Anne Wells Branscomb - Published Books
(click here to view a full list of Anne's publications)
Note: The following is a draft of the first chapter by Anne Wells Branscomb of Emerging Law on the Electronic Frontier (The Hampton Press Communication Series — Communications and the Law), edited by Anne Branscomb and Susan Drucker to be published by Hampton Press, 23 Broadway, suite 208, Cresskill, NJ 07626.
Synopsis
The purpose of this collection of provocative essays, which first appeared online in two special issues of the Journal of Computer-Mediated Communication (vol 2, issues 1 and 2), is to present special challenges to established law in computer-mediated communication in a globally interconnected Networld. These include: advertising practices, accountability for abusive behavior, anonymity, online gambling casinos, due process, pornographic images and sadistic writing, copyright infringement, free speech, privacy, and jurisdiction. The year 1996 marks a turning point when many governments discovered the Internet and computer-mediated communication as potential threats to their sovereignty. Legislators and law enforcement officials around the world started trying to tame the activists on this allegedly "lawless frontier" so that behavior therein would conform to the laws of geophysical jurisdictions. Net users (often called "netizens") are, not surprisingly, unwilling to concede jurisdiction over their own cyberspaces and cybercommunities. Yet the confrontation, on the appropriateness of the Communications Decency Act of 1996, for example, took place in a courtroom on U.S. soil, although much of the discussion about its applicability to cyberspace behavior is taking place online. The hope of those who have offered contributions to this volume is that their thoughts will encourage and facilitate computer-mediated communication rather than curb its uses. Certainly, there will be many inputs into the emerging law on the electronic frontier — a new Netlaw for the future. It will not be completely sui generis (as if springing from the head of Zeus) but a blend of existing local laws, customary law as practiced by netizens, and new methods of dealing with strange new occurrences and opportunities that arise only in computer-mediated cybercommunities.
In 1995, the World Wide Web burst into view on the journalistic scene like a rocket ship headed for outer space. Reporters surfed the Web (while their editors wondered whether they were really working) and wrote volumes about the wonders of "the net" and this new electronic frontier. Meanwhile many of their readers shook their heads with doubt that this strange new world of graphics, text, and sound emanating from computers would change their lives in the manner in which the commentators suggested that it might. Was this the real "information revolution," long predicted but slow to materialize, or just another ho-hum passing phase in the evolution of communications technology from smoke signals to satellites?
No one knew the answer, but almost everyone tested the waters for fear of being left behind in the dust bins of an outmoded age. Corporations were quick to allocate funds to hire young gurus skilled in the intricacies of hypertext markup language (HTML) to design "home pages" that would attract the new computer literati to these new virtual estates in what was called, for lack of a better description, cyberspace. There is not just one cyberspace but many cyberspaces, populated by and already regulated by the many computer users who have come to spend time there. The pioneers of these spaces are rapidly becoming settlers and establishing proprietary rights within the cyberspaces of the Networld that they are using.
In 1995 Java became the hottest topic — not the coffee but a new, easy-to-deploy, computer language that allegedly anyone could master. It promised to provide "applets," or little applications, that could be obtained directly from powerful server computers rather than requiring a new upgraded program one needs to install on one's own personal computer. This promise, if fulfilled, would facilitate a "user friendly" computing environment — a utopia thought by most, except the most sophisticated computer gurus, to be just beyond almost everyone's grasp.
In that case anyone could become a publisher, a producer, or an information provider as well as an information user. In other words, the media moguls who controlled much of the world's commerce, news, politics, and entertainment, would be challenged by an endless number of smaller players offering products within these new computer-mediated spaces — a veritable marketplace of information. Those in the know rushed to post personal home pages; others held back, not from lack of competence but from an awareness that a certain amount of autonomy was being lost in this rush to bare all about oneself to the electronically sophisticated world.
Lawyers, who for the most part had been reluctantly drawn out of their fax-based, print-prone world, decided that they, too, needed to learn how to navigate the new electronic backwoods and multi-media malls. After all, herein lived the litigants of tomorrow. There were two schools of thought among the lawyers rushing helter-skelter into the new Networld of computer-mediated communication. One group assumed that whatever skills they had acquired in the real world would serve them well in the virtual world. The other group saw a new electronic frontier free from real-world restrictions, where their jurisprudential skills would be challenged to tame cyberspaces, whether or not the natives wanted to be tamed.
The computer literati — the console cowboys of the electronic frontier — preferred an anarchical but benign electronic environment, in which everyone would behave more or less civilly because it was the right and proper way to use the new capabilities efficiently. However, experienced users (called "netizens") who came to inhabit these new cyberspaces sought to regularize civilized behavior in this new Networld by establishing their own "netiquette." These new rules of etiquette were posted in FAQs (frequently asked questions) by the various discussion groups that popped up spontaneously on the Usenet group — more than 10,000 by 1996 — and countless more in self-generated groups called Listservs. These were days of delirium for both journalists and lawyers who saw their futures inextricably entwined in computer-mediated communication as a tool and as a working environment.
The History of the Internet
The Internet evolved from the ARPAnet, established by the Department of Defense in 1968, as a device for load sharing among the large computers serving research facilities around the country. Its design specifications called for providing secure communications in the advent of an outbreak of war, so that no centralized node would be vulnerable to destroying the entire network. As a consequence, the worldwide interconnection of networks, now known as the Internet, is a decentralized conglomeration of many different networks. Although it was, and remains, a system built by and for computer sophisticates rather than for widespread public use, it has come to be perceived as the potential backbone of worldwide interconnection for digital data.
The first general interest publication to spotlight cyberspace was Scientific American which came out with a special issue on computer networking in September 1991. In 1993 the Internet made its debut as a top priority news story, first in Gary Trudeau's "Doonesbury," then in a New Yorker cartoon, which pictured two dogs at their personal computer, one saying to the other,"On the Internet no one knows you're a dog!" By December 7, 1993, Time carried an article about the Internet entitled, "First Nation in Cyberspace," and the Wall Street Journal published Internet addresses for Santa Claus (santa@north.pole.org or elves@north.pole.org). By Christmas 1995, even the Pope had decided to post his Christmas message on the Internet.
What all this publicity translated to was a spurt of activity by users signing up for access to the Internet through various gateways, commercial as well as nonprofit. The Internet, expanding at 20% per month according to some estimates, became "the place to be." Access to it was reported to be established for 37 million computer owners in the United States and Canada by late 1995. Subscribers to commercial information service providers increased from 5 million in winter of 1994 to 12 million by June 1995. America Online (AOL), with some 5.5 million subscribers in 1996, became the most successful of the ISPs, fast outstripping its competitors. CompuServe lagged with 4.7 million, and Prodigy with fewer than an estimated million subscribers was looking for a buyer. The Microsoft Network, a late starter, claimed to have signed up a million subscribers in less than a year. Genie and Delphi were far behind. The News Corporation sold Delphi with only 50,000 subscribers back to its former owners in 1996.
Who could resist the lure of this globally interconnected Networld? By spring 1996 there were, for example, two dozen individuals linking their Web pages to the Concord, Massachusetts, home page. Unsophisticated users joined the computer literati, transforming a little known and less noticed electronic exchange of information by academics into an electronic agora of many commercial netmalls. According to one fanciful extrapolation, based upon the 1995 rate of newcomers to ISPs, the entire world population could be online by the turn of the century.
By May 1996, 89 percent of the domain names on the Internet were commercial, and by June 1997 the choice top level domain .com was populated by more than a million entities. The pioneers had begun to fear that what they had thought was their very own anarchical domain was being invaded by business interests that did not share their vision of the future of computer-mediated communication networks.
The History of Legal Concerns
Lawyers were not the least or last to sign up for access to the Internet. Despite a singular lack of interest in the early days of online communication, by 1995 law firms were flocking to establish Web pages. As they saw the Internet developing into a full-service, computer-mediated communications system, replicating activities of the real world, lawyers began to see "cyberspace" and "cybercommerce" beckon with promises of new business tasks. Some also saw the development of "cyberlaw" in "cybercommunities" as not only a daunting task but also as a challenging opportunity.
What is developing, as Benjamin Wittes noticed in his online discussion group is a new system of governance:
Suppose you wanted to witness the birth and development of a legal system. You would need a large, complex social system that lies outside of all other legal authorities. Moreover, you would need that system somehow to accelerate the seemingly millennial progress of legal development, so you could witness more than a mere moment of the process. The hypothetical system might seem like a social scientist's fantasy, but it actually exists. It's called the Internet.
This flurry of interest is something new. Back in the early seventies, activity among lawyers representing large multinational corporations was modest. Lawyers were apprehensive that the data privacy initiatives in the Europe might inhibit internal "transborder data flows" of these octopus-like companies whose arms reached into many legal jurisdictions. Special conferences were organized. A special newsletter was started to keep lawyers, policy makers, and corporate executives informed. Alarms were sounded to protect the U.S. multinationals from excessive regulatory actions that might interfere with corporate autonomy over computerization of company activities.
Many large special-purpose global networks were formed to serve airlines (SITA) and banks (SWIFT), and large corporations. IBM, Hewlett Packard, and Citibank were among the first to organize their own global interconnections. A group of lawyers within the Science and Technology Section of the American Bar Association, who represented such companies, or were interested in doing so, organized a study group to teach themselves and their peers what global telecommunications and computers were all about. They hoped to serve the growing number of companies involved in this activity and to lead the U.S. efforts in coping with policy initiatives. Such pioneering work explored the many ways in which global communications networks were serving the needs of management, research, education, politics.
Of minor interest was the Internet, primarily serving the research communities of large universities, compared with the visibly significant dedicated networks of large multinationals. In the late 1970s IBM supported the establishment of BITNET as a peer network among universities around the world. The BITNET was a noncommercial venture, however, which was eventually absorbed into the Internet.
All global networks initially were largely dependent upon mainframes accessed by professionals specially trained to manage these big computers and their work flows. This reliance upon mainframes preceded the advent of the personal computer — Apple made its debut in the latter half of the 1970s and the IBM-PC in the early '80s. In the days when a bunch of nerdie kids experimented with puny home-made Altairs, or the commercially assembled Commodore PET or Tandy's TRS-80, no one anticipated that use of personal computers would someday bypass these powerful computers with a widely distributed and highly decentralized system interconnecting thousands of servers and multi-millions of individuals computer users.
Indeed, the Internet had evolved unnoticed even by the mass media. The first controversy to attract general public interest came in early November 1988, when a young computer science student at Cornell tested his wings with a computer program that would, according to his side of the story, demonstrate the vulnerabilities of the Internet. Unfortunately, the student was not quite as skilled as he had hoped nor was the "back door" as unknown as he thought. Robert Morris's "worm" ate up so much space on the Internet that the entire system, of mainly educational networked communities, was brought to a halt within twenty-four hours, and the outside world discovered the Internet.
Concerns About Rogue Behavior and Security
Thus, the first legal concerns on the electronic frontier were focused on security. What constitutes criminal behavior? Should computer files be considered "property" for the purposes of "theft" in existing laws? Could the essential elements of traditional "takings" occur with intangible bits and bytes of data that were "stolen" by copying but which left the original owners in possession of what was already theirs?
By the late 1980s most of the states had something called computer laws in place. Congress had enacted a federal statute making it a felony to interfere with computers connected through interstate commerce. Although Morris and his attorney argued that he had no intention to bring down the government-supported network, he was, nonetheless, convicted under this statute, the court holding that mal intent was not a necessary finding, only the intent to insert the virus that caused the damage. The miscreant behavior of Morris having attracted the interest of the federal agents as well as state law enforcement officers, abusive behavior online attracted a spate of activity seeking to curb it.
One of the more widely publicized incidents was the distribution over the Internet of Apple Computer source code, by the NuPromutheus League, as a protest against the company's policy of maintaining a closed and proprietary architecture. After having been independently approached by federal investigators seeking to track down the culprits, Mitch Kapor and John Perry Barlow decided that the agents hadn't the foggiest notion of what they were up against and were perhaps overstepping the bounds of propriety in their eagerness to locate the perpetrators. As a consequence, Kapor and Barlow, joined forces to establish an organization to fight for the preservation of basic constitutional protection and civil rights in cyberspace.
Thus the Electronic Frontier Foundation (hereafter EFF) was formed with the stated mission to assist in defending the accused in cases where it appeared that law enforcement agents were overstepping their authority and infringing constitutionally guaranteed rights. EFF also intended to lobby for sensible policies adapted to the unique qualities of computer uses and networking behavior. The EFF efforts were spectacularly successful in chastising federal agents, for overstepping constitutional bounds in their raid on the premises of a publisher of books, magazines, and computer games, whose computers were seized in March of 1990 bringing his business to an abrupt halt. Nonetheless, federal prosecutors were more successful in gaining conviction of members of a group called the Legion of Doom, some of whose members pleaded guilty of stealing the BellSouth software used for the 911 emergency telephone system.
Mitch Kapor was also a member of the Computer Sciences and Telecommunication Board (CSTB) of the National Research Council (NRC). In this capacity he was instrumental in stimulating the CSTB to study the rights and responsibilities of users of online communications. This study resulted in two rather remarkable conferences in November 1992 and February 1993 to which an assortment of lawyers, technical experts, and entrepreneurs of bulletin boards, community freenets, and commercial information providers were invited to explore mutual interests in seeing networking develop in a rational, responsible, and legally manageable manner. Although the CSTB report illuminated many of the issues perplexing users — freedom of speech, electronic vandalism, intellectual property interests, and privacy — it did not come out with any recommendations for resolution of the conflicts among various competing interests.
Paralleling the CSTB study, the National Conference of Lawyers and Scientists (NCLS), a professional group of appointees of the American Bar Association and the American Association for the Advancement of Science organized its own study of similar issues. The group is mandated to seek the resolution of issues that overlap interests of these two professions and where computer network abuses and uses would seem logically to reside. NCLS brought together yet a different (although some of the same participants) group interested in exploring legal, technical, and ethical aspects of computer networking, which met at the National Academy of Sciences, Beckman Center, in Irvine, California, December 17-19, 1993, and at Wye Plantation of the Aspen Institute in Queenstown, Maryland, October 7-9, 1994.
No publication came out of these conferences, but a short report on the December 1993 conference was posted on the Web. Many op-ed pieces written by participants in the October 1994 conference, as well as a consultant's summary of the conference discussions, appear on the Web. The op-ed pieces are organized around three themes: (1) Defining and Attributing Accountability/Liability for the Content of Networked Communications; (2) Defining What is "Public" and What is "Private" on Computer Networks, and (3) Determining the kinds of ethical, legal, and administrative frameworks that should be constructed for the global information infrastructure. The NCLS also fell short of developing consensus on the direction the law should take in part because participants represented divergent, often conflicting concerns. Nonetheless, the NCLS study produced a wealth of material, as did the CSTB study for those seeking to determine how best to deal with problems arising in computer-mediated communication.
By the early 1990s even a few lawyers were hanging up shingles as "cyberlawyers," and more than a few were hanging out on the "cyberia" conference (its name was changed from "cyberlaw" when a lawyer claimed to have trademarked that word for the name of his news column). Both Counsel Connect and Westlaw, online legal services, set up special forums for lawyers to exchange musings about the future of Netlaw. Ethan Katsh, author of Law in a Digital World, has written on the manner in which the practice of law is being changed through the availability of computer-mediated communication.
Newsletters and conferences and online journals began spreading like wildfire in the early 1990s. Lyonette Louis-Jacques compiled the most authoritative and comprehensive list of legal sites on the Internet. Trotter Hardy, the moderator and instigator of the online Cyberia Listserv legal discussion, plus an earlier invited session on how lawyers were accommodating online networking into their legal practices, digested much of the online chat into an article entitled "The Proper Legal Regime for Cyberspace." A title a bit presumptuous, perhaps, but Hardy provided a sound summary of the relevant legal issues.
Other lawyers, such as Lance Rose and Jonathan Wallace, authored an aid to managers of bulletin board systems in 1992, and two young Texas lawyers ostentatiously entitled their 1994 work Cyberspace and the Law. Henry Perritt, Jr., an early pioneer in the law of databases, organized a conference of like-minded lawyers in 1993 and published one of the most ambitious and comprehensive legal tomes in early 1996. The National Law Journal organized special conferences for lawyers interested in online services in fall 1994 and again in 1995. The Fall Internet World '95 featured a special session on "The Law of Cyberspace: An Overview." By spring 1996 law schools all over the country were organizing seminars for lawyers interested in obtaining credit for continuing legal education by pursuing interests in "the law of cyberspace." Computer-mediated communication had become a hot subject for lawyers throughout the United States as their clients rushed to explore opportunities on the World Wide Web.
Why Is Law Important?
Despite the stated desire of many pioneer netizens to keep the lawyers and laws out of their cyberspaces, this is not always possible. Very simply, law and lawyers are important, because when something goes wrong aggrieved parties turn to lawyers for help. To determine what they can do to obtain redress for their clients’ grievances, lawyers look to existing law for precedent. U.S. citizens are very litigious, so the courts have vast experience sorting out demands for justice. The judges themselves turn to existing law to determine how to seek fair and equitable solutions to problems presented in court. Policy analysts always use existing precedents to see what works and what doesn't. Users too rely upon the existing law, because they carry their expectations from one environment to another. Netizens frustrated with online procedures often look to the law for guidance or to seek redress, if the grievance is substantial, in the courts.
Expectations of Privacy in Email Traffic
A good example of this carry over from one environment to another occurs with corporate email. Because we expect to have privacy in the U.S. Postal Service, we expect it in online email. Indeed, the Electronic Communications Privacy Act was passed specifically to apply privacy protection to traffic in public messaging systems. Because we expect such privacy in private email traffic on public systems, we expect it also in corporate email, even though there is no legal basis for such an expectation. Indeed, cases addressing this issue have confirmed that corporations may dictate how corporate resources should be used.
Thoughtful corporations and nonprofit institutions are well advised to have a clear policy so that their employees may understand what expectations are reasonable. Even if employees understand that their email may be monitored and should be restricted to business use, might they not understandably be confused if they are permitted access to corporate servers from home using their own computers? "Surfing the Web" for personally useful information or sending email messages to friends might seem a reasonable "perq" that incurs little incremental cost and is perhaps no more reprehensible than taking home a company pencil or making a few copies of personal letters on the corporate copier.
Interestingly enough, some lawyers are themselves confused about the existing state of the law and advise corporate clients that corporate email may come under the Electronic Communications Privacy Act even though it was the intent of the Act only to cover messages in transit within public messaging systems. Legislation has been proposed to require companies to notify employees of their practices, but to date no legal requirement that corporations respect the privacy of corporate email has been imposed despite confusion when corporate employees use their company LANs from home computers or use the corporate LAN to access the Internet. Indeed, many corporations do honor a privacy code for internal email messages just as most companies do not monitor voice telephonic traffic unless these messages relate to a business function such as making airline reservations.
If there is confusion concerning the applicability of privacy protocols within corporate email, either by its lawyers or its employees, the advice that privacy should be honored will become a self-fulfilling prophecy. As the expectations of users rise, the foundations of what may become customary law will be erected.
Metaphors Available from Existing Law
Another way in which the expectations of users is important is in the use of metaphors to describe behavior online. Why are such metaphors important? Because they serve as a map for sorting out what is similar and what is different when confronting a new problem. Litigants as well as lawyers, judges, juries, legislators and policy analysts all look to the familiar in attempting to understand the unfamiliar. They seek to cope with the unknown through known circumstances and prior experiences.
The following models reflect only a few metaphors that might be applied to computer-mediated communication: (1) Publishers, such as newspapers, as Prodigy has been characterized; (2) Distributors, such as newsstands and bookstores, as CompuServe was characterized; (3) Libraries and Information Providers such as LEXIS, Dialog, and Medlars; (4) Private, Corporate, Non-profit Networks; (5) Personal and Club Bulletin Boards; (6) Common Carriers —- traditionally government-operated postal services and today such telecommunications services as Deutsche Telecomm, Cable & Wireless, Regional Bell Operating Companies (RBOCs), MCI, AT&T, and Sprint; (7) Mixed or Hybrid Systems, such as cable television; (8) Cooperatives, such as EduNet, NearNet, FarNet; (9) Trusteeship -— Broadcasters licensed to operate "in the public interest" as trustees for publicly owned airwaves; (10) Marketplaces — the real world malls are replicated in aggregations of Information Providers such as found in the commercial malls on the World Wide Web or the search engines such as Yahoo, Lycos, or Alta Vista; (11) Information Utilities, like the electric or gas companies —- community systems, such as the Santa Monica Public Information Network and the Cleveland FreeNet.
Clearly, much existing law is associated with each metaphor. Enterprising lawyers enjoy a rich heritage of legal precedents to apply to activities in computer-mediated communications. To attempt to write omnibus laws that would apply equitably across all of the Networld would be frustrating at best and destructive at worst. The online practices are as rich and varied as the existing metaphors and some would not fit comfortably into any of the available legal boundaries.
Existing legal models are designed to enforce laws within a given technology, e.g., broadcast or cable, telephone or mail. When the message traffic is mixed in a digital bit stream it becomes more difficult to sort out which kind of legal model applies, so we are never entirely sure which one we are drawing upon. On the computer monitor we find mixed text, video, data, and even new types of texts called "hypertext" and new conglomerated forms called "multimedia." Indeed, some bulletin boards purport to be private communications among a discrete group of friends. Yet they may deliver email far and wide. At first blush they may resemble a personal bulletin board, like the one on your refrigerator, so you may say the long arm of the law should not touch them at all. But when these private systems operators start delivering mail, they enter a legal domain where public interest in protecting the mail may come into play. Private email between two parties or even a multiple distribution to a few chosen friends is unlike the distribution into a public discussion group to hundreds or even thousands of readers and participants, many of whom are unknown to the poster of the message. Indeed, even to call this email is a misnomer and confusing to the legal mind. Some more rational analysis must be devised to comprehend, much less attempt to regulate, online message traffic.
Defamatory Messages Posted in Public Discussion Groups
Perhaps the most important legal models for the electronic environment are publisher and distributor, because two of the most successful commercial vendors have been found by courts to have opted in different directions. Prodigy was found to have claimed the legal status of a publisher of all electronic traffic over which it exerts editorial control, with the right, indeed, the responsibility to exert control over all of the message traffic that can be categorized as "published." Prodigy also while maintaining guidelines to be observed by contributors to bulletin boards operates under a strictly "hands off" policy with respect to what is considered to be private electronic mail. CompuServe claims to be a distributor only of most of the message traffic. By this assertion it disavows the ability to monitor message traffic and attempts to absolve itself of any responsibility for doing so once management of the service has been subcontracted to a third party.
The two litigated cases on the legal responsibility for message content, both involving alleged defamation online, have gone in opposite directions. CompuServe was vindicated in its assertion that it had no duty to monitor or take any action to curb defamatory information if it had no notice of its existence. Prodigy, on the other hand, was found to have assumed the responsibilities of a publisher and to be liable for content. Even with a later agreement of the parties to dismiss the case because the holding would jeopardize the viability of ISPs, the judge refused to withdraw his opinion. He felt it was an important precedent, imposing liability upon information providers. What is most needed from a legal standpoint is to sort out what may distinguish computer-mediated communication and to devise solutions to defamatory behavior that might be workable online.
The General Counsels of both CompuServe and America Online have stated publicly that the only viable solution is to send the allegedly defamed party an invitation to come online and defend its reputation vigorously in the same space where the alleged defamatory material was posted. This constitutes a right of reply long rejected within the publishing world as an infringement on the First Amendment rights of publishers. Clifford Stoll posits the supposition that the reason that there have not been more defamation cases filed, considering the amount of abusive language that passes back and forth in the "flame wars," is that computer-mediated communication offers an ideal system for self-redemption:
I suspect that the main reason why we see so few law suits is that the network provides an ideal system for rebuttal. Whatever someone says against you online, you can reply to within hours, with the same distribution, and to the same audience.
The area of defamation and libel may be promising for experimentation with new legal norms. The electronic environment is interactive, synchronous, or asynchronous at the user's choice. It conquers both time and space, permitting users to connect or leave messages when and as they like. It ignores the territorial jurisdiction in which communication takes place, except in the initial stages. Spectrum space must be allocated for the purpose of wireless communications and licensing authority must be obtained for carriers unless regulatory authority is waived. For example, in the United States, value added networks have been permitted to flourish with little interference. The law may once again come to bear when the victims of miscreant behavior seek established criminal justice authorities to curb illegal behavior or turn to the courts to redress grievances caused by negligence or breach of contract.
How Should Public and Private Domains of Information Be Delineated?
Mixed and confusing user expectations exist concerning what is public domain information and what is proprietary information in computer-mediated communication. The nature of the traffic and its legal status needs to be clarified. Niva Elkin-Koren addresses the complications arising from misunderstandings about public and private transmissions as viewed under the legal rubric of copyright and proposes some possible remedies. There is also an extensive law review article on the subject of public forums on the information superhighway.
What appears to be emerging online is an electronic agora, a concept put forward by Murray Turoff, who argues that what is new and different is electronic replication of the old Greek marketplace. The electronic agora is a complete marketplace of information, where some information is shared, some sold, and some merely transmitted. The perceived danger is that advertising content and advertisers will come to dominate the electronic landscape, overshadowing or outperforming Web pages posted by individuals and nonprofit organizations. Long-time users of the Internet fear that advertising content may fill up their email boxes. Many authors have addressed this concern, and opinions are strong on both sides of the issue. However, after years of spurning any government involvement in governance of the Internet, some netizens have come to realize that they need government regulation to help curb unsolicited advertising, called "spamming" by the digirati. Two bills have been introduced into the U.S. Congress. One by Representative Chris Smith, Rep. N.J., bans email advertising outright, unless the recipient has a consensual relationship with the sender, because "it violates basic principles of free trade by shifting the costs of advertising from sender to recipient." The other by Senator Frank Murkowski, Rep., Alaska, merely requires that all spammers label their messages as advertisements so that customers and their service providers may block receipt if they so desire. Indeed, the courts have been sympathetic to Internet Service Providers (ISPs) seeking to block unsolicited advertisers from "spamming their subscribers." Litigated cases confirm that ISPs are not prohibited by the First Amendment from blocking unsolicited advertising which overwhelm their servers and place undue burdens upon their subscribers. The First Amendment prohibits such blocking only by governmental entities and may be considered trespass upon private property.
It is not clear what the outcome will be. However, there must be some accommodation for areas in the electronic environment that should be maintained as private spaces. These would be comparable to a private home or club where friends and peers may share private and confidential communications.
Should posting to a controlled-access bulletin board be "publication"? Should not posting to public conferences (for example, Usenet groups), into which many users contribute comments, constitute "publication" into a "public domain." That seems to be the assumption of many users. Yet the copyright law as applied under the Berne convention presumes that any original message is issued under the copyright protection of the originator, whether overtly stated or not, Thus, the reality of what people expect, or may think is proper and desirable, does not coincide with how current law applies.
Applicability of Copyright Principles
The cases that have been litigated about the applicability of copyright principles to computer-mediated communication have been few and somewhat inconsistent. In the first two cases, the courts held that there was a copyright infringement definitely when the sysop encouraged the uploading of copyrighted images and even without the knowledge of the operator of a bulletin board system, scienter not being a necessary component of copyright infringement. In a third case, however, involving a student at MIT who operated a bulletin board on the Institute's mainframe into which and out of which copyrighted software was both uploaded and downloaded, the court declined to "pour new wine into old" bottles holding that a wire fraud conviction was inappropriate for the, nevertheless, reprehensible behavior of the young student. Although LaMacchia was well aware of the purpose for which the bulletin board he maintained was being used (exchanging an alleged million dollars worth of commercial software without compensation to the companies), he did not profit personally from the activities, a necessary component of a criminal copyright infringement.
The most interesting copyright case to date, however, is that of the Church of Scientology against an individual who established a discussion group in which he criticized the writings of the Church's leader. The Church sued the systems operator on which his discussion took place as well as Netcom, the Internet access provider that connected the electronic bit stream to the Internet. The case involves not only what constitutes copyrighted material but what is fair use, whether copyright conflicts with First Amendment rights, and what might be the liability of third party network managers or carriers transmitting the bit stream to the public. Amy Weaver tackles these questions in her analysis of the Scientology case.
Sanctions Developed and Applied by Netizens and Their Wizards and Gurus
Beyond the agora is the electronic democracy, in which many can speak to many simultaneously and have the transcript recorded and made available to all participants. Especially interesting are the many ways netizens have devised their own rules of behavior and how they go about enforcing them. To some, such sanctions as "flame wars" or technical "fixes" such as "cancelbots" or "bozo files," to screen out unwelcome intruders or objectionable messages are discouraging lapses into the frontier mentality of bygone days. Certainly, the anonymity of some transactions in computer-mediated communication seems to remove a layer of civility that accompanies face-to-face and telephonic encounters and even postal traffic. Anonymity represents a serious and controversial problem, addressed by Gia Lee in article in this issue. Lee makes a modest proposal arguing for an ultimate right to reveal identities where abuses are documented but permitting a level of pseudonymity to be the norm for electronic environments where such lack of identity is therapeutic, desirable, or necessary. However, others have argued quite persuasively that "flaming", for example, represents a genuinely successful effort to establish community norms in cybercommunities. Such divergence of opinion stimulates genuine questions of governance, especially the role of elected representatives and how they are to participate in the system.
In cybercommunities peer participation and consensus building are mediated through iterative discussion. Participants jealously guard their rights to determine the rules under which they will operate. How elected representatives participate in this process remains unclear, although many candidates for election in 1996 were prepared to believe they must have Web pages, even if they were not sure what to do with them.
Technical Imperatives that Cry Out for Innovative Legal Solutions
The use of cache files technically constitutes a copyright infringement. Yet it is essential for downloading large graphical files from the Internet. Because the bandwidth to most residences will tolerate only very slow speeds for downloading messages from the Internet, software browsers such as Netscape provide a cache file to store messages for review so that users may move back and forth among the pages that they have accessed without having to wait for each image and file to retransit the telecommunications lines every time each may be viewed during a session. The image or text in the cache file, nonetheless, really constitutes a "fixed copy" of the material downloaded within the meaning of the copyright statute. Arguably it is received under an implied license or constitutes "fair use" since the alternative would be intolerable to users. But what is to be considered "fair use" at the moment is merely what a court decides after extended litigation.
The deployment of cache files is unlikely to be litigated as copyright infringement, because it serves the interests of both providers and users of information on the Web. It offers a good example of one way customary law develops, by becoming a part of the artifact of daily living, an accepted practice that finds its way into the lore of the land.
Controversies Over Domain Names
One of the more controversial questions is who can obtain and maintain a name on the Web. If your name is Ronald McDonald and you want a Web page to reflect your name, you have a problem with the food chain that has trademarked the use of your name. Indeed, two of the earliest cases of conflict over use of a domain name involved the McDonalds' restaurant chain and the MTV music channel, two well known and legally protected trademarked names in the real world. Domain names represent a new kind of intellectual property with considerable marketable value.
Trademarked names are protected by law in most developed nations around the globe. However, domain names were assigned on a first come, first serve basis without regard to registered trademarks until companies which held registered trademarks became irate. For example, the domain name "business.com" was sold by Business Systems International for $150,000 to an unidentified bidder in Texas. Those interested in the subject can find multiple sites on the Web documenting domain name disputes.
The National Science Foundation, which originally managed allocation of domain names assigned them on a first come, first served basis. Network Solutions, Inc. (NSI), the private company to which NSF contracted out the responsibility for assigning domain names, started requiring the requesting party to certify that there was no outstanding conflict with a trademarked name, when companies with identical trademarks started complaining. If both parties claimed the name, NSI would withdraw use of the challenged domain name from use by either until the dispute was settled. NSI assumed that there is an imposed contract to provide a proper mechanism for adjudicating disputes. Its procedures permitted an owner of a federally registered trademark to place the domain name on hold during the pendency of litigation without having to demonstrate any of the requirements of a preliminary injunction, such as irreparable harm. Other complaints against NSI were that it had monopolistic control over allocation of top level domain names, even though there existed 88 other entities assigning domain names within country coded areas such as ".au" for Australia or ".uk" for the United Kingdom or ".fr" for France. However, NSI seemed to have a stranglehold on the most desirable ".com" allocations.
Consequently in 1996 an international ad hoc committee was set up to investigate and recommend a new system expanding the top level domain name system by seven new areas (.firm, .store, .web, .arts, . rec, .info, and .nom), selecting by lottery some 28 sites to register domain names. All registries would be monitored by a central Council of Registrars to be based in Switzerland. Although there were considerable questions raised about the authority of the ad hoc committee to make such recommendations, by May 1997, it appeared that international bodies that might have claimed jurisdiction such as the International Telecommunication Union and the World Intellectual Property Organization were willing to support the Internet Society and other informal voluntary organizations promulgating the new rules.
Property Rights in Information
At a round table discussion in Washington, D.C., on October 4, 1995, cyberspace experts met in the First Amendment room of the National Press Club to discuss "The Internet and Property Rights: What's Mine Is Yours?" The discussion centered on the unique legal problems of intellectual property rights on the Networld. David Post, Georgetown law professor and cofounder of the Cyberspace Law Institute equated the Internet with a "a giant, worldwide copying machine" — where online theft of a book, article or manuscript occurs too rapidly for the damaged party to prevent incalculable damage before the perpetrator can be brought into court. Such a situation occurred in France when the full manuscript of a book by Mitterrand's doctor, disclosing the former President's long fight against cancer, was posted online after the book had been withdrawn by the publisher as an invasion of Mitterrand's privacy.
David Johnson, the other cofounder of the Institute, proposed a scheme for Virtual Magistrates, who might be empowered to resolve such conflicts involving intellectual property rights rapidly — without resorting to litigation. The online magistrates might arbitrate disputes in the prelitigation stage, thus relieving overburdened courts and expediting resolution of the problem. Access providers or system operators, such as America Online, Prodigy, and CompuServe, might turn to the arbitrators for fast rulings on alleged copyright violations.
This proposal has been developed into a full-fledged system going online in March 1996. Virtual Magistrates, if users and providers decide to use them, can handle all manner of online disputes other than the potential copyright infringements. They intend to provide rapid resolution of disputes involving users of online systems, especially those who claim to be wrongfully affected by postings, and to expedite decisions concerning the appropriate action to be taken by systems operators.
In 1991, the U.S. Supreme Court clarified the outer boundaries of the copyright law, holding explicitly that facts may not be copyrighted regardless of the amount of labor expended in collecting them. The implication is that no proprietary claims may be made concerning personal attributes or behavior that may be considered to be factual in nature. The "sweat of the brow" is not to be considered in granting protection, nor is the value to the person about which the facts are concerned. The decision may create tremendous turmoil for computer-mediated communication, because facts are now what most concern users of online services — telephone numbers, names and addresses, health records, and physical movements, or even sites "surfed" on the World Wide Web. These are called transaction generated information -— data about what you purchase or where you travel. "Data mining" by companies seeking to know more about individuals has become a major growth industry.
The legal system currently does not protect a right to personal autonomy over information about oneself except in very few instances, such as credit histories and viewing of videotapes rented from video stores or programs viewed on cable television. In Europe and Canada there exists a long tradition of protection of personal data dating back several decades to concerns about the computerization of society and big governments intruding upon the lives of its citizens. Today, it is not so much the intrusion of big government agencies (although the paranoia has not disappeared) but the intrusiveness of commercial interests in computer-mediated communication that creates concern. Many people are apprehensive about the ability of computers to extract information about them from a variety of sources and to compile valuable dossiers of information which they offer for sale to an unknown and unauthorized multiplicity of users. Recent polls show that 63 percent of those questioned feel that "technology has almost gotten out of control."
Ellen Kirsh and David Phillips of America Online, offer a comprehensive history of concerns about privacy and what online services are doing to quell the fears of their subscribers. A primary source of collected information about privacy issues is maintained by the Electronic Privacy Information Center and can be accessed from the Web.
Cookies and Cookie Cutters
This concern about autonomy over personal information circulating on the Web was elevated to a frenzy of activity when users discovered a new software device called a "cookie" which can be deployed by Web sites visited to track the activities of individual visitors. Although the purported purpose of such software was intended to assist the site owners to serve their customers better by giving more of what they were really interested in, privacy advocates were given a powerful weapon with which to seek the help of regulators in controlling access to personal information without the knowledge and permission of the subject.
The major conflict is between the desirability or utility of technological solutions over legal solutions. Almost as soon as "cookies" were discovered, cybersmiths developed "cookie cutters" designed to prevent cookies from being attached to one’s software or to permit one to remove cookies that they deemed undesirable. Two technical solutions were offered, one by Pretty Good Privacy, that blocked all cookies and the other by a partnership between Microsoft Network and Netscape that offered a technological tool through which users might discover if a cookie was being offered, plus the opportunity to block it, or to tailor what personal information might be available to it. Clearly the latter software was more advertiser friendly, but both offered more personal autonomy over information collected. In June 1997, the Federal Trade Commission held hearings on concerns from both corporate entities with an interest in furthering the collection of user data and from privacy groups interested in offering more user control.
Obscenity and Indecency Online
Many "cyberspaces" are segmented into separate channels of message use, where different communities of interested users congregate and discuss all manner of topics from the most sophisticated scientific research to the most erotic "cybersex" encounters. The Usenet conferences on the Internet in spring 1996 numbered more than 10,000 discussion groups. A fair sprinkling include images that may be quite objectionable to many viewers. Whether children might be exposed to harmful images and sexually explicit stories became a subject of much concern as the public interest in the Internet accelerated.
The year 1996 marked a milestone in the history of the Internet when local authorities and national governments discovered behavior that they thought transgressed local laws. Many nations, e.g., Germany, Saudi Arabia, and China took steps either to block access to the Internet altogether or to crack down on behavior they thought objectionable. The U.S. Congress passed legislation purporting to curb not only obscenity (content already illegal and unprotected by the First Amendment of the Constitution) but also "indecency." The term, always difficult to define, had been upheld for broadcast media but was immediately challenged as an unconstitutional restriction on freedom of speech as well as unworkable and undesirable for online communications. The American Civil Liberties Union led a host of individuals and groups protecting the new law as an infringement of first amendment rights, and an expedited three judge court enjoined enforcement of the act and subsequently found the offending portions unconstitutional. The Supreme Court of the United States in June 1997 confirmed that the Networld was unlike radio or television and deserved the highest First Amendment protection afforded books and newspapers. The chapter by Bilstad explores the conflict between the First Amendment and a right to uncensored sexually explicit writing on the "alt.sex.stories" versus the right of law enforcement authorities to protect against threats to real targets leading to real violence. He also explores the implications of a conviction of a bulletin board operator for allegedly obscene images (according to Bible belt local standards) downloaded by one of his subscribers out of state. The chapter by Mashima and Hirose examines the different methods employed by Japanese and Americans to address the problem of objectionable materials in computer mediation channels that might present a threat to the health of children.
Consumer Protection
A major area of concern has become that of consumer protection from fraudulent and predatory actions especially from sources beyond the jurisdiction of the local law enforcement agencies. When the miscreant and law enforcement are in the same jurisdiction, adequate means to address problems are available. For example such an action took place in Massachusetts, when Attorney General, Scott Harshbarger, obtained an injunction against a Waltham woman who posted on the World Wide Web an herbal remedy purported to cure patients of AIDS. A different set of problems arises when the source lies offshore. Professor Goldring has addressed the underlying jurisdictional challenges in his chapter. Problems related to off-shore gambling casinos is addressed in the chapter by Janower.
The Fraud Watch projected underwritten by a grant from MasterCard received more than 20,000 complaints in its first few months of operation. The web site continues to receive complaints of scams especially involving solicitations to purchase word processing or graphics software which is overpriced or doesn’t work at all.
The U.S. Federal Trade Commission has taken an active role in trying to uncover and curb consumer fraud. Extensive hearings were held by the FTC in June 1996 with consumer advocates and concerned companies invited to express their interests. It was hoped that solutions to consumer concerns could be accommodated by industry solutions rather than government regulation.
Cyberjurisdiction, Due Process, and Virtual Law
As users of these electronic networks and "netizens" of these new cybercommunities in the Networld, we circle the globe, passing through many jurisdictions, potentially contravening local laws, possibly without apparent knowledge of local custom and lacking shame or remorse for potential wrongdoing. Local authorities usually lack the capability to catch the offenders who merely transgress local authorities online and are far beyond the geographical jurisdiction within which they can catch and punish such offenders.
Several articles in this special issue address questions of governance and record how the "netizens" are establishing netlaw in their respective domains. Tamir Maltz, an Australian lawyer, reviews activities within cybercommunities and shows how netizens invent their own sanctions and establish their own rules of behavior. He takes the position that cyberlaw is fast developing within these cybercommunities. Other lawyers believe the time has not yet come to devise new cyberspace laws when many existing laws still fit well. In their view geographical jurisdictions will continue to apply their own laws, regardless of the wishes of the "gurus" and "wizards" who control the software and devise Networdly sanctions to curb aberrant behavior online. They have faith, and perhaps also some hope, that the Internet Law and Technology Forum, organized in early 1996, will provide innovative recommendations for the development of law in the Networld. In her chapter Debora Spar, a Professor at the Harvard University Business School, looks to commercial interests coming online and speculates that cybercommerce will not flourish until a more rational set of rules and regulations exists to govern transactions occurring within the Networld. Legal scholars vary in their enthusiasm for a separate jurisdiction for cyberspace issues.
Jennifer Mnookin explores what she calls "Virtually Law in the LambaMoo," a multi-user dungeon, where multiple users are able to converse in the same space interactively. David Johnson has offered a proposal for online due process, suggesting a system of fair dealing among global cybernauts comparable to the elaborate protection guaranteed constitutionally in the United States. The challenge is to develop procedures adapted to the online environment that might be less cumbersome, more efficient and faster than the dinosaur pace of the real world courts.
A number of other lawyers and scholars have dealt with the issue of cyberjurisdiction. This was one of the first issues addressed in 1994 in the Listserv organized by Trotter Hardy entitled "A New Jurisdiction for Cyberspace." Several law review articles have been dedicated to the question of how a duly constituted legal regime for the Networld might look, if one conceded that some differences within the electronic environment do not have real world counterparts.
Some Observations and Recommendations
To answer the question posed by the title of this article, computer-mediated communication offers both familiar territory and lawless frontiers. The challenge is to sort out the differences between the two. Cyberspace is not one distinct place but many cyberspaces with any number of models from the real world that are replicated in computer-mediated communication. In addition, the new Networld offers new cybercommunities in which netizens are endeavoring to establish cyber ethics, cyber rules, and, indeed, cyber laws. The Networld, where everybody can potentially be in more or less constant communication with everyone else, attracts new behavior and new ways of thinking.
Perhaps the most serious error is to attempt to apply a simple set of laws to all online communications. Budding cyberlawyers must learn how to design a legal system for the Networld that is appropriate to the technology now available, rather than restricting online communication to the confines of laws as they exist for other media. Applying an omnibus law across the entire Networld would curtail some activities that are either inherent in the technological nature of the Networld or would prohibit activities that really ought to be permitted to continue.
There are at least five different categories of legal activity in the Networld. First, there are cyberspaces and cyberactivities in such cyberspaces that are solely the result of the new medium. For example, virtual rape and virtual murder are simply not the same thing as rape or murder in the real world. It would be ridiculous to suggest that the sanctions imposed by sovereign nations should apply to such miscreant behavior online. It is entirely appropriate for users to subject their peers to sanctions that they agree are appropriate to curb such behavior that they agree is abhorrent.
Second, there are areas of activities that will be controlled solely by the law enforcement officers of the jurisdictions in which the miscreant behavior occurs. Pedophilia and pedophiles will be apprehended by law enforcement officers in local jurisdictions where they can be identified and located regardless of any sanctions asserted by netizens.
Third, there are activities that replicate those of the real world but have far greater impact globally with less opportunity for local authorities to assert jurisdiction. Offshore gambling casinos, consumer fraud, and assignment of Internet domain names are prime examples. All three have real world counterparts, but the local laws regulating these areas will be effective only in the jurisdictions in which the proscribed action occurs.
Fourth, there are areas of online activity that may be unique to the online traffic but from which there are also real world impacts. Distributing computer viruses, use of anonymous remailers, or "web wacking" are examples. In order to curb such behavior, new laws need to be devised in order to determine what is unacceptable behavior. Harmonization of the laws of other nations needs to be achieved in order to have any efficacy outside of the local jurisdiction in which the law is enacted. To achieve a certain amount of uniformity it is not necessary that all nations or all ISPs be included. There will always be some holdouts. To establish a global norm will be an essential element in curbing miscreant behavior online.
Fifth, there exist new technological capabilities that may render old world legal solutions irrelevant or undesirable. Cache files, defamation, and the presumption of copyrights in public discussion groups jump to mind. The electronic bitstream is not so limited as newsprint so that a right of reply in the same cyberspace where the alleged defamation took place may be more appropriate, certainly speedier, and less costly than litigation. Given the slow speed of current telecommunications channels, cache files are a simple solution to avoid wasteful waiting at the computer screen to download images already accessed during the session online. It is also more efficient for online ISPs to download from popular sites so that their users might receive them more expeditiously. A presumption that messages posted into public discussions without clear notice of proprietary intention should be considered public domain would appear to comport more closely to the expectations of users as well as promote the use of computer-mediated communication for political and public uses.
The law and lawyers confront new challenges in the Networld. They have an ethical responsibility, if not a compensable legal mandate, to use their legal talents to serve the political, social, and educational needs of users as well as those of commercial advertisers and entertainment providers. As they seek to serve their clients, budding cyberlawyers, as well as their luddite colleagues, need to keep in mind that they are architects of a legal system that must serve the larger interests of global communities and sovereign nations. The opportunity to be innovative is enormous; the need to act responsibly and creatively is profound.
ENDNOTES
1. "Cyberspace" refers to the electronic environment in which users relay their messages and establish electronic linkages or cybercommunities. I prefer the terms "electronic environments and networked communities." However, the press has popularized "cyberspace" and it has come to be accepted by a large number of users. Cyberspace in the singular is inaccurate. There are numerous cyberspaces. "Cyberspace" was popularized by William Gibson in his classic science fiction novel, Neuromancer, in 1984. The term was first used by Gibson in a short story, "BurningChrome," published in Omni, vol.4, no. 10, p.72, 1982. What Gibson meant by "cyberspace" was more like what we now call "virtual reality," the convergence of sight, sound, and other senses in electronic experiences, which would replicate reality.
2. For more about "netiquette," see Virginia Shea, NETiquette (San Francisco: Albion Books, 1994).
3. Ironically, when this author suggested to her husband that the article she had written for this issue on legal issues be entitled "Common Law for Cyberspace," her husband rebuked her saying the word was too "nerdy" for such a sophisticated magazine. Although the editors changed the name of my article to "Common Law for the Electronic Frontier," they nevertheless splashed across the cover that this issue was all about "cyberspace." That special issue, Vol. 265, No. 3, September 1991, was re-issued in 1994.
4. July 1993.
5. Philip Elmer-DeWitt, "First Nation in Cyberspace," Time, December 6, 1993, p. 62.
6. Teri Agins, "And Santa's Reindeer Will Take The Information Superhighway," Wall Street Journal, Dec. 16, 1993, B-1, c.1..
7. URL is http://www.vatican.va
8. The Commercenet/ Nielsen Internet Demographics Survey, Executive Summary, Oct. 30, 1995.
9. Times Mirror Center for The People and The Press, Technology in the American Household: Americans Going Online...Explosive Growth, Uncertain Destinations, News Release, Oct. 16, 1995. Clearly, some of these subscribers are duplications, For example, the author of this article subscribes to several online services. This is a common practice for many long-time users in order to preserve redundancy, to take advantage of different technical capabilities, or to sort different message streams.
10. Reuters, BC cycle, May 7, 1996, NEXIS. AOL was reported to be signing up 66 per cent of the new subscribers to online services, "Total online households in the U.S. to reach 35 million by the year 2000," Information Access Company, M2 Communications, M2 Presswire, April 30, 1966, NEXIS.
11. Reuters, BC cycle, May 7, 1996, NEXIS.
12. Denise Caruso, "Microsoft Morphs Into a Media Company," Wired, June 1996 pp.188, 190; This, however, represents only 5 per cent of the 20 million purchasers of Windows 95 with which the MSN software was included.
13. Communications Daily, vol.16, no. 87, p. 5.
14.TIG Internet Domain-Name Data Base
URL: http://home.tig.com/cgi-bin/genobobject/domaindb.
15. Will Rodger, "Prices For Domain Names Surge," Interactive Week, June 16, 1997, p 61.
16. Peter Kollock and Marc Smith, eds., Communities in Cyberspace, (Berkeley, CA: University of California Press, 1996); see also, Mike Godwin, Cyber Rights: Free Speech and Society in the Digital Era (New York, NY: Random House 1996).
17. B. Wittes, "Witnessing the Birth of a Legal System", Feb. 27 1995 The Connecticut Law Tribune, Supplement, Special Section: Technology; p. 8A.
18. Transnational Data and Communications Report.
19. Many large corporations now have intra corporate networks (called LANs or Intranets) for electronic mail and access to outside information resources. Corporate email is growing at about 18 per cent per year. Such industry-wide networks now abound, serving florists, hotel reservations, and sundry other purposes. This figure was reported by David Whitten of the Gartner Group, of Stamford, Connecticut in "Electronic Mail: What Hath Samuel Morse Wrought!" Beyond Computing, November/December 1993, p. 24-26. Hughes Aircraft, for example, has 45,000 workstations interconnected throughout its decentralized organization.
20. Anne W. Branscomb, editor, Toward A Law of Global Communications Networks (New York and London: Longman 1984). For a more recent academic analysis of policy issues online, see Linda Harasim, editor, Global Networks: (Cambridge, MA: MIT Press, 1993).
21. The federal statute in effect at the time of the incident and under which Morris was convicted was Title 18 U.S.C. Section 1030 (a) (5). For a full discussion of the "hacker" mentality, rogue programs and existing laws, see, Anne W. Branscomb, "Rogue Computer Programs and Computer Rogues: Tailoring the Punishment to Fit the Crime," 16 Rutgers Computer Technology and Law Journal 1-16, Vol. 1, 1990. See also Edward A. Cavazos and Gavino Morin, Cyberspace and the Law: Your Rights and Duties in the On-line World (Cambridge, MA: MIT Press, 1994) Appendixes, G, H, & I.
22. U.S. v. Robert Tappan Morris, 928 F. 2d /504 (2nd Cir. 1991).
23. Barlow and Kapor recounted their experiences at a seminar at Harvard University Law School on April l, 1996; they were also published in "Crimes and Puzzlement," Whole Earth Review. A good review of this entire period can be found in Bruce Sterling, The Hacker Crackdown.
24. URL: http://www.eff.org/
25. Steve Jackson Games, Inc. v. U.S. Secret Service, 36 3d 457 (5th Cir. 1994); see also, Mike Godwin, "The Feds and the Net: Closing the Culture Gap," Internet World, May 1994.
26. U.S. v. Robert J. Riggs, et al., 2 CCH Computer Cases Paragraph 46,389 (N. D. 1990).
27. Computer Science and Telecommunications Board, National Research Council, Rights and Responsibilities of Participants in Networked Communities, (Washington, D.C.: National Academy Press, 1994). URL — http://www.aaas.org/spp.confo/aaasproj.htm
28. URL — http://www.aaas.org/spp/opeds/op-ed.htm. The NCLS is planning a follow-up study of Anonymity on the Internet, according to a communication from a staff member at the AAAS, April 17, 1996.
29. "Envisioning a Global Information Infrastructure, The Ethical, Legal, and Technological Aspects of Network Use and Abuse." Some of the material in this article is taken from an unpublished presentation prepared by this author as a background paper for the first conference in December 1993.
30. At least three specialized print publications are dedicated to cyberspace issues, one offered by Leader Publications (email: ran@ljx.com); Internet Newsletter: Legal & Business Practices, one by Glasser Legal Works (legalwks@aol.com) called The Cyberspace Lawyer and one by GoAhead Publications entitled The Internet Lawyer. Online legal journals were set up by the University of Richmond Law School, Richmond Journal of Law & Technology URL: http://www.urich.edu/~jolt, the William and Mary Law School in Williamsburg, Journal of Online Law URL: http//www.wm.edu/law/publications/jol; and the Michigan Telecommunications & Technology Journal URL: http://www.umich.edu/~mttlr.
31.Available by contacting mailer@lawlib.slu.edu
or gopher://lawnext.uchicago.edu/hh/.web/lists.html
32. I. Trotter Hardy, "The Proper Legal Regime for 'Cyberspace,'" 55 U. Pitt. L. Rev. 993 (1994).
33. Syslaw(LOL Productions 1992).
34. Cavazos and Morin, note 21, infra.
35. See, e.g., Henry H. Perritt, "Dispute Resolution in Electronic Network Communities," 38 Vill. L. Rev. 349 (1993).
36. Henry H. Perritt, Jr., Law and the Information Superhighway (New York, NY: John Wiley 1996).
37. See, e.g., Business & Legal Aspects of the Internet and Online Services, Readings For Conference held on September 14-15, 1995.
38. See, e.g., Seventh Annual Advanced Computer Law Seminar, Computer and Cyberspace Law, sponsored by the University of Dayton School of Law, June 14, 1996, Dayton, Ohio.
39. See, e.g., Bob Berger,"The Circuit Rider," Netguide, September 1995, p. 10-12, quoting John Perry Barlow, "...the law itself may actually go away." John Perry Barlow's "Declaration of Independence of Cyberspace" can be found at URL: http://www.eff.org/~barlow.
40. Alana Shoars v. Epson America, Inc. No.SWC112749 (Los Angeles Superior Court 1990) and Flanagan v. Epson America, Inc., No. BC007036 (Los Angeles Superior Court 1990).
41. See, e.g., Internet Commerce 1995, Gordon & Glickson, P.C., Barry D. Weiss, "Implementing Sound Corporate Internet Policies," p.4-6 and Diana J.P. McKenzie, "Doing Business in Cyberspace: How to Minimize The Legal Costs of Doing Business on the Information Superhighway," p. 15-16.
42. For a law review article on this subject, see, e.g., David R. Johnson and Kevin Marks, "Mapping Electronic Data Communications Onto Existing Legal Metaphors: Should We Let Our Conscience (and Our Contracts) Be Our Guide?" 38 Vill. L. Rev. 487 (1993).
43. Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep.(BNA)1794 (N.Y. Sup. Ct. 1995).
44. Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991).
45. Peter H. Lewis, "For an Apology Firm Drops Suit Against Prodigy," New York Times, October 25, 1994, p. D1.
46.Comp "No argument in Stratton Oakmont," 8 Computer Law Strategist 2 (December 1995).
47. Miami Herald v. Tornillo, 418 U.S. 241 (1974).
48. Clifford Stoll, Silicon Snake Oil: Second Thoughts on the Information Highway 220 (New York: Doubleday/Anchor, 1995); see also Mike Godwin, "Internet Law: Is the Provider Responsible?" Internet World, Nov./Dec. 1993.
49. David J. Goldstone, "The Public Forum Doctrine in the Age of the Information Superhighway," 46 Hastings L. J. 335 (January 1995).
50. These views were expressed in an unpublished paper prepared for a workshop on the Rights and Responsibilities of Participants in Networked Communities, sponsored by the Computer Sciences and Telecommunications Board of the National Research Council, November 5-6, 1992, in Washington, D.C.
51. See, e.g., unpublished manuscript of James Beniger, Conference on Public Space held at the Annenberg School for Communication of the University of Pennsylvania, Philadelphia, PA, March 1-4, 1995. See also, James Gleick, "Hall of Mirrors," New York Times Magazine, May 7, 1996, sec. 6, p. 32: "For Internet old-timers the lesson is: There goes the neighborhood: Is cyberspace really descending to the level of any old baseball stadium — or worse, television?"
52. David Donnelly, for example, offers suggestions for greater user control over email boxes and more respect for what should be considered a very private electronic space, http://www.usc.edu/dept/annenberg/vol2/issue1. See also http://www.cauce.org, the site of the Coalition Against Unsolicited Commercial E-mail.
53. Hiawatha Bray, "Cutting Off Spam," Boston Globe, May 29, 1997, p. C1.
54. Will Rodger, "Congress Mulls Bill to Can Spam," Interactive Week, p. 7, May 26, 1997.
55. Cyber Promotions, Inc. v. America Online, America Online v. Cyber Promotions, Inc., 948 F. Supp. 456, 1996 U.S. Dist. LEXIS 17771, 25 Media L. Rep. 1144 (E. D. Pa. 1996).
56. CompuServe Incorporated v. Cyber Promotions, Inc. and Sanford Wallace Case No.
C1-96-1070, 1997 U.S. Dist. LEXIS 1997 25 Media L. Rep. 1545 (E. D. Ohio 1997); see also
David Sobel, "Spam, Spam, Spam, and Spam," The Net, p. 16, February 97,
and URL:
http://www.epic.org/staff/sobel/net/9702.html.
57. Sega Enterprises, Ltd. v. Maphia, 857 F. Supp. 679 (N. D. Cal. 1994).
58. Playboy v. Frena, 839 F. Supp. 1552 (M. D. Fla 1993).
59. U. S. v. LaMacchia, 871 F. Supp. 555 (D. Mass 1994).
60. Religious Technology Center v. NetCom Online Communications Services, Inc., No. 95-20091 (N.D. Cal. Nov. 21, 1995).
61. For legal articles on the subject of online anonymity see, e.g. A. Michael Froomkin, "Flood Control on the Information Ocean: Living With Anonymity, Digital Cash, and Distributed Databases" Pitt. J.L. & Com., (1996) and Anne W. Branscomb, "Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces,"104 Yale L. J. 1639 (May 1995).
62. See, e.g., V. Franco, R. Piirto, H.-Y. Hu, B. V. Lewenstein, "Anatomy of a Flame: Conflict and Community Building on the Internet," IEEE Technology and Society Magazine (Summer 1995); see also Mike Godwin, "ASCII Is Too Intimate," Wired, p. 69, April 1994.
63. David G. Post, "Copyright Law on the Internet: The Special Problem of Caching and Copyright Protection." Draft dispatched by email Sept. 1, 1995.
64. Will Rodger, "Prices For Domain Names Surge," Interactive Week, June 16, 1997, p 61.
65. URL: http://www.rs.internic.net/domain-info/internic-domain-4.html; http://www.domain-name.org/support.htm; http://www.law.georgetown.edu/lc/internic/domain1/html. There are also a number of legal articles on the subject. Also see, e.g. Michael Scott, "The Battle for Domain Names: Applying Trademark Law in Cyberspace,"1 Cyberspace Lawyer 6 (April 1996); James W. Morando and Christian H. Nadan, "Can Trademark Law Regulate the Race to Claim Internet Domain Names?" 13 The Computer Lawyer 10 (February 1996).
66. http://www.law.georgetown.edu/lc/internic/prob1.html#problem
67. http://www.law.georgetown.edu/lc/internic/introd1.html
68. Mike Snider, "Room for more names on Internet," USA Today, May 2, 1997, p. 2B.
69. URL: http://vmag/.law.vill.edu:8080/.
70. Feist v. Rural Telephone, 499 U.S. 340 (1991).
71. For a fuller discussion of these issues, see, Anne W. Branscomb, Who Owns Information? (New York, NY: Basic Books 1994).
72. See, e.g., Bruce Horowitz, "Marketers tap data we once called our own," USA Today, December 19, 1995, p. 1A: "Suppose everything you bought was monitored. Very closely. So closely that the grocer knows that your dog prefers canned food to dry. Or that you recently switched from roll-on deodorant to spray. So closely that the hotel you stayed at last week knows what your favorite candy bar is and how many Kleenex boxes you want in your room — even though no one asked. Or that the last time you signed onto the Internet, someone could have watched what you did, what you said or what you bought, and then shared the information with a curious marketer who wanted to know...It has gotten so out of hand, some experts say, that the right to privacy has all but disappeared, sacrificed on the altar of customer service and corporate profits."
73. Equifax-Harris Mid-Decade Consumer Privacy Survey 5 (New York, NY: Louis Harris & Associates 1995).
74. URL: http://www.epic.org/privacy_resources_faq.html; there is also a privacy forum on the Web at URL: http://www.vortex.com/privacy.htm.
75. Wendy Leibowitz, "Spilling Your Cookies on the ‘Net" A Big, Silly Food Fight on Privacy," The National Law Journal, June 23, 1997, B7.
76. Will Rodger, "FTC Summit To Kick Off Privacy Programs," Interactive Week, June 9, 1997. The FTC site is http://www.ftc.gov/bcp/privacy2/index.html.
77. Not everyone is as enthusiastic about the Internet as some of its most ardent proponents. See, for example, "Internot [sic]," The New York Times Magazine, Dec. 19, 1993, p. 18. "Yes, C-sex exists. It's like phone sex, except you have to keep typing. The sad truth is that your friend the Net troller spent last night in front of a monitor just as you did. Except while you were watching the Duke deck the bad guys, he was plowing through acres of 'uupsi alt. internet-.services:3258 comp.org.eff.talk: 14065.' Odds are you had more fun."
78. In Germany authorities ordered CompuServe to shut some sites offering images that contravened German law. Although CompuServe first complied, the outcry from users in other countries was so great that it eventually restored access to its subscribers. China sought to restrict access to the Internet to a small number of gateways that could be monitored for objectionable traffic, and Saudi Arabia only offered a couple of gateways to the Internet.
79. Communications Decency Act of 1996.
80. Full information concerning the court action can be found at the following locations on the Web: http://www.epic.org/free_speech/bills/censorship/lawsuit/; http://www.eff.org/pub/censorship/Internet_censorship/; http://www.eff.org/pub/legal/cases/EFFACLU_v_DoJ/; http://www.cdt.org/; See also for news articles from the New York Times http://www.nytimes.com
81. American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996).
82. Reno v. American Civil Liberties Union, No. 96-511, "Excerpts from Ruling on Internet: Statute Abridges Freedom of Speech," New York Times, June 27, 1997, p. A20. The majority opinion is available on the Web, URL: www.ljx.com/censor/.
85. Oberding and Norderhaug, "A Separate Jurisdiction for Cyberspace" URL: http://www.usc.edu/dept/annenberg/vol2/issue1.
86. See, e.g., David R. Johnson and David G. Post, "Law and Borders: The Rise of Law in Cyberspace," Stan. L. Rev. (1996).
87. David R. Johnson & David G. Post, "And How Shall the Net Be Governed?", draft 9/5/96 URL: http://www.cli.org/emdraft.html.
88. See, e.g., David G. Post, "Anarchy, State, and the Internet: An Essay on Law-Making in Cyberspace," 1995 J. Online L. art. 3; M. Ethan Katsh, "Cybertime, Cyberspace, and Cyberlaw," 1995 J. Online L. art 1.
89. "Web wacking" is going into a Web site and sucking out all of the software used to maintain the site and installing it on your own hard drive.
