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From: brad@LOOKING.ON.CA(Brad Templeton)
Subject: The status of the electronic forum (BBS)
Date: 27 Sep 90 00:57:23 GMT

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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

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