The Law Versus Computers: A Confounding Terminal Case By Lee Dembart, Times Editorial Writ

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The Law Versus Computers: A Confounding Terminal Case By Lee Dembart, Times Editorial Writer Los Angeles Times 08/11/85 Technology sometimes advances faster than the law, creating no- vel problems to challenge social and legal thought. The Xerox ma- chine, for example, was a new form of printing press that eventu- ally forced Congress to revise the copyright laws. The proliferation of electronic bulletin boards - on which mil- lions of people exchange information using home computers and tel ephones - has opened a new and powerful mode of communication lar gely untouched by existing law. The nation's 2,500 computer bull- etin boards are electronically published newspapers, and their op erators are, in effect, newspaper publishers. They should have all the rights of publishers and the responsibilities for accura- cy that go with them. This new electronic medium is as powerful as the Xerox machine, providing nearly instantaneous international communication among large numbers of people who are physically removed and will prob- ably never meet. The technology brings back the era of the pamph- leteer - and goes one step further: It enables publication with- out a press. But efforts are underway, in California and elsewhere, to make the operators of computer bulletin boards criminally liable for what appears on them. These efforts threaten to clash with the fr eedoms of speech and the press. They are likely to be unenforcea- ble to boot. Legislative attempts to restrict communication pose serious First Amendment problems. While most material on computer bulletin boards involves the ro utine exhange of harmless information, thoughts and chatter, leg- islators are concerned about the occasional entry that is libel- ous, obscene or illegal. Should the operator of a bulletin board be criminally liable for such material? For example, computer hac kers and phone "phreaks" sometumes use electronic bulletin boards to post the numbers of valid consumer and telephone credit cards. A Los Angeles television engineer, Thomas G. Tcimpidis, 33, was threatened with prosecution last year because a bulletin board he maintained contained the numbers of two stolen phone card num- bers. Beyond its legal aspects, the Tcimpidis case illustrates the scope of the bulletin boards. When word of the place raid on Tcim pidis's home appeared on a bulletin board, it quickly spread, rea ching between a half-million and three-quarters of a million board watchers in 72 hours, according to Chuck Lindner, Tcimpid- is's lawyer. Replies came from Japan, Australia, England and Can- ada as well as from most of the United States, Lindner said, and a legal defense strategy was planned among far-flung lawyers over the bulletin boards. The case was eventually dropped, but a bill is now making its way through the Legislature that would make it a crime for a bul- letin-board operator to display unauthorized private information after he has been notified that it is there. In Virginia, a bill has been introduced that would make it a crime to put or maintain information on a computer bulletin board that would help promote the sexual abuse of children, even though there is nothing ob- scene about the information itself. If two people sent "Lolita" back and forth over a bulletin board in Virginia, could they be prosecuted? These measures suggest prior restraint of publication, which is unconstitutional. In an attempt to aboid the constitutional is- sues, the California bill (SB 1012), sponsored by Sen. John T. Doolittle (R-Citrus Heights), is narrowly drawn. The information it seeks to keep off bulletin boards is "a telephone number or ad dress not listed in a public telephone directory, personal ident- ification number, computer password, access code, credit card num ber, debit card number or bank account number." That may sound like a good idea, but no newspaper could be found criminally liable for publishing such material. It may be civilly liable - someone who lost money as a result of publica- tion could sue for damages - but it would not have violated the penal code. Under Doolittle's bill, passed by the Senate and a- waiting action in the Assembly, the operator of a computer bulle- tin board in violation of the law could be sent to jail for a year and fined $5,000. It would be extremely difficult to enforce. How much notice must be given. Does the operator of a bulletin bord have a right to object to or question the assertion that the material on the board is unauthorized? If not, credit-card companies, banks and the like would have the authority to restrain publication simply by demanding it. Who has the right to demand suppression? No matter what the answers to these questions, the fact is that the law affects only California. It's easy enough to set up a bul letin board in Nevada and avoid the problem completely. There are more questions. The Federal Communications Act regul- ates telephone communication. Newspapers are constitutionally pro tected. Which rules cover computer bulletin boards - in a sense hybrid forms? Or are they a new form for which new rules must be written? And why should those rules be stricter than those that already exist? Bulletin boards are protected by the First Amendment, and they should have all the freedoms associated with freedom of the press. Laws already exist to prosecute the computer crimes that authorities are properly trying to stop. New laws that restrict freedom of expression are unnecessary and harmful. ----------------------------------------------------------------- Comments by Ron Bell, DATANET System Manager: Mr. Dembart makes a good argument, but I'm wary of the analogy. Bulletin boards rese- mble newspapers some ways; they differ greatly in others. The discussion of liable is interesting. If someone prints here that another user is guilty of a crime, can I, as the "publisher" be sued for liable for holding the skapegoat up to public ridic- ule? Seems to me, bulletin boards operate more like free speech than papers. A great deal of prior restraint takes place at est- ablished publications, mostly by editors. There are no editors here. Imposing prior restraint, then, would be restricting free- dom of speech. Of course, if you're a crooked politician, that may be a good idea.


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