D E F A M A T I O N L I A B I L I T Y O F C O M P U T E R I Z E D B U L L E T I N B O A R D O P E R A T O R S A N D P R O B L E M S O F P R O O F John R. Kahn CHTLJ Comment Computer Law Seminar Upper Division Writing February, 1989 --- D E F A M A T I O N L I A B I L I T Y O F C O M P U T E R I Z E D B U L L E T I N B O A R D O P E R A T O R S A N D P R O B L E M S O F P R O O F John R. Kahn CHTLJ Comment/Upper Division Writing/Computer Law Seminar February, 1989 _________________________________________________________________ I. INTRODUCTION A computer user sits down at her personal computer, turns it on, and has it dial the number of a local computerized bulletin board service (BBS) where she has been exchanging opinions, information, electronic mail, and amicable conversation with other users. Upon connecting with the BBS, she enters a secret "password", presumably known only to herself and to the bulletin board operator, so as to gain access to the system. To her surprise, she finds herself deluged with lewd electronic mail from complete strangers and hostile messages from persons with whom she believed she was on friendly terms. The messages read: "Why did you call me a worthless son-of-a ---- - yesterday? I really thought we could be friends, but I guess I was wrong"; "Hey, baby, I liked your fetish you were telling me about yesterday: call me at home, or I'll call YOU"; and, "Why didn't you get around to telling me about your venereal disease sooner?". Yet our user has not called this BBS in weeks and has never made any of these statements. Dismayed and angered, the --- Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 2 ---------------------- user comes to realize that she is the victim of computerized bulletin board abuse. A personal computer hobbyist (hereafter "SYSOP") who operates a computerized bulletin board system notices a rash of heated arguments, profanity and complaints being reported to him by users on what had been a forum for the peaceful exchange of ideas. Investigating the complaints, he discovers that previously responsible users have suddenly and uncharacteristically been leaving insulting, rude and false messages about other users on the bulletin board. One user is so enraged about a public message accusing her of sexual misadventures that she is threatening to sue the computer hobbyist in libel for having permitted the message to appear. The SYSOP realizes that both he and his subscribers have suffered computerized bulletin board abuse. The aggravating force behind both the above situations is most likely a third user (known hereafter as "the masquerader") who maliciously exploits both his computer knowledge and his access to BBSes. Since the masquerader has discovered the password and name of the regular user, and uses them to access bulletin boards, he appears for all intents and purposes to be that regular user. The computer thus believes it has admitted a legitimate subscriber to its database when it has in fact given almost free reign to a reckless hacker. The masquerader, posing as another legitimate user, is then free to portray that user in whatever light he pleases and also to harass other users of the bulletin board. --- Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 3 ---------------------- When validated users later discover that someone else has been impersonating them, they invariably cancel their subscriptions to that BBS and often bring a defamation action against its SYSOP for the smearing of their good names. Conversely, the SYSOP, in an effort to avoid liability, reluctantly engages in monitoring each and every piece of information posted daily by hundreds of users. If the SYSOP chooses instead to stop running his BBS altogether, another efficient and valuable forum for ideas is lost. What sort of defamation action may be maintained by the wrongfully disparaged user? Is the computerized bulletin board offered by the SYSOP subject to the stricter self-scrutiny of newspapers, or does it operate under some lesser standard? How may the initial party at fault - the masquerader - be held accountable for his computerized torts? The scope of this Comment will be to examine the defamation liability of computerized BBS operators and evidentiary proof issues that arise in tracing computerized defamation to its true source. Other possible Tort causes of action - intentional infliction of emotional distress, invasion of privacy, trespass to chattels - are not addressed. It is assumed throughout that the plaintiff is a private person and that the issues involved are not matters of "public interest" as defined in Gertz v. Robert Welch, Inc.1 A. Background Computerized BBSes exist as a quick, easy and efficient way to acquire and exchange information about the entire --- Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 4 ---------------------- spectrum of interests.2 The growing popularity of these electronic forums was demonstrated in a recent study which numbered BBSes at more than 3,500 nationwide.3 The size and complexity of computerized BBSes range from relatively simple programs, run on privately-owned microcomputers with a few hundred subscribers, to vast, multi-topic database systems with nationwide lists of subscribers and operated for profit.4 The process of reaching, or "accessing" one of these bulletin boards is quite simple: all that is required is a computer, a computer program that allows the computer to communicate over the phone lines, and a "modem" (a device which converts the computer's electrical signals into acoustic impulses, defined infra).5 Once she has accessed the BBS, the caller is free to trade useful non-copyrighted computer programs, exchange ideas on a host of topics, post electronic mail for later reading by others, and much more.6 The ease with which most BBSes may be accessed and the wealth of interests to be found there ensure that they will continue to be important sources of information and discourse. However, the speed and efficiency of computerized BBSes also subject them to serious, wide-ranging civil and criminal abuse. Recently a young computer user paralyzed several major computer systems across the nation by sending a harmful computer program (or "worm") to them over telephone lines. The worm quickly replicated itself in the computers' memories and thus decreased their output capacities.7 Further, certain computer abusers (known as "hackers") use the power of the computerized --- Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 5 ---------------------- forum to ply illegal copies of copyrighted programs, bilk hundreds of millions of dollars annually from credit card and phone companies, and to wrongfully access others' data files.8 A minority of other BBSes exist mainly to circulate racist ideologies.9 What is more, it now appears that the ancient tort of defamation is actively being practiced through the use of computerized BBSes.10 Due to the almost ethereal way computerized BBSes operate - one person may conveniently leave an electronic message for others to respond to at their leisure and there is no need for the parties to converse directly or even to know each other11 - the risk of detection when the BBS is abused is lower than that for defamation practiced in the print media.12 Difficulties arise with identifying the true party at fault and with authenticating the computer records as evidence of the defamation.13 Adding to this problem is an uncertainty in the laws concerning the appropriate liability of SYSOPs for defamatory messages on their BBSes of which they were unaware.14 B. Definitions The following are brief definitions of some important technical terms connected with electronic BBSes: SYSOP: An abbreviation for "System Operator", this is the individual generally responsible for organizing information and for trouble-shooting on a computerized bulletin board. On larger bulletin boards covering hundreds of topics, several SYSOPS may be in charge of maintaining information contained in --- Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 6 ---------------------- separate discrete fields.15 But when the BBS is privately owned and operated, a single SYSOP may very well oversee all aspects of the board's operations, in addition to being able to access all his users' p...
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