From: kadie@cs.uiuc.edu (Carl M. Kadie)
Subject: []  File 5--SYSLAW (Review #2)
Followup-To: alt.comp.acad-freedom.talk
Organization: University of Illinois, Dept. of Comp. Sci., Urbana, IL
Date: Tue, 22 Dec 1992 01:24:20 GMT

[A repost - Carl]

Date: Sat, 28 Nov 92 10:19:54 CDT
From:  Jim Thomas <tk0jut2@mvs.cso.niu.edu>
Subject:  File 5--SYSLAW (Review #2)

The U.S. Secret Service's "crackdown" on hackers in the past two years
has included seizures of computer hardware running BBSes.  This raises
significant questions for the legal obligations of both users and
sysops.  The "Phrack trial," Operation Sun Devil, and--more
recently--the alleged USSS involvement in disrupting law-abiding 2600
meetings underscore the importance of establishing unequivocal
Constitutional protections of BBSes.  SYSLAW, a comprehensive summary
of the legal liabilities and obligations of BBS sysops, is mistitled:
It's not simply a legal handbook for sysops, but a helpful compendium
of laws and practices relevant to BBS users as well.  Although both
Lance Rose and Jonathan Wallace (R&W) are attorneys, the volume is
written clearly and without overwhelming legal jargon, and even the
casual BBS user should derive sufficient information from the volume
to understand the problems sysops confront in running a board.

Rose and Wallace accomplish their stated goals (p. xxii) of
familiarizing readers with the kinds of legal questions arising in a
BBS context, providing sysops with a legal overview of laws bearing on
BBS operations, and identifying the legal ambiguities in which the law
appears to provide no clear guidelines for operation, yet may place a
sysop at legal risk.  Syslaw is divided into nine chapters and 10
hefty appendices.  The core issues in the book are 1) First Amendment
and speech, 2) privacy, 3) sysop liabilities to users, and 4)
sysop/user relations.

In the first chapter, the authors emphasize that the question of the
relationship of a BBS to the First Amendment remains unsettled, and
this relationship generates considerable discussion in BBS forums and
on Usenet (eg, comp.org.eff.talk). While noting that BBSs create new
challenges or Constitutional interpretation, R&W identify two reasons
why BBSs deserve "the full protection from legal interference granted
by the First Amendment under its express protections of "speech,"
"press," "peaceable assembly," and "petitioning the government" (p.
2).  First, BBSs are focal points for creating, collecting and
disseminating information, and as such, electronic speech is
"perfectly analogous to printed materials which are universally
acknowledge as protected under the First Amendment." Second, R&W argue
that BBSs are analogous to physical printing presses and promote the
growth of alternative publishers with diverse points of view.  Just as
technology has expanded rights from print media other media, such
broadcast radio and television, BBSs also reflect an emergent
technology that functions in much the same way as the older media:

          BBS's ((sic)) powerfully fulfill the goal of the First
     Amendment by enabling effective publishing and distribution of
     diverse points of view, many of which never before had a voice.
     Protecting BBS's should be one of the primary functions of the
     First Amendment today (p. 3).

R&W argue that there are three main ways that the First Amendment
protects BBSs:

     (1) it sharply limits the  kinds of speech that can be considered
     illegal on BBS', (2) it assures that the overall legal burdens on
     sysops will be kept light enough that they can keep their BBS'
     running to distribute their own speech and others', and (3) it
     limits the government's ability to search or seize BBS' where it
     would interfere with BBS' ability to distribute speech.

The authors identify three kinds of BBS operations that, for First
Amendment purposes, qualify for various types and amounts of
protection (p. 8-17): They are simultaneously publishers, distributors,
and shared message networks.

The authors emphasize that speech protections are an issue between the
government and the citizens, not the sysops and their users. Sysops,
they remind us, can--within the law--run their boards and censor as
they wish. The danger, R&W suggest, is that over-cautious sysops may
engage in unnecessary self-censorship in fear of government
intervention. Their goal is to provide the BBS community with
guidelines that help distinguish legal from illegal speech (and
files).

The remaining chapters address topics such as sysop liability when
injurious activities or materials occur on a BBS, the sysops
obligations when obviously illegal behavior is discovered, the
"problem" of sexual explicit materials, and searches and seizures.  Of
special interest is the chapter on contractual obligations between
sysop and users (chapter 2) in which they suggest that one way around
many of the potential legal liabilities a sysop might face with users
is to require a binding "caller contract" that explicitly delineates
the rights and obligations of each party. They provide a sample
contract (Appendix A) that, if implemented at the first-call in screen
progression format (any unwillingness to agree to the terms of the
contract prevents the caller from progressing into the system) that
they judge to be legally binding if the caller completes the contract
by agreeing to its terms.

The Appendixes also include a number of federal statutes that provide a
handy reference for readers. These include statues on child
pornography, state computer crime laws, and federal computer fraud and
abuse acts.

My one, in fact my only, objection to the book was to a rather
hyperbolic swipe at "pirate boards:"

          Only a tiny minority of BBS's operate as "pirate
     boards" for swapping stolen software, computer access codes,
     viruses etc. When these criminal boards are seized and shut
     down by the authorities everyone benefits (p. 6).

This rather excessive and simplistic view of "piracy" seems to
contradict both their intent to improve understanding of new
technology and corresponding behaviors by avoiding such extreme words
as "stolen software" and to clarify the nuances in various forms of
behavior in ways that distinguish between, for example, casual
swapping of copyright files and profiteering.
This, however, is a minor quibble (and will be taken up in future
issues of CuD focusing on piracy and the Software Publishers'
Association).

Syslaw should be required reading for all BBSers. Unfortunately, it is
available *only* from PC Information group, Inc. Those wishing to
obtain a copy can write the publisher at:
1125 East Broadway
Winona, MN  55987
Voice: (800-321-8285 / 507-452-2824
Fax: 507-452-0037

If ordering directly, add $3.00 (US) to the $34.95 price for shipping.
-- 
Carl Kadie -- I do not represent any organization; this is just me.
 = kadie@cs.uiuc.edu =