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- /* The text of Section 250.12 of the Model Penal Code follows.
- Many states have adopted parts of the Model Penal Code. (New
- Jersey and Pennsylvania have adopted the code in great part.) This
- portion of the Model Penal Code specifies a crime of "Violation
- of Privacy." Section (2) of the code can be applicable to certain
- BBS situations. Many states have used this provision as the basis
- of their own privacy laws. */
-
- Model Penal Code, Section 250.12
-
- VIOLATION OF PRIVACY
-
- (1) Unlawful eavesdropping or surveillance. A person commits a
- misdemeanor if, except as authorized by law, he:
-
- (a) trespasses on property with purpose to subject anyone to
- eavesdropping or other surveillance in a private place; or
-
- (b) installs in any private place, without the consent of the
- person or persons entitled to privacy there, any device for
- observing, photographing, recording, amplifying or broadcasting
- sounds or events in such place, or uses any such unauthorized
- installation; or
-
- (c) installs or uses outside a private place any device for
- hearing, recording, amplifying or broadcasting sounds originating
- in such place which would not ordinarily be audible or
- comprehensive outside, without the consent of person or persons
- entitled to privacy there.
-
- "Private place" means a place where one may reasonably expect to
- be safe from casual or hostile intrusion or surveillance, but
- does not include a place to which the public or a substantial
- group thereof has access.
-
- (2) Other Breach of Privacy of Messages. A person commits a
- misdemeanor if, except as authorized by law, he:
-
- (a) intercepts without the consent of the sender or receiver a
- message by telephone, telegraph, telegraph, letter or other means
- of communicating privately; but this paragraph does not extend to
- (i) overhearing of messages through a regularly installed
- instrument on a telephone party line or on an extension, or (ii)
- interception by the telephone company or subscriber incident to
- enforcement of regulations limiting use of the facilities or
- incident to other normal operation and use; or
-
- /* A BBS is a form of message by telephone, or, "other means" of
- communication. Sub-section (ii) is intended to provide only a
- very limited exception to the general prohibition on security of
- messages. The exception cannot be used to allow general review of
- message traffic. Many BBS systems are trying to get around this
- by declining to allow any private message traffic. However, if
- a system allows encrypted messages, un-encrypting of these
- messages would appear to violate the statute. */
-
- (b) divulges without the consent of the sender or receiver the
- existence or contents of any such message if the actor knows that
- the message was illegally intercepted, or if he learned of the
- message in the course of employment with an agency engaged in
- transmitting it.
-
- /* Thus, if a BBS employee goes through messages for systems for
- the purpose of maintenance, revealing the same is prohibited.
- Therefore, although ECPA liability may be disclaimed, is this
- liability successfully (1) disclaimable at all or (2) covered
- by an ECPA statement? Watch updates for research on this
- point. */