Internet and Cyberspace Law
Sometimes the Internet is referred to as the “Wild West” when it comes to media law. But this isn’t a good analogy because the Internet does in fact have laws; you can’t do whatever you want. However, Internet law does not have the same long-standing Supreme Court precedents (as does areas such as campus speech and newspaper publishing) due to its newness. SCOTUS has come out and said that the Internet should be protected by the First Amendment (see Reno v. ACLU in 1997). However, the Court is made up of luddites and dinosaurs, and several members have lately demonstrated a profound ignorance about communication methods and technologies most Americans take for granted. Are these the people we want making important legal decisions? Probably not, but there’s nothing we can do about it.
Attempts at Internet Regulation…
… Haven’t worked to well. Several problems, including:
· Recent legislation, such as the Child Online Protection Act and Communications Decency Act, proposed by Congress has been too broad and vague. E.g. laws have banned “lewd” and “annoying” material, but what does that mean? Courts have declared such laws unconstitutional.
· In addition, laws such as the Comm. Decency Act, would restrict material that, if published, would be protected speech. Does that make sense? The Supreme Court struck it down.
· The Internet, unlike broadcast stations, is worldwide and therefore beyond U.S. jurisdiction in many cases. We can’t control what’s on a Turkish website, unless we block access to certain websites as China does. Do we want that?
· The law can’t keep up with technology. Who’s to blame for bad content? The Internet allows for a lot of anonymous speech. Often, authorities have difficulty tracing the source of controversial material. Do we go after websites and Internet service providers – “shoot the messenger”? Is it reasonable/practical to hold them responsible for the millions of things posted online everyday?
However, reasonable Time/Place/Manner restrictions, such as Internet filters required by the Children’s Internet Protection Act on computers in libraries and schools, have been allowed.
Also permitted is regulation of spam, spoofing and phishing. But such laws are often difficult to enforce, plus raise jurisdictional issues.
· If the spam message originates in one state, but is received in another, which state law should apply?
· Did you know? 90 percent of e-mail sent to Adelphi people is spam. Fortunately, the university uses filters that weeds out most of it before it reaches your inbox.
· Spoofing and phishing are often used in connection with identity theft.
Some other legal issues involving the Internet are…
· In cases of libelous statements on the Internet, the degree of liability of Internet service providers depends on the degree to which the ISP exercises editorial control over comments made. Consider two cases below:
· In the Prodigy case, Prodigy was sued for defamation based upon the statements made by one of its customers in a Prodigy discussion group (or bulletin board). In determining whether Prodigy was liable for the defaming statements of its customer in this case, a New York state judge was left to determine whether Prodigy was a "distributor" of information, such as a bookstore or library, or whether Prodigy was a "publisher" of information, such as a newspaper. As a mere distributor, Prodigy would not be liable for the statement. In contrast, if Prodigy was considered a publisher (with greater control over the information's content), Prodigy would be liable. In a decision that shocked most on-line service providers, the judge held that, as a result of Prodigy's well-publicized policies of monitoring and censoring its forums, Prodigy was a publisher and was potentially liable for the defaming statement. Although the case was settled by the parties and Prodigy moved for a withdrawal of the judge's decision, the judge refused.
· In the CompuServe case, a similar factual situation was encountered by a federal court. In this case, however, the court found that CompuServe acted merely as a distributor of information in its discussion groups, and therefore was not liable. It is important to note that CompuServe avoided liability because it did not know about the defaming statement, nor did it have any reason to know about the statement. If a distributor knows about a defaming statement and continues to distribute the information, liability is not so easily avoided.
· In analyzing these cases, most commentators noted the irony that Prodigy was more likely to be liable for defamation because of the additional steps it took to control the content of its discussion groups. CompuServe did not attempt to monitor and control its discussion groups to the extent done by Prodigy, which made it easier for the CompuServe judge to find that CompuServe was merely a distributor of information. This lead many attorneys to advise their clients to avoid censoring such discussion groups, for fear of defamation liability. Such a hands-off approach can only increase the likelihood that defamatory statements will be made in the future.
· Cyberbullying is the use of e-mail, instant messaging, chat rooms, pagers, cell phones, or other forms of information technology to deliberately harass, threaten, or intimidate someone. Following recent student suicides (including one at a Long Island high school) that were linked to cyberbullying, several states have passed or are considering laws that would criminalize cyberbullying. Such legislation, however, raises First Amendment issues.
· Cyberbullying is often limited to online insults about someone's physical appearance, friends, clothing or sexuality. Things like “Sam is a slut,” “Jamal is fat” or “Ricky is ugly.” Statements like that aren’t libelous or an invasion of privacy. They’re simply opinions, and protected by the First Amendment. And that includes mean opinions.
· However, if a statement is threatening (such as I’m going to kill you), or if the statement is libelous (which means it’s provably false and seriously damages someone’s reputation) or if the statement is an invasion or privacy (so if it’s a private fact like a medical condition that the individual hasn’t revealed to anyone), that is illegal and we already have laws to deal with that. Additionally, private schools can punish cyberbullies because they’re not governed by the First Amendment (only public schools are).
· Some also oppose cyberbullying laws because they believe you can't legislate norms, you can only teach norms. Just because it's a law they don't necessarily follow it. For example, look at using cell phones while driving. Most people seem to do it, especially teenagers. The law in itself does not render citizens virtuous. What do you think?
Employer/School Regulation of Internet
· Employers are allowed to monitor employees’ Internet use, including their emails. Likewise, schools can monitor students Internet use. Why? Because they own the computers and e-mail servers and usually require you to agree to Terms of Service before issuing an account. Some people, however, consider this an invasion of their privacy. But, again, legally, it’s OK.
· Students need to be careful. Consider:
à In 2001, Peter Chung decided to regale his buddies with tales of his sexual escapades in Korea. Unfortunately, he sent it using his company e-mail and the e-mail eventually got circulated publicly. Soon, the 24-year-old Princeton grad found himself jobless and the stuff of cyber legend. Of course, Chung is just one of many examples where people haven't conducted themselves well online, only to see it come back to haunt them later. This is really an important lesson for students, given that more and more companies are using the Internet to perform checks on potential employee. According to one recent survey, 50 percent of employers use "social networking" sites to run searches on job applicants and 68 percent of employers use search engines to check on candidates. Most employers admit that they could care less what a job applicant does outside of work. It's the fact that s/he posted about it online that concerns them. It shows a lack of judgment. What can students do to make sure they don't end up like Mr. Chung?
· Applies online. If you go to Google images, for example, and use an image you find there on your website or blog, you may be sued for violating copyright law, even if you credit the source. But, under the “notification clause” of the Digital Millennium Copyright Act of 1998, Internet service providers are required to remove material from web sites under their control only if notified by the copyright holder of an infringement. This means YouTube can’t be sued for all the music videos and movies posted on their website. This policy annoys recording and movie studios because they must hire people to search YouTube and other sites every day to find copyright violations; they feel that the websites should be responsible for doing the copyright violation “scut work”. Do you agree?
· Is a principle that advocates no restrictions on content, sites, platforms, etc. related to the Internet. Internet service providers, such as RoadRunner, OptimumOnline, Verizon, Adelphi U., etc. could conceivably control the pipeline so that certain websites may load slower than others or be blocked all together. They could also require websites to pay fees to ensure that their websites load quickly for their visitors. This is a major issue and will surely be the subject of lawsuits in years to come.
· For the most part, there are no restrictions on linking your website to any other website you want to (for example, you could have a link to adelphi.edu or espn.com or my journalism blog on your personal homepage). However, things like inline linking (embedding videos and photos from other websites) and framing (making a one website appear as if it’s part of the linking website) have been and will likely continue to be the subject of court battles for years to come. Of course, if a Web site permits their users to embed its content, as YouTube does, there wouldn’t be any legal issues.