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THE TCIMPIDIS CASE

THE SYSOPS AND USERS SPEAK

CAN A DISCLAIMER AFFECT LIABILITY?

CURRENT DISCLAIMERS: FROM SUBLIMINAL TO SUBLIME

ETIQUETTE, ETHICS, AND ELECTONICS

THE BBS BATTLEMENTS

THE TCIMPIDIS CASE

The confiscation of the equipment for the "MOG UR" computerized Bulletin Board System (BBS) run by SYSOP (System Operator) Tom Tcimpidis in California touched off a controversy that is still reverberating through the memory chips of BBS's around the country. In May of 1984 investigators for the Pacific Telephone and Telegraph (PACTEL) company logged onto the MOG US BBS and discovered an access code to a long distance system and a PACTEL credit card number.

The illegal code and number had been placed there by an unknown caller who had left them in the system without the knowledge of Tcimpidis, who operated the system from his home.

The Los Angeles City Attorney was apparently pressured by PACTEL into pressing charges of credit card fraud against Tcimpidis and confiscated his equipment and disks.

In a unique circumstance that is likely to become commonplace, national support of Tcimpidis was mobilized by computer networking. Even the legal aspects of the case were discussed online. In an interview with the "Chicago Lawyer" newspaper, Chicago attorney Paul Bernstein, who operates the "LAWMUG" legal BBS discussed how the situation around the Tcimpidis case played itself out online:

    "The discussion started on CompuServe's Lawyers SIG (Special Interest Group) (to get there on CIS, one types "GO SFP-40" at command level), when news spread like wildfire across the country that the BBS of Tom Tcimpidis had been seized by the local police in the LA area on a complaint filed by PacTel.... Tom's attorney [Chuck Lindner] got on line to raise constitutional issues and "discuss" them with other attorneys on line.

    "Indeed, the facts were that a stolen credit card number was on Tom's BBS, placed there by a person unknown. Tom did NOT know of its presence for some time, during which time PacTel had him arrested and his equipment taken. the statue in question required "knowledge" and "intent" to convict. Research revealed that the "knowledge" had to be real, not implied.

    "In any event, the attorney in California took this input collected over several months and fashioned a motion to dismiss on the theory that based on the known facts, the prosecutors could not possibly prove their case. Before that motion could be argued, the LA prosecutors, on their own motion, dismissed the case, with prejudice, which means it could not be brought up again. Total victory for Tom Tcimpidis."

A victory to Tcimpidis personally, but still unresolved are the legal questions raised by the case. Having been mobilized by the Tcimpidis case and other incidents involving telecommunication and Constitutional rights, the computing world began to take notice of what they were confronting.

Trade and popular computer publications began to cover the situation, including a detailed series of articles in InfoWorld by Peggy Watt. The June 1985 issues of Popular Computing and Dr. Dobb's Journal both carry major stories reflecting on privacy and computer communication. Messges relating to BBS privacy issues were posted on BBS systems around the country including a large discussion on "The Source" telecommunication network, and a series of related discussions on "The Well" BBS in California. Almost all the discussions regarding BBS's end up ruminating on the fact that nothing is resolved -- everyone is waiting for the other shoe to drop.

Writing in the June 1985 "Popular Computing", Matthew McClure sums up the situation by observing of the Tcimpidis case, "While the outcome is encouraging, it has still not resolved the central issue of who is liable for illegal material" on BBS's. McClure, who is research director of Whole Earth Review, operates The Well BBS in San Francisco. He notes another concern that remains unsettled: "the right of authorities to seize equipment when illegal activity is suspected, which, some critics maintain, violates the Constitutional guarantee of freedom of speech."

That freedom of speech has objectively diminished is evidenced by the fact that follwing the Tcimpidis case, bulletin board operators began to shut down their systems, requiring registration, or charging for access rights.

THE SYSOPS AND USERS SPEAK

As part of the research for this paper I went online and left messages calling for comments on privacy law and BBS's on several BBS's around the country. I also talked to several SYSOPS directly and through BBS's. The most useful outcome of this was a discussion on the Legal Conference on The Well BBS in San Francisco. I am indebted to Legal Conference coordinators Donna Hall and Harry M. Goodman for organizing the discussion.

One of the privacy dilemmas raised during the discussion on The Well Legal Conference was the propriety and terms of journalists quoting from BBS conferences. The Well user agreement stipulates authors own their own words. Since it was impossible to secure all the needed permissions prior to the conference, I agreed to summarize the discussions without identifiers. this is but one of the many dilemmas yet unresolved concerning privacy and telecommunications. The free form style of the following material in many ways is true to the stylistic experience of BBS discussion:

    It seems obvious that a BBS is a hardware and software utility that facilitates communications - more like a phone system than a publishing system.

    A decentralized structure where everyone had the responsibility to purge illegal messages would be good.

    As long as BBS's are put up by people rather than institutions they will have a personalized mark and the owner will have responsibility for what is online.

    In the Tcimpidis case he had 19 Megabytes online, and couldn't be expected to know everything that was there and to remove the illegal stuff. But if a SYSOP has a policy of removing illegal or offensive material, then is he or she liable if something isn't removed even if they aren't aware of it? Seems like if someone is acting in the public interest they should be rewarded not penalized.

    One answer is simple, on our system the person who enters a message owns it - electronic utterances are speech. The SYSOP would have to conspire to draw attention to illegal messages to become liable. And furthermore, since all the illegal messages have to come over some telephone company's lines, why aren't they liable?

    On the other side, though, the phone company can say it has no knowledge of what is transmitted, while a SYSOP does, or at least can, know what is on the system.

    A SYSOP who is aware of a defamatory or illegal message has a duty to remove or censor that message to prevent further damage from that message occurring.

    I don't expect a SYSOP to monitor every nitwit thing on the BBS. I do expect ethical behavior if a rip-off is gently brought to the attention of the SUSOP.

    Did you hear that DRACO-NET's telephone records have been subpoenaed?

    When I asked one SYSOP to remove a written passage taken from a novelette published in an anthology, I was told that since someone had taken the time to type it into the system it would not be removed.

    Do copyright laws apply to this medium?

    I believe a SYSOP must read and pass judgement on what is on the Board, but not within seconds of each call. I'd hate to see a law that said SYSOPS had to read their Board every 24 hours or else?

    So the people working on the BBS laws should define what similarity BBS's have to print media in terms of copyright?

    Scares the daylights out of me to think my words for which I usually get paid can be stolen from this medium.

    Can a Board hold a copyright in all the users name with some legal utterance?

    Speech is speech, whether in my living room or here, I don't like all the presumptions - if I don't like what is said in my electronic premises I shall act as I see fit. It is none of the business of the government. The best BBS/Telecommunications law? NONE.

__________

CAN A DISCLAIMER AFFECT LIABILITY?

It might well be in the interest of all BBS's to display a "disclaimer" message warning that illegal and defamatory messages or messages containing unauthorized proprietary or private information which can be used to defraud will not be tolerated, and that users who see such a message should notify the SYSOP at once. If such messages are removed upon notification, within a reasonable amount of time, the SYSOP should not then be held legally responsible for the offending message. The BBS should make agreement to these terms a condition of joining the BBS as a user.

In this scenario, the law would place the SYSOP in the same legal position as an owner of a communication utility - a provider of services - rather than a publisher, broadcaster, or owner of a cork supermarket bulletin board.

CURRENT DISCLAIMERS: FROM SUBLIMINAL TO SUBLIME

The first Computerized Bulletin Board System (CBBS) was placed in service by Ward Christensen and Randy Seuss in Chicago on February 16, 1978. It still focuses on technical matters and its messages are typical of such systems which encourage information sharing. Their disclaimer is buried in the opening message:

    **WELCOME TO WARD AND RANDY'S CBBS(R) **(COMPUTERIZED BULLETIN BOARD SYSTEM (R)) ** (In operation since 2/16/78)

    Hardware: Randy (suess) => Sorry, Randy no longer calls this system!

    Software: Ward (Christensen)

    --> 02/16/85: CBBS celebrates its 7th anniversary

    --> 10/84: CBBS Policy "Documented": see 1st item below under "policy".

    CBBS POLICY:

    -10/84: CBBS is for the "more advanced, technical hobbyist"-AND those interested in someday being a member of this "group".

    -Appropriate CBBS SUBJECTS: C, assembler, AI, programming techniques, communications, etc. No non-computer related topics, please.

    -Specifically the CP/M, MS-DOS/PC-DOS, and UNIX operating systems.

    -Commercial msgs in above areas welcome

    -Pers. msgs between hobbyists/hams OK - PLEASE avoid frivoulous msgs

    -Messages using fictitious names, ****'s, -----'s, centering, or other space/time wasters, or inappropriate subjects ARE DELETED.

    -Use lower case if you have it, PLEASE. (Caps for EMPHASIS).

    -Please don't leave #'s/passwords for NON-PUBLIC systems, or offer to trade such passwords.

    -Please don't offer to buy/sell/trade COPIES of licensed software you have purchased for a single user.

    -Please no msgs re: ADAM, GAMES, C-64, COCO, TRS-80.

    -One reason for NOT supporting these; CBBS is SINGER USER; the LESS areas it supports, the better it can support users interested in those areas!

A more elaborate and compelling disclaimer is carried by "The Well" in California:

    NOTICE:

    AS A USER OF THE WELL,

    YOU OWN THE WORDS YOU WRITE.

    THAT MEANS YOU ARE THEIR PUBLISHER. YOU TAKE RESPONSIBILITY FOR THEIR CONTENT, AND NO ONE MAY REUSE THEM WITHOUT YOUR PERMISSION.

    HOSTS OF CONFERENCES, IN THE COMMUNITY INTEREST, MAY DELETE A COMMENT BUT MAY NOT AMEND IT. WHEN THEY DO DELETE A COMMENT A <CENSORED> NOTICE IS LEFT IN ITS PLACE. HOSTS ARE ALSO EMPOWERED, UNDER DURESS, TO BAN A NUISANCE MEMBER FROM THEIR CONFERENCE. NEVERTHELESS, BECAUSE HOSTS ARE NOT ALWAYS "PRESENT", OR NECESSARILY KNOWLEDGEABLE, THEY CANNOT BE HELD RESPONSIBLE FOR DAMAGING COMMENTS THAT APPEAR IN THEIR CONFERENCES. RESPONSIBILITY RESTS WITH THE WRITER.

    IF YOU AGREE WITH THESE CONDITIONS, PLEASE HIT

    <RETURN>. IF NOT, HANG UP. THANKS.

    PRESS <RETURN>

In effect, users of The Well agree to the terms of a contract by not hanging up, and affirmatively hitting the <RETURN> key. The Well gets around problems of identity by charging for subscriber access and billing to a valid credit card. Boards that charge for their service can limit access and thus screen out the worst offenders of BBS etiquette and laws relating to proprietary information.

Free BBS's risk being abused by anonymous callers, and also raise the most fundamental questions of First Amendment rights versus liability for the posting of illegal, defamatory, and/or unauthorized proprietary notices.

ETIQUETTE, ETHICS, AND ELECTONICS

Some privacy issues involving BBS's probably are better left to the ethics and tastes of the community of users and the SYSOP. However, since informed consent is always better than implied consent, SYSOPs should clearly describe the terms and conditions of use for their particular system.

Privacy from SYSOP snooping is an expectation of many BBS users who use private conferences or CHAT functions on multi-user systems. Private conferences are between two or more persons who restrict access to their messages. CHAT is the term used to describe the dialogue between two persons who are communicating in "real time" - both sitting at their respective terminals and communicating through their words on the screen which appear as soon as they are typed.

SYSOPS should reveal whether or not they can and/or do inspect private messages, and whether or not encryption is available for private mail and CHAT.

There also should be an onscreen discussion of the BBS's policy on subpoenas of messages, "Porting" of public messages, [copying a message an posting it on another BBS] terms for permissions to Port or quote from messages in print or electronic form, copyrights, and SYSOP censorship.

These ethical and more obscure legal matters need not be flashed onscreen with every sign-on, but should be available to interested users.

For examples of two thoughtful California proposed laws regarding BBS's, see Appendices J and L.

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