D E F A M A T I O N L I A B I L I T Y O F C O M P U T E R I Z E D B U L L E T I N B O A R D O P E R A T O R S A N D P R O B L E M S O F P R O O F John R. Kahn CHTLJ Comment Computer Law Seminar Upper Division Writing February, 1989 D E F A M A T I O N L I A B I L I T Y O F C O M P U T E R I Z E D B U L L E T I N B O A R D O P E R A T O R S A N D P R O B L E M S O F P R O O F John R. Kahn CHTLJ Comment/Upper Division Writing/Computer Law Seminar February, 1989 _________________________________________________________________ I. INTRODUCTION A computer user sits down at her personal computer, turns it on, and has it dial the number of a local computerized bulletin board service (BBS) where she has been exchanging opinions, information, electronic mail, and amicable conversation with other users. Upon connecting with the BBS, she enters a secret "password", presumably known only to herself and to the bulletin board operator, so as to gain access to the system. To her surprise, she finds herself deluged with lewd electronic mail from complete strangers and hostile messages from persons with whom she believed she was on friendly terms. The messages read: "Why did you call me a worthless son-of-a ---- - yesterday? I really thought we could be friends, but I guess I was wrong"; "Hey, baby, I liked your fetish you were telling me about yesterday: call me at home, or I'll call YOU"; and, "Why didn't you get around to telling me about your venereal disease sooner?". Yet our user has not called this BBS in weeks and has never made any of these statements. Dismayed and angered, the Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 2 user comes to realize that she is the victim of computerized bulletin board abuse. A personal computer hobbyist (hereafter "SYSOP") who operates a computerized bulletin board system notices a rash of heated arguments, profanity and complaints being reported to him by users on what had been a forum for the peaceful exchange of ideas. Investigating the complaints, he discovers that previously responsible users have suddenly and uncharacteristically been leaving insulting, rude and false messages about other users on the bulletin board. One user is so enraged about a public message accusing her of sexual misadventures that she is threatening to sue the computer hobbyist in libel for having permitted the message to appear. The SYSOP realizes that both he and his subscribers have suffered computerized bulletin board abuse. The aggravating force behind both the above situations is most likely a third user (known hereafter as "the masquerader") who maliciously exploits both his computer knowledge and his access to BBSes. Since the masquerader has discovered the password and name of the regular user, and uses them to access bulletin boards, he appears for all intents and purposes to be that regular user. The computer thus believes it has admitted a legitimate subscriber to its database when it has in fact given almost free reign to a reckless hacker. The masquerader, posing as another legitimate user, is then free to portray that user in whatever light he pleases and also to harass other users of the bulletin board. Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 3 When validated users later discover that someone else has been impersonating them, they invariably cancel their subscriptions to that BBS and often bring a defamation action against its SYSOP for the smearing of their good names. Conversely, the SYSOP, in an effort to avoid liability, reluctantly engages in monitoring each and every piece of information posted daily by hundreds of users. If the SYSOP chooses instead to stop running his BBS altogether, another efficient and valuable forum for ideas is lost. What sort of defamation action may be maintained by the wrongfully disparaged user? Is the computerized bulletin board offered by the SYSOP subject to the stricter self-scrutiny of newspapers, or does it operate under some lesser standard? How may the initial party at fault - the masquerader - be held accountable for his computerized torts? The scope of this Comment will be to examine the defamation liability of computerized BBS operators and evidentiary proof issues that arise in tracing computerized defamation to its true source. Other possible Tort causes of action - intentional infliction of emotional distress, invasion of privacy, trespass to chattels - are not addressed. It is assumed throughout that the plaintiff is a private person and that the issues involved are not matters of "public interest" as defined in Gertz v. Robert Welch, Inc.1 A. Background Computerized BBSes exist as a quick, easy and efficient way to acquire and exchange information about the entire Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 4 spectrum of interests.2 The growing popularity of these electronic forums was demonstrated in a recent study which numbered BBSes at more than 3,500 nationwide.3 The size and complexity of computerized BBSes range from relatively simple programs, run on privately-owned microcomputers with a few hundred subscribers, to vast, multi-topic database systems with nationwide lists of subscribers and operated for profit.4 The process of reaching, or "accessing" one of these bulletin boards is quite simple: all that is required is a computer, a computer program that allows the computer to communicate over the phone lines, and a "modem" (a device which converts the computer's electrical signals into acoustic impulses, defined infra).5 Once she has accessed the BBS, the caller is free to trade useful non-copyrighted computer programs, exchange ideas on a host of topics, post electronic mail for later reading by others, and much more.6 The ease with which most BBSes may be accessed and the wealth of interests to be found there ensure that they will continue to be important sources of information and discourse. However, the speed and efficiency of computerized BBSes also subject them to serious, wide-ranging civil and criminal abuse. Recently a young computer user paralyzed several major computer systems across the nation by sending a harmful computer program (or "worm") to them over telephone lines. The worm quickly replicated itself in the computers' memories and thus decreased their output capacities.7 Further, certain computer abusers (known as "hackers") use the power of the computerized Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 5 forum to ply illegal copies of copyrighted programs, bilk hundreds of millions of dollars annually from credit card and phone companies, and to wrongfully access others' data files.8 A minority of other BBSes exist mainly to circulate racist ideologies.9 What is more, it now appears that the ancient tort of defamation is actively being practiced through the use of computerized BBSes.10 Due to the almost ethereal way computerized BBSes operate - one person may conveniently leave an electronic message for others to respond to at their leisure and there is no need for the parties to converse directly or even to know each other11 - the risk of detection when the BBS is abused is lower than that for defamation practiced in the print media.12 Difficulties arise with identifying the true party at fault and with authenticating the computer records as evidence of the defamation.13 Adding to this problem is an uncertainty in the laws concerning the appropriate liability of SYSOPs for defamatory messages on their BBSes of which they were unaware.14 B. Definitions The following are brief definitions of some important technical terms connected with electronic BBSes: SYSOP: An abbreviation for "System Operator", this is the individual generally responsible for organizing information and for trouble-shooting on a computerized bulletin board. On larger bulletin boards covering hundreds of topics, several SYSOPS may be in charge of maintaining information contained in Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 6 separate discrete fields.15 But when the BBS is privately owned and operated, a single SYSOP may very well oversee all aspects of the board's operations, in addition to being able to access all his users' passwords and personal information.16 Modem: An abbreviation for "Modulator/Demodulator". This is a device which links a computer to an ordinary phone line and converts computer signals to auditory phone signals. A computer modem on the other end of the transmission then reverses the process. Computers using modems transfer data rapidly across phone lines and thus share information.17 Validation: Basically this is a set of procedures used by responsible SYSOPs to do everything reasonably possible to verify that the personal information supplied by a user is true and correct. Common sense and emerging legal standards dictate that the SYSOP should not merely rely on the name provided by a potential user when the SYSOP does not personally know that individual. The SYSOP may be required to independently corroborate the prospective subscriber's information by first asking the potential user's name, address and phone number and then by checking that information with directory assistance.18 These procedures will hopefully aid the operator in identifying wrongdoers if misuse occurs;19 however, as will be seen, these procedures are by no means foolproof. Database: Any collection of data in a computer for purposes of later retrieval and use, i.e., names, addresses, phone numbers, membership codes, etc. User: Anyone who accesses a computerized bulletin board Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 7 system and is exposed to the information stored there. Users may be identified by their true names, by an assigned numerical code, or by colorful "handles", or "usernames."20 Operating System: This is a program which controls the computer's basic operations and which recognizes different computer users so that their actions do not interfere with one another.21 For example, most multi-user operating systems will not allow one user to delete another's data unless the second user gives explicit permission.22 BBS system software programs perform this function through their use of "accounts" and "passwords":23 private electronic mail sent to a particular user may not be read or deleted by others. The BBS' operating system is also designed to deny access to those attempting to log on under an unvalidated or unrecognized name.24 Account/Username: As another part of BBS system security, each user chooses an "account", or "username", consisting of one to eight letters or numbers.25 The BBS' operating system then will not allow commands issued by one user of one account to modify data created by another account;26 nor will it grant access to an account that has been terminated or invalidated. Password: Yet another aspect of BBS system security is the use of "passwords" as a prerequisite to accessing the computer system. Most operating systems require the user to enter both her account name and password to use the account.27 Because electronic mail cannot be sent without the username to which it is being addressed, and because the account cannot be Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 8 used without knowledge of the password, usernames are generally public knowledge while passwords are a closely-guarded secret, known only to the user and the operating system.28 Teleprocessing: This is defined as accessing a computer from a remote location, usually over a telephone line or similar communications channel.29 Uploading/Downloading: For purposes of exchanging computer programs or electronic mail over the phone lines, the process of transferring information from one's personal computer to the bulletin board is called uploading. The reverse process - transferring information from a bulletin board to a personal computer - is known as downloading.30 II. DEFAMATION LIABILITY OF COMPUTERIZED BBS OPERATORS A. Computerized Defamation: Libel or Slander? Libel is the "publication of defamatory matter by written or printed words, by its embodiment in physical form, or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words."31 Publication of a defamatory matter is "its communication intentionally or by a negligent act to one other than the person defamed."32 A communication is defamatory if it "tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him."33 The difference between libel and slander has traditionally depended upon the form of the communication: oral defamation generally is considered slander, while written Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 9 defamation is generally considered libel.34 The distinction is important, because libel requires no proof of special damages and is actionable by itself, while slander generally requires proof of special damages in order to be actionable.35 However, with the advent of electronic media, the traditional libel/slander distinctions as they apply to sight and hearing are no longer valid. For example, passing defamatory gestures and signals, though visible to sight, were considered slander;36 an ad-libbed statement on a telecast impugning a person's financial status was found to be libel.37 It has been suggested that the real distinction between libel and slander is the threat and magnitude of harm to reputation inherent in the form of publication.38 Libel has been historically associated with writings because (1) a writing is made more deliberately than an oral statement; (2) a writing makes a greater impression to the eye than does an oral statement to the ear; (3) a writing is more permanent than speech; and (4) a writing has a wider area of dissemination than speech.39 These four qualities inherent in a writing made the possible harm to reputation greater than mere spoken words. In applying libel to the new form of computerized communication used on BBSes, the potentiality for harm to reputation is significant, and should again be considered the controlling factor. In our hypothetical situation, the user discovered that another user (the masquerader) had usurped her account name and password, causing her great embarrassment and humiliation. The Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 10 act of prying into and taking another's computer information to misuse it elsewhere would indicate a certain deliberation on the actor's part to spread defamatory messages. Secondly, the defamatory message is displayed to other users on their computer monitors in the form of electronic characters, making a visual impression. Third, this electronic defamation is more permanent than mere words because it is stored in the BBS' memory until erased by the user or SYSOP. Finally, the message arguably has a wider area of dissemination than a one-to-one spoken defamation because, as a message on an electronic BBS, it has the potential of being viewed by hundreds, perhaps thousands, of users each day. Based on these four criteria, the capacity for harm to our user's reputation due to the masquerader's activities is indeed great enough to be considered libellous. B. Defamation Liability of the SYSOP Having established the electronic message as being libellous, the next issue is to determine the extent of liability for the SYSOP who unknowingly permits the message to be communicated over his BBS. Case law indicates that the SYSOP's liability depends upon the type of person defamed and on the subject matter of the defamation. 1. Degree of fault required The United States Supreme Court has addressed modern defamation liability in two major decisions. Both conditioned the publisher's liability on the type of person defamed and on the content of the defamation. In New York Times v. Sullivan,40 the Court determined that in order for a public official to Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 11 recover damages in a defamation action, the statement must be shown to have been made with "actual malice", i.e., with knowledge of its falsity or with reckless disregard for its truth.41 Due to society's interest in "uninhibited, robust and wide-open" debate on public issues, neither factual error nor defamatory content sufficed to remove the First Amendment's shield from criticism of an official's conduct.42 The Supreme Court further elaborated on defamation liability standards in the private and quasi-private sphere when it decided Gertz v. Robert Welch, Inc.43 In Gertz, the publisher of a John Birch Society newsletter made certain false and inaccurate accusations concerning an attorney who represented a deceased boy's family. The family had civilly sued the policeman who murdered the boy. In rebutting what he perceived to be a secret campaign against law and order, the publisher labelled the family's attorney a "Leninist" and "Communist-fronter".44 In addition, the publisher asserted that the attorney had been a member of the National Lawyers Guild, which "'probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democratic Convention.'"45 In publishing these statements throughout Chicago, the managing editor of the Birch Society newsletter made no effort to verify or substantiate the charges against the attorney.46 The Supreme Court held in Gertz that while First Amendment considerations protect publications about public officials47 and about "public figures"48, requiring a showing of "actual malice" before defamation damages could be recovered, Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 12 the same was not true for defamation suits brought by private citizens49, a group to which the attorney was held to belong.50 Private citizens were seen as deserving more protections from defamation than public officials or public figures, so they were not required to show "actual malice" as a precondition to recovery.51 The Court then left it to the states to decide the precise standard of liability for defamation of private individuals, so long as liability without fault was not the standard.52 By Gertz, then, the appropriate standard of liability for publicizing defamation of private parties falls somewhere below actual malice and above strict liability. The problem with defining the defamation standard for computerized BBS operators, however, is a lack of uniform standards. In such circumstances, the objective "reasonable person" standard will likely be applied to the SYSOP's actions.53 Several cases may be usefully applied by analogy. The court in Hellar v. Bianco54 held that a bar proprietor could be responsible for not removing a libellous message concerning the plaintiff's wife that appeared on the wall of the bar's washroom after having been alerted to the message's existence.55 The court noted that "persons who invite the public to their premises owe a duty to others not to knowingly permit their walls to be occupied with defamatory matter.... The theory is that by knowingly permitting such matter to remain after reasonable opportunity to remove [it], the owner of the wall or his lessee is guilty of republication Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 13 of the libel."56 The Hellar court then left the ultimate determination of the bar owner's negligence to the jury.57 This holding seems to be in accord with the Restatement of Torts, which provides: PUBLICATION: (2) One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication.58 Contrarily, however, the Ohio court of appeals in Scott v. Hull59 found that the building owner and agent who had control over a building's maintenance were not responsible for libel damages for graffiti inscribed by an unknown person on an exterior wall.60 The court distinguished Hellar by noting that in Hellar the bartender constructively adopted the defamatory writing by delaying in removing it after having been expressly asked to do so: "It may thus be observed from these cases that where liability is found to exist it is predicated upon actual publication by the defendant or on the defendant's ratification of a publication by another, the ratification in Hellar v. Bianco...consisting of at least the positive acts of the defendants in continuing to invite the public into their premises where the defamatory matter was on view after the defendants had knowledge of existence of same."61 The Scott court held that defendants could only be responsible for publishing a libellous remark through a positive act, not nonfeasance; thus, their mere failure to remove the graffiti from the building's exterior after having it called to Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 14 their attention was held not to be a sufficient basis of liability.62 A situation similar to Scott arose recently in Tackett v. General Motors Corporation.63 There, an employee brought a libel suit against his employer for, inter alia, failing to remove allegedly defamatory signs from the interior wall of its manufacturing plant after having notice of their existence. One large sign remained on the wall for two to three days while a smaller one remained visible for seven to eight months.64 Instead of focussing on the Scott malfeasance/nonfeasance test,65 the Tackett court considered defendant's implied adoption of the libellous statement to be the correct basis of liability.66 While saying that failure to remove a libellous message from a publicly-viewed place may be the equivalent of adopting that statement, and noting that Indiana would follow the Restatement view "when the time comes,"67 the Tackett court held that the Restatement view could be taken too far. Citing Hellar, the court wrote: The Restatement suggests that a tavern owner would be liable if defamatory graffiti remained on a bathroom stall a single hour after the discovery [Citation to Hellar]. The common law of washrooms is otherwise, given the steep discount that readers apply to such statements and the high cost of hourly repaintings of bathroom stalls [Citation to Scott]. The burden of constant vigilance exceeds the benefits to be had. A person is responsible for statements he makes or adopts, so the question is whether a reader may infer adoption from the presence of a statement. That inference may be unreasonable for a bathroom wall or the interior of a subway car in New York City but appropriate for the interior walls of a manufacturing Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 15 plant, over which supervisory personnel exercise greater supervision and control. The costs of vigilance are small (most will be incurred anyway), and the benefits potentially large (because employees may attribute the statements to their employer more readily than patrons attribute graffiti to barkeeps).68 According to this reasoning, then, the location and length of time the libel is allowed to appear plays an integral part in determining whether a given defendant has adopted the libel, and thus has published it. An application of the foregoing analysis to the issue at hand highlights the need for greater care in allowing the posting of electronic mail messages on a BBS. The Tackett court noted that while the content of graffitti scrawled on bathroom walls might be subject to healthy skepticism by its readers, the same might not be true for other locations such as interiors of subway cars or manufacturing plant walls.69 If this is true, then it is reasonable to assume that a defamatory message displayed in a forum for the exchange of ideas is more apt to be taken seriously by its readers - especially when the libellous Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 16 message purports to be written by the subject of the libel.70 Further, the Tackett court indicated that the high cost of repainting bathroom stalls by the hour outweighed its perceptible benefits. The same is not true for electronic BBSes, where the costs of prevention are minimal in light of the threat of widespread harm to users' reputations.71 2. Damages Once the plaintiff establishes that the SYSOP failed to act reasonably in removing statements known to be libellous from his BBS or in negligently failing to prevent their appearance there,72 no proof of special damages is necessary as libel is actionable per se.73 The state's interest in protecting private reputations has been held to outweigh the reduced constitutional value of speech involving matters of no public concern such that presumed and punitive damages may be recovered absent a showing of actual malice.74 The proper gauge of liability has again raised some questions.75 One writer has noted that if the burden of proof is Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 17 to rest on the plaintiff, she may be at a disadvantage in producing sufficient evidence to demonstrate negligent conduct on the part of the SYSOP.76 Solutions to this problem have ranged from a rebuttable presumption of negligence in favor of the plaintiff77 to adoption of a set of standards similar to those set out in the Federal Fair Credit Reporting Act.78 In either event, damage awards for computer abuse have been addressed both by federal and state law.79 3. Suggestions Because computerized BBSes are still a relatively new technological phenomena, consistent standards for SYSOPs' duties have yet to be developed.80 However, at least one users' group has adopted a voluntary code of standards for electronic BBSes, applicable to both users and SYSOPs of boards open to the general public: SCOPE: This Minimum Code of Standards applies to both users and SYStem Operators (SYSOPs) of electronic bulletin boards available to the general public. FREEDOM OF SPEECH AND IDEAS Each user and SYSOP of such systems shall actively encourage and promote the free exchange and discussion of information, Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 18 ideas, and opinions, except when the content would: - Compromise the national security of the United States. - violate proprietary rights. - violate personal privacy, - constitute a crime, - constitute libel, or - violate applicable state, federal or local laws and regulations affecting telecommunications. DISCLOSURE Each user and SYSOP of such system will: - disclose their real name, and - fully disclose any personal, financial, or commercial interest when evaluation any specific product or service. PROCEDURES SYSOPS shall: - review in a timely manner all publicly accessible information, and - delete any information which they know or should know conflicts with this code of standards. A 'timely manner' is defined as what is reasonable based on the potential harm that could be expected. Users are responsible for: - ensuring that any information they transmit to such systems adheres to this Minimum Code of Standards, and - upon discovering violations of the Minimum Code of Standards, notifying the SYSOP immediately. IMPLEMENTATION Electronic bulletin board systems that choose to follow this Minimum Code of Standards shall notify their users by publishing this Minimum Code, as adopted by the [Capitol PC Users Group], and prominently display the following: 'This system subscribes to the Capitol PC Users Group Minimum Code of Standards for electronic bulletin board systems.'81 While non-binding on publicly-accessible BBSes, the above guidelines furnish sound basic policies that all SYSOPs might use in shielding themselves from defamation liability. Our hypothetical at the beginning of this Comment described a situation where a malicious intruder was able to access and Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 19 masquerade as a validated user on a BBS; the following are some additional computer security measures that the reasonable SYSOP could conduct to avoid that situation: a. Special "screening" software: One writer has suggested discouraging potential BBS misuse through programming the BBS to reject those messages containing common defamatory and obscene language;82 such a program would discard a message containing any of those terms and would presumably notify the SYSOP of their presence. Drawbacks to this procedure are that computer programs cannot understand all the nuances of libellous messages83 and would thus lead to the rigid deletion of many otherwise legitimate messages.84 b. Unique passwords: A more fundamental and economical approach would be for the SYSOP to both notify all new users about the potential for computerized BBS abuse and to encourage their use of a unique password on each BBS they call. This would have the practical effect of keeping a masquerader from using the names and passwords found on one BBS to wrongfully access and masquerade on other BBSes. A drawback to this procedure is that the truly malicious masquerader may still discover a BBS' most sensitive user records by way of a renegade computer program called a "trojan horse".85 However, one could speculate that the SYSOP acts reasonably in informing potential users of the existing threat and in helping them avoid it. c. Encryption: This is essentially a way for the SYSOP to make the users' passwords unique for them. The power of the computer allows complex algorithms to be applied to data to Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 20 encode it in such a way that, without the key to the code, it is virtually impossible to decode the information.86 This technique would have the added benefit of forcing the masquerader, upon accessing the BBS with a trojan horse program, to search for the secret decoding algorithm in addition to the BBS' secret user files. Indeed, it is conceivable that a special encryption or password could be devised to allow only the SYSOP access to the BBS' decoding algorithm. However, encryption involves a significant overhead - impractical for most small, privately- operated BBSes - and is more frequently used to protect messages from one system to another where the data is vulnerable to interception as it passes over transmission lines.87 d. Prompt damage control: In accord with Hellar,88 the Restatement (Second) of Torts,89 and possibly Tackett,90 a SYSOP acts reasonably in promptly assisting the libelled user to partially reverse the effects of the masquerader's actions. Recall that in those instances a defendant was held to have impliedly adopted a defamatory statement by acting unreasonably slowly in removing it from his property once having been made aware of it.91 While it may be unreasonable to expect the SYSOP to monitor each message posted every day - especially where the defamatory message appears to have been left by the true user - it is not too much to require the SYSOP to quickly remedy security flaws in his BBS as they are pointed out to him.92 To this end, the SYSOP has several options. In situations where the defaming user libels another without masquerading as the libelled party, the SYSOP could simply delete the defamer's Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 21 account. In situations where a user masquerading as another posts a libellous message, the SYSOP could publish a retraction to all his subscribers, urging them to use a different password on each BBS they call. Further, where a masquerader published the libel, the SYSOP should offer his full cooperation to the maligned user in tracking down the time and date the libellous message was posted93 in order to better limit the SYSOP's liability. Certain BBS SYSOPs claim that holding them liable for information appearing on their BBSes violates their First Amendment rights by restricting their right to free speech94 and by holding them responsible for the libel perpetrated by the masquerader. It has been suggested that the SYSOP should be held to the same standard of liability as a neighborhood supermarket which furnishes a public bulletin board:95 just as the supermarket would not be liable for posting an advertisement for illicit services, so should the BBS SYSOP escape liability for libellous messages left on his board, especially when its poster appears to be a validated user.96 However, this comparison lacks merit for the reasons given by the Seventh Circuit in Tackett v. General Motors Corporation.97 The defendant's liability in that case rested on its publication of libel by implicitly adopting the statement.98 Defendant's failure to remove a defamatory sign painted on one of the interior walls of its factory for seven or eight months after discovering its presence was such that "[a] reasonable person could conclude that Delco 'intentionally and unreasonably Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 22 fail[ed] to remove' this sign and thereby published its contents."99 There would certainly be accomplice liability if the supermarket unreasonably delayed removing an advertisement for illegal services from its bulletin board once it was made aware of it. The market could be seen as having adopted the ad's statements by not acting responsibly to its viewing public. Similarly, a SYSOP would be liable for defamatory messages posted on his BBS - even by what appears to be the true user - if he fails to act reasonably by using his computer skill to eviscerate the libel.100 While the computerized BBS may be nothing more than a hobby of the SYSOP, the speed with which it can disseminate potentially damaging information among its users demands the standards of responsibility described above. C. Defamation Liability of the Masquerader 1. Degree of fault required It should be noted that the liability and proof issues concerning the SYSOP and masquerader are inverse. As to the SYSOP who allows libellous messages to be posted on his BBS, his liability may be inferred simply by those messages having appeared there;101 however, his degree of fault - actual malice or simple negligence - is subject to debate.102 Conversely, while the masquerader's degree of fault is clearly evident,103 tracing that fault back to him is a more elusive matter.104 The requisite degree of fault for masqueraders is set out in federal and state law.105 2. Damages Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 23 Assuming arguendo that the masquerader's defamatory publications have been successfully traced back to him by the plaintiff, actual and punitive damages may then be recovered from him based on his knowledge of the publication's falsity or reckless disregard for its truth.106 Federal and state law have also specified certain remedies.107 III PROBLEMS OF PROOF A. Proof of SYSOP's Actions We have seen that while the appropriate degree of fault for a SYSOP to be liable for defamatory messages appearing on his BBS is subject to dispute,108 a showing that the defamation appeared there due to the SYSOP's negligence is much more capable of resolution.109 The jury should be made aware of the actual validation/security procedures practiced by the SYSOP and should weigh them in light of the prevailing practice.110 Several facets of an emerging standard of care for SYSOPs have already been suggested in this Comment,111 and the SYSOP's adherence to them could be shown through users' testimony. B. Proof of Masquerader's Actions In contrast with the degree of fault required to establish the SYSOP's publication of the libellous message, the degree of fault for the masquerader is much less subject to debate. The masquerader's actions are not likely to be considered merely inadvertent or negligent.112 However, because the masquerader has intentionally discovered and usurped the user's name and password, he appears to be that user on all Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 24 computer records. Tracing the masquerader's defamatory publication back to him thus encounters some important evidentiary barriers: the maligned user is forced to rely on computerized records produced by the BBS and phone company in trying to link the masquerader's libellous publication back to him.113 We turn now to consider the evidentiary hurdles to be overcome in tracing the libellous communication to its true source. 1. The Hearsay Rule & Business Records Exception The first evidentiary obstacle to connecting the masquerader with his libellous publication is the hearsay rule. As defined by the Federal Rules of Evidence, hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted";114 as such, it is inadmissible as evidence at trial.115 Computer-generated evidence is subject to the hearsay rule, not because it is the "statement of a computer", but because it is the statement of a human being who entered the data.116 To the extent the plaintiff user relies on computer-generated records to show that a call was placed from the masquerader to the BBS at the time and date in question, then, her evidence may be excluded. However, numerous exceptions to the hearsay rule have developed over the years such that evidence which might otherwise be excluded is deemed admissible. The most pertinent hearsay exception as applied to computerized evidence is the "business records exception", which admits into evidence any Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 25 records or data compilations, so long as (1) they were made reasonably contemporaneously with the events they record; (2) they were prepared/kept in the course of a regularly conducted business activity; and (3) the business entity creating these records relied on them in conducting its operations.117 The veracity of the computer records and of the actual business practices are shown by the record custodian's or other qualified witness' testimony, unless the circumstances indicate lack of trustworthiness.118 The term "business" as used in this rule includes callings of every kind, whether or not conducted for profit.119 Statutes and judicial decisions in several states have gradually recognized that the business records exception extends to include computer-generated records.120 This is largely due to (1) modern business' widespread reliance on computerized record- keeping, (2) the impracticability of calling as witnesses every person having direct personal knowledge of the records' creation, and (3) the presumption that if a business was willing to rely on such records, there is little reason to doubt their accuracy.121 Using this exception to the hearsay rule, plaintiff user would most likely seek to admit the BBS' computer-generated username/password log-in records plus the phone company's call records to establish the connection between the masquerader's telephone and the BBS at the precise instant the libellous message was posted.122 As an initial matter, however, plaintiff Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 26 must first lay a foundation for both the BBS' and phone company's computer-generated business records. A sufficient foundation for computer-generated records was found recently to exist in People v. Lugashi.123 There, the California Court of Appeal affirmed a conviction of grand theft based on evidence adduced from computer-generated bank records. Defendant, an oriental rug store owner, had been convicted of fraudulently registering thirty-seven sales on counterfeit credit cards. The issuing banks became suspicious of criminal activity when charge card sales data from defendant's store showed 44 fraudulent uses of charge cards at defendant's store within only five weeks.124 As each fraudulent credit card transaction was completed, defendant registered the sale simultaneously with the banks' computers.125 Each night, as standard bank practice, the banks then reduced the computer records of credit card transactions to microfiche. Information gleaned from these microfiche records was entered against defendant at trial.126 The California Court of Appeal recognized the trial court judge's wide discretion in determining whether a sufficient foundation to qualify evidence as a business record has been laid.127 It held that defendant's allocations of error were without merit since defendant himself had acknowledged that the bank's computer entries memorialized in the microfiche record were entered simultaneously as they occurred in the regular course of business.128 Further, the Court of Appeals dismissed defendant's claim that only a computer expert could Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 27 supply testimony concerning the reliability of the computer record: Appellant's proposed test incorrectly presumes computer data to be unreliable, and, unlike any other business record, requires its proponent to disprove the possibility of error, not to convince the trier of fact to accept it, but merely to meet the minimal showing required for admission.... The time required to produce this additional [expert] testimony would unduly burden our already crowded trial courts to no real benefit.129 The Lugashi court then followed the bulk of other jurisdictions adopting similar analyse