x1@oxy.edu (Rodney J. Hoffman) (03/05/91)
---------------------------------------------------------------- [The following report on the conference is reprinted with the permission of the Bureau of National Affairs. Marc Rotenberg, CPSR] "INFORMATION POLICY: COMPUTER COMMUNICATIONS NETWORKS FACE IDENTITY CRISIS OVER THEIR LEGAL STATUS" "Computer-to-computer networks are facing an identity crisis-trying to decide whether to claim the rights and responsibilities of being publishers, to seek the protections and limitations of being common carriers, or to become a legal hybrid, according to experts assembled at a recent conference. "The option of inventing new legal constructs emerged as the most favored policy choice during the Feb. 21-22 meeting in Washington sponsored by the Computer Professionals for Social Responsibility and the Electronic Frontier Foundation, a year-old organization concerned about protecting civil liberties in a computer era. 'There are several people here who I have only known electronically,' observed one participant to the some 60 persons who attended-virtually all active users of computer-to-computer networks, and many of the operators of electronic bulletin boards or electronic mail systems. With the help of attending lawyers, the conference set the goal of 'mapping the terrain.' "Frontier imagery -- of homesteaders, saloon keepers and sheriffs -- enlivened the mapping effort, although most attendees seemed to despair that such analogies would illuminate how to 'settle' the electronic frontier. "The very unruliness of the current environment is valued by many of the roughly two million persons who communicate on thousands of computer networks. The electronic bulletin board forums were often referred to as 'free speech corners' and 'communities.' The conference mood was caught when one participant lamented, 'The pace of life has caught up with us, and we are now marooned in real life.' Concern that change will tame totally free expression on the electronic bulletin boards led another participant to suggest the need to preserve 'wildness' jokingly dubbed 'the MIT Wilderness.' "Electronic Publishers" "'The Well,' a major bulletin board for free discourse based in San Francisco, 'is a saloon on the electronic frontier, and I am the barkeeper,' said Well Director Cliff Figallo. Like many involved with bulletin boards, he placed a high value on permitting maximum free speech on The Well. The Well's more than 100 venues even include 'the weird conference.' However, Figallo and others find it necessary to intervene occasionally to ban certain communication or even users. One operator hoped for the invention of a 'bozo filter.' "Figallo and others spoke of running their network with the ethic of 'you own your own words.' But they increasingly worry whether such an understanding will be adequate to stave off libel suits against the network. 'There is a lot of vagueness around liability,' Figallo said. Simultaneously, network operators are concerned that even if they wanted to assume publishers status, monitoring the system would be beyond their means. 'There is no way we can patrol the boundaries of a multiple-gigabyte territory,' according to Figallo, even with user identifiers. "A participant familiar with the workings of the 'far bigger than Prodigy' network called Usent said five efforts at censorship on Usenet had failed primarily 'because the system sees censorship as system breakdown and routes around it.' "In another example cited at the conference, it was noted that in Santa Monica, Calif., a city-run 'Public Electronic Network' is overseen by citizen committees who try to avoid censorship. Santa Monica is still waiting for a parent to sue them over a child reading a curse word, but so far this has not happened. In fact, network officials interviewed could cite no examples of libel suits. There have, however, been instances in which computer equipment used to run electronic bulletin boards has been seized and held by law enforcement officials, usually in the course of investigating hacker incidents. Network operators are eager to find ways to limit over-broad seizures of their electronic equivalent to a printing press, and several participants noted that claiming the legal status of publisher might help inhibit unreasonable seizures. "Choosing a Legal Model" "The role of publisher is explicitly chosen by Prodigy, the 750,000-member commercial network owned by Sears, Roebuck & Company and International Business Machines, Corp. The commitment to free expression felt by many network operators and users contributed to criticism of Prodigy. Last Fall Prodigy ejected about a dozen subscribers who use the Prodigy system itself to voice their objection to an increase in the price of the Prodigy's electronic-mail service. "Prodigy's action was defended as the effort of a publisher to control his publications in a way necessary for the creation of a far-reaching, affordable, family-style source of information and advertisements. The privacy of Prodigy electronic-mail is protected, according to Prodigy Vice President and General Counsel George Perry, but Prodigy public forums, news, and other features are part of its news product and under its control. "The development of a diversity of communications alternatives was seen by some as potentially alleviating concerns over restrictions imposed within commercial services. However, other participants feared that a few large operators could dominate electronic communications. "Criticisms of Prodigy included the contention that the service be likened to a shopping center, which under some court rulings on free speech have been treated as public forums. 'The courts may some day hold that electronic shopping networks like Prodigy as the public forum of the 21st Century,' speculated Jerry Berman, director of the Information Technology Project of the American Civil Liberties Union and Marc Rotenberg, director of the Washington Office of the Computer Professionals for Social Responsibility. "The management of existing federally-run computer networks came during a conference discussion of the network operated by the National Science Foundation. The need for NSF control and management was justified as essential for holding the publicly-funded network to its specialized mission of facilitating scientific interchange, for keeping it from being 'flooded,' and for the practical need of preserving congressional support. "NSF officials came under some criticism for their network controls; one commentator appealed that NSF leave room for 'exploring and play.' "Common Carrier Model" "The alternative favored by a few at the conference would see computer networks adopt the posture of common carriers -- transmitting every message regardless of content. "For person-to-person electronic mail services, some conferees agreed that the common carrier mode may be the best choice, although they expressed a bias against being regulated by the Federal Communications Commission. "The ACLU's Berman said a common carrier network for computer-to-computer communication will be required to preserve free expression, whether it is run by the government or regulated by the government. "For the most part, however, the conferees considered the common carrier approach too limiting. In particular, questions were raised about what principle would apply to electronic bulletin boards. "In addition, concerns were raised about the potential for governmental restrictions. The increasing probability of statutory controls over 900 telephone numbers was criticized by some in attendance. Others criticized recent FCC actions against some amateur radio operators who relayed computerized messages inviting others to call a 900 number to send an anti-war message. The FCC said the operators of the 'packet' relay systems had violated restrictions on transmitting commercial messages. FCC critics said the agency was inhibiting free speech. "Hybrid Model" "The development of a hybrid legal framework was the preferred, if undefined, option of many of those at the conference. "How can a network operator assume the obligations of a publisher, one lawyer asked, if network participants can post messages at will. "Also complicating the issue, said another participant, is what responsibilities should be assigned when the networks are interconnected worldwide. Another participant raised the question of whether free speech will be allowed on internal corporate electronic-mail systems. "Electronic networks have a mixture of attributes, Mitch Kapor, co-founder of the Electronic Frontier Foundation concluded, and they require a revised legal framework. 'But I don't know what, and I don't know if it is possible,' he said." [end] [Reprinted with permission from *Daily Report for Executives,* No. 38, pp. A-6 - A-8 (February 26, 1991). Copyright 1991 by the Bureau of National Affairs, Inc. (BNA). For more information on accessing online information from BNA, including the "information policy" topic, call the BNA Online Help Desk at 1-800-862-4636 or 202-452-4132.] ----------------------------------------------------------------