Technology sometimes advances faster than the law, creating novel problems to challenge social and legal thought. The Xerox machine, for example, was a new form of printing press that eventually forced Congress to revise the copyright laws.
The proliferation of electronic bulletin boards--on which millions of people exchange information using home computers and telephones--has opened a new and powerful mode of communication largely untouched by existing law. The nation's 2,500 computer bulletin boards are electronically published newspapers, and their operators are, in effect, newspaper publishers. They should have all of the rights of publishers and the responsibilities for accuracy that go with them.
This new electronic medium is as powerful as the Xerox machine, providing nearly instantaneous international communication among large numbers of people who are physically removed and will probably never meet. The technology brings back the era of the pamphleteer-- and goes one step further: It enables publication without a press.
But efforts are under way, in California and elsewhere, to make the operators of computer bulletin boards criminally liable for what appears on them. These efforts threaten to clash with the freedoms of speech and of the press. They are likely to be unenforceable to boot. Legislative attempts to restrict communication pose serious First Amendment problems.
While most material on computer bulletin boards involves the routine exchange of harmless information, thoughts and chatter, legislators are concerned about the occasional entry that is libelous, obscene or illegal. Should the operator of the bulletin board be criminally liable for such material? For example, computer hackers and phone "phreaks" sometimes use electronic bulletin boards to post the numbers of valid consumer and telephone credit cards. A Los Angeles television engineer, Thomas G. Tcimpidis, 33, was threatened with prosecution last year because a bulletin board he maintained contained the numbers of two stolen phone card numbers.
Beyond its legal aspects, the Tcimpidis case illustrates the scope of the bulletin boards. When word of the police raid on Tcimpidis' home appeared on a bulletin board, it quickly spread, reaching between a half-million and three-quarters of a million board watchers in 72 hours, according to Charles Lindner, Tcimpidis' lawyer. Replies came from Japan, Australia, England and Canada as well as from most of the United States, Lindner said, and a legal defense strategy was planned among far-flung lawyers over the bulletin boards.
The case was eventually dropped. But a bill is now making its way through the Legislature that would make it a crime for a bulletin-board operator to display unauthorized private information after he has been notified that it is there. In Virginia, a bill has been introduced that would make it a crime to put or maintain information on a computer bulletin board that would help promote the sexual abuse of children, even though there is nothing obscene about the information itself. If two people sent "Lolita" back and forth over a bulletin board in Virginia, could they be prosecuted?
These measures suggest prior restraint of publication, which is unconstitutional. In an attempt to avoid the constitutional issues, the California bill (SB 1012), sponsored by Sen. John T. Doolittle (R-Citrus Heights), is narrowly drawn. The information it seeks to keep off bulletin boards is "a telephone number or address not listed in a public telephone directory, personal identification number, computer password, access code, credit card number, debit card number or bank account number."
That may sound like a good idea, but no newspaper could be found criminally liable for publishing such material. It may be civilly liable--someone who lost money as a result of publication could sue for damages--but it would not have violated the penal code. Under Doolittle's bill, passed by the Senate and awaiting action in the Assembly, the operator of a computer bulletin board in violation of the law could be sent to jail for a year and fined $5,000.
It would be extremely difficult to enforce. How must notice be given? Does the operator of the bulletin board have a right to object to or question the assertion that the material on the board is unauthorized? If not, credit-card companies, banks and the like would have the authority to restrain publication simply by demanding it. Who has the right to demand suppression?
No matter what the answers to these questions, the fact is that the law affects only California. It's easy enough to set up a bulletin board in Nevada and avoid the problem completely.
There are more questions. The Federal Communications Act regulates telephone communication. Newspapers are constitutionally protected. Which rules cover computer bulletin boards--in a sense hybrid forms? Or are they a new form for which new rules must be written? And why should those rules be stricter than those that already exist?
Bulletin boards are protected by the First Amendment, and they should have all of the freedoms associated with freedom of the press. Laws already exist to prosecute the computer crimes that authorities are properly trying to stop. New laws that restrict freedom of expression are unnecessary and harmful.