Sysops' Top 20 Legal Questions
Mike Godwin
sysops and other system operators and administrators frequently face. We
hope to provide reliable general answers to the most commonly asked
questions from sysops. This may lead to an FAQ in comp.org.eff.talk,
misc.legal, and elsewhere; it will certainly lead to an article written by
me and/or EFF-DC's staff counsel Shari Steele.
What questions do you have? Please post them here, or send them to me at
mnem...@eff.org.
--Mike
--
Mike Godwin, |"The meeting of two personalities is like the contact
mnem...@eff.org| of two chemical substances: if there is any reaction,
(617) 864-0665 | both are transformed."
EFF, Cambridge | --Carl Jung
Edward J. Branley
> What questions do you have? Please post them here, or send them to me at
> mnem...@eff.org.
This is an excellent idea. I've got one that's been on my mind. Don't know if
anyone else is concerned about this, but we'll see.
My concern has to do with the legal ramifications of carrying binaries
newsgroups. I *think* I'm on solid ground with alt.binaries.pictures.erotica
by simply restricting access to folks who are of legal age. However, I feed
binaries groups to other systems and sites. What are the ramifications of
doing this, since I'm not a common carrier? If one of those sites were to get
into some difficulty because some kid was getting a.b.p.e pictures from someone
downstream from me, does that spell trouble for me?
Copyright issues on binaries groups are another concern. Given that many of
the images in the a.b.p groups are from magazines, calendars, etc. What kind
of trouble can a sysop get in from these?
Again, this is a good idea. Thanks for putting the list together.
>Edward J. Branley ele...@mintir.new-orleans.la.us<
>Seashell Software, Metairie, LA +1-504-455-5087<
David Smith
es:
>The EFF is working on a project to outline the legal issues that BBS
>sysops and other system operators and administrators frequently face. We
>hope to provide reliable general answers to the most commonly asked
>questions from sysops. This may lead to an FAQ in comp.org.eff.talk,
>misc.legal, and elsewhere; it will certainly lead to an article written by
>me and/or EFF-DC's staff counsel Shari Steele.
>
>What questions do you have? Please post them here, or send them to me at
>mnem...@eff.org.
>
>
>--Mike
The key to success here is providing information about what the *COURTS* say
a legal situation is. I've heard so many alternating views from the-guy-on-
the-corner that does nothing but messes everything up. Please take care to
describe the situation as-is, and not how we'd all wish it was.
For example, Cubby v. Compuserve does nothing to protect individual sysops.
We are still 100% liable for all information on our systems. The argument
that Compuserve is so large that it is infeasible to control it's content
does not apply to one-to-small node BBS Systems. What is the extent of a
sysop's liability for what is posted/uploaded/distributed on his system?
Does the sysop need to have personal knowledge to be responsible? (Many
signs point to the answer being no.......)
Access to Adult Material : What steps do the *COURTS* consider to be
"reasonable measures" to protect against the control of pornography to minors.
What procedures should or shouldn't be adopted? Voice validation? Age
statement? One common tactic is requiring a photocopy of a driver's license
and/or birth certificate....which is just goes way too far, imo. [Hell if I'm
sending someone I don't know my TDL].
With pornography, the point isn't that minors aren't going to secure the
material, but what are reasonable measures to guard against it.
* * *
This isn't a FAQ-type question, but an advanced excercise for the reader that
Ed Cavazos and I have discussed: suppose I take a photography of a 9 year
old in a bathing suit, digitally scan it, and via the wonders of a paint
program, make her appear nude. Is this pornography?
The FBI prosecutes photographs of minors on the basis that if a picture is
taken, the child had to be involved, and thus was injured. [For the same
reason, no text is illegal since it is merely considered to be the fantasy of
the author/reader]. With digitizing, how can you tell whether the child is
from the original photograph or not?
* * *
Back to FAQ-type questions. Is a BBS a private entity, a public entity, or
some weird hybrid? How does this affect membership? As a sysop, can I
discriminate against members based on their race, creed, or gender? If so,
why, if not, why not?
Slander & defamation : does it exist in cyberspace? I believe that the
ruling was that Compuserve was the wrong entity to sue; that Cubby still had
the right to sue the publisher of the ectronic newsletter who they accused of
making the false & defamatory statements. If I say Qmodem is a piece of shit
compared to Telemate, how close am I towards the thin ice? Where are the
boundaries over expression of opinion? [This may be a generic question,
simply applied to the media of telecommunications].
Well these are just the topics I have on the top of my head. I'm co-sysop of
a BBS that's been running a BBS/Modem Law Net for about a year or so now, and
these are what comes to the surface. The main problem we have on that net
is people weighing in without any understanding whatsoever of the legal
concerns about liability, access of minors to pornography, etc. Save us
--
"If you . . . if you squander your precious beautiful days on
meaningless labor whose" -- he coughed up blood -- "whose ultimate
purpose is to further enrich the ruling elite or solidify the hegemony
Mike Godwin
>For example, Cubby v. Compuserve does nothing to protect individual sysops.
>We are still 100% liable for all information on our systems. The argument
>that Compuserve is so large that it is infeasible to control it's content
>does not apply to one-to-small node BBS Systems. What is the extent of a
>sysop's liability for what is posted/uploaded/distributed on his system?
>Does the sysop need to have personal knowledge to be responsible? (Many
>signs point to the answer being no.......)
David, where are you getting this analysis of Cubby v. CompuServe? What
you write here has nothing to do with the analysis the federal district
court employed in arriving at a summary judgment for CompuServe.
Nothing in this case is based on the *size* of CompuServe--it's based
on the *procedure* by which CompuServe makes public postings available.
Specifically, CompuServe does not pre-screen postings before it makes them
available to the public. (In this, it is like most small BBSs.) Although
the court in Cubby dwells on the fact that there was a subcontractor
moderating the forum, the legal analysis itself rests on a Supreme Court
case dating from the 1950s: Smith v. California. In Smith, the Supreme
Court held that a bookstore operator or book distributor cannot be
Constitutionally held liable for obscenity in the publications sold or
distributed, absent some proof of *knowledge* that the particular material
is illegal. This reasoning was later extended to libel cases. (Cubby v.
CompuServe is a libel case.)
The question raised by CompuServe in Cubby is whether CompuServe is more
like a bookseller or distributor, or more like a newspaper publisher. The
court held that CompuServe was more like the former, and thus deserving of
the First Amendment protections articulated in Smith.
Now, so long as a BBS is operated in the manner that most BBSs are
operated in, and so long as the function of the BBS is not itself illegal
(this is the loophole that allows for the prosecution of adult-book
sellers and distributors), the holding in Smith should protect the small
BBS as well as CompuServe.
David, did you actually read Cubby?
>Access to Adult Material : What steps do the *COURTS* consider to be
>"reasonable measures" to protect against the control of pornography to minors.
>What procedures should or shouldn't be adopted? Voice validation? Age
>statement? One common tactic is requiring a photocopy of a driver's license
>and/or birth certificate....which is just goes way too far, imo. [Hell if I'm
>sending someone I don't know my TDL].
This is a reasonable question, which I will include in the list.
>This isn't a FAQ-type question, but an advanced excercise for the reader that
>Ed Cavazos and I have discussed: suppose I take a photography of a 9 year
>old in a bathing suit, digitally scan it, and via the wonders of a paint
>program, make her appear nude. Is this pornography?
It's not a violation of the federal child-porn statutes, which require the
sexual use of a child.
>The FBI prosecutes photographs of minors on the basis that if a picture is
>taken, the child had to be involved, and thus was injured. [For the same
>reason, no text is illegal since it is merely considered to be the fantasy of
>the author/reader]. With digitizing, how can you tell whether the child is
>from the original photograph or not?
The FBI prosecutes photographs of minors only if the taking of those
photographs violated the specific provisions of 18 USC 2252 et seq., which
include "the use of a minor engaging in sexually explicit conduct."
The issue of what constitutes evidence is a separate one, and you
are correct to note that digital modification of imagery creates
evidentiary problems.
>Back to FAQ-type questions. Is a BBS a private entity, a public entity, or
>some weird hybrid?
It depends. There is no rule classifying all BBSs as one kind of entity or
another. Whether it's public or private will turn on the facts of a
particular BBS. Perhaps I don't understand the question. In any case, I
will forward this, along with your other questions, to the legal group.
>Slander & defamation : does it exist in cyberspace?
Yes.
> I believe that the
>ruling was that Compuserve was the wrong entity to sue; that Cubby still had
>the right to sue the publisher of the ectronic newsletter who they accused of
>making the false & defamatory statements.
Again, you are distorting what the ruling in Cubby is.
> If I say Qmodem is a piece of shit
>compared to Telemate, how close am I towards the thin ice?
Not very. To get on thin ice in "business libel" you have to make a
specific factual claim that is demonstrably incorrect. This statement
wouldn't count.
> Where are the
>boundaries over expression of opinion? [This may be a generic question,
>simply applied to the media of telecommunications].
Basically, don't libel or slander, and don't violate copyright.
>Well these are just the topics I have on the top of my head. I'm co-sysop of
>a BBS that's been running a BBS/Modem Law Net for about a year or so now, and
>these are what comes to the surface. The main problem we have on that net
>is people weighing in without any understanding whatsoever of the legal
>concerns about liability, access of minors to pornography, etc. Save us
We'll do our best.
Carl M. Kadie
[...]
>For example, Cubby v. Compuserve [...]
[...]
>Access to Adult Material : What steps do the *COURTS* consider to be
>"reasonable measures" to protect against the control of pornography to minors.
[...]
(All these documents are available on-line. Access information follows.)
=================
law/cubby-v-compuserv
=================
Report of a federal district court case which said CompuServe could
not be held liable for the defamatory content because it exercised no
editorial control.
=================
law/dial-information-vs-barr
=================
Newspaper story saying: "The Supreme Court Monday allowed the
government to require adults wanting to take part in ``dial-a-porn''
telephone dialogue to first take a series of steps meant to keep
children from joining in the sexually explicit conversations."
=================
law/obscenity.iowa
=================
IOWA CODE CHAPTER 728 - OBSCENITY
It explicitly exempts public libraries and educational institutions.
=================
=================
These document(s) are available by anonymous ftp (the preferred
method) and by email. To get the file(s) via ftp, do an anonymous ftp
to ftp.eff.org (192.88.144.4), and get file(s):
pub/academic/law/cubby-v-compuserv
pub/academic/law/dial-information-vs-barr
pub/academic/law/obscenity.iowa
To get the file(s) by email, send email to archive...@eff.org.
Include the line(s) (be sure to include the space before the file
name):
send acad-freedom/law cubby-v-compuserv
send acad-freedom/law dial-information-vs-barr
send acad-freedom/law obscenity.iowa
--
Carl Kadie -- ka...@cs.uiuc.edu -- University of Illinois at Urbana-Champaign
Elizabeth Schwartz
>>Ed Cavazos and I have discussed: suppose I take a photography of a 9 year
>>old in a bathing suit, digitally scan it, and via the wonders of a paint
>>program, make her appear nude. Is this pornography?
>It's not a violation of the federal child-porn statutes, which require the
>sexual use of a child.
>The FBI prosecutes photographs of minors only if the taking of those
>photographs violated the specific provisions of 18 USC 2252 et seq., which
>include "the use of a minor engaging in sexually explicit conduct."
It seems correct that a "fake" nude picture of a real child would
not be prosecutable on these grounds, but might it be illegal for
other reasons? If a real child is involved, and a nude-appearing
picture is published, the child could be caused a great deal of
embarassment and possibly endangered. Couldn't this be considered
slander or libel or endangering the child or something?
It certainly is really really nasty.
I know there have been cases where magazines have published fake
pictures of nude adults. What has been the outcome?
--
System Administrator Internet: bet...@cs.umb.edu
MACS Dept, UMass/Boston BITNET:ESCHWARTZ%UMBSK...@NS.UMB.EDU
100 Morrissy Blvd Staccato signals
Boston, MA 02125-3393 of constant information....
farbre...@ms.uky.edu
## It seems correct that a "fake" nude picture of a real child
##would not be prosecutable on these grounds, but might it be illegal
##for other reasons? If a real child is involved, and a
##nude-appearing picture is published, the child could be caused a
##great deal of embarassment and possibly endangered. Couldn't this
##be considered slander or libel or endangering the child or
##something?
This could give rise to a cause of action on privacy grounds in that,
unless you had obtained permission, you would be using a private
individual's image without their permission. (This assumes you would
somehow gain from the use)
j.
Sender: farbrent!ajr3
Mike Godwin
> It seems correct that a "fake" nude picture of a real child would
>not be prosecutable on these grounds, but might it be illegal for
>other reasons? If a real child is involved, and a nude-appearing
>picture is published, the child could be caused a great deal of
>embarassment and possibly endangered. Couldn't this be considered
>slander or libel or endangering the child or something?
> It certainly is really really nasty.
Many states have "invasion of privacy" torts that the child (and his/her
parents or guardian) could use to recover damages from the perpetrator of
such a use of the child's image. These torts include, but may not be
limited to, "false light" and "appropriation of one's likeness."
David Lesher
# > It seems correct that a "fake" nude picture of a real child would
# >not be prosecutable on these grounds, but might it be illegal for
# >other reasons?
To REALLY muddle the waters, construct the "person" in question.
Case 1) Just use the best bits from X thousnd people, and mix and
match. How many bits from each person can you use before he/she sues
you?
Case 2) Build an entire body, al-la the Holideck. If you pay for
services, is it prostitution? If the construct is an image of oh,
Ms 38-24-36, can she sue you? Defamation of character,
or on Intellectual {;-} Property grounds ?
There's lots more work for the courts coming up in the future.
--
A host is a host from coast to coast..wb8foz@skybridge.scl.cwru.edu
& no one will talk to a host that's close..........................
Unless the host (that isn't close).........................pob 1433
is busy, hung or dead....................................20915-1433
Graham Toal
>Many states have "invasion of privacy" torts that the child (and his/her
>parents or guardian) could use to recover damages from the perpetrator of
>such a use of the child's image. These torts include, but may not be
>limited to, "false light" and "appropriation of one's likeness."
And if the whole image is completely computer-generated? (Sorry, I know
we're getting sidetracked; I'm just amused at the concept and wondering
how many lawyer-hours might be expended on it...)
G
--
Gregory G. Woodbury
>
> What questions do you have? Please post them here, or send them to me at
> mnem...@eff.org.
One problem that occurs with increasing frequency is that a private site
(e.g. a persons personal machine running Waffle or FSUUCP etc.) is
downstream from some corporation or university site. Their email
addresses may contain the name of the corp or university in the path.
Now the reason they have this path may well be that the upstream entity
is where they work, but for some reason, they do all of their news/email
to/from the personal machine, and not the upstream site.
No matter, some clueless person takes a dislike to something they are
doing or saying, or someone forges something in the name of this private
site, and the clueless person decides to write to some bigwig at the
upstream site, threatening the bigwig's entity with vague, wild or
scandalous threats of law or embarassment. (Big...@upstream.site, of
course, is NOT a computer person, and knows not the difference between
email and netnews and the main hierarchies and alt, etc...)
What sort of protection can there be for the sites (both the personal
site and the upstream entity) over this kind of harassment.
More generally, should there be a memorandum of understanding or
something similar between sites to help define this situation?
Details don't seem significant, but I know of at least TWO situations on
the net where this has occurred, and there is potential for a third on
going.
--
Gregory G. Woodbury @ The Wolves Den UNIX, Durham NC
UUCP: ...dukcds!wolves!ggw ...duke!wolves!ggw [use the maps!]
Domain: g...@wolves.Durham.NC.US g...@cds.duke.edu ggw%wol...@duke.cs.duke.edu
[The line eater is a boojum snark! ] <standard disclaimers apply>
Mike Godwin
I'm not sure how your question raises a different legal issue. Could you
elaborate? What different legal issue do you think your question raises?
Graham Toal
>>And if the whole image is completely computer-generated? (Sorry, I know
>>we're getting sidetracked; I'm just amused at the concept and wondering
>>how many lawyer-hours might be expended on it...)
>
>I'm not sure how your question raises a different legal issue. Could you
>elaborate? What different legal issue do you think your question raises?
Well, if the image is 1) of a child, but with simulated nudity - then
there are possible civil offences which that child or its parents
could sue for over use of the image.; if the image 2) includes a
photo-montage face of several different people, then either it makes
such an action harder or it lays open the possibility of a class action,
but if 3) the picture has been completely generated from a 3-d modelling
program to a high quality of photo-realism, there is no child or
parents to initiate a suit, and no child involved in pornographic
acts, so who would be legally at risk for what?
G
--
Frank Peters
: In article <1992Sep28....@eff.org> mnem...@eff.org (Mike Godwin) writes:
: >>And if the whole image is completely computer-generated? (Sorry, I know
: >>we're getting sidetracked; I'm just amused at the concept and wondering
: >>how many lawyer-hours might be expended on it...)
: >
: >I'm not sure how your question raises a different legal issue. Could you
: >elaborate? What different legal issue do you think your question raises?
: but if 3) the picture has been completely generated from a 3-d modelling
: program to a high quality of photo-realism, there is no child or
: parents to initiate a suit, and no child involved in pornographic
: acts, so who would be legally at risk for what?
I think there are two distinct situations here that you two are crossing:
1) A completely computer generated image of a real child.
2) A completely computer generated image of a child which doesn't
particularly resemble any real child.
When I first read Grahams original post I thought he was suggesting
situation (1). From the above I gather he meang situation (2).
Mike Godwin
>In article <1992Sep28....@eff.org> mnem...@eff.org (Mike Godwin) writes:
>>>And if the whole image is completely computer-generated? (Sorry, I know
>>>we're getting sidetracked; I'm just amused at the concept and wondering
>>>how many lawyer-hours might be expended on it...)
>>
>>I'm not sure how your question raises a different legal issue. Could you
>>elaborate? What different legal issue do you think your question raises?
>
>Well, if the image is 1) of a child, but with simulated nudity - then
>there are possible civil offences which that child or its parents
>could sue for over use of the image.
This has already been addressed in a previous posting: I referred to the
relevant "invasion of privacy" torts.
>; if the image 2) includes a
>photo-montage face of several different people, then either it makes
>such an action harder or it lays open the possibility of a class action,
If it's a photo montage, it's not "completely computer-generated," is it?
There is zero possibility of a successful tort action if the image in
question is not clearly identifiable as one or more real people.
>but if 3) the picture has been completely generated from a 3-d modelling
>program to a high quality of photo-realism, there is no child or
>parents to initiate a suit, and no child involved in pornographic
>acts, so who would be legally at risk for what?
Under federal law, as I have previously stated, this would not be illegal.
As I have said before in this thread, federal law includes the sexual use
of an actual child as an element of the offense.
Mike Godwin
>I think there are two distinct situations here that you two are crossing:
>
>1) A completely computer generated image of a real child.
>
>2) A completely computer generated image of a child which doesn't
> particularly resemble any real child.
>
>When I first read Grahams original post I thought he was suggesting
>situation (1). From the above I gather he meang situation (2).
It was unclear to me which he meant. In any case, (1) could be an
"invasion of privacy" tort (e.g., appropriation of likeness) even if it
were not a criminal violation under federal law.
It's hard to see how (2) could be either a federal crime or a tort, since
no actual child was used, and the image resembled no actual child.
Thomas Aaron Insel
> In article <Bv9zH...@ibmpcug.co.uk> gt...@ibmpcug.co.uk (Graham Toal) writes:
> >but if 3) the picture has been completely generated from a 3-d modelling
> >program to a high quality of photo-realism, there is no child or
> >parents to initiate a suit, and no child involved in pornographic
> >acts, so who would be legally at risk for what?
> Under federal law, as I have previously stated, this would not be illegal.
> As I have said before in this thread, federal law includes the sexual use
> of an actual child as an element of the offense.
But, what is illegal under federal law, and what federal courts convict
people for doing don't always overlap. Although the letter of the law
doesn't say it's illegal, I am fairly confident the creator would be
convicted if a case like this went to court, for one of many reasons:
It looks so lifelike, it must be a real person.
I don't care if it's fake, it's still immoral.
They meant pictures of children, not necessarily photos of real kids.
BTW, does anyone know if there have been attempted/sucessful prosecutions
for child pornography involving paintings?
--
Thomas Insel (tin...@uiuc.edu)
"Extensive interviews show that not one alcoholic has ever actually seen a
pink elephant." -- Yale University, Center of Alcohol Studies
Mike Godwin
>But, what is illegal under federal law, and what federal courts convict
>people for doing don't always overlap. Although the letter of the law
>doesn't say it's illegal, I am fairly confident the creator would be
>convicted if a case like this went to court, for one of many reasons:
>
> It looks so lifelike, it must be a real person.
>
> I don't care if it's fake, it's still immoral.
>
> They meant pictures of children, not necessarily photos of real kids.
I would you say that your certainty in this regard is not based on any
ascertainable fact about federal prosecutions. I know of no case of
successful child-pornography prosecution in the federal system in which
there was no actual child.
>BTW, does anyone know if there have been attempted/sucessful prosecutions
>for child pornography involving paintings?
I've never heard of one, and cannot imagine a federal prosecutor's trying
one.
Noah Wood
MG> What questions do you have? Please post them here, or send them to me at
MG> mnem...@eff.org.
Mike :
Here are some that I often see asked :
1) Can a logon message stating certain conditionals to logging on to a BBS (e.g. Can't be a gov't agent, Can't work for the SPA, etc.) provide any type of legal protection against the evidence obtained by people logging on to the BBS w/o a warrant?
2) Can any sort of disclaimer stating that the sysops of the BBS are not responsible for it's content offer any type of legal protection, or is the mere size of a BBS sufficent to show that the sysop is not aware of the activities going on? (I believe the courts decided something like this in Cubby v. Compuserve but I haven't had a chance to read over it yet.)
3) Is the sysop of a BBS responsible for the content of the private E-Mail messages?
4) (This one is from personal experience) If ones system is seized legally, however the information contained therein is encrypted, can the person be legally compelled to decrypt it?
I have had these questions asked of me, and I am not entirely sure of the answers. Any insights you have would be appreciated.
====
Noah Wood
International Data Security, Inc.
FidoNet : 1:284/14 internet : no...@p0.f14.n284.z1.fidonet.org
X-Net : 255:417/1 Data/Fax : (417)887-2663
--
uucp: uunet!m2xenix!puddle!284!14!Noah.Wood
Internet: Noah...@f14.n284.z1.fidonet.org
Graham Toal
Yes, that's what's so delicious about it! I don't personally approve of
child pornography, but if the Moral Minority just plain couldn't find
a legal objection to them I'd probably keep a few in my ftp area just
for annoyance value :-)
I don't think that degree of photorealism is going to be around for
some time; I guess Mike doesn't have to worry too seriously about
finding an answer for the FAQ file ...
G
--