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

An Introduction to Internet Law
(Psst: There’s no such thing!)
Steven J. McDonald
Associate Legal Counsel
The Ohio State University
21st Annual National Conference on
Law and Higher Education
Agenda
• A Brief Overview of the First 500 Years of
Internet Law
• 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 Cyberjurisdiction
• Privacy in Cyberspace (“Stalking 101”)
• Questions (and Maybe Even Some Answers)
A Brief Overview of the First
500 Years of Internet Law
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
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 ISPs liable for the libels that occur
on their 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
• 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
• 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
“[T]he likelihood that personal jurisdiction
can be constitutionally exercised is directly
proportionate to the nature and quality of
commercial activity that an entity conducts
over the Internet. This sliding scale is
consistent with well developed personal
jurisdiction principles.”
Zippo Mfg. Co. v. Zippo Dot Com, Inc. (W.D. Pa. 1997)
Zippo’s Three Ways
• “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.”
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.dejanews.com
• Privacy.net
– http://www.privacy.net/analyze
• Caches, History Files, Log Files and more
What is Privacy?
“The right to be left alone -- the most
comprehensive of rights, and the right
most valued by a free people.”
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
Finally:
Top 6 ½ Tips for Success
1. Forget about computers
1.5. Even in your use policy
2. Treat pornography as you would the Bible
3. Don’t (or do) get personal
4. Even publics should be private to some
degree
5. Don’t go looking for trouble
6. Teach your children well