Transcript INTERNET LAW AND POLICY: IT’S EASIER THAN YOU THINK

Driver Education for the
Information Superhighway:
The Law and Policy of the Internet
Steven J. McDonald
Associate Legal Counsel
The Ohio State University
22nd Annual National Conference on
Law and Higher Education
Agenda
• A brief overview of Internet law since 1728
• Computer use policies: Do you really even
need one?
• Liability for computer misconduct: What you
don’t know probably won’t hurt you
• Meta-geography and cyber-jurisdiction
• Privacy in cyberspace (“Stalking 101”)
• Questions (and maybe even some answers)
Two Views on Internet Law
• “In the future,
virtually all law will
be Internet law in one
way or another.”
– George Gilder
• Internet law is all law,
right now.
A Brief Overview of Internet
Law Since 1728
In the beginning was the word . . . .
What is the Internet?
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A bulletin board
A printing press
A library
A bookstore
A television set and a television station
A telephone, with lots of party lines and unlimited
conference calling
• A post office
• ...
What is the Internet?
A medium of communication
And that means that . . .
• Everyone with Internet access is potentially
an international publisher and broadcaster
– Including your five-year-old
• This has some fairly significant legal
implications
– The same laws that apply to the New York
Times, NBC, and NPR apply to Internet users
– Including your five-year-old
Three Key Misconceptions
• Cyberspace is a separate legal jurisdiction
– In fact, conduct that is illegal or a violation of policy in
the “offline” world is just as illegal or a violation of
policy when it occurs online
• Free access = free speech = unfettered speech
– In fact, even public institutions may limit the use of
their computer resources to business-related purposes
• If it’s technically possible, it’s legal
– In fact, the technology has some legal implications, but
it does not define the outer limits of the law
One Key Point
• Internet law (and policy) existed long
before the Internet:
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The law of libel
The law of privacy
The law of copyright
Criminal law
Your sexual harassment policy, code of student
conduct, workplace rules
–...
And Two Key Implications
• Internet-specific rules aren’t necessary and
may create problems
– Except when there are unique issues that aren’t
already covered by generally applicable laws
and policies
• Education is critical
Driver Education for the
Information Superhighway
• Ohio State: Virtual Legality
– http://www.cio.ohio-state.edu/policies/legality.html
• James Madison: Electronic Information
Security User Education
– https://secureweb.jmu.edu/cgi-bin/chpasswd.secaware.fpl
• Cornell: Travelers of the Electronic Highway
– http://www.cit.cornell.edu/training/teh/teh.html
New Whines and Old Battles
• It isn’t always immediately clear (surprise!)
how the law applies to new situations
• For example, the law of libel developed
long before there were Internet service
providers
• So, are we liable for the libels that occur on
our systems?
The Law of the Horse
“This case requires the law to add another paragraph to
the ‘rules of the road’ for the ‘information
superhighway’ and cyberspace. It is yet another
testimony to the resiliency and flexibility of the case-bycase incremental development concept we inherited
from the Common Law, which emphasizes adherence to
[precedent]. As our superior court noted in United
States v. Maxwell, new technologies present new
challenges, but they are met by adapting existing legal
concepts to them.”
United States v. Monroe (A.F.C.C.A. 1999)
Key Dates in the Development
of the Law of ISP Liability
• 1728 -- The King v. Clerk
• 1889 -- Fogg v. Boston & Lowell RR. Co.
• 1933 -- Layne v. The Tribune Co.
• 1952 -- Hellar v. Bianco
• 1973 -- Anderson v. New York Telephone
• 1986 -- Spence v. Flynt
Who is responsible?
• Publishers
– Create content and hold it forth as their own
– Directly liable for the libels they disseminate
• Distributors
– Don’t create, but choose to, and actively do, distribute
– Liable only if they “knew or should have known” that
what they are distributing is libelous
– No duty to prescreen
• Conduits
– Operate a system by which other people communicate
– No liability for libel, regardless of knowledge
Key Dates in the Development
of the Law of ISP Liability
• 1991 -- Cubby v. CompuServe
• 1995 -- Stratton Oakmont v. Prodigy
• 1996 -- The Communications Decency Act
• 1997 -- Zeran v. America Online
• 1998 -- Digital Millennium Copyright Act
• 1999 -- Lunney v. Prodigy
Whose law applies?
• Subject matter jurisdiction
– Jurisdiction over the case
• Type of case
• Amount in dispute
• Personal jurisdiction
– Jurisdiction over the parties
• Originally a matter of pure geography . . .
Judicial Geography
http://www.law.emory.edu/FEDCTS
Internet Geography
http://www.cybergeography.org/atlas/geographic.html
Where do you want to be sued today?
http://www.cybergeography.org/atlas/routes.html
A Really Big Shoe
“[D]ue process requires only that in order to
subject a defendant to a judgment in
personam, if he be not present within the
territory of the forum, he have certain
minimum contacts with it such that the
maintenance of the suit does not offend
‘traditional notions of fair play and
substantial justice.’”
International Shoe Co. v. Washington (U.S. 1945)
And Another
“We find that Sullivan, as the producer and
master of ceremonies of ‘The Ed Sullivan
Show,’ entered Arizona by producing the
play entitled ‘A Case of Libel’ in New York
City. . . . [T]he telecast of the show . . . in
Arizona [was] voluntary, purposeful,
reasonably foreseeable and calculated to
have effect in Arizona . . . .”
Pegler v. Sullivan (Ariz. Ct. App. 1967)
Zippo Dee Doo Dah
• “If a defendant enters into contracts with residents of a foreign
jurisdiction that involved the knowing and repeated transmission
of computer files over the Internet, personal jurisdiction is
proper.”
• “A passive Web site that does little more than make information
available to those who are interested in it is not grounds for the
exercise [of] personal jurisdiction.”
• “The middle ground is occupied by interactive Web sites where
a user can exchange information with the host computer. In
these cases, the exercise of jurisdiction is determined by
examining the level of interactivity and commercial nature of the
exchange of information that occurs on the Web site.”
Zippo Mfg. Co. v. Zippo Dot Com, Inc. (W.D. Pa. 1997)
So, what does that mean for us?
“Under the facts presented here, the court finds that
while there has been no showing that contracts are
entered into over the Johns Hopkins' website, the
website is more than passive advertisement. It offers
a means of transferring information, recruiting
students, receiving donations from alumni, and
soliciting and conducting business. As such, the
Johns Hopkins' website has a sufficient level of
interactivity and commercial nature to place it in the
middle range of the sliding scale . . . .”
Peyman v. Johns Hopkins University (E.D. La. 2000)
International Jurisdiction
• Within the U.S., the law usually doesn’t
vary much from state to state
• But the Internet doesn’t stop at national
borders, either
• “In the information age, the whole planet is
just a click away. So, unfortunately, are all
the lawyers.” -- University Business
• “In cyberspace, the First Amendment is just
a local ordinance.” -- variously attributed
The Key to Handling Online
Privacy Issues Successfully
Ignore the law
I know what you did last summer
• AnyWho
– http://www.anywho.com
• Lucas County Property Records
– http://www.co.lucas.oh.us/Real_Estate
• DejaNews
– http://www.deja.com/usenet
• Privacy.net
– http://www.privacy.net/analyze
• Caches, History Files, Log Files, and more
What is Privacy?
“[T]he right to be let alone -- the most
comprehensive of rights, and the right
most valued by civilized men.”
Justice Louis Brandeis
Olmstead v. U.S. (1928)
The Legal Basis for Privacy:
A Patchwork Quilt
• U.S. and State Constitutions
– But no explicit reference in U.S. Constitution
– Fourth Amendment (and State versions)
• Statutory Privacy
– Electronic Communications Privacy Act (and
State versions)
– But also FERPA, State open records laws, and
discovery rules
– And much, much more
• The Common Law of Privacy
One Slight Problem:
No One Understands This Stuff
• The Fifth Circuit on the Electronic
Communications Privacy Act:
– “[A] statute . . . which is famous (if not
infamous) for its lack of clarity” -- Steve
Jackson Games, Inc. v. United States Secret
Service
• The Ninth Circuit on the Fifth Circuit:
– “[T]he Fifth Circuit . . . might have put the
matter too mildly.” -- U.S. v. Smith
The Fourth Amendment
in Cyberspace
• Who owns the system?
• Who has access to the system?
• How does the system work?
• How is the system used?
• Is the system password-protected?
• What policies apply to the system?
• What is the ordinary practice?
Law Enforcement Access
Under ECPA
• Voluntary or at government request?
• Obtained inadvertently or intentionally?
• In transmission or in storage?
– In storage more than 180 days?
• Contents or log files?
• With consent of user or without?
• With notice to user or without?
Untangling the Privacy Mess
• Ignore the law
• Establish -- and follow -- a policy
– Decide what expectations are reasonable
– Obtain consent, explicitly or implicitly
• Options:
– No privacy
– Total privacy
– Somewhere in between
OSU’s Computer Use Policy:
Privacy
• Use of university-provided computing
resources is not completely private
• But we don’t monitor individual use
routinely
• But we may monitor individual use when
we suspect misconduct or misuse
• But any such monitoring must be preapproved by the CIO or the CIO’s designee
Finally: Top Five Tips for Success
1. Forget about computers
2. Treat pornography as you would the Bible
3. Even publics should be private
4. Don’t go looking for trouble
5. Teach your children well