E-law 4: Computer Information Systems Law and System Operator Liability

Publication year1998



E-LAW 4: Computer Information Systems Law and System Operator Liability

David J. Loundy(fn*)

I. Introduction

Cyberspace is the realm of digital data.(fn1) Its shores and rivers are the computer memories and telephone networks that connect computers all over the world. Cyberspace is a hidden universe behind the automatic teller machines, telephones, and Lexis terminals which many of us take for granted. It is also a way for computer users all over the world to interact with each other instantaneously. It is also the fastest growing communications medium ever invented. However, the growth of electronic communication and data manipulation has not been matched by an equal growth in understanding on the part of legislatures, the judiciary, or the bar. Many decisions involving computers and computer networks are fundamentally flawed by a lack of understanding of the technology and how the intricacies of a particular legal field apply to the particular technology. In some cases decisions are made and legislation is passed with no regard or understanding of what impact there will be on the technology being affected by the legislation or court decision. Only with a proper understanding of both the law and the technology will electronic communications grow unimpeded by the archaic residue of the legal system.

This Article gives a summary of the current regulatory structure in the United States governing a few of the "Empires of Cyberspace," such as bulletin board systems, electronic databases, file servers, networks (such as the Internet) and the like. Different legal analogies that may apply will be illustrated, and some of their strengths, weaknesses, and alternatives will be analyzed. I will begin by looking at different types of computer information systems, and then the major legal issues surrounding computer information systems will be surveyed in brief.(fn2) Next, the different legal analogies which could be applied to computer information systems will be examined. These different analogies provide an understanding of how courts have seen various communication technologies, and how more traditional technologies are similar to computer information systems. Liability for improper activities-both defining what is improper and who can be held responsible-has been determined by the analogy the courts decide to apply. In the course of this analysis, it will be shown where some judges and legislators have gone wrong. Hopefully, as more attorneys, judges and legislators become familiar with computers and network communication, there will be fewer errors to point out.

II. Computer Information Systems Defined(fn3)

As computer communication advances and becomes more commonplace, many services that were once distinct have merged and are harder to distinguish. While once we could talk about bulletin board systems, files servers, chat rooms or channels, etc., systems may now act as all of these services rolled into one entity and accessible at a World Wide Web site. Some of the different technologies are worth distinct examination, however.

A network is a series of computers, connected often by special types of telephone wires. Many networks are conduits used to call up a remote computer in order to make use of that computer's resources from a remote personal computer.(fn4) Many networks allow a much broader range of uses such as sending e-mail and more interactive forms of communication between machines,(fn5) transferring computer files, using information distribution protocols such as usenet news and the phenomenally popular World Wide Web (the Web), and also providing the same remote access and use that the simpler networks allow.(fn6) Networks can be used not only for personal e-mail, but also for a number of special kinds of electronic publishing.(fn7)

A Bulletin Board System, often referred to simply as a BBS, is the computerized equivalent to the bulletin boards commonly found in the workplace, schools, and the like. Instead of hanging on a wall covered with notes pinned up with thumbtacks, computer bulletin boards exist inside the memory of a computer system. Rather than walking up to a bulletin board and reading notes other people have left, or sticking up notes of his or her own, the BBS user connects his or her personal computer to the "host" computer,(fn8) sometimes directly via a telephone line,(fn9) more often via a computer network such as the global Internet. By connecting to the BBS, a user can read the notes (also referred to as messages or posts) of other users or type in his or her own messages to be read by other users. These computer bulletin boards are sometimes referred to as "systems" because they often provide additional services or separate "areas" for posting messages related to different topics.(fn10) Others may be simple message areas, yet others may be "web-boards" which run on a World Wide Web page and allow the additional hyper linking or features that the Web protocol(fn11) allows.

There are a number of different things bulletin board systems allow one to do. As their name implies, their primary function is as a place to post messages and read messages posted by others. Whatever the user's interests, there is probably a BBS or Internet usenet newsgroup(fn12) to cater to it. Like any communications forum, these discussion forums can raise some serious First Amendment and liability concerns over some of the potential uses, such as availability of pornographic material, defamation, etc.

Another use for networked computers (or bulletin board systems and other services which allow multiple users to connect to the system) is the sending of electronic mail, or e-mail, as it is often called. Electronic mail is a message that is sent from one computer user to another, transmitting either between users on the same computer, or between users on different computers connected together by a network. E-mail and regular mail are different in three important ways. First, because e-mail is provided by private parties, it is not subject to government control under the postal laws as is regular mail.(fn13) However, it is under the control of the system operator (often called the SYSOP) of the computer system on which it resides at any particular time. This gives rise to the second issue-privacy. Unlike the U.S. mail, electronic mail is almost always examinable by someone other than the sender and the receiver of the message. By necessity, the communications provider may not only have access to all mail sent through the computer system, but may also have to keep copies (or "backups") in case of system failure. Third, e-mail is interactive in nature and can involve almost instantaneous communication, more like a telephone than regular mail, so much so that regular users of e-mail often refer to the U.S. mail as "snail mail."

Multiple user bulletin board systems are also frequently used for their "chat" features, allowing a user to talk to other users who are online (connected to the host computer or network) at the same time. Some of these bulletin boards take the form of slow discussions where messages may be few and may be stored on the system for a long time; others may take the form of a "chat room" or "channel" or "instant messages" where discussions move in near real time,(fn14) and the messages may not be accessible for long after they are entered by users.

Another service available over computer networks (or many bulletin board systems) is the ability to upload and download files.(fn15) A computer system providing a file archive, or "file server,"(fn16) may allow its users to download almost any type of computer file. This may consist of text, software, pictures, sounds, and more. These servers may be seamlessly integrated with other technologies and distribution mechanisms-for instance, a web page may have "links" to software packages which are distributed via a "web server."(fn17)

Another common type of information distribution system is the database.(fn18) These services allow the user to enter a variety of "search terms" to look through the information the service has collected.

Other network based information distribution services include the menu driven "gopher" server (basically, a type of file server), Wide Area Information Server (WAIS),(fn19) and the Web.

The Web, the fastest growing Internet service, is another method of accessing material on a computer network. Technically, the Web is a protocol-a format for transmitting information over a network, just as e-mail or usenet news are also protocols that distribute information over a network such as the Internet. The Web features the ability to display graphics, sounds, movies, and more. Most importantly though, it allows for hypertext links. Hypertext links are, for example, terms in a document that when selected, call up other documents, (or sounds, pictures, or other materials) which are related to the selected term. From these related documents, links can be followed to yet more related documents, and so on.

III. Issues Involved

Computer information systems present a whole slew of legal issues. Whenever a new form of communication emerges, there is a concern that along with legitimate users will come some abusers.(fn20) Just as networked computer systems can be used for political debate, they can also be used as an...

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