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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
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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
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         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).
         
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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
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121.     See  14  Am.Jur.  POF2d  Sec. 15 (1977, Supp. 1988). Cf. 
         United  States  v. De Georgia, 420 F.2d 889, 2 CLSR 479, 
         484  (1969,  CA9  Ariz),  where  it  was held that it is 
         immaterial  whether a business record is maintained in a 
         computer   rather   than   in  company  books  regarding 
         admissibility  of  those  records,  so  long  as (1) the 
         trial  court  requires the proponent of the computerized 
         records    to    lay    a   foundation   as   to   their 
         trustworthiness,  and  (2)  the  opposing party is given 
         the  same  opportunity  to  inquire  into the computer's 
         accuracy  as  he would have to inquire into the accuracy 
         of written business records.

122.     The  BBS  program run on the SYSOP's computer ordinarily 
         "stamps"  the  date  and time of day each user logs onto 
         the   BBS.   A  corresponding  record  is  automatically 
         affixed  to each piece of electronic mail posted so that 
         the  reader  knows  when  it  was added to the database. 
         Similarly,   the  telephone  company  maintains  copious 
         records  of  the  date  and  time  each  phone  call  is 
         connected  in  its  dialing  area.  The  caller  has  no 
         control over either of these processes.

123.     252 Cal.Rptr. 434 (Cal.App. 2 Dist. 1988).

124.     Id., at 437.

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
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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.


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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.