* Reply to msg originally in CYPHERPUNKS
You haven't been listening at all to Mr. Godwin, have you?
Frankly, no. I have however followed this same endless debate among lawyers in BBS_LAW, however, and (if I understand all parties correctly) their assessment for the most part disagrees with the one you cite here.
1) The ECPA *DOES* apply to the BBSes whether they want it to or not.
Perhaps we misunderstand each other; I do not mean, literally, that "hobby BBSs are exempt from ECPA," but that the situations addressed are generally avoided by sysop policies. Let me make sure I understand your point; are you saying that: 1] On a privately-owned computer... 2] Operating a noncommercial BBS without monetary compensation... 3] On which a repeating log-on notice informs users that all messages are subject to sysop viewing... 4] Sysop/sole owner viewing of non-public (as opposed to "private") messages during system maintenance or monitoring for unlawful activity... 5] Is prosecutable under ECPA? If so, has such a prosecution been successful?
2) The BBS operators are NOT liable UNLESS they censor the mail. If they censor the mail, they are liable for anything they fail to censor. If they do not censor, they are common carriers, and have no liability.
It is my understanding that noncommercial FIDOnet participants are not in fact common carriers and that technical, legal common carrier status requires more than simply ignoring e-mail. I understand it also brings more potential liabilities than FIDO can handle. In any case, I am informed hobby sysops have been arrested and their systems seized for allegedly illegal traffic on their systems of which they claim to have had no knowledge. I believe this is the case in the CT case pending. Even if these cases are eventually dismissed, the legal expense and personal disruption to a private party (usually a young person of very limited means) is catastrophic and without practical recourse. -> There has been a very heated war in FIDOland over PGP and other -> encryption. Considering the risk that sysops take on by permitting -> secure (?) communication on their BBSs,
They take NO risk. They are common carriers if they stop censoring their mail. People don't seem to understand that the law on this is very clear.
As I say, there seems to be a great deal more to legal "common carrier" status than simply ignoring e-mail. In FIDOdom common carrier status is regarded as a much larger can of worms, with more potential problems and liabilities for sysops than other options.
Actually, as I've just noted, you have not protected yourself. You have opened yourself up for massive legal liability where you had none before.
I believe you are confusing me with someone else. I am not, nor would I _ever_ be, a BBS sysop. This thread gives a perfect example of why not. As far as I can tell, it's purely a fool's errand: Paying good money and personal time and trouble to no better end than incurring grief and liabilities with unpleasant, ungrateful and parasitic users, as well as potential hassles with cops, lawyers and bureaucrats. There's zero payback here; BBS sysops are crazy. Direct followup to FIDOnet BBS_LAW.