telecom@ucbvax.ARPA (11/15/84)
From: Jon Solomon (the Moderator) <Telecom-Request@BBNCCA>
TELECOM Digest Wed, 14 Nov 84 16:59:28 EST Volume 4 : Issue 119
Today's Topics:
The LA BBS (Mog-ur) case
BBS responsibility
Two Sides to the Bulletin Board
TARIFFS
----------------------------------------------------------------------
Date: 13 Nov 84 02:07 EST (Tue)
From: _Bob <Carter@RUTGERS.ARPA>
To: mcb%lll-tis.arpa@lll-tis (Michael C. Berch)
Cc: telecom@bbncca
Subject: The LA BBS (Mog-ur) case
From: mcb%lll-tis.arpa at lll-tis (Michael C. Berch)
The real question raised by the Mog-ur case (regardless of its
specific outcome) is whether we want, as a matter of public poli-
cy, to hold BBS sysops (and others in similar situations, includ-
ing, for example, commercial services [The Source, CompuServe]
and those who post and redistribute Internet/Usenet digest) CRIM-
INALLY responsible for failing to detect and remove messages pro-
posing illegal activities.
Simply proposing criminal activity probably cannot be sanctioned
unless the proposal is followed by an overt act. The difficulty is
specific intent: How to prove I meant it when I said "Let's steal
the Hope diamond." Innocently (or even negligently) transmitting
such proposals can probably not be criminally punished either.
Mog-Ur is this kind of specific intent problem. The substantive
crime (if any) is a species of theft. As, I see the keys in your
parked Mercedes and, with the intent to deprive you of it, stop
random passersby and point out the opportunity. Can I still be said
to be guilty if I simply allow the good news to be posted on the
communal bulletin board in my candy store? Sure, if I had the
requisite intent. And intent can be inferred from circumstances.
Suppose you had just won the car in a disputed lottery in which I was
the losing claimant, and I had said "Berch won't drive it far."
One problem with Mog-Ur is that the first version of the story was
innocent of any facts from which such an inference could be drawn.
Not so with later versions. But, as you say, we don't have any way
of knowing what the real facts are.
Very rarely do our laws impose standards of affirmative conduct
that result in criminal sanctions if they are not performed
faithfully.
Filed your 1983 income tax?
These exceptions usually fall into categories where
serious and immdiate harm to persons would result: operators of
dangerous machinery or explosives; manufacturers/sellers of foods
and drugs, and so forth. I don't think anyone has a problem with
holding a drug manufacturer criminally liable for failing to in-
spect a batch of product for dangerous impurities.
Unfortunately, the L.A. prosecutor has misinterpreted the differ-
ence between CRIMINAL and CIVIL standards of conduct.
I have trouble with the drug company, for very reason you mention.
The drug indictment is ordinarily not for failure to inspect, it is
for homicide. It is this example that confounds civil and criminal
notions of intentionality; the drug company intented to save a buck,
not to kill people. The prosecutor's confusion in Mog-Ur is more
likely to involve his own qualifications for higher office.
If the
Mog-ur sysop has breached a standard of conduct (and I draw no
factual conclusions, based on third-hand evidence!) the remedy is
for the aggrieved party to sue for damages.
The elements of common-law theft are complete when the taker
exercises control over the information, without any demonstration
that anyone ever used the card. Even if California theft law is very
peculiar, the general law of attempts would almost certainly make a
course of conduct intended as a theft sanctionable. Should the cops
have to stand by and watch me powerlessly until someone actually
boosts your car?
This way, both our society's interest in freedom of communication
and expression AND the aggrieved party's property rights can be
served in a controversial case. And ideally, our legislature
could more specifically define a standard of conduct that assures
that sysops and those in similar positions know what is expected
>from them. Personally, I would rather err on the side of permis-
siveness, but practically ANY reasonable standard of conduct is
better than having a gung-ho prosecutor try to create a whole new
class of information-age crimes.
I suspect legislature has acted, not very carefully, and not with
information in mind. Most "theft of services" statutes are broad
enough to cover the intentional conversion of a telephone credit card
number. These statutes often try to finesse the specific intent
problem because of difficulties of proof, and usually do it very
badly. There is a New Jersey section, for example, that makes it a
crime to hack your electric meter with the intent to steal and then
creates a presumption that if your meter is munged, you did it with
the requisite intent. Think about applying that one to an elderly
apartment house.
Enactments of this kind may well be susceptible to 14th Amendment
due process attack. That, rather than the First Amendment claims
raised by VAIL, would seem to me the best line of analysis.
_B
------------------------------
Date: Mon, 12-Nov-84 23:07:35 PST
From: Lauren Weinstein <vortex!lauren@RAND-UNIX.ARPA>
Subject: BBS responsibility
To: TELECOM@MC
I'm not so concerned about the telephone credit card case in
particular (though, by the way, validating physical credit cards
from pay phones would *not* solve the problems, since there are
various other modalities of card usage) but I *am* concerned
about the more general BBS issues.
Let's take a couple of more extreme examples, and not necessarily
impossible ones at that:
1) A BBS operator starts up what amounts to a "houses to hit" BBS.
His anonymous users post information about local homes and businesses
that have been noted to have "lax" security, and also note the times
the buildings are unattended, what valuables are inside, and
recommend possible places to fence the goods if they are "removed"
from those establishments. The BBS operator makes sure he never
knows who posts those messages, and disclaims any responsibility
when robberies in the area increase 100 fold within a month
of the establishment of his "information service." He also
claims "he never reads the messages on his board--he's only
providing a public discussion service."
2) A racial "hate" group establishes a BBS to discuss and plan
acts of destruction and terrorism against various racial
and religious groups, all anonymously of course. Both property
damage and acts of personal, physical violence are
proposed and planned on the BBS. The operator claims he has
no responsibility because he "never looks at the messages."
Both of these scenarios might be occurring right now, though we
certainly hope they are not. Now the question is, do these
BBS's deserve to be protected? What about BBS operators who
attempt to use "ignorance of content" as an excuse to establish
and/or promote illegal activities? In my view, BBS operators would
be subject to much the same rules and penalties as a magazine
publisher when it comes to publication of such materials. It is
unreasonable for operators to try to absolve themselves of all
responsibility by claiming lack of control of their boards
and lack of knowledge regarding their users. If nothing else,
BBS operators could screen messages before allowing posting
to public boards. Oh yes, this would be more work and more hassle--which
is probably why most operators kick and scream at the concept. Or they
could make sure they've verified all users before allowing posting
to public boards (some BBS's wisely do this now). But trying to
hide behind the "anonymous" cloak is irresponsible and likely
to promote increasing amounts of abuse by "anonymous" users.
--Lauren--
------------------------------
Date: Tue, 13 Nov 84 15:36:27 EST
From: Brint <abc@BRL-TGR.ARPA>
To: telecom@BBNCCA.ARPA
Subject: Two Sides to the Bulletin Board
On the one hand, I seem to recall that the offending number was posted
in a category with an offensive name. Can anybody recall what it was?
On the other hand, if someone poss a telephone calling card number on
the bulletin board down at the supermarket, is the grocery chain guilty
of a felony -- or of anything?
Brint
(301) 278-6883 AV: 283-6883 FTS: 939-6883
ArpaNet: abc@brl
UUCP: ...!{decvax,cbosgd}!brl-bmd!abc
Postal:
Dr Brinton Cooper
U.S. Army Ballistic Research Laboratory
Attn: AMXBR-SECAD (Cooper)
Aberdeen Proving Ground, Md 21005
------------------------------
Date: Wednesday, 14 Nov 1984 08:57:51-PST
From: molineaux%donjon.DEC@decwrl.ARPA (Arthur Molineaux DTN 2733133)
To: telecom@bbncca.ARPA
Subject: TARIFFS
We use :National Communications Tariffs
38 West 32nd Street
NY,NY 10001
212-868-0377
They have all tariffs available.
------------------------------
End of TELECOM Digest
******************************