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Executive Summary Electronic networks are a new communication medium that allows people to interact, coordinate action, and access and exchange information, all from their desktop computers. The networks have spawned a growing set of services that now include electronic mail, electronic publications and bulletin boards, conferencing, on-line information services and digital libraries, electronic transactions, and computer playgrounds. Computer and communications technology can, with a high degree of assurance, be assumed to be increasingly capable for a long time to come. But such technology is an enabler for a variety of social phenomena that are more difficult to predict or understand, and the true intellectual challenges are much more likely to arise from people's use of networks for communication and information exchange than from the development of the technology to move large amounts of electronic information rapidly from one place to another. At a workshop held in November 1992 and a public forum in February 1993, technologists, service providers, policy analysts, lawyers, and social scientists from academia, industry, and government met to discuss some of the social issues raised by the emergence of electronic communities. This report is based on the discussions of the workshop and forum, as well as deliberations of the steering committee and material that has appeared in the interim. Its purpose is not to draw conclusions, find definitive answers, or make specific recommendations;
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rather, its purpose is to illuminate, to question, and to articulate thorny and problematic issues that arise in this domain, thus helping to lay a foundation for more informed public debate and discussion. The communication and information-interchange aspects of electronic networks that provide benefits to our communities give rise to questions related to the rights and responsibilities of participants in those communities: Who is liable when someone posts a defamatory message, child pornography, or copyrighted material on a public bulletin board? What are the legal and ethical obligations of a service provider to screen public postings? What is the provider's obligation to protect the privacy of users of its services? Does responsibility flow from whether the provider has the technical ability to exercise control or from whether the provider chooses to exercise control? What is the role of regulation and the law versus that of ethics, informal community behavior, and the marketplace? What constitutes fair use of copyrighted information? What is the nature of informed consent relative to providing information? The workshop provided a variety of background perspectives on issues such as free speech and privacy. The forum itself began with presentations on the nature of electronic networks and on the relevant legal perspectives. Within the current legal regime, creators of information are provided legal protection (and restraints) through copyright and patent laws. Publishers are protected primarily under the First Amendment, although they, too, must abide by relevant intellectual property law. Distributors govern their relationships with their sources through contract and with their customers through both contract and more informal business practices and codes of conduct. Carriers are subject to an elaborate regulatory system established by law and administered by the Federal Communications Commission and state regulatory agencies. Users are governed by social customs (commonly called ''netiquette"), by contract with the providers of the services they use, by federal and state statutes, and by common law if they want to litigate about some harm that has occurred. To explore the concepts of rights and responsibilities more fully, panels of experts at the February forum considered four areas: free speech, electronic vandalism, intellectual property interests, and privacy. For each area, two scenarios were presented and the panelists were asked to address relevant issues in the context of the scenarios; audience reaction to each of these panel discussions was also sought. After all four panels had finished, the steering committee attempted to identify and synthesize key themes. Certain important points emerged from discussions in these areas, as described below.
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Free speech. Providers of information services, such as commercial networks, have some leeway in defining the services they provide and thus their legal obligations, although their latitude may not be entirely unlimited. (For example, under certain circumstances, it is conceivable that even a private information service would have responsibilities for access that are more traditionally associated with public forums.) Providers that assert the right to control the content of public traffic may be subject to a more stringent liability (e.g., for defamation) for that traffic than those that do not assert such a right. At the same time, economic considerations may influence commercial networks to assert a higher degree of control. Information services supported by public funds, operated by government, or otherwise deemed public cannot discriminate among users on the basis of their electronic communications for First Amendment reasons; common carriers cannot refuse to carry traffic arbitrarily. Service providers of all types are well advised to establish the rules under which they provide their services, preferably in advance and perhaps in consultation with their users. Electronic vandalism. Current federal computer crime statutes are limited in that they focus on a class of acts whose elements can be difficult to define (e.g., what should be the definition of an "unauthorized" user in a world of highly interconnected computers?) and leave unaddressed a range of other acts that society may well wish to criminalize or limit (e.g., harmful acts not now criminalized that are deliberately committed by insiders who have legal access). Ancillary issues such as determining the level of damage may also be problematic in any given case. The relative newness of electronic networks as a medium for human communication and behavior means that we as a society collectively lack a great deal of shared experience about what is and is not (or should not be considered) a crime. Legal precedents and ethical standards applied to this new medium are ultimately the basis for criminalizing behavior. Intellectual property. Although intellectual property is traditionally the domain of copyright, patents, and trade secrets, most of the discussion of intellectual property matters in a networked environment is related to copyright, and discussions at the February 1993 forum reflected this weighting. Copyrighted electronic materials are covered by fair-use provisions in copyright law, although the nature of the electronic medium with respect to the reproduction and/or alteration of information amplifies concerns that have been addressed in other venues (e.g., in the domain of photocopiers). The use of intellectual property can also be controlled through licenses that have essentially unlimited freedom to specify contractually the conditions
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of use. Nevertheless, many people see electronic networks as a threat that will dilute the value of their intellectual work. Privacy. Privacy rights are never absolute but rather are rights that society balances with the need or desirability for disclosure under various circumstances. In many cases, individuals can make their own decisions and choices regarding their privacy (e.g., by using electronic mail (e-mail) systems that conceal the identity of the mail sender or by encrypting their communications); however, that privacy may be illusory. For example, a network that transmits e-mail may require its users to acknowledge that all traffic is public, but its regular users may become habituated to those warnings and may not internalize them. Thus, what counts as a "reasonable expectation of privacy" on electronic networks may not be clear in any given instance, even if policies are made explicit in advance. Why are these areas contentious? Analysis reveals substantive disagreements rooted in value judgments. For example, forum participants disagreed on the extent to which continuity with past precedents is desirable. Lawyers and policymakers (mostly but not entirely) tended to argue that rights and responsibilities in a new domain are inherently rooted in existing rules. The laws, norms, policies, and practices governing any technology or behavior are formed from precedents, often in response to conflicts that arise from customer or market demands, criminal charges, and civil lawsuits. This is particularly obvious with common law, since the resolution of court cases depends heavily on legal precedents. But the same is true of other types of rules. In addition, rules tend to originate in informal sources and then, over time, become codified, first through common law litigation and later by legislation. For electronic networks, other media including print, telephones, radio, and television have provided a rich set of precedents to draw on. At the same time, precedents do not always provide easy answers, in part because they are never identical to the case at hand and in part because multiple precedents, with conflicting rules, may apply in a given case. By contrast, many technologists who have extensive experience in using electronic networks assert that with a new medium and a new form of human expression should also come new rules of social intercourse specially adapted to that new medium. For example, many providers of network services have established policies and rules for the use of their services, and a body of case law and legislative statutes is emerging specifically for electronic services. Thus, for these people, questions about rights and responsibilities are not just philosophical or even open to being weighed according to the rules
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developed for other media, but rather must be addressed in rules specifically formulated for electronic networks. Other topics on which workshop and forum participants expressed differing value judgments included the following: The extent to which the government should regulate behavior on electronic networks, The role of the marketplace in influencing behavior, The value of sharing information freely versus keeping information proprietary or private, The need for law that specifically relates to behavior on electronic networks, The nature of informed consent relevant to providing information, and The disposition of individuals who express no preference or inclination regarding their putative rights on electronic networks. These disagreements, and others not mentioned above, are heightened as the concerns they raise (and have raised in the past) are magnified through the use of networking technology. In the past, any apparent resolution of such concerns has come about not because the concerns have disappeared or various stakeholders have changed their minds, but because political compromises and the need to move forward have driven decision making. Thus, resolution very much depends on the circumstances of the moment, and solutions or approaches to these disagreements will inevitably be a blend of past traditions, present realities, and possible future directions. Networking technology reopens traditional debates largely because it threatens the relevant status quo; with new circumstances, new compromises become necessary, and thus the same fundamental questions need to be reexamined. If this is true, the debate over social norms on electronic networks will not differ substantively from the debate over any other controversial social issue, although the sophistication of the technological understanding required may well make the debate a less informed one. This is not to say that the debates should not be taking place, but only that our hopes about what such debates can accomplish should be moderated. These debates will not resolve fundamental issues or even result in consensus, but they can serve an educational role, illuminating and illustrating issues and providing alternative visions of the future for the concerned public.
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