brad@looking.on.ca (Brad Templeton) (09/27/90)
People keep trying to figure out what an electronic forum (or bulletin board) is in traditional terms -- common carrier or publication. I think that it is not analogous to any of the old forms, and a new type of law has to be created to apply to it. There are 4 types of BB today: A) The completely open BB with no supervision (USENET newsgroup, some BBS operations) B) The supervised open BB. (most BBS, GEnie, CIS forums, etc.) C) The heavily supervised BB. (Prodigy, moderated USENET group) D) The fully edited electronic publication D is a direct analog of the traditional publication. C is very close, but not quite. A is close to the "common carrier" model, but does not match it exactly. B has little analog in traditional publishing. All four are of course(*) deserving of constitutional protection of free speech. For all are published forms of expression. The closest thing to A is common carrier or enhanced service provider status, where the carrier is not liable for what is transmitted. However there are many differences. For one, I have not heard of a "public broadcast" common carrier, where messages are sent to arbitrary members of the public who request the material. The closest analog might be Ham radio, although Hams are licenced and thus not classed as general public. They are also restricted in use. Of course "Ham radio" is a thing, not an organization. In addition, most type A systems do have some controls and checks and balances. They do not have the "service to anybody who asks is mandatory" rule of common carriers. I would view each individual author as the publisher, and the system owner as a tool in this case. On the other hand, I would support the right of system owners to restrict *who* has access, if not necessarily what they say. Type B is also a new animal. Such systems are supervised, but supervised after-the-fact. ie. any user can post any message, but the SYSOP/supervisor/moderator can delete things after the fact. The amount of this deletion ranges from almost none to moderate. Sometimes it is there as an option, but never actually practiced. This needs a new type of law. Type C is very close to a publication, and may not need a new type of law. In this case, all messages must be approved before they go out -- ie. they pass through a human being first. This is not too different from a classical publication. However, in most such cases, the editors do not truly act as editors. They merely select material based on appropriateness to a forum. Only because the law requires it do they also sometimes attempt to remove libel and criminal activity. The editors almost never select material to match their own views, and it is not assumed that postings reflect the editor's views. Thus in A and B it is clear that the author is the publisher and the system is the medium. In C the author and system operator are jointly involved in publication. In D the system operator is the publisher, and the author is just the author. What new types of law? This we can discuss. Type A: Authors fully responsible for their postings. No liability for SYSOP unless illegal activity deliberately encouraged. (ie. "The Phone Phreak BBS" might have a liable SYSOP, but "Joe's Amiga BBS" would not be liable if somebody posts a phone credit card number.) NO complete anonymity. Author's names need not be revealed in the forum itself, but a record should exist for the authorities in case of libel or other illegal activity by an author. The sysop must maintain this list in return for the limit of SYSOP's liability. (Note SYSOPS still have the right to delete material, but not the obligation.) Type B: Authors continue to be responsible for their postings. SYSOPS responsible for illegal material which they are aware of but do not delete in a timely fashion. Anonymity possible, if desired. Type C: Authors responsible together with SYSOPS for postings. If Author warrants to SYSOP that material is legit, most liability goes to Author. SYSOP must not permit any obviously illegal material, and delete any material found to be illegal ASAP. Type D: Standard publication. No new law. -- Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473