Some Important Questions to Ask

All these events raise many questions: Who is responsible for a BBS?

If it is the sysop, how about remote sysops?  How much can one do to regulate a BBS?  On the Private Sector messages were regularly scanned for potential illegal material and then deleted when found.  Then the user who posted the message was denied any further access.  What more can one do than this?  Especially if the BBS is simply a hobby and not a full-time job.

On the Private Sector it was extremely unlikely to see a credit card number or an Allnet code.  Plus isn't it really illegal to use these codes?  This is because a crime has been committed only after a code has been used.  But then again, in some states, namely California, it is illegal to tell people code formats.  This makes all credit card commercials, sample credit cards, and this publication illegal there.  Does this sound right?

It also raises a variety of questions on the admissibility of electronic evidence.  The Middlesex prosecutors consider reading messages on a BBS the same as overhearing a conversation.  Is this the proper way to look at BBS messages?  And what about electronic mail?  Is the sysop responsible for the contents of electronic mail just because he provides the service?  Isn't it just as sacred as U.S. mail?

Now, there are currently no laws that require court approval in order to tap data lines.  So, how does one consider evidence that is received by a legal, yet unapproved tap?  If authorities can confiscate a suspect computer system because it has an illegal message on it, why don't they confiscate CompuServe when it is used by criminals to exchange illegal information?  Or is the government just upset about the fact that people are communicating in an unregulated manner?  These questions go on and on.  What are the answers?

Some of the answers are only starting to appear as legislators address the problems that are connected with the computer age.  But often they are only responses to headlines.  For instance, we were told that Senator Paul Trible (R-Virginia) has recently proposed legislation (S-1305) that would regulate obscene material on a BBS.

Called the "Computer Pornography and Child Exploitation Prevention Act of 1985," the legislation would prohibit the posting of names or addresses of children and prevent discussion that could be construed as pertaining to child exploitation.  A couple of explicit messages might give sufficient cause to get a warrant to seize your BBS.  We have not seen the legislation itself yet, but it was related to us by Jerry Berman of the American Civil Liberties Union's Privacy Project in Washington.  He said that this showed "Congress trying to regulate an industry that no one understands and that has no constituency."  This is all too true.

On the other side, Berman told us about legislation that is being drafted by Patrick Leahy (D-Vermont) that would extend laws which limit wiretaps in order to protect data transmission, electronic mail, an BBSes.  This is something that would be harder to get through Congress, as reduces the power of law enforcement.

We will try to keep you informed when anything new happens.  So ask the questions now, before they are answered for you.