460 U.S. at 45.


[180]   In some respects, BBS technology demonstrates that strict

adherence to physical-based definitions turns constitutional protections

on their head.  See supra text accompanying notes 35-38.  Because BBSs

are extremely powerful vehicles for political expression and protest,

see supra text accompanying notes 19-23, liberal access to “traditional”

public forums without concomitant liberal access to electronic media may

in time undermine the free marketplace of ideas.  Cf. Naughton, supra

note 19, at 431 (“For a substantial population, the electronic arenas of

computer networks have displaced the nation’s streets and parks as the

quintessential public fora. . . .  [C]omputer networks enable users to

disseminate their ideas to a far broader audience than any traditional

public forum.”).  Ultimately, if BBSs become a predominant communication

medium, see supra note 39, courts should reexamine the policy

considerations underlying the limiting of special legal solicitude to

“traditional” public forums.


[181]   In order for a regulation to be upheld under strict scrutiny,  the

regulation must be “necessary to serve a compelling state interest and .

. . narrowly drawn to achieve that end.” Perry, 460 U.S. at 45.


[182]   In order for a regulation to meet the intermediate scrutiny

standard, it must be “narrowly tailored to serve a significant

government interest, and leave open ample alternative channels of

communication.”  Id.


[183]   Id.


[184]   Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788,

802 (1985). Taviss argues that, especially given the courts’ deference

to free speech on campuses, courts should treat university-based BBSs

and computer systems as limited public forums, Taviss, supra note 39, at

789-90, or legislation should be passed to declare academic-based BBSs

and computer systems to be limited public forums.  Id. at 791-92.


[185]   Perry, 460 U.S. at 45-46.


[186]   Id.


[187]   Taviss, supra note 39, at 787-88.  These interactive BBSs include

Santa Monica’s PEN, id. at 788, and BBSs (such as Montana’s) that are

designed to promote constituent/public official interaction.  In

contrast, state-owned BBSs used for internal government purposes, such

as the National Park Service BBS, see supra note 84, or BBSs intended to

provide information one-way to users, should be nonpublic forums.


[188]   Perry, 460 U.S. at 46.


[189]   Id.


[190]   Charles, supra note 125, at 143.


[191]   When William Donoghue, a well-known publisher of financial

reports, disseminated outdated information on Prodigy’s Money Talk

forum, users quickly corrected the information and within a week

Donoghue acknowledged his error.  Susan Antilla,

Bill_Donoghue’s_Electronic_Tarring, N.Y. Times, Dec. 13, 1992, S. 3, at



[192]   See Naughton, supra note 19, at 429 (“A computer network has many

of the attributes of a traditional public forum.”).


[193]   For example, BBSs’ speed and low access costs allow defamed

individuals to respond immediately on the same BBS and with the same

intensity, undermining some of the underpinnings of defamation

jurisprudence.  Edward A. Cavazos, Note,


mation_Liability_for_a_New_Technology, 12 Rev. Litig. 231, 246-47

(1992); see Cutrera, Computer_Networks, supra note 16, at 570.


[194]   See William Grimes,

Computer_as_a_Cultural_Tool:__Chatter_Mounts_on_Every_Topic, N.Y. Times,

Dec. 1, 1992, at C13 (citing Nancy Baym, a doctoral student in speech



[195]   Characteristics which become irrelevant to group interaction

include race, religion, sex, age, educational status, and socioeconomic

status.  BBSs are “a medium whose characteristics champion only `pure’

messages, stripped of physical conditions.  In an electronic forum,

there can be no discrimination because factors such as race, religion,

and economic status, do not accompany the message.”  Taviss, supra note

39, at 795.  As a result, “`[t]here is no visual content, no hearing of

accents.  People are judged on the content of what they say.'”  Bishop,

supra note 125, at 3 (quoting Wayne Gregori, sysop of the SF Net).

Further, because “[c]yberspace recognizes no national boundaries, and

physical obstacles such as oceans and deserts that have historically

compartmentalized people are non-existent . . . individuals are free to

associate with others of their choosing . . . .”  Terri A. Cutrera,



s, 60 UMKC L. Rev. 139, 139 (1991) [hereinafter Cutrera,



[196]   “[T]he essence of public messages and open files on a computer

bulletin board is . . . the participation of many in the interchange of

ideas, opinions, and information.”  Becker, Bulletin_Board_Operators,

supra note 5, at 228; see Harmon, New_Legal_Frontier, supra noteÊ26, at

A24 (the low cost of group formation allows small stock market investors

to pool information resources).


[197]   See Jon Katz, Bulletin_Boards:__News_from_Cyberspace, Rolling

Stone, Apr. 15, 1993, at 35, 35 (“Armed with relatively inexpensive new

technology, millions of Americans are now finding that they don’t need

the gatekeepers [such as the traditional media] anymore.”).


[198]   See, e.g., Christopher J. Galvin, A_World_of_Good, CompuServe

Mag., June 1993, at 10.  In his article, Galvin describes numerous

examples of altruistic behavior on CompuServe. Even the merest

assistance, such as answering a question posed to a conference, imposes

private costs because the answerer must pay CompuServe’s on-line connect

charges.  However, the generosity often extends to mentoring and to

providing technical troubleshooting that would normally command a

consulting fee.  See id. at 12-13.


[199]   See John S. Quarterman, Network_Communities_Across_Boundaries,

Microtimes, MayÊ31, 1993, at 128, 128 (describing how the former Soviet

Union and China, among others, appear to be restricting the development

of wide area networks for fear of the subversive power of these

networks); cf. Rheingold, supra note 23, at 6 (“`Electronic citizenship

means freedom of electronic expression.'”) (quoting Dave Hughes, an

activist in local politics).


[200]   For example, William Donoghue, a publisher of financial reports,

and Peter Lynch, fund manager of the best performing mutual fund between

1977 and 1990, have participated in Prodigy’s Money Talk forum.  See

Antilla, supra note 191, at 15;

Lynch_Predicts_Sharp_Correction_in_Stock_Market, San Jose Mercury News,

June 9, 1993, at 2F; see_also Billy_Graham_a_Convert_to_On-

Line_Preaching, L.A. Times, Nov. 27, 1993, at B5 (reporting that Rev.

Billy Graham held a one hour public “guest appearance” on America

Online).  Some lawyers routinely answer legal questions on-line.  Daniel

B. Kennedy, PC_Practitioners_Proliferate, A.B.A. J., June 1993, at 36.


[201]   See_supra part II.C.


[202]   Corporate users have found that access to information and software

is both greater and quicker on the Internet.  For example, one IBM

researcher used the Internet to obtain technical software immediately

that would have taken nine months to obtain otherwise.  Eckhouse, supra

note 70, at C1.


[203]   See Godwin, supra note 26.  “People are people, even in

cyberspace.”  Rose & Wallace, supra note 1, at 67.


[204]   For example, in California Software, Inc. v. Reliability Research,

Inc., 631 F. Supp. 1356, 1358 (C.D. Cal. 1986), the defendants sent

allegedly tortious communications over a nationwide BBS.  The sysops

were not named as defendants.  Similarly, Prodigy was not named as

defendants in the Medphone case.  Godwin, supra note 26.


[205]   Jonathan Gilbert, Note,

Computer_Bulletin_Board_Operator_Liability_for_User_Misuse, 54 Fordham

L. Rev. 439, 441 (1985).  See_generally



oard, 19 J. Marshall L. Rev. 1107 (1986).


However, victim compensation can be tricky because both the user

and the sysop can be judgment-proof, and the sysop may not be able to

obtain insurance, Rose & Wallace, supra note 1, at 88, or afford it,

Jensen, supra note 18, at 247.  On networks such as FidoNet, Echnonet,

and USENET, victim compensation is especially problematic given that no

one entity or person monitors the on-going activities of the system.

See Becker, PC Communications, supra note 3, at 370, 374; Rose &

Wallace, supra note 1, at 15; Oldenburg, The_Law, supra note 45, at E5.


[206]   Jensen, supra note 18, at 247 n.158.


[207]   See Lee Dembart,

The_Law_Versus_Computers:__A_Confounding_Terminal_Case, L.A. Times, Aug.

11, 1985, S. IV, at 3, 3.

[208]   See id.; cf. Uyehara, supra note 24, at 32 (noting that users

could deliberately implicate sysops in wrongdoing by intentionally

posting illegally copied software).


[209]   Technology phobia is not a new phenomenon.  See Pool, supra note

18, at 119 (noting that in the 1920s, radio “was often looked upon as a

potentially . . . dangerous instrument which could, without vigilance,

destroy American ideals”) (footnote omitted).


[210]   While it is tempting to assume that law enforcement officials are

technologically sophisticated, law enforcement naivetŽ is well

documented.  See Rose & Wallace, supra note 1, at 143-45; Karlin, supra

note 30, at T6 (quoting Jack Rickard of Boardwatch magazine as saying

that law enforcement officials are unable to distinguish between

computer hobbyists and criminals); Lazzareschi, Computer_Users, supra

note 40, at D9 (“[O]ne prosecuting attorney has equated a teenager with

a modem to a teenager with a gun.”) (quoting Mitch Kapor); Quittner,

supra note 31, at 1 (quoting Steve Jackson, on the return of computers

extensively damaged after the Secret Service had searched them for

evidence:  “[T]he Secret Service knows nothing about computers, and this

just demonstrates it.”); Uyehara, supra note 24, at 32 (Jeffrey Fogel,

executive director of the New Jersey ACLU, responding to a prosecutor’s

suggestion that the legislature should license modems with “[w]hy don’t

they ask legislators to license mouths?”).


[211]   See the examples, such as the Steve Jackson and Craig Neidorf

prosecutions and Operation Sun Devil, described supra notes 31-32.  The

government has admitted that Operation Sun Devil was intended to have a

deterrent effect.  See Cutrera, The_Constitution_in_Cyberspace, supra

note 195, at 162.  While deterring criminal activity is desirable, the

Secret Service’s heavy-handed tactics can also intimidate law-abiding

citizens from entering the marketplace of ideas for fear of

inadvertently being the Secret Service’s next target.


[212]   Of course, sysops who use their BBSs for criminal purposes should

be criminally liable. See, e.g., John Engellenner,

Roseville_Couple_Arrested_in_Satellite-TV_Pirating_Case, Sacramento Bee,

Dec. 11, 1992, at B1 (describing how a couple was arrested because they

established and used a BBS to disseminate satellite TV descrambling



[213]   See Jensen, supra note 18, at 231-32 n.79 (explaining that since

sysop liability for users’ actions “seems akin to that of a

co-conspirator,” sysop’s criminal liability requires specific intent);

Brock N. Meeks, As_BBSes_Mature,_Liability_Becomes_an_Issue, InfoWorld,

Jan. 22, 1990, at S14, S14 (arguing that sysops should not be criminally

liable for the presence of illegal material on their BBSs “unless

obvious evidence exists that the sysop solicited the information”).


However, in a case of criminal obscenity, Smith v. California, 361

U.S. 147, 153-54 (1959), the Court held that secondary publishers cannot

be criminally liable for distributing information.  Where sysops become

secondary publishers, Smith would dictate that these sysops are free

from criminal liability for obscenity.  Conversely, sysops who become

primary publishers can be criminally liable for obscenity.


[214]   Tribe, American Constitutional Law, supra note 41, at 1002.


[215]   418 U.S. 241 (1974).


[216]   Id. at 251; cf. Pool, supra note 18, at 11-12 (“Publishing is

rarely now the expression of just an individual.  It is undertaken by

large organizations.”).


[217]   See Henry H. Perritt, Jr.,



ntrol, 38 Vill. L. Rev. 319 (1993) [hereinafter Perritt, Symposium];

Perritt, Tort_Liability, supra note 126, at 141; infra part V.  However,

some fear that the centralized information infrastructure, currently

being built by private entities and which is expected to be the major

media conduit in the future, will charge significant fees to recoup the

cost of development and thereby preclude access by noncommercial

disseminators.  See Tom Abate, What_So_Proudly_We_Logged_on, S.F.

Examiner, July 4, 1993, at E1.


[218]   See.,_e.g., Becker, Bulletin_Board_Operators, supra note 5, at 230

n.125; Beall, supra note 13, at 511; Gilbert, supra note 205, at 448

n.44.  As one telecommunications writer recommended, “[s]ysops can take

practical steps to protect against [defamation liability] by not

tolerating any types of personal attacks, even against public figures.

Even if the mayor is a crook, do you [the sysop] want to spend

hard-earned money proving it in court?”  Meeks, supra note 213, at S15.


[219]   See Beall, supra note 13, at 513-15 (advocating a licensing system

to allow the FCC to track BBSs and to provide the private sector with

incentives to monitor).


[220]   See Cavazos, supra note 193, at 240; Jensen, supra note 18, at 233

(“[L]icensing requirements would cause hobbyist boards to go

underground.”); Arnold, supra note 1, at 3D. Historically, the initial

intent behind licensing broadcasters was to promote radio expansion, but

the opposite effect occurred.  Pool, supra note 18, at 116.


[221]   See Firms_Target_Bulletin_Boards_to_Stop_Pirating_of_Software, San

Jose Mercury News, Dec. 10, 1992, at 6G (describing how a software

industry group has forced BBSs in Europe and Asia to shut down).

Already corporations and private entities routinely monitor BBSs.  See

Harmon, New_Legal_Frontier, supra note 26, at A24 (explaining that many

companies now covertly “lurk” on BBSs to find out what is being said

about them); see_also Schiffres, supra note 68, at 60 (“[A]ll the major

toll carriers, as well as TRW, claim to monitor the boards closely [in

1985].”).  For example, if given recourse through FCC regulation, these

private entities may use the threat of a complaint to the FCC as

leverage over BBSs who disseminate unflattering, but constitutionally

protected, information.


[222]   See Karlin, supra note 30, at T6 (relating that an FCC regulation

potentially holding sysops liable for “indecent” language transmitted

across state lines caused two sysops in Alabama to restrict access to

their BBS to in-state users); Uncapher, supra note 1, at 8 (explaining

that, in 1991, the FCC cited numerous sysops because their computers,

acting as gateways, automatically relayed messages that violated an FCC

restriction on the use of amateur airwaves to promote business


[223]   Three types of telephone line scarcity could affect BBSs.  First,

telephone line capacity could become a scarce resource.  See Becker,

Bulletin_Board_Operators, supra note 5, at 234 n.157.  While the optimal

method for upgrading the information-carrying capacity of telephone

lines remains a hotly debated issue, there are a number of possible

technological solutions to this constraint.  See, e.g., Michael L.

Dertouzos, Building_the_Information_Marketplace, Tech. Rev., Jan. 1991,

at 28, 32 (converting telephone lines from narrowband ISDN to broadband

ISDN could result in an enormous increase in information carrying



Telephone numbers are the second scarce resource.  See Jube Shiver

Jr., Phone_Numbers_Grow_Scarce_in_Information_Age, L.A. Times, Feb. 8,

1993, at A1, A1 (without changes, the supply of telephone area codes

will be exhausted by 1995); see_also Eckhouse, supra note 70, at C7

(discussing how the proliferation of Internet accounts has consumed

Internet addresses so rapidly that, unless standards are modified, the

supply of Internet addresses will run out in 2003).  Bellcore will

introduce 640 new area codes by 1995 to alleviate the phone number

constraint, but this is a temporary solution and does not resolve the

capacity constraints in non-geographic specific prefixes such as the 800

and 900 phone numbers.  Shiver, supra, at A11.


The third type of scarcity is telephone lines.  For example, the

ECHO BBS expanded so rapidly that it required every available line in

the neighborhood.  Stewart, supra note 72, at 155. This was resolved

when the local phone company ran a separate cable just for ECHO.  Id.

However, even if telephone line or number scarcity becomes a binding

constraint, market mechanisms may still be the optimal way to allocate

them.  See Pool, supra note 18, at 138-39.

[224]   See Jensen, supra note 18, at 239 (explaining that Pacifica

concerns are not warranted in the BBS context because individuals must

invest time and money to access BBSs and “very young” children will not

be able to access computer messages); Miller, supra note 144, at 1192

(noting that BBSs are among the “least intrusive” media because they

“require an initiating act or invitation to trigger transmission at

home”).  But_see John Schwartz,


rks_Holds_Hazards, Wash. Post, Nov. 28, 1993, at A1 (describing the

numerous ways that young children have been able to access adult

materials on-line).


[225]   For example, users of a Sierra On-Line version of the adult

interactive role-playing game Leisure Suit Larry must sign a statement

that they are over eighteen years old.  Markoff, The_Latest_Technology,

supra note 16, at 5.  However, the company’s president wants the game to

be “G-rated,” and explains that, during the sex scenes, only the faces

will be shown on the screen.  Id.


[226]   See infra part V.


[227]   See Becker, Electronic_Publishing, supra note 24, at 831.


[228]   See id. at 866 (arguing that all forms of electronic publishing

should be treated as a single communications medium); Moore,

Taming_Cyberspace, supra note 28, at 749 (“We must address these issues

in a more coherent, less ad hoc way.”) (quoting computer science

professor Lance Hoffman); cf. Charles, supra note 125, at 147-48

(outlining a very specific negligence standard for defamation liability

to avoid the chilling effect of ad hoc balancing tests).


[229]   See Cutrera, Computer_Networks, supra note 16, at 582; Faucher,

supra note 38.


[230]   Beall, supra note 13, at 513-14.


[231]   Faucher, supra note 38.


[232]   See supra text accompanying notes 136-42 (government mandated

access); infra part IV.A.2 (privacy and associational protections).


[233]   See M. Ethan Katsh, The Electronic Media and the Transformation of

Law 240 (1989) [hereinafter Katsh, The Electronic Media] (noting that

the uses of a new communication technology are often not apparent until

the technology has proliferated); see_also Johnson & Marks, supra note

88 (suggesting that, over time, custom and technology will determine the

appropriate legal principles); Perritt, Tort_Liability, supra note 126,

at 95 (common law evolution is more flexible than administrative

regulations); cf. Tribe, American Constitutional Law, supra note 41, at

1007 (“Novel communications are pressed into service while still in

their infancy, and the legal system’s initial encounters with these

newborns often have a lasting influence.”); Barlow, supra note 31, at 56

(“Today’s heuristical answers of the moment become tomorrow’s permanent

institutions of both law and expectation.”).


For example, both telegraphy and computers were initially

regulated as business entities, not as media, because the technology was

so costly that businesses were the only viable users. Pool, supra note

18, at 91; see Henry Beck,


dment_Issues_in_Videotext_and_Teletext, 5 Comm/Ent L.J. 1, 6-8 (1982)

(discussing the evolution of the computer from a business machine into a

communications medium).  As innovation reduced the cost of technology

and therefore increased its accessibility, these initial regulations

became inadequate.  For a summary of significant changes in both the

legal status and technology of BBSs between 1988 and 1992, see Rose &

Wallace, supra noteÊ1, at xiii, xix-xxii.


[234]   Cf. Perritt, Symposium, supra note 217 (looking at factual

questions to resolve a posited hypothetical); Miller, supra note 144, at

1199 & n.359 (explaining that sysops probably would prefer regulatory

flexibility over legal certainty, even though each case would then

require fact-specific analysis to determine how the BBS was being used



Playboy Enterprises, Inc. v. Frena, No. 93-489-CIV-J-20, 1993 WL

522892 (M.D. Fla. Dec. 9, 1993), described supra note 30, is a prime

example of the problems courts will encounter should they fail to engage

in fact-based analysis.  In Frena, the court granted plaintiff summary

judgment on the copyright, trademark, and Lanham Act claims even though

the defendant sysop alleged that he was not aware that users had

uploaded the infringing photographs.  Id. at *1.  By granting summary

judgment, the court essentially held the sysop strictly liableÑa very

unfair result.  A more appropriate approach would have been to allow

Frena to present evidence that he was merely an information disseminator

and entitled to the defenses available to secondary publishers.


[235]   There is a real danger that civil liberties on BBSs will initially

be accorded less protection.  See Pool, supra note 18, at 250 (noting

how “judges ha[ve] not got[ten] into the habit of being solicitous about

guarding” freedom as new technologies have proliferated) (quoting

Zechariah Chafee, Free Speech in the United States 381 (1941)); Rose &

Wallace, supra note 1, at 101 (“Courts asked to apply older laws to new

technologies will sometimes be afraid to [do so], throwing the ball back

to the legislature to confirm that the same rights indeed apply to new

technologies.”); Tribe, The_Constitution_in_Cyberspace, supra noteÊ36,

at 21 (noting that recent cases regarding cable television make it

appear “as if the Constitution had to be reinvented with the birth of

each new technology”).  Because cases decided today may greatly

influence the course of future legal developments, see Pool, supra note

18, at 7; Tribe, American Constitutional Law, supra note 41, at 1003, it

is important that early precedents in the BBS industry protect

constitutional rights as much as possible.


[236]   See supra notes 161-62, 165-67; see_also George E. Stevens &

Harold M. Hoffman, Tort_Liability_for_Defamation_by_Computer, 6 Rutgers

J. Computers & L. 91, 94 n.18 (1977) (arguing that computer information

processors should not be held liable for defamation if acting as

conduits); McDaniel, supra note 7, at 819 (explaining that defamation

liability requires some sort of publication function).


[237]   Cf. Miller, supra note 144, at 1188-89 (giving examples of how

cable television laws reflect cable television’s hybrid of broadcasting

and common carriage functions).


[238]   See Lawrence Edelman,


tween_Technology_and_Law, Boston Globe, Nov. 20, 1990, at 25, 29

(quoting attorney Harvey Silverglate saying that the seizure of Steve

Jackson’s BBS computer and disks was functionally equivalent to the

seizure of a printing press).


[239]   Telephone companies may terminate access of those who use obscene

or indecent language, Pool, supra note 18, at 106, and the United States

Postal Service may refuse to carry prohibited materials.  Id. at



[240]   Tribe, American Constitutional Law, supra note 41, at 1051.


[241]   See Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978) (“[C]ourts

[should] apply the warrant requirements with particular_exactitude when

First Amendment interests would be endangered by the search.”) (emphasis



[242]   One commentator has argued that because Congress failed to include

BBSs in the relevant section of the Electronic Communication Privacy

Act, see infra part IV.B.2, such evidence obtained unconstitutionally is

not subject to exclusion at trial.  See Cutrera,

The_Constitution_in_Cyberspace, supra note 195, at 152.  This is

unfortunate and warrants legislative remedy, given the significant

opportunities for breaches of reasonable expectations of privacy.


[243]   Katsh, The_First_Amendment_and_Technological_Change, supra note

18, at 1474; see Arnold, supra note 1, at 3D (describing how sysops who

were curious about their users invited the users to their house for a

party); Christopher J. Galvin, When_Online_Volunteerism_Crosses_Over,

CompuServe Mag., June, 1993, at 12 (describing how CompuServe’s Judaism

section of its Religious Forum adopted an official charity and raised

over $4000 for this charity, including donations from “lurkers” who do

not publicly participate in the Forum); Grimes, supra note 194, at 13

(Prodigy’s music discussion forum has arranged several social

functions); Lawrence J. Magid,

Cyberspace!__The_Revolution_in_Online_Service, Computer Currents,

JulyÊ20, 1993, at 24, 25 [hereinafter Magid, Cyberspace!] (“The WELL

also encourages its members to get togetherÑin real life–by sponsoring

parties on a monthly basis.”); cf. Katsh, The Electronic Media, supra

note 233, at 239 (noting that the ability to communicate efficiently

with a large group of people has fostered the formation of global



[244]   Cf. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-36 (1977)

(upholding the right of nonunion workers not to pay compulsory fees that

supported political lobbying).


[245]   Many BBSs already follow this approach.  See Peter H. Lewis,

On_Electronic_Bulletin_Boards,_What_Rights_Are_at_Stake?, N.Y. Times,

Dec. 23, 1990, S. 3, at 8 (reporting that CompuServe removed 10 users

between 1987 and 1990); Christopher Lindquist,


iability_Issues_for_Nervous_Bulletin_Board_Owners, Computerworld, Dec.

9, 1991, at 7, 7 (explaining that America Online reserves the right to

deny access to users who post offending messages in public areas, but

has never done so).


Rose and Wallace refer to one sysop who treats his BBS as his

living room and his users as his guests:


If the caller conducts himself in a civil manner and is considerate of

others, he is permitted a lot of latitude in his behavior.  If he is

inconsiderate or does damaging things, he will be invited to leave, just

as if he was really in the sysop’s living room and started hitting

people or pouring beer on the furniture.


Rose & Wallace, supra note 1, at 20; see_also Doll, supra note 75

(quoting a Ventura County sysop who also treats her BBS as her living



Some commentators have incorrectly asserted that sysops should not

have meaningful First Amendment associational rights.  See, e.g., Di

Lello, supra note 28, at 244.  This can lead to the erroneous conclusion

that a mandatory right to speak on BBSs will enhance, and not chill, the

free marketplace of ideas.  See id.  Potential sysops, especially

non-profit and non-commercial sysops, face scarcity in allocating

capital (both time and financial resources) to the marketplace of ideas.

Ignoring sysops’ associational freedom, especially in the face of

potential tort or criminal liability, will make being a sysop less

appealing at the margin and therefore will shift the sysop supply curve

to the left.  The result is higher costs and lower quantity supplied,

shrinking the marketplace of ideas.


[246]   Roberts v. United States Jaycees, 468 U.S. 609, 625 (1984)

(upholding a Minnesota statute that prohibited sexual discrimination in

places of public accommodation).


[247]   See Charles, supra note 125, at 136.  Some BBSs allow users to

decide whether they want to be listed on membership directories

available to other users.  See Becker, PC Communications, supra note 3,

at 235 (noting that CompuServe does not require users to join its

publicly-accessible membership directory).


[248]   372 U.S. 539 (1963).


[249]   Id. at 546.


[250]   In the Neidorf case, see supra note 31, the Secret Service used

membership on Neidorf’s mailing list as probable cause to issue a search

warrant.  See Cutrera, The_Constitution_in_Cyberspace, supra note 195,

at 157 & n.172.  This sort of derivative use, without more evidence

supporting suspicion, seems perilous in the face of Gibson’s

associational privacy.


[251]   Cf. Jean A. Polly, NREN_for_All:__Insurmountable_Opportunity,

Libr. J., Feb. 1, 1993, at 38, 38 (asking if information searches on the

proposed information superhighway would be kept confidential).


[252]   For example, the Air Force initiated court martial proceedings

against Col. James A. Maxwell, Jr. for homosexual behavior after the Air

Force learned that Maxwell had allegedly used America Online to find

restaurants that cater to homosexuals and to download homo-erotic

pornography.  See


icer_Blasts_`Innuendo’, Hous. Post, Dec. 21, 1992, at A1.


[253]   These provisions may prove porous in application.  For example,

one sysop, a junior college professor, started men-only and women-only

BBS conferences where the users agreed not to reveal the contents.

Bulkeley, supra note 16, at B6.  When one woman discovered that the

male-only BBS contained an obscene message about her, she complained and

the professor was forced to shut the BBSs down and was put on leave by

the college.  Id.  While in this case the college was a state actor, the

situation illustrates that other users, as well as sysops, pose a threat

of disclosure despite non-disclosure or confidentiality provisions.


[254]   See Perritt, Tort_Liability, supra note 126, at 108-10.


[255]   Cf. Restatement (Second) of Torts S. 318 (1976) (articulating that

chattel owners are not liable for the conduct of others when allowing

others to use chattel if the owner (a) is not present, (b) cannot

control the user, or (c) has no knowledge of the need to exercise such



[256]   Case law supports sysop liability if the sysop was “aware” that

the defamatory material was available for distribution.  Becker,

Bulletin_Board_Operators, supra note 5, at 228. However, basing

liability on knowledge, without also requiring the ability to control,

could result in sysops being held strictly liable if they were unable to



[257]   Id. at 229-30; see Johnson & Marks, supra note 88, at 493 (“[I]n

many communication systems, access to contents before `publication’ is a

practical impossibility.”).


[258]   Loundy, supra note 45, at 103, 130, 136; Naughton, supra note 19,

at 439.


[259]   Loundy, supra note 45, at 111; Johnson & Marks, supra note 88;

Perritt, Symposium, supra note 217; cf. McDaniel, supra note 7, at 839

(arguing that all commercial BBSs should have a duty to inquire into

information distributors’ credentials before granting access).  But_see

Perritt, Tort_Liability, supra note 126, at 103, 107 (explaining that

any exercise of control may trigger imputation of knowledge).


[260]   Cf. Edward M. Di Cato,


, 4 Software L.J. 147, 156-57 (1990) (describing sysop “precautions,”

which include:  (a) requiring user registration, (b) physically

separating user-uploaded material, (c) limiting the length of user

messages, (d) prescreening messages, (e) setting time limits on length

of user’s connect time, and (f) posting disclaimers).


One commentator suggested technology-based controls to replace

sysop monitoring, including programming the computer to search for

certain terms or information in certain formats and limiting the size of

the messages or information the user can post on the BBS.  See Gilbert,

supra note 205, at 449-50.


[261]   See Don Oldenburg,

Rights_on_the_Line:__Defining_the_Limits_on_the_Networks, Wash. Post,

Oct. 1, 1991, at E5 [hereinafter Oldenburg, Rights_on_the_Line]

(discussing the WELL’s Eros conference, where “[t]hose who enter are

forewarned” that the conference is “pretty wide open to any of the most

erotic ideas and writing you want to come up with”) (quoting Cliff

Figallo, former director of the WELL).


[262]   See Reid, Nation’s_Bulletin_Board, supra note 92, at A4 (citing

Phreakenstein’s Lair, a youth-oriented BBS, that warned users “[a]nyone

leaving any message . . . dealing with breaking into computers, etc.,

will have their password ZAPPED!!!!!”).


[263]   Even if sysops exercise “reasonable care” in monitoring, offending

or illegal messages can remain on the BBS for a day or longer.  Sulski,

supra note 32, at C17.  On national and global network systems such as

USENET, in which the message may be automatically stored and forwarded

electronically between systems, the moderator (if there is one) may not

be able to remove the message for days or even weeks.  Rose & Wallace,

supra note 1, at 15.


[264]   For example, CompuServe does not post messages that abuse others,

“lessen the favorable experience of others using the service,” or

advertise other BBSs.  Lewis, supra note 245, at 8 (quoting Dave

Kissler, CompuServe spokesperson).  This editorial policy employs

somewhat amorphous standards (what activities “lessen the experience”?)

which, if exercised extensively, probably should be considered editorial

control.  More refined standards, limiting CompuServe’s intervention

only to editing obscenity, redirecting off-topic messages to more

appropriate discussion forums, or denying access to users who repeatedly

post abusive messages, would clarify CompuServe’s power to discriminate

among content without triggering editorial control.


[265]   See Perritt, Tort_Liability, supra note 126, at 140 (“It is

unlikely that networks will survive where absolutely anyone can publish

and users can read everything, deciding for themselves about value.”);

Cavazos, supra note 193, at 239 (describing the difficulties of

maintaining a forum for children if users continually post “adult”

messages).  Indeed, with the opportunity for all users to post messages

at their pleasure, many forums can be easily overrun by “junk postings”

if sysops do not remove off-topic messages.  Id. at 242; see Allen Lacy,

A_Gardener’s_World:__When_is_Gardening_a_Subversive_Act?, N.Y. Times,

Jan. 31, 1991, at C1 (describing how a gardening forum on Prodigy

drifted into discussions on the 1991 Persian Gulf War until Prodigy

refused to post these off-topic messages).  A similar problem can occur

in software exchanges if, for example, users overrun the software

utilities exchange with games postings.


[266]   See Lance Rose, The CompuServe CaseÑ

A_Federal_Court_Recognizes_Sysop_Rights, Boardwatch Mag., Dec. 1991;

Tribe, The_Constitution_in_Cyberspace, supra note 36, at 18-19 (avoiding

topic drift is analogous to the information organization and

presentation undertaken by bookstores and does not represent editorial



[267]   See, e.g., Becker, Bulletin_Board_Operators, supra note 5, at 221.


[268]   This does not take into consideration, however, conference calls

that allow communication between multiple, geographically-separated



[269]   See Cavazos, supra note 193, at 236-37; Computer_Communications,

supra note 125, at A6 (“How can a network operator assume the

obligations of a publisher . . . if network participants can post

messages at will?”);  see_also Di Lello, supra note 28, at 231

(explaining that Prodigy publishes on average approximately one message

per subscriber every three weeks, which arguably no newspaper could do).


[270]   See Beall, supra note 13, at 505; see_also

Computer_Communications, supra note 125, at A6 (“There is no way we can

patrol the boundaries of a multiple-gigabyte territory.”) (quoting Cliff

Figallo, former director of the WELL); For_Every_Taste, supra note 18,

at 59 (describing how one sysop spent three hours a day reviewing

messages); Andrew Pollack,

Free-Speech_Issues_Surround_Computer_Bulletin_Board_Use, N.Y. Times,

Nov. 12, 1984, at A1, A4 (concluding that sysops believe it would be

“impossible to continue operating their boards if they had to monitor

their boards at regular intervals”).


[271]   Taylor, supra note 33, at C4 (quoting Martha Griffin, Prodigy

spokesperson). Previously, Prodigy used prescreening to make its

subscribers confident that everything on its BBS was suitable for every

family member. See Moore, 1st_Amendment, supra note 34, at 13. Prodigy

no longer prescreens for content other than key words.  Godwin, supra

note 26.  In response to the incident with the Anti-Defamation League,

see supra note 28, Prodigy now censors all postings deemed “grossly

repugnant to community standards,” which includes anti-Semitic

statements.  John Schwartz, A_Screenful_of_Venom, Newsweek, Nov. 4,

1991, at 48.


One commentator has argued, unpersuasively, that Prodigy is not

analogous to a newspaper or print publisher.  See Di Lello, supra note

28, at 231-32.  As shown in part III.A, media entities receive certain

legal treatment based on a complex matrix of government interests and

editorial control.  If Prodigy exercises the type of editorial control

similar to that of print publishers, other differences are irrelevant.


[272]   See Lewis, supra note 245, at 8; Taylor, supra note 33, at C4.  To

monitor activities on its different forums, GEnie contracts with 120

people who have the power to remove messages. Sugawara, supra note 54,

at A12.  America Online only deletes about one message per year. Id.


[273]   Branscomb, supra note 38, at 156.  However, this policy does not

prevent the WELL from occasionally prohibiting some discussions or

banning some users.  Computer_Communications, supra note 125, at A6;

Schwartz, supra note 271, at 48.  Contrast this with the positions of

“self-styled `First Amendment’ BBS’s . . . [that] deliberately refrain

from interfering with their public message areas in the name of freedom

of their callers’ speech except in extreme cases where they fear serious

legal problems.”  Rose & Wallace, supra note 1, at 9.


[274]   Johnson & Marks, supra note 88, at 513-14 n.105; Henry H. Perritt,

Jr., Dispute_Resolution_in_Electronic_Network_Communities, 38 Vill. L.

Rev. 349 (1993) [hereinafter Perritt, Dispute_Resolution]; cf. Rose &

Wallace, supra note 1, at 17 (advocating that USENET moderators should

be able to choose how much control to exercise); Becker,

Electronic_Publishing,  supra note 24, at 867-68 (arguing that BBSs that

choose to become electronic publishers should have that right but should

not dictate legal standards for those BBSs who choose not to undertake

this role).


Note that other legal regimes allow individuals to choose their

bundle of rights and obligations.  For example, given a complicated set

of tax, tort liability, and control issues, businesses can choose

whether to organize as sole proprietorships, general partnerships,

limited partnerships, corporations, or in some cases, limited liability

companies.  Similarly, given a complicated tradeoff between tort

liability, control, and constitutional protections, sysops should have

the opportunity to choose their bundle of rights and responsibilities.


[275]   While much of the focus has been on sysops’ civil liability for

users’ statements, editorial control also can expose sysops acting as

primary publishers to criminal liability for obscenity. See supra notes

207-13 and accompanying text.


[276]   See infra part V.


[277]   These benefits are not limited strictly to control over users’

actions.  By adding value to the discussion through the exercise of

editorial control, primary publishers may also claim a compilation

copyright.  See Rose & Wallace, supra note 1, at 49 (suggesting that

sysops can claim a compilation copyright if they have “contributed

enough . . . creative authorship” through active involvement in

directing the discussion, such as the selection, arrangement, or

coordination of postings).  In contrast, sysops that strictly

disseminate information have not added any originality to the

information and cannot claim a compilation copyright.  See_generally

Priscilla A. Walter & Eric H. Sussman,

Protecting_Commercially_Developed_Information_on_the_NREN, Computer

Law., Apr. 1993, at 1 (analyzing the application of Feist Publications,

Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), to electronic



[278]   It would be unfair to hold these sysops liable because they do not

exercise control, and it would be undesirable because BBSs serve an

integral role in the dissemination and flow of information.  See Rose &

Wallace, supra note 1, at 11.


[279]   See Moore, Taming_Cyberspace, supra note 28, at 748; see_also

Cutrera, Computer_Networks, supra note 16, at 571 (“Prodigy wants to

have its cake and eat it too.”).


[280]   See Becker, Bulletin_Board_Operators, supra note 5, at 229

(arguing that complete immunity will allow defamatory messages to be

posted indefinitely).  But_see Cavazos, supra note 193, at 246-47

(concluding that BBSs allow a powerful and inexpensive right to reply to

defamatory statements).


[281]   Rose & Wallace, supra note 1, at 9; Uncapher, supra note 1, at 14;

cf. Sassan, supra note 47, at 840-43 (proposing that sysops have a duty

to mitigate, which is fulfilled by removing the tortious posting after

receiving notice and posting a retraction).


As discussed supra in part IV.A.2, at some point BBSs are more

appropriately treated as associations rather than media entities.  In

those situations, it would be unfair to hold the BBS liable for its

users’ statements, just as it is unfair to hold an association liable

for the statements of its members.  Distinguishing between an

association and a media entity is a very difficult line-drawing

exercise; however, courts should continually consider the impact of

potential rules on BBSs’ associational interests.


[282]   Cavazos, supra note 193, at 242-43; accord Johnson & Marks, supra

note 88; Miller, supra note 144, at 1196 (trying to read Cubby, Inc. v.

CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), broadly in order to

avoid this result).  See infra text accompanying notes 306-10.


[283]   See Perritt, Dispute_Resolution, supra note 274, at 356

(“Competitive forces will drive users to suppliers offering better

terms.”).  Prodigy’s volume of both users and subscribers has not

translated into financial success.  See Nikhil Hutheesing,

The_First_Shall_Be_Last, Forbes, Oct. 25, 1993, at 220 (reporting that

Prodigy has lost $1 billion cumulatively, $30 million in 1993 alone, and

had to cut 25% of its staff).  Nevertheless, Prodigy’s difficulties are

not necessarily due to its editorial policy; instead, it is plausible

that its editorial policy has been instrumental in the success it has



Despite Prodigy’s prominence, there also remains an immense

segment of the market that does not exercise such extensive editorial

control.  See Naughton, supra note 19, at 434.  For example, America

Online, which has also experienced rapid growth in its user base and

significant support on the stock market, removes on average only one

message per year.  See Sugawara, supra note 54, at A12.


[284]   See supra notes 184-86 and accompanying text.


[285]   See supra part III.A.2.  Further, although the holding in Board of

Education v. Pico, 457 U.S. 853 (1992), does not directly apply, the

policies the Court articulated in Pico provide additional reasons for

courts to strictly scrutinize content-discriminatory removals of

postings. See supra text accompanying notes 153-54.


[286]   See The Electronic Communications Privacy Act of 1986, Pub. L. No.

99-508, 100 Stat. 1848 (codified in scattered sections of 18 U.S.C.).


[287]   18 U.S.C. S. 2702 (1988).


[288]   Id. S. 2703.  Under S. 2707, the government has had to pay for

wrongful seizure.  See Steve Jackson Games, Inc. v. Secret Serv., 816 F.

Supp. 432 (W.D. Tex. 1993) (awarding $1000 per plaintiff for seizure of

e-mail messages); Victoria Slind-Flor, What_is_E-Mail_Exactly?, Nat’l

L.J., Nov. 25, 1991, at 3, 22 (noting the Riverside County coroner’s

office paid $1000 per individual, plus attorneys’ fees, after it seized

e-mail on a cryonics society’s computer while searching for frozen



[289]   In fact, Congress recognizes that sysops can gain access to e-mail

because the Electronic Communications Privacy Act allows third party

disclosure of electronic communications to law enforcement officials if

the sysop “inadvertently obtained” the communications.  See 18 U.S.C S.

2702(b)(6)(A) (1988); cf. Don J. DeBenedictis,


, A.B.A. J., Sept. 1990, at 26 (discussing how the mayor of Colorado

Springs systematically read backed-up personal e-mail sent between city

council members without their knowledge).


[290]   See, e.g., Julia T. Baumhart,


sonal_Prying?, 8 Labor Law. 923 (1992); Jennifer J. Griffen, Comment,


lectronic_Assault_on_Employee_Privacy_Rights, 4 Software L.J. 493

(1991); Alice LaPlante, Is_Big_Brother_Watching, InfoWorld, Oct. 22,

1990, at 58, 65.


[291]   Jim Warren, Who_Are_You_Talking_To?__And_Who’s_Listening?,

Microtimes, Nov. 11, 1991, at 23-24.


[292]   See Markoff, The_Latest_Technology, supra note 16, at 5 (reporting

that even though child pornography is being sent on America Online, the

sysops do not monitor private e-mail); Moore, 1st_Amendment, supra note

34, at 13 (stating that even when claiming the print publisher’s power

to edit public submissions, Prodigy claims that users’ private e-mail is

“strictly private” and not censored).  But_cf. Markoff, Home-

Computer_Network, supra note 33, at D5 (reporting that Prodigy

restricted users from sending e-mail to system advertisers except to

purchase or communicate about a specific order).


[293]   Meeks, supra note 213, at S14.  However, even in such cases,

users’ e-mail privacy may be partially “protected by the sheer volume of

messages.”  Becker, PC Communications, supra note 3, at 194.


[294]   Pub. L. No. 99-508, 100 Stat. 1848 (codified in scattered sections

of 18 U.S.C.)


[295]   See Becker, Bulletin_Board_Operators, supra note 5, at 220-21.


[296]   Because of the instantaneously interactive nature of real-time

conferencing, these conferences should be treated differently than

message posting.  In message posting, the messages can persist for

weeks, months, or even years; the sysop can prevent further harm by

removing the message.  See supra text accompanying note 280.  On the

other hand, in real-time conferencing, the information persists only a

brief time during the interaction, so the sysop has limited power to

prevent further harm from occurring after the fact.


[297]   See supra note 99.


[298]   766 F.2d 728 (2d Cir. 1985).


[299]   Id. at 734.  The court could have held that, under Perry Education

Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983),

the database was a nonpublic forum subject to reasonable regulation,

including the refusal to provide unlimited access to a direct

competitor. See supra part III.B; cf. Mayo v. United States Gov’t

Printing Office, 9 F.3d 1450 (9th Cir. 1993) (denying a BBS’s request

for free access to electronic slip onions under a common law “right to

inspect” public records).  The court’s approach, relying on special

rights given to the press, seems less persuasive after the rejection of

a media/nonmedia distinction for defamation purposes in Dun &

Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).


[300]   766 F.2d at 735 (quoting Minneapolis Star & Tribune Co. v.

Minneapolis Comm’r of Revenue, 460 U.S. 575, 585 (1983)).  The Second

Circuit acknowledged that Legi-Tech’s access could allow Legi-Tech a

“free ride” on the state’s efforts and expenses, but noted that the

relevant statute prohibited Legi-Tech from such a pricing scheme.  Id.

In any respect, any “free ride” may not be legally actionable after

Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340

(1991).  See, e.g., Robert A. Gorman, The Feist

Case:__Reflections_on_a_Pathbreaking_Copyright_Decision, 18 Rutgers

Computer & Tech. L.J. 731 (1992); John F. Hayden, Recent Development,

Copyright_Protection_of_Computer_Databases_After Feist, 5 Harv. J.L. &

Tech. 215 (1991); Gerard J. Lewis, Comment,

Copyright_Protection_for_Purely_Factual_Compilations_Under Feist

Publications, Inc. v. Rural Telephone Service Co.:  How_Does Feist

Protect_Electronic_Data_Bases_of_Facts?, 8 Santa Clara Computer & High

Tech. L.J. 169 (1992); Henry Beck,

Copyright_Protection_for_Compilations_and_Databases_After Feist,

Computer Law., July 1991, at 1; Walter & Sussman, supra note 277.


[301]   520 N.Y.S.2d 334 (N.Y. Civ. Ct. 1987).


[302]   Plaintiff was a subscriber and a securities investor.  Defendant

provided allegedly misleading information, because it stated prices in

dollars without specifying whether the dollars were American or



[303]   Daniel v. Dow Jones & Co., 520 N.Y.S.2d at 336-37.


[304]   Id. at 337-38.


[305]   Noting that the U.S. Supreme Court in Greenmoss_Builders largely

collapsed the media/nonmedia distinction, the court treated the “wire

service” as a media defendant.  Id. at 339-40.  As a result, “[n]ews

services . . . such as defendant’s computerized database, are

instruments for the free flow of all forms of information, and should be

treated as unquestionably within the First Amendment’s guarantee of

freedom of the press.”  Id. at 340.


[306]   776 F. Supp. 135 (S.D.N.Y. 1991).  See_generally Cutrera,

Computer_Networks, supra note 16, at 576-80; Di Lello, supra note 28, at

210-17; Miller, supra note 144, at 1194-97; Sassan, supra note 47.


[307]   On some BBSs, discussion forums are managed or “refereed” by third

parties to minimize “junk” postings and increase the level and quality

of discussion on the forum.  See Rose & Wallace, supra note 1, at 14-17

(addressing some of the rights and responsibilities of moderators on

USENET); Oldenburg, Rights_on_the_Line, supra note 261, at E5 (noting

the importance of a moderator to keep conversations focused).

CompuServe uses outside independent forum managers (sysops) for each of

its forums.  Becker, PC Communications, supra note 3, at 221.


[308]   776 F. Supp. at 137.  Future courts should look at these four

factors in applying Cubby. Because CompuServe’s structure is unique,

however, courts should not necessarily require all four factors to find

that BBSs functioning as information databases are secondary publishers.


[309]   361 U.S. 147 (1959).


[310]   776 F. Supp. at 140 (emphasis added).  The court continued that

imposing a lower standard of liability on an “electronic news

distributor such as CompuServe” would unduly burden the free flow of

information.  Id.


[311]   A sysop may want to be considered a primary publisher to obtain,

among other things, enhanced protection from search and seizure,

compilation copyrights, or additional access to information available to

press entities.  For example, Delphi, a national BBS, offers a service

where it analyzes, collects, and makes available to its users

information resources from the Internet.  Magid, Cyberspace!, supra note

243, at 26.  Essentially, by performing this service, Delphi acts as a

republisher, for which it presumably receives additional revenues and/or

market share to compensate for the additional liability.


[312]   One commentator has argued, unpersuasively, that the Cubby holding

applies only to CompuServe, and not to Prodigy, because CompuServe is

functionally equivalent to a bookstore while Prodigy is designed for

shopping and more functionally equivalent to a shopping mall. See Di

Lello, supra note 28, at 228-29.  Putting aside the obvious (that even

bookstores are designed for shopping), the commentator misses the point

of his “functional equivalency” argument.  If the sysop is acting as a

vendor at the time of the legal incident, then the sysop should be

treated as a vendor; if the sysop is acting as a secondary

publisher/bookstore, then under the Cubby analysis, the sysop will be

treated as a secondary publisher.  Therefore, in those situations where

Prodigy acts as a secondary publisher, Prodigy should receive the

benefits of the Cubby holding.  However, it is completely consistent

with Cubby that where Prodigy exercises editorial control, it no longer

can claim the protection of the secondary publisher model, because of

its editorial control and not because the BBS’s atmosphere is more like

a shopping mall than a bookstore.


[313]   See Lance Rose, All_the_News_That’s_Fair_to_Use, Boardwatch Mag.,

May, 1992; cf. Di Cato, supra note 260, at 158 (acknowledging the

potential need to distinguish between commercial and free BBSs).  On one

level, the result in Playboy Enterprises, Inc. v. Frena, No. 93-489-CIV-

J-20, 1993 WL 522892 (M.D. Fla. Dec. 9, 1993), in which the court found

the sysop liable for digitized Playboy photos uploaded by users, can be

explained by this approach. Although the Frena court did not explain why

it considered the sysop responsible for his users’ actions, the fact

that the BBS was commercial and received revenues in part because of its

photo libraries suggests one reason why the court was comfortable

imposing liability.  See_id. at *11 (analyzing the “reverse passing off”

issue by focusing on the treatment of plaintiff’s “products”).


The distinction between commercial and free BBSs for the purposes

of software downloading has been proposed in other contexts.  See

Barbara E. McMullen & John F. McMullen,

Confusion_Reigns_on_NY_State_”Download”_Tax, Newsbytes, Sept. 12, 1991,

available_in WESTLAW, Comp-ASAP file (noting that a New York sales tax

law appeared to require sysops to remit sales taxes on downloaded

software but was interpreted not to include free BBSs); cf. Cavazos,

supra note 193, at 239 n.48 (noting that Southwestern Bell charges

noncommercial telephone rates to Texas BBSs that have fewer than three

incoming lines).


[314]   The negligence standard should apply, for example, if the sysop

failed to remove the copyrighted posting after receiving actual

knowledge or within a reasonable time (as determined by sysops similarly

situated).  See supra text accompanying notes 258-59.


[315]   For example, users should have the burden to check the software

for viruses.  Not only can users easily check for viruses, but users

should also know of the need to do so.  See Becker, PC Communications,

supra note 3, at 126.

[316]   Cf. Di Cato, supra note 260, at 155-56 (advocating that only

sysops who act intentionally or grossly negligently be liable for the

illegal distribution of copyrighted software).


[317]   However, copyright holders will have some responsibility to

monitor BBSs and to point out violations to the sysop.  This obligation

may be onerous but no more so than exists in physical space.


[318]   This is essentially the argument the court accepted in Cubby, Inc.

v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991).  Rose and Wallace

suggest that, because sysops can decide not to act as a gateway, some

liability might accrue if the BBS acts as a gateway to a discussion

forum or file exchange that repeatedly engages in tortious or illegal

conduct.  Rose & Wallace, supra note 1, at 15-16; see_also McDaniel,

supra note 7, at 839 (arguing essentially the same in the information

services context).  The Cubby court recognized this possibility but did

not address it directly.  See supra text accompanying note 310.


As a result, to clarify the lack of liability, some commentators

have proposed an “Electronic Communications Forwarding Act” which would

absolve from liability entities that only forward communications.  See

Johnson & Marks, supra note 88, at 510-11; Perritt, Symposium, supra

note 217, at 343 (concluding remarks of Shari Steele of the Electronic

Frontier Foundation).


[319]   See Perritt, Symposium, supra note 217; cf. Johnson & Marks, supra

note 88 (arguing that a duty to monitor will reduce the number of



[320]   See Kapor, supra note 22, at 162; cf. Nadine Epstein,

Et_Voila!__Le_Minitel, N.Y. Times, Mar. 9, 1986, S. 6, at 46 (describing

the experience of the French government-sponsored Le Minitel, a national

network which distributes private electronic newspapers); Rone Tempest,

France_Plugs_into_Future_with_Video_System, L.A. Times, Apr. 18, 1993,

at A11 (describing the Minitel system also).


[321]   See Perritt, Symposium, supra note 217 (using existing laws); cf.

Tribe, The_Constitution_in_Cyberspace, supra note 36, at 39 (“[T]he

Constitution as a whole

must_be_read_through_technologically_transparent_lenses. . . .”)

(emphasis in original).


[322]   Rose & Wallace, supra note 1, at 20 (“[S]ysops [can] adjust the

amount of freedom and power they give to callers, and the amount of

legal risk they can take on.”); accord Perritt, Tort_Liability, supra

note 126, at 66 (emphasizing the sysop’s choice in control and risk);

McDaniel, supra note 7, at 785; Meeks, supra note 213, at S14 (“[S]ysops

have the right to run their systems any way they see fit.”).


However, allowing sysops to exercise editorial discretion allows

private parties to inhibit free speech.  In critiquing Prodigy’s

actions, Jerry Berman, formerly of the ACLU, said:  “[W]e should be

concerned if systems such as Prodigy become the rule.  Instead of

expanding speech, we’ll have electronic forums that are quite limited.”

Markoff, Home_Computer_Network, supra note 33, at D5; accord Di Lello,

supra note 28, at 245-46; cf. Tribe, American Constitutional Law, supra

note 41, at 1009 n.78 (“[W]e cannot depend upon those who own and

control the new media to resolve the critical issues of access and

availability in a publicly-responsible manner.”).  To avoid excessive

private-sector stifling of free speech, Berman suggests that either the

market must provide significant meaningful choices or Congress must

regulate.  See Taylor, supra note 33, at 4.


[323]   See Oldenburg, The_Law, supra note 45, at E5 (quoting Lance Rose).

In fact some commentators have suggested that contracts and not statutes

should currently be the primary way to govern computer communications.

See, e.g., Johnson & Marks, supra note 88.


However, the formation of an industry group could restrict users’

power to contract freely.  “[T]he most comprehensive censorship [in

broadcasting] . . . . consists of elaborate systems of `self-regulation’

which the broadcast industry imposes on itself . . . .”  Tribe, American

Constitutional Law, supra note 41, at 1002-03 n.35; see Pool, supra note

18, at 121 (positing that the initial censorship in radio broadcasting

was driven by the attitude “censor ourselves so the government will

not”); cf. Charles, supra note 125, at 149 (arguing that sysops could

avoid court intervention by forming an industry group to develop

industry-wide rules).  In fact, in 1984, the New York Sysops

Association, a BBS industry group, pressured sysops to restrict the use

of BBSs for illegal activity.  See McGill, supra note 6, at B5; see also

Kahn, supra note 168, at 17-18 (describing the standards for sysops

articulated by a BBS user group).


However, even if industry-wide standards emerge, this should not

override the right of parties to form enforceable contracts in

cyberspace.  In fact, robust contract law is an essential component of a

properly functioning free market.  Perritt, Dispute_Resolution, supra

note 274. However, sysops might standardize contracts of adhesion, which

bind users to statements that appear on the screen for a few seconds and

provide one-way protection for the sysop only.  See McDaniel, supra note

7, at 837-38; see_also Di Lello, supra note 28, at 232 (arguing that

Prodigy’s contract is adhesive).  These contracts should be voidable

just as they would be in physical space.


[324]   Some commentators argue that sysop liability should be exclusively

governed by the user/sysop contract.  See, e.g., Johnson & Marks, supra

note 88; Perritt, Dispute_Resolution, supra note 274, at 396-97

(proposing a statute where, if sysops post “Terms of Service,” they

shall not be liable to “any person” for injury caused by the users);

Cutrera, Computer_Networks, supra note 16, at 582-83.  This is

unrealistic, as there always will be cases where the contract is silent

on the key issue or where no contract exists.  More importantly, this

could lead to a contractual version of Prodigy’s current approach of

exercising editorial control, but absolving itself of all liability for

its actions.  As noted supra in the text accompanying note 279, this

distorts the free market by uncoupling Prodigy’s private costs from the

implicit social costs of its actions.  Therefore, while contractual

allocations are desirable and should be encouraged, courts should

disallow provisions that, based on existing constitutional

jurisprudence, do not properly allocate social costs.


[325]   See_supra part IV.B.

[326]   See Perritt, Tort_Liability, supra note 126, at 137-38 (market

competition achieves all policy goals); Kapor, supra note 22, at 162

(“[M]arket competition is the most efficient means of ensuring that

needs of network users will be met.”); cf. Moore, 1st_Amendment, supra

note 34, at 13 (arguing that if users want “uninhibited, titillating

conversation,” they can subscribe to BBSs other than Prodigy).


[327]   Government regulation of media is a last recourse.  Pool, supra

note 18, at 246; see Kapor, supra note 22, at 162 (seeking to limit

government subsidization or regulation because such intervention can

lead to content-based discrimination).


[328]   See supra text accompanying notes 10-15; see_also Johnson & Marks,

supra note 88, at 504 (“The ease with which sysops can develop a system,

and the relative ease with which consumers can access the service, are

leading to a drastic increase in both the number of systems available to

the consumers and in the usage of such systems.”); Cutrera,

Computer_Networks, supra note 16, at 573 (“The cost of starting a

bulletin board is so low that a thriving, competitive market is

developing.”) (footnote omitted); Naughton, supra note 19, at 434-35.

However there are some transaction costs that may pervert the free

market.  See Perritt, Dispute_Resolution, supra note 274, at 357 (citing

when there is “significant detrimental reliance on the network’s service

terms”);_see_also Richard Core, Prodigy_Readmits_Foe_of_Shock_Jock, L.A.

Times, Oct. 2, 1993, Orange County edition, at B4 (reporting that a

Prodigy user who was kicked off the system for personal attacks against

Howard Stern sued Prodigy in small claims court for the costs of

switching to another BBS).  While the large numbers of unsubscribed

potential customers keeps pressure on BBSs, as the market becomes

significantly more mature, these switching costs may hinder the vitality

of the free market.


[329]   See Tribe, American Constitutional Law, supra note 41, at 1002-03

n.35 (noting that advertising revenues engender adherence to

broadcasters’ self-imposed censorship guidelines in order to keep

Nielsen ratings high and to avoid offending advertisers).


[330]   Prodigy apparently has failed to raise significant revenues from

its advertisers, however, and has changed its pricing structure to

derive more revenues (and a larger percentage of revenues) from users.

See Kathleen Creighton, The_End_of_BBSing_on_Prodigy?, Microtimes, May

31, 1993, at 114, 186.


[331]   See Perritt, Tort_Liability, supra note 126, at 134 (arguing that

private electronic networks should be subject to mandatory access only

if the network has a monopoly position that precludes access); see_also

Miller, supra note 144, at 1196.


The idea that individual BBSs command market power is not

inconceivable.  See Di Lello, supra note 28, at 245-46 (presuming that

Prodigy, and its censorship model, will dominate the market).  But_see

Harmon, Price_War, supra note 60, at D2 (noting its significant

financial problems, some have speculated that Prodigy will not survive).


However, the Internet is consolidating market power.  Because the

Internet is the largest and most global network, users are consolidating

on BBSs that connect to the Internet.  See Eckhouse, supra note 70, at

C1 (describing the growth of the Internet and noting that “[h]aving an

Internet address . . . on one’s business card has become a badge of

honor”); Lazzareschi, Wired, supra note 69, at D1 (“An address on the

Internet is the latest gotta-have status symbol in corporate America.”).

The Internet’s consolidation is not surprising given that electronic

networks have both economies of scale and scope.  See Perritt,

Tort_Liability, supra note 126, at 142.


[332]   Laurence Tribe has argued that the size of some electronic

networks has created “virtual `governments'” that create their own

access policies and operate internationally.  Oldenburg, The_Law, supra

note 45, at E5.  Therefore, these networks “may be outgrowing their

private status and ripening for regulation.”  Id.; see Di Lello, supra

note 28, at 231, 241 (arguing that “the [present] danger of market power

and monopoly are considerable” and arguing for federal regulation of

commercial BBSs); Perritt, Tort_Liability, supra note 126, at 149

(arguing that the FCC should begin an inquiry into network denials of



[333]   See Naughton, supra note 19, at 434-35 & n.150 (arguing that if

the market becomes concentrated, BBSs should be considered under the

cases allowing users the right to access private property).