Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Posting-Version: version B 2.10.2 8/7/84; site ucbvax.ARPA Path: utzoo!watmath!clyde!burl!ulysses!ucbvax!telecom From: telecom@ucbvax.ARPA Newsgroups: fa.telecom Subject: TELECOM Digest V4 #119 Message-ID: <3312@ucbvax.ARPA> Date: Thu, 15-Nov-84 15:20:24 EST Article-I.D.: ucbvax.3312 Posted: Thu Nov 15 15:20:24 1984 Date-Received: Fri, 16-Nov-84 06:59:07 EST Sender: daemon@ucbvax.ARPA Organization: University of California at Berkeley Lines: 214 From: Jon Solomon (the Moderator) 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 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 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 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 ******************************