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3 Legal Considerations for Electronic Networks Many users and providers of network services are wary of lawyers' influence on networked communities. Jack Rickard believes that ''when the law appears, it's death upon contact." His plea, shared by most of the bulletin board system operators (known as "sysops") is: "Just leave us alone." At the same time, advocates of this view do recognize the need for defining socially acceptable behavior; their method of choice for promoting such behavior is education that appropriately socializes participants in networked communities. Nonetheless, existing law does have an impact. Law is important because when something goes wrong, those harmed consult lawyers for help. To determine what they can do to obtain redress for such harm as may have been done, lawyers look to existing law for precedent. We are a very litigious society, and so the courts have a vast amount of experience in sorting out our demands for justice. Judges themselves turn to existing law to determine how to seek fair and equitable solutions to our problems. Policy analysts use the existing precedents to see what works and what does not. Finally, ordinary people rely on existing law because users carry their expectations with them from one environment to another.1 NOTE: In this chapter, all quoted material that is not otherwise identified originated with the individual noted, speaking at the November 1992 workshop. 1 Sara Kiesler points out that the officers charged in the Rodney King beating used their electronic communications system as though it were a private telephone line, even though they had been warned that all traffic over that system was recorded. These conversations were later introduced in court as evidence against them.
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LEGAL DOMAINS Existing legal domains (Box 3.1) offer a rich heritage. The fundamental rights contained in the U.S. Constitution and the Bill of Rights are a good beginning. Included are the copyright and patent systems, prohibitions against denial of human rights without due process, the right of free speech and assembly, immunity from unreasonable search and seizure, and protection against self-incrimination. A long history of Supreme Court decisions finds that the Constitution contains an implied right of privacy, although the boundaries of this right are subject to considerable debate. The Constitution is especially important in protecting the rights of minorities against the majority rule. Common law tends to develop slowly and deliberately, based on common sense and logic and the customary expectations of the community. It is conservative, stable, and, some fear, too rigid, but it does provide a workable framework for analysis, even though the frame does not always fit exactly. Thus, despite rapid technological change, electronic networks do not constitute a lawless frontier in which individuals may do anything they please. The long history of common law complements the basic constitutional foundations by providing alternative strategies for protecting property interests and obtaining redress for grievances for damage occasioned by negligence or willful disregard of harmful consequences that might ensue. In other words, the law expects human beings to behave in a somewhat rational and respectful manner in their dealings with each other and with regard to their proprietary interests. Case histories in property law, tort law, and equity provide ample precedents to guide the behavior that might be expected to be reasonable in an electronic environment. There are also numerous explicit statutes covering computer use and misuse (all but one state has enacted such a statute). Statutes also cover privacy but are usually specific to certain kinds of information, such as credit histories and medical data that are particularly sensitive. The Electronic Communications Privacy Act of 1986 specifically forbids eavesdropping on data traffic. Lawyers and their clients also must be aware of the laws concerning commercial transactions, including antitrust provisions. Several regulatory agencies have administrative jurisdiction over certain types of network activity. The Federal Communications Commission (FCC) has authority to license common carriers and is active in promulgating standards for high-definition television transmission and telephone network architecture; it also regulates cable television and certain uses of the electromagnetic spectrum. The Federal Trade
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Box 3.1 Legal Domains Domain Examples of Domain Sources Constitution Free speech; Copyright/patents; Due process; Equal rights; Freedom from search and seizure Congress/President U.S. Supreme Court Common law Tort; Equity; Property; Intellectual property; Contracts Courts Statute Electronic privacy; Computer crime; Contract; Antitrust Congress and state legislatures, popular initiatives and referenda; Executive branch action to implement legislation Regulation Code of Federal Regulations (e.g., approvals required by Section 214); Open networks Administrative agencies (Federal Communications Commission, Federal Trade Commission, and others); Judicial review; Legislative oversight NOTE: In all instances, the enforcement mechanisms consist of monetary damages, specific enforcement of contract provisions, incarceration, and/or fines.
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Commission has authority to regulate the content of advertising so that it does not mislead consumers. The National Institute of Standards and Technology plays a major role in the formulation of Federal Information Processing Standards. State public utility commissions have overlapping jurisdiction over intrastate network traffic, thereby confounding, confusing, and complicating the legal environment within which network providers and their users operate. Finally, judicial interpretation and oversight affect all legal frameworks and regimes. Since it is often unclear how existing statutory and/or case law ought to apply to any given instance involving electronic networks, the views of judges and juries will often set new precedents in this arena. Moreover, since in practice it is often expensive to litigate in defense of one's position, unfair or inappropriate legal advantages may accrue to those who have the resources to defend a potentially controversial interpretation of existing law. In the absence of legal challenge, such interpretations may themselves become new precedents. LEGAL MODELS EXISTING IN THE ELECTRONIC ENVIRONMENT Legal models can provide useful analogies that help to sift out what is different from what is similar. For the purpose of analysis, consider the different legal models listed in Box 3.2 that exist within the network environment. Perhaps the most important legal models for the network environment are those of publisher and distributor, primarily because of the question of liability. Publishers generally are held to a higher standard of liability for content than are distributors, because publishers have the capability to (1) control access to the medium by others seeking to disseminate their own information, (2) review and gain knowledge of the content prior to publication, (3) alter or exclude content prior to dissemination, and (4) require attribution or permit anonymity or confidentiality for content.2 A firm that exerts 2 For some analysts, the distinction between capability and the actual exercise of those capacities may be an important issue in defining a concept, and responsibility and liability for content, in the electronic environment, since a duty to act does not depend on whether action is ultimately taken but merely on whether it should have been taken. For example, Allan Adler Asserted that "… what I mean by capabilities is, if you have the ability, technologically and physically in real time, [and] the authority and opportunity to do these things, you may be legally considered a publisher rather than a distributor of information, with the appropriate level of legal liability." (See the discussion of the Cubby decision in Chapter 4.)
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Box 3.2 Legal Models to Characterize a Network Environment Publisher—Prodigy Services Company (for many services) Distributor—CompuServe Cooperative—EduNet, NEARnet Library (information provider)—LEXIS, DIALOG, Medlars Private networks Corporate—IBM, Hewlett Packard, Citicorp, and others Personal—Bulletin board system operators ("sysops") Common carrier—MCI, AT&T, Sprint, regional Bell holding companies Mixed or hybrid—cable television Trusteeship—broadcasters Marketplace—information entrepreneurs marketing their wares Information utility—Santa Monica Public Electronic Network and Cleveland FreeNet editorial control over the electronic traffic it carries (as does the Prodigy Services Company over much of the information content it delivers on-line regarding sports, news, features, and so on) may claim the legal status of a publisher, but in so doing it also subjects itself to the liability thereby implied. A firm that does not exercise direct editorial control over the traffic it carries (e.g., one that subcontracts the management of editorial content to a third party) is arguably a distributor, with a correspondingly lower level of liability. Next in importance as a legal model for the network environment is the cooperative—an arrangement whereby independent entities of equal status come together to achieve a common purpose and to share costs as well as profits. EduNet is best classified as a cooperative because it is put together so as to have some legal weight. Certain regional networks such as NEARnet and NYSERNet also operate as
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cooperatives. The Internet as a more collaborative effort does not qualify legally as a cooperative, although various networks interconnected through the Internet have a cooperative arrangement that may be evolving toward a cooperative as defined legally. Also important, if only because it is so often ignored, is the information utility. (Here the term "utility" is used in the sense of a service that must be provided to essentially anyone in the relevant community or service area. It is analogous to the concept of "common carrier" as used in the world of telephony.) Only a few publicly funded networks, such as the Santa Monica Public Electronic Network (PEN) and the Cleveland FreeNet, are true information utilities. Many commercial services look like information utilities in that they offer subscribers a potpourri of information services. However, such services do not represent themselves as information utilities, since doing so would require them to provide access and some minimum level of service to all potential users. Government-operated information networks that operate as public forums are a different matter; under the First Amendment, government-operated networks do not have the right to discriminate among users or to monitor or control messages and thus must provide access to everyone in the community. Distinctions among government-operated networks, government-sponsored or government-funded network services, and public resources offered over privately operated networks raise yet other questions for access that are as yet unsettled. It is instructive to identify the various rights and responsibilities of different types of participants in the network environment (Box 3.3). As a general rule, it seems to be the case that the more an entity undertakes to do or the more value-added services it undertakes to provide, the higher the degree of liability for which it is responsible. The creators of information are provided legal protection (and restraints) through the copyright and patent laws. Publishers are protected primarily under the First Amendment. Distributors govern their relationships with their sources and their customers through contract; a customer dissatisfied with the services provided has one primary option—to take his or her business elsewhere. Common carriers are subject to an elaborate regulatory system established by law and administered by the FCC and state regulatory agencies and commissions. At present users are governed largely by the "netiquette" they have established by custom, contract, or common law if they want to litigate about some harm that has occurred. Broadcasters (radio and television) carry the burden of trusteeship; that is, they are licensed to act as trustees of a public property (the public airwaves) and have a legal responsibility to act "in the public interest."
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Box 3.3 Rights and Responsibilities Distinguished by Function Function Rights Responsibilities Creator Control of content Compensation Integrity Originality Liability for damage Publisher Control of content Compensation Integrity Liability for damage Distributor No control of content Compensation No liability for damage Carrier Limited liability for transport Compensation Fidelity of carriage Integrity Timely delivery Provision of equitable access User Accessibility Equity Due process Avoidance of: negligence, abuse, misuse, and misappropriation Trustee Licensee of public property Action in the public interest WHAT IS DIFFERENT ABOUT ELECTRONIC NETWORKS? To the extent that electronic networks are a new medium for discourse and communication, new laws or new interpretations of existing laws may be necessary. Thus, it is necessary to identify how electronic networks might be "new" from a legal perspective. One obvious difference is that territorial jurisdictions are largely irrelevant to the electronic environment,3 except perhaps in the initial 3 This is true in the sense that once connected to a network, a user can often electronically cross political boundaries with relative ease. However, territorial jurisdictions may determine who has access to a given network (e.g., a city may grant access to a public network only to its residents; a university may grant access only to students on campus).
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stages when spectrum must be allocated for the purpose where wireless communications are employed and licensing authority must be obtained unless regulatory authority is waived. For example, in the United States, information providers that offer users services that go beyond "basic" services have been permitted to flourish with minimal government interference.4 More confusing, perhaps, is the fact that many legal precedents have been established in the context of a given technology—e.g., broadcast or cable, telephone, or mail. In considering the legal implications of a new medium, analysts quite naturally look to those precedents for guidance. But it is never certain how old precedents should apply to new media, and so neither analysts nor users of a new medium are certain which precedents should guide their analysis or govern their use. As noted in Appendix A, e-mail can be used to support a mode of communications often known as bulletin boards in which a message posted to a bulletin board by one user is distributed via e-mail to all of the other subscribers to that bulletin board. Some electronic bulletin boards start as a mechanism to deliver private communications among a small group of friends. To the extent that the term "bulletin board" makes one think of a little bulletin board on one's refrigerator, the traffic on the electronic bulletin board is clearly outside the reach of the law. But electronic bulletin boards are also a way of communicating with large numbers of people in many different geographic locations (perhaps with differing laws regarding message traffic). The very term "e-mail" makes one think of the electronic analog to a postal letter; however, e-mail does not, as a matter of law, enjoy the same status as a postal letter. Entirely different legal precedents and principles may in fact apply. For example, some users of e-mail have the same expectations of privacy for e-mail that they do for postal mail—an issue that has generated considerable legal controversy.5 Users of private e-mail systems may expect their messages 4 At the same time, the definition of what counts as "basic services" is a matter subject to considerable debate. For many years, "touch-tone" service provided by the local telephone company was regarded as an "extra" not included in the basic service definition. However, touch-tone service has increasingly become a prerequisite to navigating through other services provided by telephone (e.g., voice mail), leading to pressures to treat it as part of "basic" telephone service. 5 For example, in a 1993 decision, a California appellate court found in favor of an employer that had terminated an employee after reviewing his e-mail messages and finding among them personal messages of a sexual nature to other employees. Specifically, the court held that the employee had no reasonable expectation of privacy since he had signed a form acknowledging a company policy that restricted employees' use of computers to company business. In a second court case, still under litigation in January 1994, a company sued a former employee on the basis of messages retrieved from the former employee's electronic mailbox (which was not maintained or provided by the company). A key issue will be whether the company has the right to access the electronic messages of its employees. (See Michael Traynor, "Computer E-Mail Privacy Issues Unresolved," The National Law Journal, January 31, 1994, S-2.)
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to be private, and indeed they are protected in that expectation to a certain extent by federal statute (e.g., public officials may not tap those communications without judicial authorization); but this expectation may not be appropriate in a corporate e-mail environment where the corporation expects to manage the traffic for business purposes and in its corporate interests.6 The privacy principles drafted by the Information Policy Committee of the Clinton administration's Information Infrastructure Task Force may ultimately affect these expectations. A further complication is that it is not only electronic networks that are assuming new functions: established media are also doing so, and there is a lack of consensus on which models and precedents are appropriate for what purposes. The regional Bell holding companies7 (RBHCs) want to be information service providers as well as carriers. Electronic bulletin boards are becoming networks that allow messages to pass through them unread; a good example is Fidonet. Newspapers are distributors as well as publishers, as the advertising supplements supplied by advertisers indicate. Broadcasters are offering conferencing facilities in electronic town meetings, and both radio and television (using telephonic call-ins) have turned into very interactive media on the talk shows. Cable television systems, traditionally delivering entertainment programming to the home, are geared up to provide data services to businesses and to experiment with home-based information services. Complications are exacerbated by the fact that different providers may have been regulated under different assumptions (as is the case for the RBHCs, long-distance telephone service providers, and cable companies). 6 Many corporations do take the position that e-mail messages are subject to review in the same way that hard-copy letters and memoranda are subject to review, and they do post notices periodically (e.g., every time the user logs into the host system) to this effect. However, as Sara Kiesler pointed out at the forum, people habituate to such warnings very rapidly, and the net effect is that they respond as though those warnings were never given at all. 7 The regional Bell holding companies are Nynex, Bell Atlantic, US West, Bell South, Ameritech, Southwestern Bell, and Pacific Telesis.
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The most important difference, and one very troubling for existing law, is the easy ability to replicate, alter, and manipulate images and text. This ability changes established legal concepts—e.g., the notion of when something is published. Indeed, by accessing previously developed information, anyone with a computer can become a creator of an information product or the producer of a library or database that distributes or acquires information assets with financial value. An example is the provider of a value-added service that searches public records or documents and makes them accessible, for a fee, to users in a much more convenient form; proprietary rights have been asserted for such products, even when the underlying information is public and freely available. Today's legal regime provides mixed signals and expectations concerning what is public-do-main information and what is proprietary information entered into the electronic environment. There is a need for more clarity concerning the nature of the traffic and its legal status. In presenting this capability to manipulate and disseminate information, electronic networks provide the underpinning of an electronic marketplace in which some information is shared, some is sold, and some is merely transmitted. The challenge today is to devise a legal regime appropriate for the capabilities enabled by the technology now available. This regime necessarily includes certain aspects of existing law (and precedents and interpretations applicable to network technology) and may include new laws specifically needed for this technology. LEGAL CONSIDERATIONS THAT AFFECT THE USE OF INFORMATION A number of legal considerations pertain to protection of the rights of network users. Secrecy is designed to prevent deliberate disclosures of information to individuals not authorized to receive that information. The information being kept secret may refer to the contents of a message (a consideration among lawyers known as security) or to the identity of a message's author (a consideration known as anonymity). The inverse of anonymity is known as authentication, or the assurance that the putative originator of a message is in fact the real originator. Closely related is the notion of nonrepudiation, the property that the putative originator of a properly signed message cannot plausibly deny his or her originating that message. Privacy is intended to prevent intrusions into information about
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individuals by persons not authorized to have access to that information. Privacy law today is ambiguous; it is used to cover many different concerns about misuse of information. To some, privacy should be more strictly construed to mean the right to prevent unwelcome and unauthorized intrusions such as obnoxious telephone calls, junk mail, and overeager journalistic inquiry—in other words, any entry into the personal space that should be private. Such a view is reinforced by an oft-forgotten Supreme Court decision that confirms that one's home is one's castle. Both privacy and secrecy are mechanisms that have been invoked to reduce the accountability of individuals under the law. Confidentiality is the right to release information with restrictions on its redistribution. There are a few common-law precedents that recognize personal confidentiality: the right of a spouse to not testify against a mate, the sanctity of the confession to one's religious mentor, and the attorney-client privilege are the most obvious. However, most of the areas that have come to be considered confidential have developed by explicit statute achieved through the efforts of concerned citizens. Today there is a considerable effort to achieve a more uniform way of treating confidentiality of medical records, in order to assure individuals a measure of personal privacy and to not inhibit too strictly the transfer of medical information that would benefit both the patient and the public's interest in a healthier society. A publicity right is one that gives each individual the right to disclose information freely in the public domain or to demand compensation for public release. The abandon with which many participants on radio and television talk shows disclose very personal information about their own behavior and inner thoughts confirms that this is a right alive and well today. There is also no dearth of material generated by public relations firms for all manner of public figures who seek media coverage. However, what is missing is a clearly delineated point that defines when something is intended to become public-domain information, when it is intended to remain confidential between the communicants on electronic networks, and when it is released with the expectation of remuneration for redistribution. Commonality remains the right of the body politic to determine what areas shall remain off limits to proprietary appropriation. Laws of nature and languages are among the few areas clearly beyond proprietary appropriation. The controversial area at the moment is in the area of ''facts," which are usually assumed not to be
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Box 3.4 Some Relevant Legal Precedents Case Result Cubby Inc. v. CompuServe No obligation to monitor Feist Publications Inc. v. Rural Telephone Co. Inc. Facts not copyrightable Sega Enterprises v. Accolade Inc. Reverse engineering for interoperability is permissible Armstrong v. Executive Offices of the President Electronic files are public records Playboy Enterprises Inc. v. George Frena et al. Intent to infringe on copyright is not required for a finding of infringement Ford Motor Credit Co. v. Swarens "Trust in the infallibility of a computer is hardly a defense. …" that they can rely on an assumption that they are distributors of information only, with no responsibility for the content of their offerings. Such service providers may assume that they reside in the same legal niche as the bookstore or the newspaper stand, which may not be the right niche or the ultimate niche into which the law will assign these new electronic services. One danger could come from trying to apply the publisher model to electronic bulletin boards. Surely there is some area in the electronic environment that should rightly be considered a private space. This would be comparable to a private home or club where friends and peers may share private and confidential communications. Is posting to a controlled-access bulletin board "publication"? And how do we characterize public conferences to which users contribute their comments, often with no centralized editorial control or managing supervisor? The application of a general law across the entire electronic community may well result in curtailing some activities that really ought to be permitted to continue. Legal precedents such as Cubby—or,
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Box 3.5 Cubby v. CompuServe, 1991 CompuServe is an on-line information service that grants access to a variety of information sources in exchange for a fee. These information sources are provided for CompuServe contractually; that is, CompuServe contracts with vendors to provide information, but then makes this information available to users through a mechanism called forums. The provider of one information source, Cameron Communications Inc., agreed in its contract with CompuServe to "manage, review, create, delete, edit, and otherwise control the contents" of its forum. Defamatory statements about a firm known as Cubby Inc. appeared in the forum operated by Cameron Communications. Cubby Inc. sued CompuServe for libel, based on the defamatory statements. CompuServe moved for summary dismissal on the grounds that it acted as a distributor, not a publisher, of those statements and thus was not liable for the statements. In 1991, the U.S. District Court in the Southern District of New York granted CompuServe's motion for summary dismissal on the grounds that CompuServe was indeed acting as a distributor and indeed had little or no editorial control over the contents of a contracted information source. The court further reasoned that CompuServe had no reasonable opportunity to review for defamatory material every information source it made available. SOURCE: Cubby Inc. v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991): more accurately, the implications of their distinctions—may come to be applied too broadly. The Feist case (Box 3.6) clarified the outer boundaries of the copyright law, holding explicitly that facts are not copyrightable. The extent of labor expended—the "sweat of the brow"—is not to be considered in granting protection. This case will likely create turmoil in the law because it is facts, now, that people are most concerned about—e.g., telephone numbers, names and addresses, and transaction-generated information (data about what one purchases or how one travels). The current legal regime does not recognize a right to what might be called personal autonomy over information about oneself, and without copyright protections on compilations of these facts, such compilations may be disseminated and reproduced quite widely. The Sega case (Box 3.7) involves a controversial area with respect
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Box 3.6 Feist v. Rural Telephone, 1991 Pursuant to state regulation, the Rural Telephone Company Inc. publishes a "white pages" telephone directory that lists telephone subscribers alphabetically and their corresponding telephone numbers for a certain geographical area of service. In order to produce a similar "white pages" directory for a much larger geographical area that included the service area in question, the Feist Publication Company extracted the names and numbers it needed from the Rural Telephone Company's white pages without Rural's consent. Although Feist altered many of the listings it obtained, several were identical to those listed in Rural's white pages. Rural sued Feist for copyright infringement. In 1991, the U.S. Supreme Court ruled that Rural's white pages were not entitled to copyright, and thus that Feist was not liable for infringement. The basis for this ruling was that the selection, coordination, and arrangement of Rural's white pages did not satisfy the minimum constitutional standards for copyright protection, since Rural had only to obtain data from its subscribers and list them alphabetically, resulting in a "garden-variety" white pages directory devoid of even the slightest trace of creativity (which copyright law is intended to protect). SOURCE: Feist Publications Inc. v. Rural Telephone Co. Inc., 111 S. Ct. 1282 (1991). to fair use of computer software, an area of the law that has not yet been reviewed by the Supreme Court. It concerns the question of what amount of reverse engineering of software is permissible in order to understand the underlying concepts, which are not protected by copyright law, and knowledge of which, according to an amicus brief prepared by a group of intellectual property academics, is essential to achieve interoperability of software.9 Incompatibility of software (lack of interoperability) is a major deterrent to the rapid development of networks and an area of the law demanding of public attention. What the academics seem to be saying is that there is a limit to what the copyright law can cover—that copyright law offers very 9 Some additional discussion of these issues is provided in Computer Science and Telecommunications Board, National Research Council, Intellectual Property Issues in Software, National Academy Press, Washington D.C., 1991.
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Box 3.7 Sega v. Accolade, 1992 In order to develop video-game cartridges that were compatible with Sega Enterprises' "Genesis" entertainment system, Accolade Inc. disassembled the computer programs contained in Sega's video-game components to learn the requirements for compatibility. Accolade then produced a manual that described the functional requirements of compatibility with Sega products without including any of Sega's original computer programs. Based only on the manual, Accolade then wrote its own programs that were compatible with the Sega interface. Sega sued Accolade, charging copyright infringement. In 1992, the Ninth Circuit Court of Appeals overturned a lower court ruling that Accolade had infringed on Sega's copyright of its computer programs. In particular, the Court of Appeals held that Accolade's use of the "disassembled" programs was protected under the fair-use provisions of the Copyright Act if disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program. SOURCE: Sega Enterprises v. Accolade Inc., U.S. Court of Appeals, Ninth Circuit, No. 92-15655; D.C. No. CV-91-3871BAC, October 20, 1992. thin protection for computer software interfaces, in fact protecting only the expression that is different from all others and proprietary to the creator. It may be that this case marks a turning point that indicates the limits of the judicial system in carving out new protections for computer software. Users and providers alike may now turn to Congress to sort out what is optimum for the software industry and network users nationwide. In the European Community the policy with respect to reverse engineering and fair use of proprietary interfaces has been hammered out in an open and public discussion, not in the courts. The Armstrong case (Box 3.8) held that electronic communication can be a public record and be subject to the Freedom of Information Act, the Federal Records Act, and the Presidential Records Act. A case with similar elements was raised in May 1994 that involves the refusal of a state university to disclose e-mail messages sent to university administrators.10 The individual wishing to see those messages 10 See Thomas DeLoughry, "University of Michigan Refuses to Release E-Mail of Administrators," Chronicle of Higher Education, Vol. 21, p. A-28, January 26, 1994.
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Box 3.8 Armstrong v. Executive Offices of the President, 1993 The U.S. Court of Appeals upheld a lower-court ruling that the Executive Offices of the President must preserve electronic documents as "federal records" under the Federal Records Act, affirming that hard-copy printouts were insufficient because they might omit "fundamental pieces of information which are an integral part of the original electronic records, such as the identity of the sender and/or recipient and the time of the receipt." SOURCE: Armstrong v. Executive Offices of the President, 1 F.3d 1274, 1993, U.S. App. LEXIS 20527 (D.C.Cir. 1993). contends that they are analogous to written letters and thus subject to disclosure under that state's freedom-of-information law. The university contends that e-mail messages are analogous to telephone calls, which are not subject to such disclosure, and in addition that they are protected under the federal Electronic Communications Privacy Act. Both cases raise the issue of whether electronic communications in the form of e-mail constitute "records" that are subject to the intent of the various freedom-of-information acts. Such cases also raise the issue of what types of electronic communication should be kept. For example, should all e-mail used by federal agencies be kept as public records? In the days when the federal government operated by telephone calls and written documents, it was clear that telephone calls did not constitute public records, though written notes about those calls might. Since many people use e-mail instead of a telephone for reasons of convenience (e.g., avoiding telephone tag), some argue that at least some e-mail should be treated as a telephone call would be. On the other hand, requiring the sender of an e-mail message to distinguish between a noteworthy and non-noteworthy note presents problems as well, especially if that determination must be made at the time of transmittal. The Playboy Enterprises case (Box 3.9) was decided recently. In this case, the court placed on bulletin board operators that charge fees for access a substantial burden to review files accessible on their systems for possible copyright violations, though the extent of this burden was not definitively established by this case. Finally, an early but important computer case is Ford Motor Credit
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Box 3.9 Playboy Enterprises v. George Frena, 1993 The Playboy Enterprises v. George Frena case involved a large number of images identified as pictures taken from Playboy magazine and protected by copyright that were found in the form of graphics files on a bulletin board system owned and operated by George Frena; these files were not posted by Frena, but rather by users of his bulletin board service. The bulletin board charged fees for users to access these (and other) files. The court held that this use was clearly commercial and that the bulletin board operator, George Frena, was guilty of copyright infringement. Though Frena argued that he had no knowledge of the source of the images, the court held that intent to infringe was not essential to a finding of infringement. SOURCE: Playboy Enterprises Inc. v. George Frena et al., 839 F. Supp. 1552, U.S. Dist. Ct., M.D. Fla. Dec. 9, 1993. Company v. Swarens (Box 3.10). An old maxim proclaims that ignorance of the law is no excuse. This case held, in a similar vein, that one cannot rely on faith that the computer will be accurate as a legal defense. Put differently, the computer does not enjoy special status as an infallible agent, especially when it can be shown not to be infallible. SPECIAL PROBLEMS AND POLICY CONCERNS Makers of public policy must grapple with a number of concerns that arise in the electronic environment. One concern has already been discussed in a previous section, namely the confusion over the legal models that apply to organizations engaging in electronic communication. In that domain, policymakers will have to sort out what will happen in the collision of legal regimes associated with different models and the boundaries (if any) at which public and private activity interact (as they might, for example, at the interface of private and public networks). But other issues arise as well. For example, the question of responsibility for content goes beyond the different models (e.g., publisher, distributor) used by commercial information service providers for handling such responsibility. Questions in this area include the following: What content is acceptable and who decides what is acceptable? If penal statutes are violated, is criminal liability the burden
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Box 3.10 Ford v. Swarens, 1969 A computer error caused the Ford Motor Credit Company to believe that Mr. Swarens was delinquent in payments on his new car. On two occasions, the company's representatives visited Mr. Swarens and left after he showed canceled checks proving that he was not in fact delinquent. On the third visit, he threatened company representatives with a shotgun, after which his car was repossessed. In court, Mr. Swarens was awarded both compensatory and punitive damages, and the Court of Appeals said, "Ford explains that this whole incident occurred because of a mistake by a computer. Men feed data to a computer and men interpret the answer the computer spews forth. In this computerized age, the law must require that men in the use of computerized data regard those with whom they are dealing as more important than a perforation on a card. Trust in the infallibility of a computer is hardly a defense, when the opportunity to avoid the error is apparent and repeated." SOURCE: Ford Motor Credit Co. v. Swarens, Court of Appeals of Kentucky, 447 S.W.2d 53, October 17, 1969. of the perpetrator or of the provider of the network service used to violate the statutes? What civil or tort liability applies to defamation or negligence? How do issues of pornography, indecency, and obscenity play out in the networked environment? Anonymity and confidentiality pose other important concerns. On electronic networks, especially those associated with commercial information services, many people assume a different electronic "persona" that is not associated with a real person. Anonymity conveys both benefits and drawbacks. For example, history illustrates the use of anonymous communications to protect dissidents from the scrutiny or retaliation of autocratic governments. Even in recent years, the identification of a specific individual as a dissident (e.g., in the People's Republic of China) could mean imprisonment or even death; as a result, such societies often have forums (perhaps illegal but nonetheless public) in which anonymous protests against the existing regime can be posted. On a smaller scale, Murray Turoff, a professor of computer and information sciences and management at the New Jersey Institute of Technology, said his students (and executives) feel free to discuss on-line their problems at work only because they can do so anonymously.
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The other side of anonymity was pointed out by Allan Adler, who argued that if users are granted true anonymity, ''then there can be no justice system that will right the wrongs they commit, and there can be no 'rights' that people will be able to vindicate." In short, the justice system or law requires the identity of the person who caused the harm. Adler, along with Kiesler and Turoff, suggested that system operators keep users' identities confidential instead of anonymous and reserve the right to disclose the identity of a user who engages in injurious conduct. Today, the legal status of an anonymous message sent on an electronic network is not clear. Do network users have a right to refuse to disclose their identity? To prevent disclosure of their identity to a third party (i.e., one not associated with the network service provider)? To escape accountability and the law? Do users have to accept responsibility for their behavior? A fourth concern is accessibility. Who can get into the system, and who can interconnect through which gateways? Policy questions include the following: Who can demand a right to interconnect or become a subscriber or participant? On what basis may service be denied to an end user or to an electronic connection? Is it necessary to mandate interconnection capability between various network services (perhaps in a manner analogous to the mandating of interconnection standards for telephone networks 50 years ago)? A fifth area of concern is electronic commerce. Internet "netiquette" looks down on advertising messages that are publicly broadcast.11 Yet it is easy to find Internet messages that look very much like 11 For example, a commercial advertisement posted throughout Usenet, a network consisting primarily of bulletin boards devoted to various topics, has been widely condemned in the affected community. The Usenet community's response to unsolicited commercial advertising was largely to flood the advertiser's electronic mailbox with messages protesting the advertiser's action; other informal actions have been taken as well. See Peter Lewis, "Sneering at a Virtual Lynch Mob," New York Times, May 11, 1994, p. D-7. More generally, this sentiment against commercial "advertising" seems to be rooted in at least two strains of thought. The first is the sentiment that advertising is an annoying pollutant, in the same generic class as junk mail. The second is that receiving e-mail consumes resources for which users must eventually pay and that it is inappropriate to make recipients of advertising incur those expenses if they have not affirmatively chosen to do so. The latter is in many ways analogous to many people's feelings about the unsought receipt of advertisements via fax, in which the recipient must pay for the paper consumed by the recipient's fax machine and the incoming telephone line is made unavailable for use by "legitimate" inbound fax transmissions. How these sentiments will evolve as the Internet is used more for commercial transactions remains to be seen.
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classified advertising. Since the newspapers have spent a number of years in the courts and in Congress litigating and lobbying to prevent telecommunications firms from providing electronic advertising, these pseudo-advertising Internet messages constitute a very permissive interpretation of rules governing what is considered "appropriate use" of a publicly funded electronic space. As the Internet is opened to more commercial firms, battles over the extent and nature of "appropriate" commercial content can be expected. Questions that policymakers will have to address include: What are legitimate expectations of compensation for posters or authors of messages that may be valuable to others? What facts and circumstances define a copyright infringement on a network? How will potential users identify what information is proprietary? How will individuals monitor and enforce their rights and responsibilities with respect to billing, collection, and payment? What advertising messages will be permitted under what circumstances? The definition of public domain in the area of commonality remains a problem. On a network, it is difficult to determine when something is in a private space and when something is in the public domain. Some observers warn that anything posted to a public mailing list on the Internet, or to a discussion forum or bulletin board on America OnLine or CompuServe, is a public statement that may be freely redistributed by other users. On the other hand, current copyright law does not require that the creator of a work explicitly insert a copyright notice in order to claim a copyright interest. So, upon viewing a statement on the Internet (for example) that does not contain a copyright notice, users are understandably uncertain about what rights they may be violating if they report the statement. It is arguably safer to assume that the writer is asserting a claim of copyright, and some "netiquette" rules direct the potential re-user to seek permission to report the message, but the legal murkiness remains. Related is the question of what is subject to the Freedom of Information Act and the various sunshine laws. This is particularly important for advisory groups that may be using electronic mail or real-time conferences to transact their business. When can users expect to be operating in a confidential electronic environment? When must they invite the journalist or the public in? When does the electronic bit stream become a public record? When is a real-time electronic conference a "public meeting"? The concern over "public" access and rights gives rise to an important definitional issue: the distinction between "public" and ''private" enterprises or activities. In practice, there are at least four ways in which the "public versus private" distinction is used to distinguish
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networking activities: (1) the funding sources of the activity (public versus private funding); (2) the content carried by the networking activity (public information versus information not in the public domain); (3) whether the network activity is open (public) or closed (private); and (4) the ownership of the network activity (public versus private control). Governance is particularly thorny. Society recognizes groups within it that are entitled to varying degrees of self-governance (e.g., condominium associations, corporations), although they are, of course, subject to a certain degree of external regulation as well. Today, electronic communities are making their own rules, applying them, and living by them. Under what circumstances can authorities of the government step in? (An important related question is what entity at what geographic level is best able to make and enforce what rules.) It is clear that government authorities can and do step in when actions taken within that community have harmful repercussions outside it or when members of the community request outside intervention, but the desirability of such intervention is subject to much argument. Questions over territorial jurisdiction are even more complex with global networks, because there are all sorts of complicated rules applicable to jurisdiction and extradition. Jurisdictional autonomy is a very rich area for lawyers and policymakers to sort out.12 Finally, what sanctions should apply when miscreant behavior occurs? Various states have been experimenting with different types of sanctions other than fines, jail, community service, and liability for damages. For example, as part of sentencing, judges have considerable latitude to impose restrictions on behavior, and so judges have proposed sentences (or conditions or parole or probation) that include the confiscation of the felon's computer equipment, prohibitions on the felon's use of computer equipment, and so on. Informal sanctions have also been used outside the judicial system. Complaints directed to an offending user by others in the community are a particularly effective sanction against offenders, especially when the offender receives hundreds of complaints. By shunning offenders, members of the community apply a form of excommunication, an exercise of the traditional way communities have protected 12 As one example, Ivan Orton, a prosecutor in Seattle, has taken 3 years to file suit against Richard Brandow, a Canadian who released what is called the peace virus into the "Mac world"—3 years just to get the case together. It is doubtful whether he will be able to win the case—and this case only involves Canada, a near neighbor with a not-too-dissimilar legal system. Imagine the complications when the parties involved are from nations with very dissimilar legal traditions!
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their cultural and legal integrity. When a near-infinite number of venues can be established, it is possible to organize a group in a way that moves the entire group to another venue, leaving the offender without other communicants. How to determine the appropriate, acceptable, and effective sanctions to control miscreant behavior is an area that still needs careful analysis and development. SUMMARY The current legal system has evolved out of many decades of experience and precedent in dealing with various media for human expression and behavior. Electronic networks are a relatively new medium, but their novelty should not blind us to the simple fact that they do exist within the current legal context and thus that the current legal regime will have an effect on them. At the same time, their novelty does introduce complications and difficulties into this legal regime. As electronic networks become more pervasive, a new legal regime will inevitably evolve, involving new law as well as new interpretations of current law. The first steps are being taken today in debates and arguments among users and providers—indeed, all participants in networked communities—as they try to sort out what values we share and what behavior they find acceptable. The ethical values that emerge from that process will be the foundation of a legal regime relevant to electronic networks that is designed to curb harmful behavior while preserving what is unique and distinctive about these new electronic communities.