Information Technology and the Law

In Manlius’s recent post, he notes the ineffectiveness of current internet filters and uses this as a rationale for not using them in libraries.

I agree about the premise that current internet filters have a lot of problems. I acknowledge that they do a lot of overblocking and underblocking, and that these problems will likely never go away. I also realize that it is very difficult to have an agreed upon definition of obscene, and for that definition to be accurately implemented in the filters.

One problem I have with the filtering technology is that no one really knows what they’re blocking and how that’s determined. In Justice Souter’s dissenting opinion, he mentions the

“indiscriminate behavior of current filtering mechanisms, which screen out material to an extent known only by the manufacturers of the blocking software, see 201 F. Supp. 2d, at 408 (‘The category lists maintained by the blocking programs are considered to be proprietary information, and hence are unavailable to customers or the general public for review, so that public libraries that select categories when implementing filtering software do not really know what they are blocking’).”

This represents a large problem. If there is to be a required suppression of the internet from library computers, the public deserves the right to know what is being suppressed, and why. I lack the experience in constitutional law to articulate just why this is the case, but it simply makes sense. If a public institution is blocking some of the internet, they should be blocking it for a reason, and there needs to be accountability. Without such accountability, libraries would be free to indiscriminately block certain material that they wished people not to see, material that could be useful to adult users or minors.

For example, the current government doesn’t seem to want anyone to know about birth control, favoring abstinence-only messages. While such an endorsement is arguably acceptable, (even if not the “right” message), it would be unacceptable for them to prevent the other side’s messages from being heard by adding those to the filter, a scenario not inconceivable.

I doubt that libraries would try such things, but it could certainly occur. What may be more worrying is the fact that libraries themselves don’t even know what is being blocked; only the software developers do. This to me seems even more dangerous. I don’t like the idea of a government sponsored entity being able to restrict speech and not divulge how; I like even less the idea of that entity paying a private organization to do so. Their motivations for what goes onto the filtered list can never be clear, and much less transparency is required compared to a government entity. The whole thing just seems bad.

The second point I’d like to make deals with what to do with filters, given these problems. I have conceded that they both underblock and overblock, and these problems cannot be fixed. I agree with Justice Souter regarding the problems with indiscriminate and unexplained blocking, though that problem can conceivably be fixed.

Assuming it was fixed, I disagree with the conclusion made by Manlius, that filters shouldn’t be used because of the overblocking/underblocking. I think that it may be in our best interests to shield children from a lot of the content on the internet, and the government has a compelling interest to do so. Even if filtering technology is incomplete, can’t one argue that it’s better than nothing? I don’t like the idea of censorship in general, and so I don’t necessarily like the idea of filtering the internet. But what alternatives are there? People have mentioned some alternatives; some seem alright, and some seem not useful. One that I have a problem with is putting minor’s internet within view of library staff. I don’t like the idea of having someone over children’s shoulder, giving them the impression that privacy is not a right they have and that “big brother” is always going to be watching. It seems far too Orwellian for me.

The other alternatives seem good enough, but I don’t see a reason why they couldn’t be implemented in conjunction with a filter. Just because they would accomplish some of the same goals doesn’t mean that a filter wouldn’t help the cause.

I don’t like the idea of filtering the internet, or of censorship in general. But it seems that there may be a compelling interest in doing so. This doesn’t mean that I believe the CIPA as it currently is written is constitutional and good policy. Even if the filter’s mechanisms were disclosed, I still have problems with CIPA: turning the “libraries may unblock . . . ” clause to “libraries must unblock . . . ” would help immensely. But I think there may be a use for internet filters in the long run, even if imperfect.

Regarding Eric Ma’s post, I would like to agree that implied consent is necessary to assume in the case of websites. It just doesn’t make sense for website owners to be allowed to sue for trespass when people go on their website. If there are extenuating circumstances (DOS attacks, other illegitimate use), other torts may apply, but as a general baseline rule, one must assume that there is implied consent for anyone to view the webpage.

Otherwise, people will be forced to be excessively careful about what websites they visit. No longer will people be able to casually browse the web, looking at whatever seems interesting. Instead, they will have to take great pains to ensure that they don’t go to the wrong website. That, or web browser creators will have to take great pains in order to ensure that their browsers conform to some standard that transmits information about what sites a specific user is allowed to view and which sites are prohibited. This is obviously an inefficient use of everyone’s time, especially considering the fact that most websites do not really need or want such protection.

Something else to consider is the fact that users do not always have control over what websites they visit. Imagine if one was committing a tort every time a website redirected them a prohibited website. The fact that websites can redirect people, links are often ambiguous, and even individual webpages often draw specific parts (images, etc.) from other websites, makes it very difficult for a user to always know to what website they are making requests.

One of the major strengths of the internet thus far has been its ability to adapt to the various technical requirements of users. The technology has been created to conform to what users need, and innovators have been free to do so. If implied consent to view websites is not assumed, a bad precedent is set. Those kinds of restrictions make it more and more difficult for people to make the kinds of technological advances we now take for granted.

Ultimately, those restrictions cause a sense of fear and uncertainty about technology, as opposed to the openness and sharing of information for which the internet has been designed. The internet has benefited from this sense of openness, and will continue to do so. Simple common sense tells us that when someone puts up a website, they know people will see it; that’s the reason they’re putting it up. If someone puts up a billboard, we don’t need to ask them if it’s alright if we look at it. We know that it’s up there for people to see.

When dealing with all the tort issues we’ve been talking about in class (trespass to real property, trespass to chattels, etc.), one thing I believe we should assume is that there is implied consent inherent in websites. This does not give people carte blanche to act however they please, hacking into websites or executing DOS attacks. This assumption merely states what should be fairly obvious: when someone creates a website, they grant consent for other members of the internet to view it.

Something needs to be done regarding internet domain name governance. I can’t say that the current problems have directly affected me in any harmful way thus far. However, there are plenty of examples in history of “benevolent dictatorships” with no accountability to speak of, no checks and balances, etc. Some do start out benevolent, making the right decisions, making fair decisions. But more often than not, as Lord Byron noted, their absolute power corrupts absolutely, and they wind up abusing their power.

As it stands now, ICANN has a complete monopoly over internet domain names. Though technically trivial to transfer domain name governance to one or more other bodies, it seems that to do so would be prohibitively difficult in terms of the politics and economics behind such an action. I can’t say for sure that I know what sorts of problems would result if the current situation continues. It seems unlikely that ICANN controls enough resources to effectively execute a plan for world domination. On the other hand, serious problems in domain name governance, especially concerning domain name dispute resolution, could definitely result from keeping ICANN in charge the way it currently is. No one knows for sure what those problems will be, but anytime a monopoly exists without any restraints, history has shown that some problems will surely arise.

The only safeguard that currently resides with ICANN is the fact that they currently have a contract with the Department of Commerce. Ostensibly, the DOC can force ICANN to change its ways, or remove its control of domain names altogether.

My opinion is that the problems with ICANN result from a few things. One, their board of directors is self selecting, with no responsibility, and it is not representative of those who its policies affect. Secondly, those directors also do not represent the kind of international diversity that the internet embodies. Lastly, the directors have no repercussions if their actions are immoral, illegal, etc.

What needs to be done is that the DOC needs to require the ICANN to change some of its policies. Its directors should be elected somehow. With responsibility to their electorate, they will be more likely to act in accordance with the general opinions of the electorate. Again, I’m not sure what the best method of elections would be, where boundaries would be drawn, how many districts to have, etc. But elections of some sort would surely help.

If something could be done to get individual countries to agree to this sort of arrangement, that would surely help things. An international treaty is definitely non-trivial to engineer, but certainly possible. One major problem with my proposed plan is that if the DOC turns ICANN loose and they do not respect their promises, it would be rather difficult to enforce them. Of course, if they violate terms of their corporate charter and do not hold elections the way they’re supposed to, they are violating the law, and can be tried under California or Federal law. However, this is much harder than if there is an administrative body above them with power to control them. Of course, right now, that body is the U.S. DOC, and the rest of the world will not likely take to kindly to having no power whatsoever. People have said this doesn’t matter, that it’s a U.S. technology, the U.S. should do what it wants, and they have a point. On the other hand, it behooves the U.S. to obtain the support of all the countries who deal with the internet. Otherwise, they have no incentive to assist the U.S. when dealing with internet matters outside U.S. jurisdiction (trademark law in other countries might not be the same, etc.).

All in all, this is not an easy topic to figure out, and no one solution seems exceedingly obvious. But there are a few principles that should govern the actions taken. We should recognize that the internet is currently and increasingly an international affair, and its governing body should represent that geographic diversity. We should recognize that people are more likely to act appropriately when they have an incentive to do so; that is, if people have to worry about being elected to their position, that will make them more likely to act in the way their electors desire. And we should recognize that keeping ICANN under the control of the U.S. government will not foster the kind of international support that we want to exist for the internet governing body (I realize that ICANN is by no means the authoritative governing body for all of the internet, but since the root domain name servers represent a crucial element at the top of the internet hierarchy, and control over those servers affects everyone on the internet, calling ICANN a “governing body” is not too far off the mark). Functioning under these principles will allow ICANN to grow into something that hopefully will be a sustainable, fair, efficient means of controlling domain names.

In class, we talked about what control web site creators should be able to exert on their sites. Should they be able to prevent people from visiting their site? Should they be given the right to sue anyone who makes an unauthorized visit? We have seen cases where entities have sued and won under the tort of “trespass to property.” While web site owners should definitely be afforded certain rights (rights that protect them from copyright violation, denial of service attacks, perhaps more), these rights are undoubtedly different enough from the rights afforded to property owners that “trespass to property” should not be considered a reasonable claim.

I think the answer is that they certainly should not be able to do that. There are many reasons for this. One has to do with the simple reality about the technical design of the internet. Additionally, one has to consider the ramifications of such an allowance. All in all, we should do what seems to result in the best outcome for society.

The design of the internet defines the interactions that occur when a visit to a website occurs: the browser submits a request, and the website responds with the requested information. This is not the same as the browser stepping onto physical property. It seems silly that I would have to make such an assertion, but apparently some people think the two are analogous enough that they should be governed by the same rules. Immediately after the request is answered, is the browser still “on the property” of the website? I’d say not. Is the website owner harmed from the browser having momentarily “visited” the “property?” Well, webservers are designed to serve webpages. I don’t see the harm done from the momentary “visit.”

If webpages are treated as real property, this could have a very chilling effect on the use of the internet as we know it. Would people still browse the web if they knew that one stray click could land them a lawsuit? Let’s say a website has the right to sue certain people who visit “page 2” of their website, since their home page has a notice that informs those people that they are not allowed to do so. What happens if someone links directly to page 2, and those prohibited visitors follow that link, never having seen the notice?

Yes, the terms relating to web sites are often the same as terms used to describe real property. The fact that the technology came fairly quickly meant that people needed new words to refer to it; many of those words related to real property, but they could just as easily have come from some other topic.

The result of treating websites as real property would surely be detrimental. The two phenomena are not similar enough to warrant similar treatment under the law. We as a society would best be served by creating new laws defining the principles by which the web will be treated, and common law can come in its time to fill in the gaps. This is what is already happening: copyright protection for websites, the Computer Fraud and Abuse Act, the DMCA (as flawed as it may be), the CAN-SPAM act, etc. I think this is the way it should be: carefully designed laws relating to internet technology, rather than trying to contort old regulations into correlating with brand new situations.

In his recent post, jprobst notices that the RIAA seems to be contradicting itself:

So the law allows the recording industry to go after the software creators because suing individuals is impractical and futile. Notwithstanding this, the RIAA has filed thousands of lawsuits against individuals.”

On another blog, Timothy K. Armstrong notices that in the MGM vs. Grokster oral arguments before the Supreme Court, when Justice Scalia asks about the potential hesitance inventors might exhibit if they had to consider all possible uses for their inventions, MGM’s responded interestingly:

“MGM’s answer to this was pretty unsatisfying. They said that at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping one’s own CD and storing it in the iPod. This was a very interesting point for them to make, not least because I would wager that there are a substantial number of people on MGM’s side of the case who don’t think that example is one bit legal. But they’ve now conceded the contrary in open court, so if they actually win this case they’ll be barred from challenging “ripping” in the future under the doctrine of judicial estoppel.”

From my meager research on the meaning of “judicial estoppel,” I gather that it prevents parties in court from arguing a point a certain way, then in later cases contradicting themselves.”

When I read these two comments, I wondered if there was an analogous principle to judicial estoppel that would govern a party’s actions instead of their arguments in court. If judicial estoppel prevents them from arguing based on a certain assumption then later arguing as if the assumption were false, should there be a rule that prohibits them from arguing based on some assumption and then acting as if the assumption is false? I don’t know of such a rule, but it seems that

It seems to me that something isn’t right if the RIAA argues a point in court, then acts entirely differently outside of court. Either suing individuals is impractical and futile, or it’s not; shouldn’t the RIAA have to pick one? If they’re suing individuals, there must be some reason for it, and if there’s some reason for it, then why are they arguing otherwise in court? Is it an example of exaggeration and/or deception, utilized solely for the purpose of winning the case? If so, is it misleading enough to be perjurous? Probably not, but something seems fishy about it.

I do realize that this issue is certainly not clear cut. Maybe they find it futile, but they are doing it anyways to show a good faith effort in protecting copyrights. Maybe they are trying to find ways to better sue individuals so that in the future, it’s not futile. And there are certainly instances where arguments are made or actions are taken based on certain assumptions, and those assumptions later turn out to be false; a party should not be penalized merely for being wrong about something, especially if it was a fact that was generally agreed upon.

But something about the RIAA’s position just seems wrong. It seems like they’re saying whatever they have to in order to get their way, and their argument changes based on who’s listening. Either way, the fact that they did make the argument that the iPod obviously had legitimate uses is an important one, I think; I would expect that they won’t be attacking any “Rip Mix Burn” anymore, or at least not with the same fervor as before. I guess, as usual, only time will tell.

Someone mentioned in class on Wednesday that one reason software developers started implementing EULA’s is that they thought to themselves “There have been situations in the past that could happen again; we want to shield ourselves from liability for them in the future.” I think this is a valid reason for EULA’s. Forcing consumers to agree to the terms in a EULA can protect a company from having to deal with frivolous lawsuits. People in America can and do sue for all sorts of things; having a clause in a EULA that exempts the software developer from certain liabilities can prove to be quite valuable. Users of the software are still free to sue the software developers, and if it is determined that the software developer was extremely negligent, the customer still has the chance at legal recourse, but hopefully the more frivolous lawsuits will be avoided.

On the other hand, I do not see the value in having corporations demand that consumer’s rights be given up in order to use their products. Reverse engineering is a right granted by Congress in their laws governing copyright. Consumers deserve the opportunity to exercise that right. When a software developer requires that in order to access its software, you give up your right to reverse engineer it, there is no opportunity for reverse engineering. Without agreeing to the EULA, it is illegal to access the software, since it violates their copyright, and after agreeing to the EULA, it is illegal to reverse engineer it because it violates the EULA (and at that point, the developer has waived their right to copyright protection, which of course has the effect of taking away the users right to copyright fair use). The fact that the EULA prevents consumers from ever exercising their right to fair use is evidence that the EULA should be considered an unconscionable contract. Yes, people are allowed to (and should be allowed to) in contracts waive certain rights if they so desire. However, it should not be the case that anyone can prevent others from ever exercising those rights, which is what the Blizzard EULA did.

This is why it would be a good idea for Congress to pass a law prohibiting the waiver of certain rights in EULA’s. I’m not familiar enough with contract law to know if the best way to do that is to declare that all contracts in violation of that tenet should be considered void, or if it should be illegal to write EULA’s in violation, or if only the specific clauses in violation should be considered void, etc. But, there should be a way for consumer’s to exercise their rights.

(There could be other provisions in such a law as well, including a requirement on the readability and/or length of EULA’s. While it would be bad to encourage an “I didn’t read the contract” defense for contract breaches, the people who are buying TurboTax just want to do their tax returns, and the people buying WarCraft just want to play the game, and it is unfair to require common citizens to be well versed in all areas of contract law and expect them to be able to read a complex 50-page legalese document. This is especially true when there’s no way to know before buying the software what the EULA will contain.)

I agree with many of the things Archer says in his recent post, “Paying the Songwriters.” For example, he says that he is “in favor of the introduction of bogus files imitating infringing works and full-fledged suing of any copyright infringers on the P2P networks.” I agree that both actions are the prerogative of the. Introducing bogus files violates no law that I know of, and suing copyright infringers is a right afforded them by the copyright system adopted by Congress. While I agree that both these are within their rights, though, I’m not so sure that either of these is a great plan. In the same way that the recording industry, in their Supreme Court brief, argues that “Respondents thus erode not only the public perception of the value of sound recordings, musical compositions, and motion pictures, but respect for the very foundations of copyright law in the digital age,” I would argue that by suing their customers, the RIAA fosters an attitude of disdain for themselves, and encourages the same erosion they accuse the respondents of causing. So, though I agree that the RIAA has the “right” to sue infringers, I wouldn’t say I’m “in favor” of it.

The main point of Archer’s post that I take issue with, though, is his self admitted “unthinkable” proposal to pay songwriters with a tax on the internet. I see many of the positives of such a system, and I concede that the tax may indeed work if it was implemented. For example, I agree that the recording industry introduces high costs and inefficiencies into some of the music distribution market; though they are helpful in promoting and supporting artists, and are responsible for the distribution of CD’s, there is an obvious demand for quick and simple transmission of digital music, even if that means the quality is bad. The recording industry, so far, has refused to meet that demand, and much of their actions have tried to squelch that demand instead of using it (I have discussed this in my previous posts as well).

Additionally, I agree that the system could possibly work. There are enough users of the internet that a tax on internet usage would provide sufficient funds to songwriters (or singers, for that matter). However, the likelihood of such a system being successful is fairly low, in my opinion. First of all, if you tax internet usage and collect a large sum of money, how then do you determine to whom it is distributed? Based on the “quality” of the music? Obviously impossible. Based on the number of downloads? Too hard to measure (since there are new P2P systems coming out all the time, and many downloads occur through other means), and too easily manipulated. I don’t see a fair, efficient means of distribution.

Even if there was an efficient means of distribution, though, I would still not support such a scheme. I agree with half of Archer’s analogy; it is true that many markets in the U.S. are currently taxed: phone service, airplane tickets, etc. However, in each of those cases, the money taken in taxes is used for the public good. The money taken in airplane ticket taxes is used to fund the TSA, providing air safety to those people paying the taxes. Even in situations when that sort of relationship is not the case (for example, property taxes being used for public schools, even though many people paying the property taxes do not have school-age children or choose to send their children to private school), the money is used for the public good. The money pays salaries of teachers, or government officials, etc. I disagree with the notion that a tax should be levied on internet usage to pay musicians (whether it pays singers, songwriters, producers, or anyone else involved); it seems to violate some basic tenets of the way the government works. I find it difficult to articulate my thoughts exactly, but something about it “just feels wrong.”

One might bring up welfare or Social Security (or, I’m sure, a number of other cases I’m not aware of) as examples of taxes being paid directly to private parties, but in both of these cases, a public good is being served: redistribution of the wealth of the country to those who need it. I would expect that a similar logic (that is, a public good being served) would justify the cases I’m not aware of and/or do not have time to mention. In the case of welfare or Social Security, people are kept off the streets. I think both of these qualify as valid redistributions of wealth, and valid uses of taxes for public good. I don’t think any of us should be responsible for keeping Britney Spears (or her “song” writers) off the streets. If people are willing to pay for her CD’s (or, if the RIAA gets their act together, her MP3’s), that’s fine with me (though I personally refuse to understand why anyone would . . . ), but, supporting her career with a tax on the internet seems generally seems to me like a bad decision.