usenix@ucbtopaz.CC.Berkeley.ARPA (01/22/85)
;login: Legal Research on USENET Liability Issues The USENIX Board of Directors decided that more solid information on the legal issues relating to USENET activities was needed by the UNIX community. We arranged with our lawyers for them to supervise legal research into the issues, with the results of this research to be disseminated to our membership via publication in ;login: and a presentation at the Dallas USENIX conference. The memorandum which Ms. Shulman prepared is printed below. Lou Katz ______________________________________________________________________________ To: Lou Katz From: Gail H. Shulman Date: November 9, 1984 Re: Scope of liabilities arising from the USENIX satellite-transmitted news service. Introduction Computers frequently communicate with other computers through the tele- phone system. USENIX might like to set up a computer facility to which indi- vidual computer users could transmit messages, and from which these messages would be transmitted through a satellite, thereby obviating most of the need for the telephone system. In the proposed USENIX service, these communica- tions could be directed and available only to authorized users of the service indiscriminately (the service hereinafter referred to as "USENET" and its con- tents as "NEWS"). It would be, in essence, an electronic bulletin board. USENIX has not yet defined its role in this service. It would like to assist in the maintenance, growth and development of USENET by providing lower cost alternatives to the current system as the means for the transmission of messages in interest to UNIX users. For obvious reasons, however, USENIX would like to minimize its potential liabilities. Consequently, this memoran- dum will address the following issues: 1. What are the potential liabilities of USENIX as the provider of the USENET service? 2. What are the potential liabilities of the individual NEWS senders in the proposed system? 3. How may USENIX effectively minimize its liabilities in the new communi- cation system? Volume 9, Number 6 December 1984 1 ;login: Discussion I. What are the Potential Liabilities of USENIX as the Provider of the USENET Service? The issue of USENIX's liability with regard to the proposed communication system cannot be answered definitively. There is no clear precedent which indicated the legal standards to which USENIX will be subject. However, through analogy to other communication systems, we can speculate about the scope and extent of USENIX's liability and can propose possible methods of protection. Communications entities are held to different standards of responsibility depending upon their activities and the extent to which they control the con- tent of the messages they distribute. Newspapers, broadcasters, common car- riers, computers and various combinations thereof (i.e., electronics mail, cable television, videotex and telex) each owe different legal duties to the public. In order to determine the standards to which USENIX will be subject, one must first analyze USENIX's purpose and function in providing the service. Since USENIX's proposed system would make use of the radio frequency spectrum, over which the Federal Communications Commission ("FCC") has exclusive jurisd- iction, this analysis must also assess how that federal agency would regulate the service. Under the Communications Act of 1934 as amended (the "Communications Act"), USENIX might be classified either as a broadcaster, as a common car- rier, or as a special entity treated on an ad hoc basis. The Communications Act defines broadcasting as the "dissemination" of radio communications intended to be received by the public, directly or by intermediary of relay stations.[1] Radio and television are the most obvious examples of broadcast- ing. Broadcasters' signals are transmitted into space for anyone to receive, and broadcasters have control over the content of their own programming. In contrast to broadcasters, common carriers provide communications services to the public at large, and their customers control the content of their mes- sages.[2] Broadcasting and common carriage are the two traditional means of commun- icating by means of the radio frequency spectrum. Changes in technology, how- ever, have begun to blur distinctions within the field of telecommunications. As is true in most other areas, the law is slow to adapt to and change with these new developments. As just one example, Congress passed the Communica- tions Act in 1934, and it therefore contains no mention of cable television systems. Consequently, there has been a heated debate over the classification and regulation of cable television. The result of that debate is that it is regulated neither as broadcasting or as a common carrier service, but as an adjunct to the nation's broadcasting system with its own special rules and regulations.[3] One task in the analysis of ultimate liability for USENET is to identify the like classification of the service for purposes of FCC regulation. The difficulty is that USENET, being part telecommunications and part computer service is neither fish nor fowl, neither broadcaster nor common carrier. The classification of USENET is therefore not self-evident. The Court of Appeals 2 December 1984 Volume 9, Number 6 ;login: for the D.C. Circuit recently addressed the regulatory problems posed by the growing interdependence of telecommunications services and computer technolo- gies.[4] The Court determined that the provision of transmission capability over a communications medium with little or no interaction by the provider with customer-supplied information, constitutes common carriage.[5] However, the Court held that services such as USENET which combine basic transmission capacity with computer processing applications which act upon the format or the content of a subscriber's transmitted information, are non-common carrier activities and are as yet not classified.[6] The classification of USENIX's USENET service in the proposed communica- tion system, although uncertain, is nonetheless critical to the determination of USENIX's potential liabilities. The key issues involved in categorizing USENIX as a broadcaster, common carrier or special entity are (i) to what extent will USENIX control the content of the information it transmits?; (ii) are the transmissions intended to be received by the public, or does the addi- tional equipment necessary to receive the signals prevent a significant por- tion of the populace from receiving them?; and (iii) is USENIX acting purely as a disseminator of NEWS? Although there is no legal precedent clearly establishing USENIX's posi- tion in the proposed communication chain, the current state of the law sug- gests that USENIX is likely to be treated as a broadcaster if it controls or is responsible for the content or timing of what is transmitted information; or as a common carrier if it indiscriminately transmits information provided by the public without exerting control over content or timing. It is also possible that the law will treat this as a new and special entity without a clear indication of its regulatory status. Given this uncertainty, USENIX's potential liabilities are therefore difficult to predict. II. Areas of Potential Liability This segment of the discussion focuses on several areas of the law where USENIX liabilities may arise. The classification of USENIX's function in the proposed systems will, as noted above, determine the extent of such liability. A. Defamatory Matter Defamation is an invasion of an interest in reputation. The tort involves a publication which is false, defamatory and unprivileged, and which has a natural tendency to injure or which causes special damages. It consists both of libel, which is a fixed representation, and slander, which is a publi- cation by more transitory means. Broadcasters are held liable for defamatory statements of third parties using their facilities even though they have no knowledge of the defamation itself.[7] The rationale for holding broadcasting to such a high standard of care is that: ". . . They are publishers more nearly analogous to a newspaper . . . than to a telegraph company. They are not engaged solely in rendering the service of transmission to those who seek it. For their own busi- ness purposes they initiate, select and put upon the air their own programs . . . and they cooperate actively in the publication."[8] Volume 9, Number 6 December 1984 3 ;login: In contrast to broadcasters, common carriers are purely transmitters. Carriers are not involved in the content of publications. Common carriers are therefore not held liable for defamatory transmissions published or expressed by third persons unless they know of the transmission's defamatory charac- ter.[9] As mentioned above, USENIX's liability for the defamatory content of its transmissions will hinge upon whether the law will treat USENIX as a broadcas- ter, a common carrier or a special entity. If USENIX is deemed to be a broad- caster, then it may be held liable for all defamatory transmissions, even though it had no knowledge of their publication. However, if USENIX is clas- sified as a common carrier, then USENIX will not be liable for defamatory pub- lications by a third person unless it has actual knowledge of the defamatory nature of those publications. Of course, if USENIX is deemed a special entity, no good estimate can be formulated as to its potential liability for defamatory statements. B. Obscenity Obscenity is defined by state laws, which usually employ the terms "lewd", "lascivious" and "indecent". The First Amendment of the U.S. Consti- tution limits the scope of obscenity prosecutions to cases which, when taken as whole, (i) appeal to the prurient interest in sex; (ii) portray sexual con- duct in a patently offensive way; and (iii) do not have serious literary, artistic, political, or scientific value. Obscenity has been denied First Amendment protection because its content is so offensive.[10] Broadcasting obscene language has been made a federal crime.[11] Broadcasters are held to a high standard so as to deter the transmission of material which society deems to be unworthy of Constitutional protection.[12] Common carriers are not held to as high a standard as broadcasters as regards the transmissions of obscene material. The rationale for this dis- tinction is that common carriers are not involved in the content of the com- munications, and therefore cannot be responsible for that content. Common carriers are only held liable for obscene transmissions if they know of the obscenity. USENIX will be held to a higher standard if it is deemed to be a broadcaster and a much lower standard if it is deemed to be a common carrier. C. Other Potential Liabilities Arising From Content of the Transmission. The analyses applied in the above sections on defamation and the law of obscenity will also apply to other potential liabilities arising from the nature of the content of the communications, such as a transmission constitut- ing copyright infringement or a transmission violating an individual's right of privacy. In these situations, the courts will generally hold the broadcas- ter to a higher standard of care due to its extensive control of the content of the transmission. 4 December 1984 Volume 9, Number 6 ;login: D. Additional Content Regulations Applicable to Broadcasters. The FCC has promulgated several regulations concerning responsibility for the content of transmissions which apply to broadcasters alone. These include prohibiting the broadcasting of information on lotteries, prohibiting the broadcasting of obscenities, and prohibiting broadcasts which serve the pur- pose of aiding fraudulent schemes.[13] Additionally, broadcasters are subject to the "fairness doctrine", which requires that they present to their viewers or listeners contrasting views on controversial issues of public impor- tance.[14] And, Section 315 of the Communications Act specifies that the broadcaster permitting one candidate for public office to use his or her facilities must also afford equal opportunity to all other candidates for the same office.[15] E. Potential Liability for Faulty Transmissions. If one contracts with a common carrier to transmit a message, the carrier is required to use diligence in transmitting and delivering that message.[16] This duty is based solely on contract law. The rationale is that the customer pays for services and expects to receive an acceptable level of performance by the carrier. If the carrier does not transmit the message diligently, it has breached its obligations to the customer. USENIX will not be concerned with this area of liability unless the third party sender is providing consideration for the communication service and a valid contract has been formed. We assume this not to be the case, since the proposed transmission service may be offered free of charge, although there may be fees for receivers. F. Summary of USENIX's Potential Liabilities. The extent and nature of USENIX's potential liabilities in connection with the operation of USENET will hinge upon the classification of that ser- vice as a communications medium. As common carrier, USENIX will have fewer and less extensive liabilities than will USENIX as a broadcaster. However, USENIX may be treated as a special entity, and as such it would be difficult to predict its potential liabilities. USENIX appears to be more like a common carrier than anything else, due to its minimal control over the content of the information transmitted and its goal to act purely as a disseminator of NEWS. III. Potential Liabilities of the Individual NEWS Senders A. Defamatory Matter. Under California law, libel is "... a false and unprivileged publication by writing, printing, picture, effigy or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation."[17] Libel includes almost any language which, on its face, has the natural tendency to injure a person's reputation.[18] For purposes of this discussion, we will assume that an individual com- puter user has sent NEWS which is false and unprivileged concerning another Volume 9, Number 6 December 1984 5 ;login: person, and that that information injures the person's reputation. The user has committed the tort of libel if by sending this information as NEWS, it has been "published". Defamatory matter is "published" if it is intentionally or negligently communicated to one other than the person defamed and other than the defendant's spouse.[19] The form of publication may be a writing, printing, picture, effigy, or other fixed representation to the eye.[20] Since the com- munication network will transmit information to a third person for representa- tion to the eye by a screen or printer, it will likely constitute a publica- tion, and the user may therefore be deemed to have defamed the third party. B. Statement Infringing Upon An Individual's Right of Privacy. California law has established the right of privacy as the right to be free from the wrongful publicizing of one's private affairs and actions which are outside the realm of public concern.[21] The right of privacy is the right to be let alone.[22] There are several possible ways in which an individual's privacy may be violated by means of the proposed NEWS service. These include (i) publicity about private facts; (ii) fictionalization of an otherwise true story concern- ing another; and (iii) publicity placing another in a false light. We will assume that the information sent fits one of the above three categories. The sender's liability hinges upon whether the transmission con- stitutes a "publication". In defamation cases, "publication" means to commun- icate to a single third party. However, in torts involving the violation of the right of privacy, the element of "publication" is only satisfied where the material is communicated to many people or the public at large.[23] The element of "publication" would be satisfied in a right of privacy action in the current or proposed USENET network system. Under this system, written or printed information is communicated to many people. Any individual who sends NEWS which infringes upon another's right of privacy may be liable under tort law. C. Copyright Infringement. An individual NEWS sender may be liable for transmitting copyrighted information via USENET. A copyright owner maintains several exclusive rights in copyrighted work. Included in these rights is the exclusive right to reproduce the copyrighted work.[24] Copyright infringement is established by documenting that the copying was unauthorized.[25] An individual sender of NEWS may be liable for copyright infringement if he or she transmitted copy- righted information without authorization. 6 December 1984 Volume 9, Number 6 ;login: D. Obscenity. As noted above, the First Amendment does not protect material which is obscene.[26] The federal and state governments have recognized a legitimate interest in protecting the public by preventing obscene materials from enter- ing the stream of commerce.[27] Similarly, states have a legitimate interest in regulating the use of obscene material in local commerce and in public places.[28] California law regulates various forms of obscenity. Its Penal Code Sec- tion 311.2 provides, in part, that: "Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, or prints, with the intent to distribute, distributes, or exhibits to others, any obscene matter is guilty of a misdemeanor." This statute applies to any obscene book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion pic- ture or other pictorial representation or any statue or other figure, or any recording, transcription, or mechanical, chemical or electrical reproduction of any other articles, equipment, machines, or materials.[29] Individual computer users who send obscene material over the proposed communications system may be subject to the penalties of this statute or oth- ers similar to it in other states. Other California Penal Code sections which may give rise to liabilities on behalf of the individual computer users are Penal Code 311.5 and 313.1 subdivision (a). These statutes prohibit the advertisement and promotion or sale of materials represented to be obscene, and the distribution or exhibition of harmful matter to a minor. Persons com- mitting any of these offenses are guilty of a misdemeanor. IV. Liability Of The Satellite Transmission Company For any Tortious Transmissions Made By An Individual Sender From That Site Those in control of the satellite transmission facilities by which an individual may send or receive NEWS may be vicariously liable for any tortious transmissions. Generally, tort liabilities for the acts of others does not arise unless there is some relationship or other circumstance justifying the imposition of such liability[30]. Some examples of these types of relation- ships include (i) agency, employment or joint enterprise relationships between the prospective defendant and the wrongdoer; (ii) statutory-imposed liability on the prospective defendant (i.e. parental liability for a child's torts); and (iii) the entrusting of a dangerous instrumentality to an improper per- son.[31] In order for one to be held liable for the acts of another, one of the above circumstances must be present. Similarly, the transmitter's vicari- ous liability for any communications sent to a user by an individual wrongdoer will depend upon whether one of the above-delineated relationships exists. Three hypothetical situations follow concerning this general issue: Volume 9, Number 6 December 1984 7 ;login: A. An Authorized, Controlled Sender. An information sender who is authorized and controlled by the transmitter would probably be its agent or employee. The law would hold the transmitter liable for wrongful transmissions by an individual authorized and controlled by it operating under the scope of employment. B. An Authorized Uncontrolled Sender. Generally, when one has no control over the acts of another, no vicarious liability will arise, None of the special relationships exist from which the vicarious liability could originate. However, it is possible that the employer may be liable for the employee's wrongful acts if the employer entrusts the instrumentality to the employee who is otherwise unauthorized. C. An Unauthorized Sender. The transmitter would not be held liable for actions arising from the transmissions by any unauthorized sender, since, there would be no privity of relationship from which liability would arise. In conclusion, the liability of the transmitter for any transmission made by an individual using the transmitter's facility will only arise if a special relationship exists. Lia- bility may occur to the transmitter if the individual sender is acting as an agent or employee or if the site controller should have known it was entrust- ing its facilities to an unauthorized person. V. Summary The proposed USENIX USENET service could subject USENIX to a variety of legal obligations and liabilities under state and federal laws. In most instances, the severity of these obligations and liabilities will depend upon how the service is classified for purposes of FCC regulations. To the extent that USENIX lacks control over the content of the messages it helps to transmit, USENIX should be subject to fewer and less onerous legal burdens than if it took an active role in reviewing and modifying those messages. Nevertheless, USENIX cannot realistically hope to escape such responsibilities entirely. Footnotes 1. 47 U.S.C. 153(o). 2. National Assn. of Regulatory Utility Commissioners v. F.C.C., 525 F.2d 630, 631-42 (D.C. Cir. 1976). 3. United States v. Southwestern Cable Co., 392 U.S. 157 (1968). 4. Computer and Communications, Etc. v. F.C.C. (D.C. Cir. 1982) 693 F.2d 198. 5. Id. 8 December 1984 Volume 9, Number 6 ;login: 6. Id. 7. 87 Cal.L.R. 359; Restatement of Torts (Second) Chap. 24, 581(2). 8. Id. Comment on Subsection (2). 9. Lewis v. Time, Inc. (1979) 883 F.R.D. 455, 463; Restatement (Second) of Torts, 581(1). 10. Roth v. United States (1957) 354 U.S. 476. 11. 18 U.S.C. 1464. 12. F.C.C. v. Pacifica Foundation (1978) 438 U.S. 726. 13. 18 U.S.C. 1304, 1464 and 1343. 14. Columbia Broadcasting v. Democratic National Committee (1973) 412 U.S. 94. 15. 47 U.S.C. 315. 16. 59 Cal. Jur.3d 22. 17. California Civil Code 45. 18. Moore v. Green (9th Cir. 1970) 431 F.2d 584. 19. Farr V. Bramblett (1955) 132 Cal.App.2d 36. 20. California Civil Code 45. 21. Smith v. National Broadcasting Co. (1956) 138 Cal.App.2d 807, 811. 22. Gill v. Curtis Publishing Co. (1952) 38 Cal,2d 273, 276. 23. Timperley v. Chase Collection Service (1969) 272 Cal.App.2d 697, 699. 24. 17 U.S.C. 106. 25. Sid and Marty Krofft Television v. McDonald's Corp. (9th Cir. 1977) 562 F.2d 1157, 1162. 26. Miller v. California (1973) 413 U.S. 15. 27. United States v. Orito (1973) 413 U.S. 139. 28. Penal Code 311 Subd. (b), 313 Subd. (b). 29. Restatement (Second) of Torts 315; Witkin, Summary of California Law, Torts, 8th ed. 2928 649. Volume 9, Number 6 December 1984 9 ;login: 30. Witkin, supra., at p. 2928 649. 31. Id. 10 December 1984 Volume 9, Number 6
rcd@opus.UUCP (Dick Dunn) (01/30/85)
Egad! With all due respect to the Great American Legal Tradition of Gratuitous Polysyllabic Obfuscation, this article takes several thousand words to tell us: USENET is different; there isn't any legal precedent to show just what potential liabilities exist. Adding some detail: It has some elements of a "common carrier" and some of a "broadcaster"; thus it is affected by precedents for these two. But didn't we already know that??? -- Dick Dunn {hao,ucbvax,allegra}!nbires!rcd (303)444-5710 x3086 ...Never offend with style when you can offend with substance.
derek@sask.UUCP (Derek Andrew) (02/08/85)
I take exception to the statment in the ;login article posted to Usenet wherein it asks the question: What are the Potential Liabilities of USENIX as the Provider of the USENET Service? If Usenix is the provider of Usenet, where should I send my monthly bills so they can pay them? This is the same problem we faced earlier when the media used the term "hackers" to refer to the derelicts what delight in cracking computer security. Usenet has little to do with an organization such as Usenix. It is merely a collection of cooperating sites banding together to share data on a global scale. Perhaps this is a reference to Stargate? -- Derek Andrew, ACS, U of Saskatchewan, Saskatoon Saskatchewan, Canada, S7N 0W0 {ihnp4 | utah-cs | utcsrgv | alberta}!sask!derek 306-966-4820 0900-1630 CST