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From: Lang Zerner <langz@ebay.sun.com>
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To: telecom@eecs.nwu.edu
Subject: Sysops and libel liability -- endnotes
Resent-Date: Sat, 21 Apr 90 0:05:23 CDT
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Here are the endnotes to the paper I submitted in a separate message.
Be seeing you...
==Lang
=======
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 35
ENDNOTES
1. 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
2. These interests can cover anything from science fiction
to gourmet cooking. Uyehara, Computer Bulletin Boards:
Let the Operator Beware, 14 Student Lawyer 28 (1986).
3. Id., at 30.
4. The data service Compuserve is one such national BBS
run for profit by business organizations. Uyehara, at
28. Other examples of large databases of interest to
the legal profession are computerized research services
such as LEXIS and WESTLAW.
5. Uyehara, at 28; Manning, Bulletin Boards: Everybody's
Online Services, Online, Nov. 1984, at 8,9. "Modem" is
defined infra, note 17 and accompanying text.
6. "...computer bulletin boards offer their users
important benefits. An individual can use a bulletin
board to express his opinion on a matter of public
interest. He may find a review of a product he is
considering buying. He may find a useful piece of
software. An individual might also use the bulletin
board to ask a technical question about a specific
computer program." Note, Computer Bulletin Board
Operator Liability For User Misuse, 54 Fordham L.Rev.
439, 440 (1985) (Authored by Jonathan Gilbert); see
also Lasden, Of Bytes And Bulletin Boards, N.Y.Times,
August 4, 1985, sec. 6, at 34, col. 1, where the author
notes computer users may now use BBSes to voice their
opinions directly to State Senators' offices.
7. "Virus" Hits Nation's Research Computers, San Jose
Mercury News, Nov. 4, 1988, at 1, col. 1.
8. "It is estimated that the theft of long-distance
services and software piracy each approximate $100
million a year; credit card fraud via computers costs
about $200 million annually." Pittman, Computer
Security In Insurance Companies, 85 Best's Rev. - Life-
Health Ins. Edition, Apr. 1985 at 92.
9. Schiffres, The Shadowy World of Computer "Hackers,"
U.S. News & World Report, June 3, 1985, at 58.
10. Pollack, Free Speech Issues Surround Computer Bulletin
Board Use, N.Y. Times, Nov. 12, 1984, note 1, at D4,
col. 6.
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 36
11. Note, 54 Fordham L.Rev. 440-441 (1985).
12. Poore and Brockman, 8 Nat'l L.J. 14, (1985).
13. See infra, Topic III, Problems of Proof.
14. The uncertainty revolves around how to define BBSes.
When viewed as analogous to newspapers and other media,
SYSOPS would be responsible for any message posted on
their systems, much as newspaper editors are
responsible for articles appearing in their medium.
Uyehara, 14 Student Lawyer 30 (1986). But when BBSes
are compared to a bulletin board found in a public hall
or supermarket, the liability issue is focused more on
those actually posting the messages rather than on the
board's owner. Id., at 30. This Comment suggests that
BBS SYSOPs be held to a reasonable standard of care
emerging specifically for their endeavors. See infra,
Topic II.
15. Poore and Brockman, 8 Nat'l L.J. 14, (1985). Another
writer has noted that Compuserve now has over 200,000
users making use of nearly 100 diverse databases.
Lasden, Of Bytes And Bulletin Boards, N.Y. Times,
August 4, 1985, sec. 6, at 34, col. 1.
16. Poore and Brockman, 8 Nat'l L.J. 14 (1985).
17. 14 Am Jur. POF 2d Computer-Generated Evidence Sec. 11
(1977).
18. Note, 54 Fordham L.Rev. 439, 446 (1985).
19. Id.
20. See "Account," infra, note 25 and accompanying text.
21. Garfinkel, An Introduction to Computer Security, 33
Prac. Law.41-42 (1987).
22. Id.
23. See infra, notes 25 and 27 and accompanying text.
24. Some more sophisticated operating systems provide
greater access control by (1) recording unauthorized
attempts at entry; (2) recording those attempts and
sending a warning to the perpetrator; and (3) keeping
the perpetrartor off the system permanently until
he/she is reinstated by the computer's security
administrator or SYSOP. Balding, Computer Breaking and
Entering: The Anatomy of Liability, 5 Computer Lawyer,
Jan. 1988, at 6.
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 37
25. Garfinkel, An Introduction to Computer Security, 33
Prac. Law. 42 (1987).
26. Id.
27. Id. "A password is a secret word or phrase that should
be known only to the user and the computer. When the
user first attempts to use the computer, he must first
enter the password. The computer then compares the
typed password to the stored password and, if they
match, allows the user access."
28. Id., at 42 and 46.
29. 14 Am. Jur. POF 2d Computer-Generated Evidence Sec. 11
(1977).
30. 54 Fordham L.Rev. 439, note 2 (1985).
31. Restatement (Second) of Torts Sec. 568(1) (1976).
32. Restatement (Second) of Torts Sec. 577(1) (1976).
33. Restatement (Second) of Torts Sec.559 (1976).
34. Veeder, The History and Theory of the Law of
Defamation, 3 Colum. L.Rev. 546, 569-571 (1903).
35. Restatement (Second) of Torts Sec. 622 (1976).
36. Restatement, Torts Sec. 568, comment d (1938).
37. Shor v. Billingley, 4 Misc.2d 857, 158 N.Y.S.2d 476
(Sup. Ct. 1956), aff'd mem., 4 App.Div. 2d 1017, 169
N.Y.S.2d 416 (1st Dep't. 1957).
38. Torts: Defamation: Libel-Slander Distinction:
Extemporaneous Remarks Made on Television Broadcast:
Shor v. Billingley, 4 Misc. 2d 857, 158 N.Y.S.2d 476
(Sup.Ct. N.Y. County 1957), 43 Cornell L.Q. 320, 322
(1957) (Authored by Stephen A. Hochman).
39. Id.
40. 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964),
motion denied 376 U.S. 967, 84 S.Ct. 1130, 12 L.Ed.2d
83.
41. 376 U.S. 254, 273.
42. 376 U.S. 254, 280.
43. 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 38
44. Gertz v. Robert Welch, Inc., 418 U.S. 323, 326.
45. Id.
46. Id., at 327.
47. "...those who hold governmental office may recover for
injury to reputation only on clear and convincing proof
that the defamatory falsehood was made with knowledge
of its falsity or with reckless disregard for the
truth." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342.
"An individual who decides to seek governmental office
must accept certain necessary consequences of that
involvement in pubic affairs. He runs the risk of
closer public scrutiny than might otherwise be the
case." Id., at 344.
48. "...[A]n individual may attain such pervasive fame and
notoriety that he becomes a public figure for all
purposes and in all contexts. More commonly, an
individual voluntarily injects himself or is drawn into
a particular public controversy and thereby becomes a
public figure for a limited range of issues. In either
case such persons assume special prominence in the
resolution of public questions." 418 U.S. 323, 351.
49. "Even if the foregoing generalities do not obtain in
every circumstance, the communications media are
entitled to act on the assumption that public officials
and public figures have voluntarily exposed themselves
to the increased risk of injury from defamatory
falsehood concerning them. No such assumption is
justified with respect to a private individual. He has
not accepted public office or assumed an 'influential
role in ordering society.' Curtis Publishing Co. v.
Butts, 388 U.S., at 164 ...He has relinquished no part
of his interest in the protection of his own good name,
and consequently he has a more compelling call on the
courts for redress of injury inflicted by the
defamatory falsehood. Thus, private individuals are not
only more vulnerable to injury than public officials
and public figures; they are also more deserving of
recovery." Id., at 345.
50. "...[P]etitioner was not a public figure. He ...
plainly did not thrust himself into the vortex of this
public issue, nor did he engage the public's attention
in an attempt to influence its outcome." Id., at 352.
51. Justice Powell noted for the Court that
"[T]he communications media are entitled to act on
the assumption that public officials and public
figures have voluntarily exposed themselves to
increased risk of injury from defamatory falsehood
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 39
concerning them. No such assumption is justified
with respect to a private individual. He has not
accepted public office or assumed an 'influential
role in ordering society....' He has relinquished
no part of his interest in the protection of his
own good name, and consequently he has a more
compelling call on the courts for redress of injury
inflicted be defamatory falsehood. Thus, private
individuals are not only more vulnerable to injury
than public officials and public figures; they are
also more deserving of recovery." Id., at 345.
52. Id., at 347.
53. Keeton, Dobbs, Keeton and Owen, Prosser and Keeton on
Torts, sec. 32, p.174. See also Vaughn v. Menlove, 3
Bing. (N.C.) 467, 132 Eng.Rep. 490 (1837).
54. 111 Cal. App. 2d 424, 244 P.2d 757, 28 ALR2d 451
(1952).
55. 111 Cal. App. 2d 424, 427.
56. Id., at 426.
57. Id, at 427.
58. Restatement (Second) of Torts Sec. 577(2) (1976).
59. 22 Ohio App.2d 141, 259 N.E.2d 160 (1970).
60. Scott v. Hull, 259 N.E.2d 160, 162 (1970).
61. Id., at 161.
62. Id., at 162.
63. 836 F.2d 1042 (7th Cir. 1987).
64. Id., at 1047.
65. The Court of Appeals noted the Restatement view and
observed that Indiana law had neither embraced nor
rejected that approach. Id., at 1046.
66. Id.
67. Id.
68. Id., at 1046-47.
69. Id.
70. Recall that in our hypothetical a third user
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 40
masquerading as another is transmitting messages to
others, revealing embarassing and false information.
71. BBS systems security and other preventative measures
are discussed more fully infra, Topic 3.d.
72. Issues in proving the SYSOP's role in publishing the
libellous statement are discussed more fully in Topic
III. A., infra.
73. Sydney v. MacFadden Newspaper Publishing Corp., 242
N.Y. 208, 151 N.E. 209, 44 A.L.R. 1419 (1926). See also
Restatement (Second) of Torts Sec. 621 (1976) ("One who
is liable for a defamatory communication is liable for
the proved, actual harm caused to the reputation of the
person defamed.")
74. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472
U.S. 749, 86 L.Ed.2d 593, 105 S.Ct. 2939 (1985).
75. See supra, note 53 and accompanying text.
76. Note, Protecting the Subjects of Credit Reports, 80
Yale L.J. 1035, 1051-52, n.88 (1971).
77. Gertz did not rule out an assumption of defendant's
negligence. See Eaton, The American Law of Defamation
Through Gertz V. Robert Welch, Inc., and Beyond: An
Analytical Primer, 61 Va. L.Rev. 1349 (1975).
78. 15 U.S.C.A. Sec. 1681 et seq. (1974). Two standards are
proposed there: the first, willful noncompliance, is
defined as equivalent to the New York Times "actual
malice" standard, and violators are liable for actual
and punitive damages. Sec. 1681(n), supra. Presumably
this would apply to the situation where the SYSOP is
dilatory in removing the libellous message. The second
proposed standard, negligent noncompliance, occurs in
the absence of willfulness and results in liability
only for actual damages. Sec. 1681(o), supra.
Situations where the SYSOP failed to adopt reasonable
computer security measures might come under this
category.
79. 18 U.S.C.S. Sec. 2707(b),(c) (Law. Co-op 1979 & Supp.
1988) provides in pertinent part:
(b) Relief. In a civil action under this section,
appropriate relief includes -
(1) Such preliminary and other equitable or
declaratory relief as may be appropriate;
(2) damages under subsection (c); and
(3) a reasonable attorney's fee and other
litigation costs reasonably incurred.
(c) Damages. The court may assess as damages in a
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 41
civil action under this section the sum of the
actual damages suffered by the plaintiff and
any profits made by the violator as a result
of the violation, but in no case shall a
person entitled to recover receive less than
the sum of $1,000.
18 U.S.C.S. Sec. 2707(e) (Law. Co-op 1979 & Supp. 1988)
limits the civil action under this section to two years
after the date upon which the claimant first discovered
or had a reasonable opportunity to discover the
violation.
As to damage provisions supplied by state law, see
California Penal Code 502(e)(1),(2) (West Pub. 1988):
(e)(1) In addition to any civil remedy available,
the owner or lessee of the computer, computer
system, computer network, computer program, or data
may bring a civil action against any person
convicted under this section for compensatory
damages, including any expenditure reasonably and
necessarily incurred by the owner or lessee to
verify that a computer system, computer network,
computer program, or data was not altered, damaged,
or deleted by the access. For purposes of actions
authorized by this subdivision, the conduct of an
unemancipated minor shall be imputed to the parent
or legal guardian having control or custody of the
minor, pursuant to the provisions of Section 1714.1
of the Civil Code.
(2) In any action brought pursuant to this
subdivision the court may award reasonable
attorney's fees to a prevailing party.
80. A lawsuit recently filed in the United States District
Court for the Southern District of Indiana may break
new ground in enunciating precisely what BBS SYSOPs'
reasonable duties of care are. Thompson v. Predaina,
Civil Action #IP-88 93C (S.D. Ind. filed 1988). The
complaint alleges, inter alia, invasion of plaintiff
user's privacy, libel, and wrongful denial of access to
the BBS in violation of U.S.C. Title 18, ss 2701
(a)(2). As to statutory damages available, see infra,
note 105.
81. Gemignani, Computer Law 33:7 (Lawyers Co-op 1985, Supp.
1988) (quoting Capitol PC Users Group Minimum Code of
Standards for electronic Bulletin Board Systems,
reprinted in 4 Computer Law Reptr. 89).
82. Note, 54 Fordham L.Rev. 439, 449 (1985) (Authored by
Jonathan Gilbert).
83. Id., at 449.
84. Id., at 449-50.
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 42
85. A "trojan horse" program takes control of the BBS and
allows its sender to access and steal its most
sensitive information. Fites, Johnston and Kratz, The
Computer Virus Crisis, Van Nortrand/Reinhold (1989), at
39 and 45.
86. Balding, Computer Breaking and Entering: The Anatomy of
Liability, 5 Computer Law. (January 1988), at 6.
87. Id.
88. Hellar v. Bianco, 244 P.2d 757. See supra, note 54 and
accompanying text.
89. Restatement (Second) of Torts Sec. 577(2) (1976). See
supra, note 58 and accompanying text.
90. Tackett v. General Motors Corporation, 836 F.2d 1042
(7th Cir. 1987). See supra, note 63 and accompanying
text.
91. See note 53, supra, and accompanying text.
92. It has been suggested that this would be the rough
equivalent of a newspaper publishing a retraction after
discovering what it had printed was defamatory. Note,
54 Fordham L.Rev. 439, note 55 (1985). BBS operators
should not be held liable in this situation insofar as
they did not know of the nature of the statement at the
time it was made. Restatement (Second) of Torts Sec.
581 (1977).
93. Proving the masquerader's actions is discussed more
fully infra, Topic III. B.
94. Stipp, Computer Bulletin Board Operators Fret Over
Liability for Stolen Data, Wall St. J. Nov. 9, 1984, at
33, col. 1.
95. Id.
96. See Topic I., supra, where the masquerader has
discovered and uses the password and name of the
regular user; he appears for all intents and purposes
to be that regular user.
97. 836 F.2d 1042 (7th Cir. 1987).
98. Id., at 1047.
99. Id.
100. Indeed, U.S.C. Title 18, Sec. 2702 (Law. Co-op 1979 &
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 43
Supp. 1988) proscribes the knowing dissemination of an
electronically stored communication by the SYSOP:
Sec. 2702. Disclosure of contents
(a) Prohibitions. Except as provided in subsection
(b)-
(1) a person or entity providing an
electronic communication service to the
public shall not knowingly divulge to any
person or entity the contents of a
communication while in electronic storage
on that service; and
(2) a person or entity providing remote
computing service to the public shall not
knowingly divulge to any person or entity
the contents of any communication which
is carried or maintained on that service-
(A) on behalf of, and received by means
of electronic transmission from (or
created by means of computer
processing of communications
received by means of electronic
transmissions from), a subscriber or
customer of such service; and
(B) solely for the purpose of providing
storage or computer processing
services to such subscriber or
customer, if the provider is not
authorized to access the contents of
any such communications for purposes
of providing any services other than
storage or computer processing.
A similar provision is embodied in Cal. Pen. Code sec.
502(c)(6) (West Pub. 1988), which provides:
(c) Except as provided in subdivision (i),
any person who commits any of the
following acts is guilty of a public
offense:
(6) Knowingly and without permission
provides or assists in providing a
means of accessing a computer,
computer system, or computer network
in violation of this section.
101. The doctrine of res ipsa loquitor, or "the thing speaks
for itself" warrants the inference of the SYSOP's
negligence, which the jury may draw or not as its
judgement dictates. See Sullivan v. Crabtree, 36
Tenn.App. 469, 258 S.W.2d 782 (1953).
102. See discussion under Topic II. B., supra.
103. As someone who intentionally accesses confidential
password information to masquerade as other users on
other BBSes, the masquerader falls well within the pale
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 44
of "actual malice" defined in Gertz v. Robert Welch,
Inc., 418 U.S. 323, 342, supra, note 43 and
accompanying text (a defamatory falsehood was made with
knowledge of its falsity or with reckless disregard for
the truth).
104. Evidentiary problems involved with proving the
masquerader's actions are discussed more in Topic III.
B., infra.
105. 18 U.S.C.S. Sec. 2707(a) (Law. Co-op 1979 & Supp. 1988)
describes the masquerader's fault thus:
(a) Cause of action. Except as provided in section
2703(e), any provider of electronic
communication service, subscriber, or customer
aggrieved by any violation of this chapter in
which the conduct constituting the violation
is engaged in with a knowing or intentional
state of mind may, in a civil action, recover
from the person or entity which engaged in
that violation such relief as may be
appropriate.
California Penal Code sec. 502(c) et seq. (West Pub.
1988) is even more specific:
(c) Except as provided in subdivision (i), any
person who commits any of the following acts
is guilty of a public offense:
(1) Knowingly accesses and without permission
alters, damages, deletes, destroys, or
otherwise uses any data, computer,
computer system, or computer network in
order to either
(A) devise or execute any scheme or
artiface to defraud, deceive, or
extort, or
(B) wrongfully control or obtain money,
property or data.
* * *
(3) Knowingly and without permission uses or
causes to be used computer services.
(4) Knowingly accesses and without permission
adds, alters, damages, deletes, or
destroys any data, computer software, or
computer programs which reside or exist
internal or external to a computer,
computer system, or computer network.
* * *
(7) Knowingly and without permission accesses
or causes to be accessed any computer,
computer system, or computer network.
106. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342.
107. In addition to the remedies set forth in note 105,
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 45
supra, the following federal and state penalties may
apply:
18 U.S.C.S. Sec. 2701(b),(c) (Law. Co-op 1979 & Supp.
1988):
(b) Punishment. The punishment for an offense
under subsection (a) of this seciton is -
(1) if the offense is committed for purposes
of commercial advantage, malicious
destruction or damage, or private
commercial gain -
(A) a fine not more dhan &250,0
0 or
imprisonment for not more than one
year, or both, in the case of a
first offense under this
subparagraph; and
(B) a fine under this title or
imprisonment for not more than two
years, or both, for any subsequent
offense under this subparagraph; and
(2) a fine of not more than $5,000 or
imprisonment for not more than six
months, or both, in any other case.
(c) Exceptions. Subsection (a) of this section
does not apply with respect to conduct
authorized-
(1) by the person or entity providing a wire
or electronic communications service;
(2) by a user of that service with respect to
a communication of or intended for that
user; or
(3) in section 2703, 2704, or 2518 of this
title.
For an example of state-mandated damages provisions on
this subject, see California Penal Code sec. 502(d) et
seq. (West Pub. 1988).
108. See discussion under Topic II. B., supra.
109. See note 101, supra.
110. "Custom...bears upon what other will expect the actor
to do, and what, therefore, reasonable care may require
the actor to do, upon the feasibility of taking
precautions, the difficulty of change, and the actor's
opportunity to learn the risks and what is called for
to meet them. If the actor does only what everyone else
has done, there is at least an inference that the actor
is conforming to the communit`'s i`ea of reasonable
behavior." Keeton, Dobbs, Keeton and Owen, Prosser and
Keeton on Torts, sec. 33, p.194. See also James,
Particularizing Standards of Conduct in Negligence
Trials, 5 Vand. L. Rev. 697, 709-714 (1952); Ploetz v.
Big Discount Panel Center, Inc., 402 So.2d 64 (Fla.
App. 1981).
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 46
111. See notes 80-93, supra, and accompanying text.
112. See note 103, supra.
113. See Pfau and Keane, Computer Logs Can Pinpoint Illegal
Transactions, Legal Times of Washington, vol. 6, p.16
(May 14, 1984): "Computers can monitor their own use.
Unlike other such forms of physical evidence such as
guns, computers can keep track of individual users and
other identifying data. Imagine a gun that logs every
instance it is fired or even handled, and shows the
date, time, and activity. Recovery of such a weapon
would be essential to the prosecution.
"Most computers have long had built-in logging
capabilities....The log function was designed to
facilitate billing for the use of computer resources
rather than to assist crime detection. To the extent
that the owner of a smaller computer does not charge
for its use, he or she has no incentive to purchase a
self-executing log. Still, such logs keep surprisingly
accurate records of who is using the computer."
114. Fed. R. Evid. 801(c).
115. Fed. R. Evid. 802: "Hearsay is not admissible except as
provided by these rules or by other rules precribed by
the Supreme Court pursuant to statutory authority or by
Act of Congress." Exclusion of hearsay evidence is
grounded on: (1) nonavailability of the declarant for
cross-examination and observance of demeanor; (2)
absence of an oath by the person making the statement;
amd (3) significant risk that the person that the
witness may report proffered statements inaccurately. 2
Bender, Computer Law, sec. 6.01[2].
116. Gemignani, The Data Detectives: Building A Case From
Computer Files, 3 Nat'l L.J. 29 (1981).
117. Fed. R. Evid. 803(6). See also 2 Bender, Computer Law,
sec. 6.01[4] (1988).
118. Fed. R. Evid. 803(6).
119. Id. In current practice records kept by nonprofit
organizations, such as churches, have long been held to
be admissible. Ford v. State, 82 Tex.Cr.R. 638, 200
S.W. 841 (1918). It is at least arguable that a
computerized BBS, although run as a hobby, falls under
the same classification.
120. See Iowa Code Ann. Sec. 622.28; People v. Lugashi, 252
Cal.Rptr 434 (Cal.App. 2 Dist. 1988).
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 47
121. See 14 Am.Jur. POF2d Sec. 15 (1977, Supp. 1988). Cf.
United States v. De Georgia, 420 F.2d 889, 2 CLSR 479,
484 (1969, CA9 Ariz), where it was held that it is
immaterial whether a business record is maintained in a
computer rather than in company books regarding
admissibility of those records, so long as (1) the
trial court requires the proponent of the computerized
records to lay a foundation as to their
trustworthiness, and (2) the opposing party is given
the same opportunity to inquire into the computer's
accuracy as he would have to inquire into the accuracy
of written business records.
122. The BBS program run on the SYSOP's computer ordinarily
"stamps" the date and time of day each user logs onto
the BBS. A corresponding record is automatically
affixed to each piece of electronic mail posted so that
the reader knows when it was added to the database.
Similarly, the telephone company maintains copious
records of the date and time each phone call is
connected in its dialing area. The caller has no
control over either of these processes.
123. 252 Cal.Rptr. 434 (Cal.App. 2 Dist. 1988).
124. Id., at 437.
125. Id.
126. Id.
127. Id., at 439.
128. Id., at 437.
129. Id., at 440.
130. Id., at 442. See also United States v. Russo, 480 F.2d
1228 (CA6 Mich, 1973), cert den 414 U.S. 1157, 94 S.Ct.
915, 39 L.Ed.2d 109; Capital Marine Supply, Inc. v. M/V
Roland Thomas II, 719 F.2d 104 (1983 CA5 La), 104 Fed
Rules Evid Serv 731; Peoples Cas & Coke Co. v. Barrett,
118 Ill.App.3d 52, 73 Ill. Dec. 400, 455 N.E.2d 829
(1983).
131. 432 So.2d 837 (La., 1983).
132. Id., at 839-40.
133. Id., at 839.
134. United States v. Verlin, 466 F.Supp. 155 (ND Tex,
1979).
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 48
135. Id., at 158.
136. The reasonable SYSOP should offer his full cooperation
in aiding the maligned user to regain her good name by
providing her with his BBS' phone-in records made at
the time the libellous message appeared. See note 93,
supra.
137. See note 123, supra.
138. Cf. note 118, supra. As to an electronic BBS being
classified as a "business" for hearsay purposes, see
note 120, supra.
139. See note 128, supra.
140. Authentication has been broadly described thus: "[W]hen
a claim or offer involves impliedly or expressly any
element of personal connection with a corporeal object,
that connection must be made to appear...." Wigmore,
Evidence, Sec. 2129 at 564 (2d ed. 1972). This
requirement is also known as the "Best Evidence Rule."
141. Fed. R. Evid. 901(a),(b)(6).
142. 2 Bender, Computer Law, sec. 5.03[1][a] (1988).
143. Id.
144. See Fed. R. Evid. 901(b)(6): "(6) Telephone
conversations. Telephone conversations, by evidence
that a call was made to the number assigned at the time
by the telephone company to a particular person or
business, if *** (B) in the case of a business, the
call was made to a place of business and the
conversation related to business reasonably transacted
over the telephone...." (emphasis added).
145. Fed. R. Evid. 1002.
146. E.W. Cleary, McCormick on Evidence, sec. 231 (2nd. Ed.
1972).
147. Id. Further rationales for the rule are risks of
inaccuracy contained in commonly used copying
techniques and heightened chances of witness'
forgetfulness through oral testimony. Id., sec. 231.
148. 305 So.2d 421, 7 C.L.S.R. 1238 (La. 1974).
149. 305 So.2d 421, 427.
150. Id., at 428.
Defamation Liability of Computerized BBS Operators
& Problems of Proof (C) 1989 John R. Kahn 49
151. Brandon v. Indiana, 396 N.E.2d 365 (Ind. 1979).
152. Id., at 370.
153. See note 121, supra, and accompanying text.
154. Other circumstantial evidence might include, among
other things: possible motive for the masquerader to
defame plaintiff; plaintiff's own inability to call
from the phone number from which the defamatory message
is shown to have originated; or even an electronic
"fingerprint" left by the particular computer from
which the defamatory message originated. Pfau and
Keane, Computer Logs Can Pinpoint Illegal Trasactions,
Legal Times of Washington, vol. 6, p.16 (May 14, 1984).
155. Fed. R. Evid. 1002 provides:
REQUIREMENT OF ORIGINAL. To prove the content of
a writing, recording, or photograph, the original
of that writing, recording or photograph is
required, unless provided otherwise in these
rules or by an Act of Congress.
156. Examples of this situation are the telephone company's
keeping of hundreds of thousands of individual
computerized records of each telephone call made within
a certain dialing area, or a BBS' extensive history of
subscriber use compiled for billing purposes.
157. See Harned v. Credit Bureau of Gilette, 513 P2d 650, 5
CLSR 394 (1973).
158. Fed. R. Evid. 1006.
159. 137 Ga.App. 360, 223 S.E.2d 757 (1976).
160. 223 S.E.2d 757, 760.