BEC.SHAPIN@USC-ECL.ARPA (Ted Shapin) (11/14/85)
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* POSSIBLE FEDERAL LEGISLATION -- ELECTRONIC COMMUNICATIONS *
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LETTER RECEIVED FROM UNITED STATES SENATE -- FEEDBACK NEEDED
System Operators (SYSOPS) of Bulletin Board Systems (BBS) and electronic
mail systems everywhere are concerned about possible legislation, at both a
Federal and State level, pertaining to the uses of the wonderful new
technologys of telecommunications, BBS's and messaging. Some of the
legislation is of grave concern, such as the bill introduced by Senator Paul
Trible. We do not take issue with the concerns that motivated Senator
Trible that suggest the need for such legislation, but we do take issue with
some of the wording of that particular bill. Comments on Senator Trible's
bill are found elsewhere in the LAW MUG Newsletter.
Another bill the telecommunicating public and SYSOPS should know about is in
the drafting stages in Washington, DC. It is very positive legislation
for telecommunications and SYSOPS everywhere. We reproduce the total text
of that draft. We also reproduce herewith the following letter that was
received by Paul Bernstein from John N. Podesta, Esq. It is clear from the
following letter that the United States Congress IS interested in what
SYSOPS have to say:
UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY
WASHINGTON, DC 20510
STROM THURMOND, SOUTH CAROLINA, CHAIRMAN
CHARLES McC MATHIAS, Jr., MARYLAND JOSEPH R. BIDEN, Jr., DELAWARE
PAUL LAXALT, NEVADA EDWARD M. KENNEDY,
MASSACHUSETTS
ORRIN G. HATCH, UTAH ROBERT C. BYRD, WEST VIRGINIA
ALAN K. SIMPSON, WYOMING HOWARD M. METZENBAUM, OHIO
JOHN EAST, NORTH CAROLINA DENNIS DeCONCINI, ARIZONA
CHARLES E. GRASSLEY, IOWA PATRICK J. LEAHY, VERMONT
JEREMIAH DENTON, ALABAMA HOWELL HEFLIN, ALABAMA
ARLEN SPECTER, PENNSYLVANIA PAUL SIMON, ILLINOIS
MITCH McCONNELL, KENTUCKY
DENNIS W. SHEDD, CHIEF COUNSEL AND STAFF DIRECTOR
DEBORAH K. OWEN, GENERAL COUNSEL
DEBORAH G. BERNSTEIN, CHIEF CLERK
MARK N. GITENSTEIN, MINORITY CHIEF COUNSEL
August 16, 1985
Paul Bernstein, Esq.
Apt. 2102B
333 E. Ontario Street
Chicago, IL 60611
Dear Paul:
Enclosed is a later draft of the communications privacy
legislation, which we discussed in Chicago. I would
expect that there could be public hearings on this
legislation sometime later this Fall, but no action will
occur on the bill until next year.
As I think you will see, this draft is tightly focused
on the problem of unauthorized and unwanted interception
of electronic messaging. I hope that you will have time to
review it and give me your comments.
I want to again thank you for educating and sensitizing
me to the goals and views of bulletin board operators and
users. Since we met in Chicago, I have had the opportunity
to discuss these issues with a number of "SYSOPS," and I
found their views helpful in shaping this latest draft.
I hope we will stay in touch as this legislation
proceeds.
Sincerely,
/John/
John D. Podesta
Chief Minority Counsel
Subcommittee on Patents,
Copyrights and Trademarks"
THE TEXT OF THE DISCUSSION DRAFT
[Discussion Draft]
[10-16-85]
99th CONGRESS
1ST SESSION
H.R.____
IN THE HOUSE OF REPRESENTATIVES
Mr.___________________ introduced the following bill; which was referred to
Committee on______________________
A BILL
To amend title 18, United States Code, with respect to the interception
of
certain communications, other forms of surveillance, and for other
purposes.
1 Be it enacted by the Senate and House of Representatives
2 of the United States of American in Congress assembled,
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1 SECTION 1. SHORT TITLE.
2 This Act may be cited as the "Communications Privacy
3 Act of 1985".
4 TITLE I--TITLE 18 AND RELATED MATTERS
5 SEC.101. FEDERAL PENALTIES FOR THE INTERCEPTION OF
6 ELECTRONIC COMMUNICATIONS
7 (a) DEFINITION OF "ELECTRONIC COMMUNICATION".--(1)
8 Section 2510 of title 18, United States Code, is amended by
9 striking out paragraph (1) and inserting in lieu thereof the
10 following:
"(1) 'electronic communication' means any
transmission-----------of signs, signals,
writing, images, sounds, data or intelligence of any
nature by wire, radio, optical or other electromagnetic
systems affecting interstate commerce;".
19 (2) Section 2510(4) of title 18 of the United States Code
20 is amended by striking out "aural".
21 (b) EXCEPTIONS WITH RESPECT TO ELECTRONIC
22 COMMUNICATIONS.--Section 2511(2) of title 18, United States
23 Code, is amended by adding at the end thereof the following
24 new paragraph:
25 "(g) It shall not be unlawful under this chapter for any
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1 person..
2 "(1) to intercept an electronic communication made
3 through an electronic communication system designed so
4 that such electronic communication is readily accessible
5 to the public.
6 "(ii) to intercept any electronic communication
7 which is transmitted..
8 "(I) by any station for the use of the general
9 public, which relates to ships, aircraft, vehicles,
10 or persons in distress;
11 "(II) by a walkie talkie, or a police or fire
12 communication system readily accessible to the
13 public; or
14 "(III) by an amateur radio station operator or
15 by a citizens band radio operator; or
16 "(iii) to engage in any conduct which..
17 "(I) is prohibited by section 633; or
18 "(II) iubsection (b)" and inserting in
lieu thereof "subsection (c)";
(2) by redesignating subsection (b) as subsection (c);
(3) by inserting after subsection (a) the following new subsection:
(b) Any person who knowingly enters into or transmits by means of
computer, or makes, prints, PUBLISHES OR REPRODUCES by other means, or
knowingly causes OR ALLOWS TO BE ENTERED INTO OR TRANSMITTED BY MEANS OF
COMPUTER, or made, printed, published, or reproduced by other means any
notice, statement, or advertisement to buy, sell, receive, exchange, or
disseminate any visual depiction, if..
(1) the producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; and
(2) such visual depiction is of such conduct;...
shall be punished as provided in subsection (c) of this section, if such
person knows OR HAS REASON TO KNOW that such notice, statment, or
advertisement will be transported in interstate or foreign commerce or
mailed, or if such notice, statement, or advertisment has actually been
transported in interstate or foreign commerce or mailed.
Sec. 5. Section 2255 of title 18, United States Code, is amended by adding
at the end thereof the following new paragraph:
(5) "computer" means an electronic, magnetic, optical, electrochemical, or
other high-speed data processing device performing logical, arithmetic, or
storage functions, and includes any data storage facility directly related
to or operating in conjunction with such device."
POSSIBLE INTERPRETATION OF THIS WORDING
In todays day and age, can it not be argued that one HAS REASON TO KNOW that
a BBS might or could be used for the prohibited purposes? Can REASONABLE
CAUSE TO BELIEVE be enough to convict one of a crime? Is not the providing
of a BBS, by definition, covered by the words: "ALLOWS TO BE ENTERED INTO OR
TRANSMITTED BY MEANS OF COMPUTER"? Can this form of non-specific "intent"
convict one of a crime?
What would this mean to BBS operators? Does the telephone company have a
similar responsibility? Suppose the messages are "private", is that a
factor? If so, what will the Source and CompuServe do? And what about
ABA/Net? Suppose persons use ABA/Net for such prohibited purposes? (Please
keep in mind that the ABA allows lawyers AND non-lawyers to subscribe to the
network). Must Sysops monitor their boards? Is that not a form of prior
restraint and invasion of privacy as to message senders and receivers. May
Sysops (nay, must they) monitor "private" messages? If the BBS is "open",
that is, anyone can dial up at any time, is that a factor? Suppose the BBS
is "closed", that is, registration is required and access is password
protected? (However, given the fact that passwords are obtained and used
improperly, what about that?). Dozens of additional questions must be
asked and adequate discussions had before we can begin to deal with the
problems presented here.
SYSOPS AROUND THE COUNTRY ARE CONCERNED
System operators around the country are much concerned about this proposed
legislation, and rightfully so. Last June, Professor George B. Trubow held
a conference at the John Marshall Law School in Chicago, and these issues as
to BBS's were touched upon and some of the issues formulated. We reported
on that in recent issues of LAW MUG. There is significant on-line
discussion taking place on the Dalhousie Law School, the Well, the LAW MUG
BBS and on other BBS's around the country. It is anticipated that a
national meeting of SYSOPS will occur before years end to deal with these
problems.
SELF POLICING NEEDED AND A CODE OF ETHICS
Some years ago, the motion picture industry faced problems particular to its
medium of communication. Allegations were made that some motion pictures
were offensive, lewd and used four letter words. The Motion Picture
Association of America was formed (MPAA) and has attempted to self-police
the motion picture industry. A rating system was implemented, theaters
either used the rating system or they didn't and a code of ethics was carved
out. This self-policing was that industrys key to warding off Federal
legislation. Such an approach has been a part of our society.
Although the BBS industry is new, nevertheless, a trade association is
necessary and appropriate, as is a code of ethics. Last year when the Tom
Tcimpidis case commenced in LA, the NATIONAL ASSOCIATION OF BULLETIN BOARD
SYSTEM OPERATORS (NABBSO) was formed in Illinois by Paul Bernstein, Sysop of
the LAW MUG BBS, Gene Plantz, Sysop of numerous BBS's and Les Multack,
President of the organization who sponsors the Business Board BBS. When the
Tcimpidis case was dismissed, interest in the organization wained.
NATIONAL ASSOCIATION OF BULLETIN BOARD SYSTEM OPERATORS (NABBSO)
However, recently introduced legislation in Congress in Washington and other
legislation being introduced throughout the country indicate that due to
lack of input from the BBS community and lack of information by our
legislators, bad laws are or may be put on the books. It is up to the
telecommunicating community to "lock the barn doors before the horses get
out." The time for our input is now, now, before the laws are passes.
Fighting in Court is far more expensive then being a part of the legislative
process.
MORE TO COME
You can be certain of more information from LAW MUG in future issues.
Paul Bernstein, Editor, LAW MUG 8/12/85 312-951-8451 VOICE
NABBSO, Of Counsel
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For information about NABBSO contact Paul Bernstein or:
Les Multack, President ,NABBSO 9/16/85 312-729-0012 NABBSO BBS
134 North La Salle Street 312-729-2101 CHICAGO BUSINESS BBS
Chicago, Il 60602 312-998-0128 VOICE
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