Information Technology and the Law

I feel some need to sum up what I have observed this semester, and find Dan Burk’s comments in “Jurisdiction in a World without Borders” especially appropriate:

As humankind enters the 21st century…the advent of global computer networks has rendered geographic boundaries increasingly porous and ephemeral…

As the community of Internet users grows increasingly diverse, and the range of on-line interaction expands, disputes of every kind may be expected to occur…federal legislature has begun paying some attention to the network, and state regulators seem equally anxious to leave their mark on the burgeoning field of “cyberlaw”…

Of course, even without the enactment of new laws or regulations, there are already on the books plenty of laws that states might apply to the Internet…

By contrast, the Attorney General of Florida, has opined that because of the novel nature of the Net, forays into on-line enforcement of current law would be premature.

The wisdom of the Florida position becomes apparent when the nature of the Internet is carefully considered. The Internet extends beyond the boundaries of any of the states, and the effects of state regulation will likewise spill over state borders. Such regulatory leakage implicates constitutional doctrines designed to preserve both the sovereignty of the individual states and the coherence of the United States as a whole. The prospect of states applying haphazard and uncoordinated multi-jurisdictional regulation to the Internet’s seamless electronic web raises profound questions regarding the continued growth and usefulness of this medium. And, given the international nature of the network, even centralized federal attempts at regulation raise grave questions regarding international sovereignty and jurisdiction.

Though Burk largely intended to address jurisdiction in his remarks, they apply well to some of the “thornier” issues that we have raised this semester. As diverse as these issues appear they share one central tenet: namely, they all stem from a failure to recognize the “novel nature of the Net.”

For example, Burk cites federal legislation which seeks to “leave [its] mark on cyberlaw.” Certainly no one would argue that the Federal government does not have a legitimate interest in setting uniform internet legislation. Yet, as Burk alludes to, some of this legislation fails to situate itself within the context of the very thing it seeks to legislate – namely, the ever expanding national and international web community. We discussed two prime examples of this already: the Digital Millennium Copyright Act (DCMA) and the Computer Fraud and Abuse Act (CFAA) – both of which have perverse, if perhaps unintended externalities for the web (and academic) communities (to name two).

Yet, the federal government is not alone in this unfortunate state of affairs. State legislatures also seek to influence cyberlaw, further muddying the descriptive record. Again, we addressed several such state legislative conundrums, such as the various “long arm” statutes which claim nearly unlimited jurisdiction under myriad statutes. And as we’ve seen in our discussion of the trespass to chattels doctrine, state legislation can apply different positive standards to the same “netizen.”

As we’ve seen in internet copyright disputes, constitutional issues drive much of the discussion surrounding the internet. While neither “right” is explicitly given precedence, copyright law within the context of the internet pits the “right” of innovators to innovate, versus the “right” of copyright holders to exploit their lawful monopoly. Speech presents another thorny constitutional issue when cabined within the confines of cyberspace. Specifically, the strong protections afforded speech in the “real world” appear inadequately or unevenly applied in cyberspace.

As if these issues were not enough, cyberspace necessarily implicates not just US law, but in fact international law, and the laws of other national sovereigns. Our discussions about the propriety of, and possible alternatives to ICANN amply demonstrated to me how difficult it will be to reconcile the three.

Where does this leave us? These myriad problems all stem from inadequate recognition that cyberspace is, in reality, a new extraterritorial, “extranational” community, which both “exists” in real time and also lacks many elements common to a traditional community (defined borders, perfectly identifiable participants, common standards – or at least some compromise position, legal character, and “real” property). Thus, one might legitimately ask whether or not cyberspace presents as novel a reality as these facts might suggest. In other words, does “cyberspace” actually exist? If so, is it worthy of unique legal character? If yes, how is this legal code to be determined, and perhaps as importantly – by whom?

While recognition of these “novel” elements is essential to any resolution of problematic cyberlaw, mere recognition does not solve the problem. And yet, as Burk suggest, it presents the necessary first step.

In United States v. American Library Association, Inc., Supreme Court reversed the lower court’s decision that the Children’s Internet Protection Act (CIPA) was unconstitutional. CIPA requires that all libraries receiving federal aid install filtering software on their computers in order to block obscenity. The act is currently in effect and in theory it is supposed to prevent minors from getting subjected to obscenity. However, in practice the act does not seem to work better than alternative solutions.

First of all, no filtering software can really block all unwanted material. Moreover, even if filtering software is currently successful, it is very likely that Internet users will find a way to get around it soon, making it impossible for software developers to keep track of the changes that take place in the network. This aspect of filtering software would not be as significant a problem if it were not accompanied by a greater flaw. Namely, in an attempt to discover all possible obscenity out in the web, filtering software usually ends up blocking wanted material, preventing users from accessing legitimate websites. Since librarians are supposed to disable the filtering software at a computer at the request of an adult, this situation only makes it harder for adult library users to browse the web with total freedom. However, for minors there is no solution to this problem. Since the filtering software cannot be disabled for them, they will have to enjoy a limited freedom while browsing the web, possibly missing out on totally legitimate and informative websites.

Moreover, CIPA financially and time wise strains librarians. Namely, filtering software developers keep their database of unwanted material secret, making it impossible for librarians or users to know in advance which web sites they will not be able to access with a specific filtering software product. Accordingly, choosing the right filtering software might be a difficult task for librarians. Moreover, it is possible that certain filtering software knowingly or involuntarily blocks necessary and legitimate material such as a news website. Once this is discovered the library has to switch to another filtering product, spending more time and money on deployment of such systems. Furthermore, requiring librarians to disable the filtering software at the requests of adults places even more burden on librarians as they need to attend individual computer users, disabling and enabling filters in between users.

Unfortunately, there is no easy way to replace filtering software or making them more effective. However, I think there are alternatives to CIPA act. For example, CIPA requires librarians to attend all adult computer users if they wish to disable the computers. Once an adult user leaves a computer librarians need to re-enable the filtering software before a minor can use the same computer. Since so much attention and time of library staff is already spent on ensuring children’s protection from obscenity and since filtering software already fails to prevent secondary subjection to obscenity, why not abandon the act altogether and just require librarians to occasionally check whether minors are using the computers for viewing obscenity or not? Such a solution will not only save libraries funds but will also not limit the freedom of library computer users. It might even be more effective than filtering software as librarians can ask adults who print out indecent material and leave such printouts in the printing terminal to leave the library, protecting minors from secondary subjection.

For those of low SES, Internet access at the public library is more than just another resource for research. It is difficult as Princeton students to imagine life somewhat “unplugged” where if we wanted to check our email we would need to go to the library to do so. However, for those that don’t have the means but want to remain technologically skilled the public library is one of their few options. It is important that those who use the Internet at the public library have full unrestricted to it, so that they can hone and fine tune their skills. Part of using the Internet is weeding out the junk. To install filtering technology (regardless of how well it works) is analogous to giving an AOL user an Internet-only ISP. It babies and dumbs-down the Internet in such a way that makes those trained on it incapable of being effective when sitting at a non-filtered / “pure” Internet box. I believe that it is only fair to those who are using the Internet in public libraries that they have full access to the internet, regardless of what the content is.

However, it is important also that children be protected from obscene material. Internet access in schools therefore should have restrictions. Very heavy filtering rules (possibly white-list only) should be applied, and only as students get older might those filtering rules be relaxed as age provides maturity but also the necessity for more potentially risqué resources for papers. If children wish to use the Internet in public libraries, they must be accompanied by an adult. This does not, however, alleviate the possibility of children walking by the computer when a user has something pulled up that might be objectionable, leaving objectionable materials on the screen or in the printer tray. The latter problem can be solved technically by causing timeouts and printer queues. The possibility of walking by on-screen objectionable material could be dealt with simple privacy screens placed over the monitors.

Lastly in order to encourage positive use of the Internet at both public libraries and schools, there need to be repercussions against those who deliberately seek out objectionable materials on the Internet. These should be levied against the individual, not against the organization, especially one that is providing such an important service. Those that are pulling this objectionable material are *not* the majority of web users, and they are the ones that should be blamed.

In Wednesday’s class’s discussion, we talked briefly about the Internet as a public forum. While we agreed (for the most part) that the Internet as accessed from a library was not protected by public forum principles, it may deserve such protection under other circumstances. According to US v. American Library Association, Inc., a traditional public forum is a resource which has

… immemorially been held in trust for the use of the public and, time out of mind, … been used for purposes of assembly, communication of thoughts between citizens, and discussing public questions.

where a designated public forum requires that

the government … make an affirmative choice to open up its property for use as a public forum … The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional form for public discourse.

Since our discussions on trespass to chattels in regard to Internet servers, we have been plagued by the question of whether a website is a chattel or a piece of real property. While we never completely settled this dichotomy, the fact that the servers on which sites are hosted are physical objects seemed to override any claims to trespassing in cyberspace (a term which seems to carry little legal credence). It seems obvious that a chattel cannot serve as a forum, as a chattel offers no location at which to carry out actions appropriate for a forum. However, while the servers which comprise the Internet may be insufficient to be considered a forum, the Internet as a whole may be considered greater than the sum of its parts by virtue of its ability to act as an publicly accessible means of communication.

Before considering this application of the term forum to the Internet, several issues need to be resolved. First, one must consider that the Internet is highly commercialized, and a large portion of Internet servers and service providers are privately owned, thus making them unsuitable as elements of a public forum; however, the information distributed by those servers (if not restricted by some affirmative means of entry control) is publicly available, and thus expression by way of the Internet becomes a public resource. Additionally, the Internet has not necessarily … immemorially been held in trust for the use of the public (US v. ALA). This requirement for classification as a public forum may be inappropriate when applied to the Internet, as the sheer number of individuals who are able to make their voices heard via the Internet seems to outweigh the need for a longstanding tradition of forum-specific activity. I feel quite confident in presuming that the Internet has been more …used for purposes of assembly, communication of thoughts between citizens, and discussing public questions… (US v. ALA) than some real public forums. Finally, the fact that the Internet is not government property may make it difficult for it to attain forum status. But while the government may not own the Internet as a whole, it has displayed a significant interest in the Internet’s continuation (such as in the continuing contract between ICANN and the D.o.C.) and is directly involved with the Internet in its maintenance of government administered web servers. The Internet may not be government property, but the government’s contributions to the Internet may suffice to allow the application of forum status.

The growing number of blogs and ease by which users may host websites through which they express (and discuss) their opinions on public questions seems to make the Internet an ideal public forum. Take as an example of forum-like activity occurring currently the Frist Filibuster - this protest has been accompanied by a live web cast, and, by publicizing information on the demonstration through the Internet, has been able to gain attention in other forms of media. The Internet has provided a means by which members of the Princeton community can draw attention to this particular question of public interest (i.e. the filibuster preventing certain republican judicial nominations from being approved) so it can be widely can be widely heard and discussed. As such, should free speech on the Internet not be protected as if it were a public forum?

While it is understandable that the locality of an Internet access point (i.e. a library) and the interests pertaining thereto may override protection of free speech (it may be best that rights of a forum accessed from a place which is explicitly not a forum give way to the welfare of the non-forum), it is important to recognize that the Internet has, in an incredibly short period of time, taken on this role, and deserves all possible protection for free speech.

The internet has, undeniably, become central to our lives. The wide range of cases we have reviewed this semester gives us just a glimpse into the complicated legal world that governs our use of this resource. Email and instant messenger have made communication among people across the globe easy and inexpensive. Needed information is now just a few clicks away. Companies have been able to expand their customer bases far beyond the confines of traditional brick and mortar business models. Computers have secured a place in the classrooms of even the youngest students. As technology develops and consumers become more sophisticated, the internet seeps further and further into global use. The web can now be accessed through your computer, your cell phone and soon even your refrigerator.

Beyond challenging technology creators to build on the innovations of the internet, this medium has challenged lawmakers as well. Traditional geographically-based conceptions of property and jurisdiction have been repeatedly called into question. Our discussions this last week regarding community standards in cases like U.S. v. Thomas bring up once again the role of geography with the internet. For regional businesses, laws incorporating community standards for conduct make sense, since practically only these customers would have access to them. With the internet, on the other hand, even with password protection, filters, and other means, some people under the jurisdiction of strict community standards would be bound to obtain access to the material. Why should a company be obligated to research the arbitrary standards that a jury might impose thousands of miles away, when companies would have little recourse to prevent these parties from accessing their site? Cases like this demonstrate the need for at least national—or better yet international internet community standards—for determining what is “legal” to place, sell, do, etc. on the web.

The example of U.S. lawmakers intending to shield children from accessing pornographic material through public libraries highlights the difficulty national laws have in combating a problem that needs a more international solution. Filters are just a band-aid in U.S. v. American Library Association. Without some sort of consensus and/or change in the internet infrastructure, most sites lie within easy reach of anyone, regardless of age or place. The value of this cannot be underestimated, but neither can the costs. The success of the internet comes through the interconnectedness of sites around the globe. This ideal would lean towards implementing more internet community laws or common standards that users should abide by. Creating an international law would be a difficult process. But, this truly global entity which does not yield to arbitrary state or country borders necessitates such an approach. Last week’s discussions and multiple posts on ICANN highlighted the potential role that this organization could take to govern the internet. Already in charge of domain names and the disputes arising from this governance, this organization or another one to take its place could become the central point for creating rules that all countries could abide by. While some people proposed that all domain names should end with a country code, which would allow countries more jurisdiction over the kinds of sites in their domain and the ability to provide better filtering for examples like the Library case, to me this defeats the value of the internet. Many of the cases and laws discussed this semester continually point towards lawmakers resorting to more traditional geographical viewpoints. Discussion of trespass to chattels use in cases of sending spam and robots crawling websites have called me to question the use of internet nomenclature like homepage and site in terms of their real personal property value. Lawmakers should question these conventions as well and look beyond the physical constraints of clearly outlined borders and national property rights when governing the internet.

Whether it is the Supreme Court rendering a decision on Grokster or Congress enacting the DMCA, no decision about the internet or creation of new technology operates completely in a vacuum within the borders of America. A clear cut set of rules on a global scale is best for internet users, government regulators, and the creators of technology. Inventors must have protection from overly invasive governments or Courts which would restrict their rights to create and sell new technologies as well from overly-lax places which would give them no incentive to create and not protect their rights. This is true for the maker of the next iPod as well as the new company which launches its international e-commerce site. While difficult to implement, a global consensus for rules would be the best means to protect all of these parties.

In US v. ALA, the majority opinion takes a very narrow view of the purpose of libraries, and seems to wish to attempt to ensure that the libraries continue to fulfill only their traditional role. As the opinion states, “… public libraries seek to provide materials that would be of the greatest direct benefit or interest to the community. To this end, libraries collect only those materials deemed to have requisite and appropriate quality.” (Internal quotes omitted.) The opinon also quotes a document which states that “a hypothetical collection of everything that has been produced is not only of dubious value, but actually detrimental to users trying to find what what they want to find and really need.” While these quotes certainly do apply to libraries in the context of their traditional purpose (i.e., lending books), their use in support of the court’s decision demonstrates that the court has fundamentally misunderstood the situation of the libraries’ provision of Internet access in at least three different ways.

First, many libraries may not wish to curate their Internet access in the same way they do their print collection. The Internet is an extremely large resource and is extremely dynamic, which would make it difficult to select the most beneficial or most interesting parts of it in any kind of timely fashion, even with a substantial staff dedicated to the purpose — which very few libraries, if any could afford. If a library chooses to provide Internet access to its patrons, perhaps this suggests that the library has decided that the Internet as a whole is a resource worth providing, despite its inability to examine all of the material it contains.

Second, a library’s traditional role towards the selection of material is positive, not negative — while its role in the selection of worthwhile Internet material is usually the opposite. A positive role, in which the library affirmatively chooses what material to display in its collection, indicates that the most important limiting factor in the size of the collection is not a dearth of worthwhile material, but rather the library’s limited resources and inability to make an infinite number of items available to its patrons. A negative role, in which the library displays everything by default and eliminates objectionable material from its collection, indicates that the limiting factor is the amount of worthwhile material and not library resources. The court in this case errs in determining that negative filtering is within a library’s typical or necessary role. This brings me to the next part.

Third, a filtering software does not help a library to find the material that a patron desires to find. In fact, any negative filtering method generally will not help a patron find information — even after the elimination of all objectionable information, there is simply too much material remaining for a user unfamiliar with the collection to determine what is worth his attention and what is not. It is not by the suppression of information of questionable quality that Internet users find information, but instead through search engines and human-maintained indices of content. Internet filters do not have any recognizable role here — their role is simply in preventing some users from seeing material that they might find offensive.

The majority of the court, in this case, has found the Internet to be, in nature, similar to a large pile of books. In this context, they believe it is the library’s role to locate and display only those books that contain worthwhile content. But this is necessarily a subjective (and in many cases controversial) determination, and, since the library is not constrained by limited resources, it makes little sense to state that Internet filtering is a service that should be expected from a library. To do so is to seek to confine libraries to a role that they have traditionally held, and to deny them the opportunity to expand their service and their goals in light of the new capabilities that the Internet affords them.

In truth, I must admit that U.S. v. Thomas seems like quite an irrelevant case. For all the discussion of varying community standards and hypotheticals involving naked children from distant countries and cultures, what we are dealing with in this particular case is something far simpler. Thomas distributed pornographic images, including “images of bestiality, oral sex, incest, sado-masochistic abuse, and sex scenes involving urination.” Let’s not split hairs. (Aside from the fact that they had the Memphis address of a particular subscriber) Applying logic that we’ve used earlier in the course about the nature of the internet and its users, there is a high probability that at least one of the Thomases users would reside in a jurisdiction which found such material obscene—we are not talking borderline stuff here… it does not take a low bar to admit bestiality, incest and similar acts under the obscene tag—so then legally, the Thomases knew, at least constructively, that they were sending their images to some jurisdiction where they would not be welcome or legal. It is not as if the images that he was sending were likely to be seen as universally non-obscene across the nation. Consequently, it makes sense that the Thomases be held accountable for whatever harm their images did in any jurisdictions they reached…specifically the jurisdiction of Tennessee.

Why bother?

Another question I had was why bother with this case? I mean, sure the material was obscene in Tennessee, but last time I checked the internet was chock full of tons of other sites promising depictions of the same and similar weird and deviant behaviors (personal opinion). So what makes the Thomases bulletin board any different? What makes this case in particular worth pursuing? Because the internet is almost wholly accessible from anywhere you can access any part of it, surely there are an abundance of other sites, both password protected and unprotected, where people within Tennessee jurisdiction can come in contact with similar material.

It’s been done before

Something else that struck me about this case is the lack of originality (which is not to say that individuals need be more creative with respect to the expression and depiction of their deviant behavior). To me, it seems that any ruling in this case could have followed directly from a precedent set by any cases relating to obscene materials distributed via mail order. Disregarding the differences between the way customers interface with each company, I think it is easy to agree that most issues concerns raised by Thomas’company are probably common to companies that specialize in obscenity via mail.

What is the point of this case?

What is the point of this picture?

It’s been a great semester