Received: from delta.eecs.nwu.edu by gaak.LCS.MIT.EDU via TCP with SMTP id AA15278; Sat, 21 Apr 90 01:06:53 EDT Resent-Message-Id: <9004210506.AA15278@gaak.LCS.MIT.EDU> Received: from Sun.COM by delta.eecs.nwu.edu id aa15095; 20 Apr 90 14:45 CDT Received: from EBay.Sun.COM (male.EBay.Sun.COM) by Sun.COM (4.1/SMI-4.1) id AA20305; Fri, 20 Apr 90 12:46:45 PDT Received: from khayyam.EBay.Sun.COM by EBay.Sun.COM (4.1/SMI-4.1) id AA06083; Fri, 20 Apr 90 12:46:36 PDT Received: by khayyam.EBay.Sun.COM (4.0/SMI-4.0) id AA08069; Fri, 20 Apr 90 12:42:02 PDT Date: Fri, 20 Apr 90 12:42:02 PDT From: Lang Zerner Message-Id: <9004201942.AA08069@khayyam.EBay.Sun.COM> To: telecom@eecs.nwu.edu Subject: Sysops and libel liability -- endnotes Resent-Date: Sat, 21 Apr 90 0:05:23 CDT Resent-From: telecom@eecs.nwu.edu Resent-To: ptownson@gaak.LCS.MIT.EDU Status: RO Here are the endnotes to the paper I submitted in a separate message. Be seeing you... ==Lang ======= Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 35 ENDNOTES 1. 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). 2. These interests can cover anything from science fiction to gourmet cooking. Uyehara, Computer Bulletin Boards: Let the Operator Beware, 14 Student Lawyer 28 (1986). 3. Id., at 30. 4. The data service Compuserve is one such national BBS run for profit by business organizations. Uyehara, at 28. Other examples of large databases of interest to the legal profession are computerized research services such as LEXIS and WESTLAW. 5. Uyehara, at 28; Manning, Bulletin Boards: Everybody's Online Services, Online, Nov. 1984, at 8,9. "Modem" is defined infra, note 17 and accompanying text. 6. "...computer bulletin boards offer their users important benefits. An individual can use a bulletin board to express his opinion on a matter of public interest. He may find a review of a product he is considering buying. He may find a useful piece of software. An individual might also use the bulletin board to ask a technical question about a specific computer program." Note, Computer Bulletin Board Operator Liability For User Misuse, 54 Fordham L.Rev. 439, 440 (1985) (Authored by Jonathan Gilbert); see also Lasden, Of Bytes And Bulletin Boards, N.Y.Times, August 4, 1985, sec. 6, at 34, col. 1, where the author notes computer users may now use BBSes to voice their opinions directly to State Senators' offices. 7. "Virus" Hits Nation's Research Computers, San Jose Mercury News, Nov. 4, 1988, at 1, col. 1. 8. "It is estimated that the theft of long-distance services and software piracy each approximate $100 million a year; credit card fraud via computers costs about $200 million annually." Pittman, Computer Security In Insurance Companies, 85 Best's Rev. - Life- Health Ins. Edition, Apr. 1985 at 92. 9. Schiffres, The Shadowy World of Computer "Hackers," U.S. News & World Report, June 3, 1985, at 58. 10. Pollack, Free Speech Issues Surround Computer Bulletin Board Use, N.Y. Times, Nov. 12, 1984, note 1, at D4, col. 6. Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 36 11. Note, 54 Fordham L.Rev. 440-441 (1985). 12. Poore and Brockman, 8 Nat'l L.J. 14, (1985). 13. See infra, Topic III, Problems of Proof. 14. The uncertainty revolves around how to define BBSes. When viewed as analogous to newspapers and other media, SYSOPS would be responsible for any message posted on their systems, much as newspaper editors are responsible for articles appearing in their medium. Uyehara, 14 Student Lawyer 30 (1986). But when BBSes are compared to a bulletin board found in a public hall or supermarket, the liability issue is focused more on those actually posting the messages rather than on the board's owner. Id., at 30. This Comment suggests that BBS SYSOPs be held to a reasonable standard of care emerging specifically for their endeavors. See infra, Topic II. 15. Poore and Brockman, 8 Nat'l L.J. 14, (1985). Another writer has noted that Compuserve now has over 200,000 users making use of nearly 100 diverse databases. Lasden, Of Bytes And Bulletin Boards, N.Y. Times, August 4, 1985, sec. 6, at 34, col. 1. 16. Poore and Brockman, 8 Nat'l L.J. 14 (1985). 17. 14 Am Jur. POF 2d Computer-Generated Evidence Sec. 11 (1977). 18. Note, 54 Fordham L.Rev. 439, 446 (1985). 19. Id. 20. See "Account," infra, note 25 and accompanying text. 21. Garfinkel, An Introduction to Computer Security, 33 Prac. Law.41-42 (1987). 22. Id. 23. See infra, notes 25 and 27 and accompanying text. 24. Some more sophisticated operating systems provide greater access control by (1) recording unauthorized attempts at entry; (2) recording those attempts and sending a warning to the perpetrator; and (3) keeping the perpetrartor off the system permanently until he/she is reinstated by the computer's security administrator or SYSOP. Balding, Computer Breaking and Entering: The Anatomy of Liability, 5 Computer Lawyer, Jan. 1988, at 6. Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 37 25. Garfinkel, An Introduction to Computer Security, 33 Prac. Law. 42 (1987). 26. Id. 27. Id. "A password is a secret word or phrase that should be known only to the user and the computer. When the user first attempts to use the computer, he must first enter the password. The computer then compares the typed password to the stored password and, if they match, allows the user access." 28. Id., at 42 and 46. 29. 14 Am. Jur. POF 2d Computer-Generated Evidence Sec. 11 (1977). 30. 54 Fordham L.Rev. 439, note 2 (1985). 31. Restatement (Second) of Torts Sec. 568(1) (1976). 32. Restatement (Second) of Torts Sec. 577(1) (1976). 33. Restatement (Second) of Torts Sec.559 (1976). 34. Veeder, The History and Theory of the Law of Defamation, 3 Colum. L.Rev. 546, 569-571 (1903). 35. Restatement (Second) of Torts Sec. 622 (1976). 36. Restatement, Torts Sec. 568, comment d (1938). 37. Shor v. Billingley, 4 Misc.2d 857, 158 N.Y.S.2d 476 (Sup. Ct. 1956), aff'd mem., 4 App.Div. 2d 1017, 169 N.Y.S.2d 416 (1st Dep't. 1957). 38. Torts: Defamation: Libel-Slander Distinction: Extemporaneous Remarks Made on Television Broadcast: Shor v. Billingley, 4 Misc. 2d 857, 158 N.Y.S.2d 476 (Sup.Ct. N.Y. County 1957), 43 Cornell L.Q. 320, 322 (1957) (Authored by Stephen A. Hochman). 39. Id. 40. 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), motion denied 376 U.S. 967, 84 S.Ct. 1130, 12 L.Ed.2d 83. 41. 376 U.S. 254, 273. 42. 376 U.S. 254, 280. 43. 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 38 44. Gertz v. Robert Welch, Inc., 418 U.S. 323, 326. 45. Id. 46. Id., at 327. 47. "...those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342. "An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in pubic affairs. He runs the risk of closer public scrutiny than might otherwise be the case." Id., at 344. 48. "...[A]n individual may attain such pervasive fame and notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions." 418 U.S. 323, 351. 49. "Even if the foregoing generalities do not obtain in every circumstance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to the increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an 'influential role in ordering society.' Curtis Publishing Co. v. Butts, 388 U.S., at 164 ...He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by the defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery." Id., at 345. 50. "...[P]etitioner was not a public figure. He ... plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome." Id., at 352. 51. Justice Powell noted for the Court that "[T]he communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 39 concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an 'influential role in ordering society....' He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted be defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery." Id., at 345. 52. Id., at 347. 53. Keeton, Dobbs, Keeton and Owen, Prosser and Keeton on Torts, sec. 32, p.174. See also Vaughn v. Menlove, 3 Bing. (N.C.) 467, 132 Eng.Rep. 490 (1837). 54. 111 Cal. App. 2d 424, 244 P.2d 757, 28 ALR2d 451 (1952). 55. 111 Cal. App. 2d 424, 427. 56. Id., at 426. 57. Id, at 427. 58. Restatement (Second) of Torts Sec. 577(2) (1976). 59. 22 Ohio App.2d 141, 259 N.E.2d 160 (1970). 60. Scott v. Hull, 259 N.E.2d 160, 162 (1970). 61. Id., at 161. 62. Id., at 162. 63. 836 F.2d 1042 (7th Cir. 1987). 64. Id., at 1047. 65. The Court of Appeals noted the Restatement view and observed that Indiana law had neither embraced nor rejected that approach. Id., at 1046. 66. Id. 67. Id. 68. Id., at 1046-47. 69. Id. 70. Recall that in our hypothetical a third user Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 40 masquerading as another is transmitting messages to others, revealing embarassing and false information. 71. BBS systems security and other preventative measures are discussed more fully infra, Topic 3.d. 72. Issues in proving the SYSOP's role in publishing the libellous statement are discussed more fully in Topic III. A., infra. 73. Sydney v. MacFadden Newspaper Publishing Corp., 242 N.Y. 208, 151 N.E. 209, 44 A.L.R. 1419 (1926). See also Restatement (Second) of Torts Sec. 621 (1976) ("One who is liable for a defamatory communication is liable for the proved, actual harm caused to the reputation of the person defamed.") 74. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 86 L.Ed.2d 593, 105 S.Ct. 2939 (1985). 75. See supra, note 53 and accompanying text. 76. Note, Protecting the Subjects of Credit Reports, 80 Yale L.J. 1035, 1051-52, n.88 (1971). 77. Gertz did not rule out an assumption of defendant's negligence. See Eaton, The American Law of Defamation Through Gertz V. Robert Welch, Inc., and Beyond: An Analytical Primer, 61 Va. L.Rev. 1349 (1975). 78. 15 U.S.C.A. Sec. 1681 et seq. (1974). Two standards are proposed there: the first, willful noncompliance, is defined as equivalent to the New York Times "actual malice" standard, and violators are liable for actual and punitive damages. Sec. 1681(n), supra. Presumably this would apply to the situation where the SYSOP is dilatory in removing the libellous message. The second proposed standard, negligent noncompliance, occurs in the absence of willfulness and results in liability only for actual damages. Sec. 1681(o), supra. Situations where the SYSOP failed to adopt reasonable computer security measures might come under this category. 79. 18 U.S.C.S. Sec. 2707(b),(c) (Law. Co-op 1979 & Supp. 1988) provides in pertinent part: (b) Relief. In a civil action under this section, appropriate relief includes - (1) Such preliminary and other equitable or declaratory relief as may be appropriate; (2) damages under subsection (c); and (3) a reasonable attorney's fee and other litigation costs reasonably incurred. (c) Damages. The court may assess as damages in a Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 41 civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. 18 U.S.C.S. Sec. 2707(e) (Law. Co-op 1979 & Supp. 1988) limits the civil action under this section to two years after the date upon which the claimant first discovered or had a reasonable opportunity to discover the violation. As to damage provisions supplied by state law, see California Penal Code 502(e)(1),(2) (West Pub. 1988): (e)(1) In addition to any civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data may bring a civil action against any person convicted under this section for compensatory damages, including any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was not altered, damaged, or deleted by the access. For purposes of actions authorized by this subdivision, the conduct of an unemancipated minor shall be imputed to the parent or legal guardian having control or custody of the minor, pursuant to the provisions of Section 1714.1 of the Civil Code. (2) In any action brought pursuant to this subdivision the court may award reasonable attorney's fees to a prevailing party. 80. A lawsuit recently filed in the United States District Court for the Southern District of Indiana may break new ground in enunciating precisely what BBS SYSOPs' reasonable duties of care are. Thompson v. Predaina, Civil Action #IP-88 93C (S.D. Ind. filed 1988). The complaint alleges, inter alia, invasion of plaintiff user's privacy, libel, and wrongful denial of access to the BBS in violation of U.S.C. Title 18, ss 2701 (a)(2). As to statutory damages available, see infra, note 105. 81. Gemignani, Computer Law 33:7 (Lawyers Co-op 1985, Supp. 1988) (quoting Capitol PC Users Group Minimum Code of Standards for electronic Bulletin Board Systems, reprinted in 4 Computer Law Reptr. 89). 82. Note, 54 Fordham L.Rev. 439, 449 (1985) (Authored by Jonathan Gilbert). 83. Id., at 449. 84. Id., at 449-50. Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 42 85. A "trojan horse" program takes control of the BBS and allows its sender to access and steal its most sensitive information. Fites, Johnston and Kratz, The Computer Virus Crisis, Van Nortrand/Reinhold (1989), at 39 and 45. 86. Balding, Computer Breaking and Entering: The Anatomy of Liability, 5 Computer Law. (January 1988), at 6. 87. Id. 88. Hellar v. Bianco, 244 P.2d 757. See supra, note 54 and accompanying text. 89. Restatement (Second) of Torts Sec. 577(2) (1976). See supra, note 58 and accompanying text. 90. Tackett v. General Motors Corporation, 836 F.2d 1042 (7th Cir. 1987). See supra, note 63 and accompanying text. 91. See note 53, supra, and accompanying text. 92. It has been suggested that this would be the rough equivalent of a newspaper publishing a retraction after discovering what it had printed was defamatory. Note, 54 Fordham L.Rev. 439, note 55 (1985). BBS operators should not be held liable in this situation insofar as they did not know of the nature of the statement at the time it was made. Restatement (Second) of Torts Sec. 581 (1977). 93. Proving the masquerader's actions is discussed more fully infra, Topic III. B. 94. Stipp, Computer Bulletin Board Operators Fret Over Liability for Stolen Data, Wall St. J. Nov. 9, 1984, at 33, col. 1. 95. Id. 96. See Topic I., supra, where the masquerader has discovered and uses the password and name of the regular user; he appears for all intents and purposes to be that regular user. 97. 836 F.2d 1042 (7th Cir. 1987). 98. Id., at 1047. 99. Id. 100. Indeed, U.S.C. Title 18, Sec. 2702 (Law. Co-op 1979 & Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 43 Supp. 1988) proscribes the knowing dissemination of an electronically stored communication by the SYSOP: Sec. 2702. Disclosure of contents (a) Prohibitions. Except as provided in subsection (b)- (1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage on that service; and (2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service- (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmissions from), a subscriber or customer of such service; and (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing. A similar provision is embodied in Cal. Pen. Code sec. 502(c)(6) (West Pub. 1988), which provides: (c) Except as provided in subdivision (i), any person who commits any of the following acts is guilty of a public offense: (6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section. 101. The doctrine of res ipsa loquitor, or "the thing speaks for itself" warrants the inference of the SYSOP's negligence, which the jury may draw or not as its judgement dictates. See Sullivan v. Crabtree, 36 Tenn.App. 469, 258 S.W.2d 782 (1953). 102. See discussion under Topic II. B., supra. 103. As someone who intentionally accesses confidential password information to masquerade as other users on other BBSes, the masquerader falls well within the pale Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 44 of "actual malice" defined in Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, supra, note 43 and accompanying text (a defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth). 104. Evidentiary problems involved with proving the masquerader's actions are discussed more in Topic III. B., infra. 105. 18 U.S.C.S. Sec. 2707(a) (Law. Co-op 1979 & Supp. 1988) describes the masquerader's fault thus: (a) Cause of action. Except as provided in section 2703(e), any provider of electronic communication service, subscriber, or customer aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity which engaged in that violation such relief as may be appropriate. California Penal Code sec. 502(c) et seq. (West Pub. 1988) is even more specific: (c) Except as provided in subdivision (i), any person who commits any of the following acts is guilty of a public offense: (1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artiface to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property or data. * * * (3) Knowingly and without permission uses or causes to be used computer services. (4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network. * * * (7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network. 106. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342. 107. In addition to the remedies set forth in note 105, Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 45 supra, the following federal and state penalties may apply: 18 U.S.C.S. Sec. 2701(b),(c) (Law. Co-op 1979 & Supp. 1988): (b) Punishment. The punishment for an offense under subsection (a) of this seciton is - (1) if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain - (A) a fine not more dhan &250,0 0 or imprisonment for not more than one year, or both, in the case of a first offense under this subparagraph; and (B) a fine under this title or imprisonment for not more than two years, or both, for any subsequent offense under this subparagraph; and (2) a fine of not more than $5,000 or imprisonment for not more than six months, or both, in any other case. (c) Exceptions. Subsection (a) of this section does not apply with respect to conduct authorized- (1) by the person or entity providing a wire or electronic communications service; (2) by a user of that service with respect to a communication of or intended for that user; or (3) in section 2703, 2704, or 2518 of this title. For an example of state-mandated damages provisions on this subject, see California Penal Code sec. 502(d) et seq. (West Pub. 1988). 108. See discussion under Topic II. B., supra. 109. See note 101, supra. 110. "Custom...bears upon what other will expect the actor to do, and what, therefore, reasonable care may require the actor to do, upon the feasibility of taking precautions, the difficulty of change, and the actor's opportunity to learn the risks and what is called for to meet them. If the actor does only what everyone else has done, there is at least an inference that the actor is conforming to the communit`'s i`ea of reasonable behavior." Keeton, Dobbs, Keeton and Owen, Prosser and Keeton on Torts, sec. 33, p.194. See also James, Particularizing Standards of Conduct in Negligence Trials, 5 Vand. L. Rev. 697, 709-714 (1952); Ploetz v. Big Discount Panel Center, Inc., 402 So.2d 64 (Fla. App. 1981). Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 46 111. See notes 80-93, supra, and accompanying text. 112. See note 103, supra. 113. See Pfau and Keane, Computer Logs Can Pinpoint Illegal Transactions, Legal Times of Washington, vol. 6, p.16 (May 14, 1984): "Computers can monitor their own use. Unlike other such forms of physical evidence such as guns, computers can keep track of individual users and other identifying data. Imagine a gun that logs every instance it is fired or even handled, and shows the date, time, and activity. Recovery of such a weapon would be essential to the prosecution. "Most computers have long had built-in logging capabilities....The log function was designed to facilitate billing for the use of computer resources rather than to assist crime detection. To the extent that the owner of a smaller computer does not charge for its use, he or she has no incentive to purchase a self-executing log. Still, such logs keep surprisingly accurate records of who is using the computer." 114. Fed. R. Evid. 801(c). 115. Fed. R. Evid. 802: "Hearsay is not admissible except as provided by these rules or by other rules precribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Exclusion of hearsay evidence is grounded on: (1) nonavailability of the declarant for cross-examination and observance of demeanor; (2) absence of an oath by the person making the statement; amd (3) significant risk that the person that the witness may report proffered statements inaccurately. 2 Bender, Computer Law, sec. 6.01[2]. 116. Gemignani, The Data Detectives: Building A Case From Computer Files, 3 Nat'l L.J. 29 (1981). 117. Fed. R. Evid. 803(6). See also 2 Bender, Computer Law, sec. 6.01[4] (1988). 118. Fed. R. Evid. 803(6). 119. Id. In current practice records kept by nonprofit organizations, such as churches, have long been held to be admissible. Ford v. State, 82 Tex.Cr.R. 638, 200 S.W. 841 (1918). It is at least arguable that a computerized BBS, although run as a hobby, falls under the same classification. 120. See Iowa Code Ann. Sec. 622.28; People v. Lugashi, 252 Cal.Rptr 434 (Cal.App. 2 Dist. 1988). Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 47 121. See 14 Am.Jur. POF2d Sec. 15 (1977, Supp. 1988). Cf. United States v. De Georgia, 420 F.2d 889, 2 CLSR 479, 484 (1969, CA9 Ariz), where it was held that it is immaterial whether a business record is maintained in a computer rather than in company books regarding admissibility of those records, so long as (1) the trial court requires the proponent of the computerized records to lay a foundation as to their trustworthiness, and (2) the opposing party is given the same opportunity to inquire into the computer's accuracy as he would have to inquire into the accuracy of written business records. 122. The BBS program run on the SYSOP's computer ordinarily "stamps" the date and time of day each user logs onto the BBS. A corresponding record is automatically affixed to each piece of electronic mail posted so that the reader knows when it was added to the database. Similarly, the telephone company maintains copious records of the date and time each phone call is connected in its dialing area. The caller has no control over either of these processes. 123. 252 Cal.Rptr. 434 (Cal.App. 2 Dist. 1988). 124. Id., at 437. 125. Id. 126. Id. 127. Id., at 439. 128. Id., at 437. 129. Id., at 440. 130. Id., at 442. See also United States v. Russo, 480 F.2d 1228 (CA6 Mich, 1973), cert den 414 U.S. 1157, 94 S.Ct. 915, 39 L.Ed.2d 109; Capital Marine Supply, Inc. v. M/V Roland Thomas II, 719 F.2d 104 (1983 CA5 La), 104 Fed Rules Evid Serv 731; Peoples Cas & Coke Co. v. Barrett, 118 Ill.App.3d 52, 73 Ill. Dec. 400, 455 N.E.2d 829 (1983). 131. 432 So.2d 837 (La., 1983). 132. Id., at 839-40. 133. Id., at 839. 134. United States v. Verlin, 466 F.Supp. 155 (ND Tex, 1979). Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 48 135. Id., at 158. 136. The reasonable SYSOP should offer his full cooperation in aiding the maligned user to regain her good name by providing her with his BBS' phone-in records made at the time the libellous message appeared. See note 93, supra. 137. See note 123, supra. 138. Cf. note 118, supra. As to an electronic BBS being classified as a "business" for hearsay purposes, see note 120, supra. 139. See note 128, supra. 140. Authentication has been broadly described thus: "[W]hen a claim or offer involves impliedly or expressly any element of personal connection with a corporeal object, that connection must be made to appear...." Wigmore, Evidence, Sec. 2129 at 564 (2d ed. 1972). This requirement is also known as the "Best Evidence Rule." 141. Fed. R. Evid. 901(a),(b)(6). 142. 2 Bender, Computer Law, sec. 5.03[1][a] (1988). 143. Id. 144. See Fed. R. Evid. 901(b)(6): "(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if *** (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone...." (emphasis added). 145. Fed. R. Evid. 1002. 146. E.W. Cleary, McCormick on Evidence, sec. 231 (2nd. Ed. 1972). 147. Id. Further rationales for the rule are risks of inaccuracy contained in commonly used copying techniques and heightened chances of witness' forgetfulness through oral testimony. Id., sec. 231. 148. 305 So.2d 421, 7 C.L.S.R. 1238 (La. 1974). 149. 305 So.2d 421, 427. 150. Id., at 428. Defamation Liability of Computerized BBS Operators & Problems of Proof (C) 1989 John R. Kahn 49 151. Brandon v. Indiana, 396 N.E.2d 365 (Ind. 1979). 152. Id., at 370. 153. See note 121, supra, and accompanying text. 154. Other circumstantial evidence might include, among other things: possible motive for the masquerader to defame plaintiff; plaintiff's own inability to call from the phone number from which the defamatory message is shown to have originated; or even an electronic "fingerprint" left by the particular computer from which the defamatory message originated. Pfau and Keane, Computer Logs Can Pinpoint Illegal Trasactions, Legal Times of Washington, vol. 6, p.16 (May 14, 1984). 155. Fed. R. Evid. 1002 provides: REQUIREMENT OF ORIGINAL. To prove the content of a writing, recording, or photograph, the original of that writing, recording or photograph is required, unless provided otherwise in these rules or by an Act of Congress. 156. Examples of this situation are the telephone company's keeping of hundreds of thousands of individual computerized records of each telephone call made within a certain dialing area, or a BBS' extensive history of subscriber use compiled for billing purposes. 157. See Harned v. Credit Bureau of Gilette, 513 P2d 650, 5 CLSR 394 (1973). 158. Fed. R. Evid. 1006. 159. 137 Ga.App. 360, 223 S.E.2d 757 (1976). 160. 223 S.E.2d 757, 760.