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The Internet

An estimated 44 million individuals participate in the Internet, and the audience is doubling each year. On each day in 1997, 71,000 new users logged on.Sixty percent of Internet content originates in the United States Those interested in regulation efforts include the government, which swears to protect children from inappropriate material, parenting groups who are concerned aboutwhat their children may encounter, First Abmattle creekendment free speech watchdogs who are concerned about preserving the unrestricted state of the cybercommunity, and the average curious individual who may just want to click some pretty raunchy content. As a general rule, the Constitution forbids the government from silencing speakers because of their particular message. The Federal Communication Commission (FCC) is empowered to "describe" measures it believes to be "reasonable, effective, and appropriate" to block minors' access, but it cannot "approve, sanction, or permit, the use of such measures."
Obscenity Issues
Several cases serve as guides for regulating Internet content. A federal statute passed in 1993 prohibits persons from making indecent comments, requests,and suggestions by telephone. The Supreme Court had struck down an earlier version which aimed to protect minors from dial-a-porn messages. The Court concluded that a blanket ban on indecency in telephone communications exceeded what was needed, and that restrictions on the content of protected speech in media other than broadcast media must advance a compelling state interest andbe accomplished by the least restrictive means. Regulations for the Internetwill need to comply similarly. In Bolger v. Youngs Drug Prod. Corp. and Federal Communications Commission v. Pacifica Foundation, the Supreme Court demonstrated a commitment to free speech concerning ads and commercial speech, and that any restriction must be narrowly tailored.
The Communications Decency Act & CDA II
Described as a deregulation measure, the Telecommunications Act of 1996 imposed sweeping content regulations on electronic media. Sections 502 and 507 ofthe act were known as the Communications Decency Act (CDA). The CDA made it acrime to distribute obscene material using the Internet, punishable by two years in jail and a $250,000 fine. The restriction of such material would be based on contemporary community standards. But the CDA also applied to indecent material which is constitutionally protected.
The CDA was drafted after the emergence of the graphics-based World Wide Weband public reactions to surfing across sexually explicit images. But the Supreme Court struck the CDA down as unconstitutionally vague and unenforceable.In September of 1998, the House passed the Children's Online Protection Act (COPA), dubbed the CDA II, that would ban open display of the majority of sexually explicit materials on the Internet. COPA would ban commercial Web sitesfrom carrying materials harmful to minors without first placing those materials in an area that can be accessed only by persons over 18 years of age.
Community Standards
Restrictions of adult materials have traditionally been based on contemporarycommunity standards. Web pages are likely to be determined to be commercialspeech that the Constitution permits the states to regulate. Of course, obscenity and child pornography are not protected speech in any form, anywhere. Toevaluate if a work is obscene, the Court developed the Miller test, a threepart evaluation that resulted from Miller v. California (1973). The test stands to question three aspects of a work: 1) Would the "average person,"using standards common to the time and place, find that the work in questionappeals to sexual desires?; 2) Does the work use clearly offensive means toshow desirable sexual conduct in a way specifically prohibited by law?; 3) Does the work "taken as a whole, [lack] literary, artistic, political or scientific value?" The first time the Miller test was applied to the Internet was afederal obscenity case involving material disseminated on a computer bulletin board service in 1996. In United States v. Thomas (1996) a California couple was convicted for distributing obscenity in Tennessee. The content failed to meet local community standards in Tennessee. The Thomases appealed,saying that Internet users form their own community. The Sixth Circuit Courtof Appeals rejected the idea of a cyber community.
Another solution is filtering software set to block offensive words. But after the courts struck down the CDA, Florida and Massachusetts libraries orderedsuch governing software and adults protested bitterly that they were being denied First Amendment rights when library Internet access was reduced to a child's content availability.
In 1996, the Child Pornography Protection Act became law, changing the definition of child pornography to include computer-generated images because software programs allow pornographers to create erotic material without using livehumans. This bill makes no distinction between the legal consequence of distributing computer-generated child pornagraphy and regular child pornography.
Ten states have proposed to make it illegal to transmit indecent material tominors. Twenty-three states have created laws making possession of child pornography a felony regardless of intent to distribute. Of these, only one law predated the emergence of the Web in 1994.
The Internet has evolved as a community where there is a profound lack of mutual respect as demonstrated by flame wars and railing in forum discussions. Anonymity has contributed to the public trashing of others as if libel laws are suspended. They are not. The laws that apply to written speech still applyonline. Saying things that defame, libel or invade the privacy of others is grounds for legal action.
Business fraud, false advertising and forgery are also problems. For example,in 1996 a forger posted an ad for child pornography in thousands of newsgroups and gave the name and address of an innocent man. In the early 1990s a Prodigy subscriber was hit with a $100 million libel suit for comments posted ina financial forum. It turned out someone else had used the Prodigy member'saccount, so the lawsuit was aimed at Prodigy. Authenticating the source of amessage is difficult.
Privacy Issues
The technology of the Internet provides a great possibility for the invasionof individual privacy. The Clinton Administration policy is to have consumergroups and the electronic commerce industry develop privacy policies that areenforced by private non-profit organizations. But Lori Fena, executive director of the nonprofit Electronic Frontier Foundation, cautions that privacy isbeing invaded. Researchers can use autonomous agents like Web spiders and robots to gather data without permissions. Users reveal information voluntarilyand involuntarily. Voluntary revelations come in the form of surveys and registrations filled out by the individual. Involuntary revelations come from software developers ability to track the user using "cookies," information files that are deposited on the hard drive of the Internet visitor. Cookies "tell" the web site when the visitor returns. Cookies also track what other sitesthe person visits, providing information on interests and online habits thatcan be compiled into profiles of hobbies, buying habits, financial status, health, and who they associate with online.
The Federal Trade Commission disagrees with the Clinton Administration that business can regulate itself. Internet businesses are asked to tell consumersthat they are collecting personal information, what they are going to do withit, and how consumers can refuse. In 1997, the FTC searched the Internet forprivacy problems. Code named the "Big Surf," the investigation reported that90 percent of the 1,400 sites examined collected personal information from visitors, but only 14 percent disclosed how this information would be used. The FTC is expected to draft a bill calling for clear Internet privacy standards. Presently, the FTC files charges against companies who promise not to giveout personal information collected online but do so.
E-mail Privacy
Telephone conversations in the workplace are usually private, but e-mail is not. Courts have ruled in favor of an employer's right to read without consentor notice any e-mail that passes through a company-owned system because employers can be held liable for an employee's criminal activity on communicationsystems such as e-mail and voicemail. Even e-mail files that have been deleted can be re-obtained in the company's directory. According to law, the employer is the sole copyright holder of the texts its personnel generate while employed by the company.
Existing state and federal electronic surveillance laws govern e-mail confidentiality. In 1986, Congress amended the Electronic Communications Privacy Actto include electronic communication in order to protect electronic communication from hackers and to protect the privacy of particular messages in transference over public service systems. But there is uncertainty about its interpretation in regard to employee e-mail.
Data scrambling, or encryption, allows secure electronic commerce such as credit card information to be sent through the Internet. Use of encryption is not regulated within the US, but the export of encryption software has been banned. In late 1998, the United States relaxed export restrictions for some encryption products.
Copyright Law and the Electronic Rights Clause
Digital technology and electronic networks make global piracy likely. The lawprovides the copyright owner with the exclusive right to reproduce, displaywork publicly, or permit someone else to reproduce copyrighted works. But individuals can post a copy of an article to a bulletin board or archive where anyone can download it. A published article can ordinarily be resold by the author, but once posted online, it is free to all.
In 1995, the New York Times began a policy of assuming the rights to freelance work in all formats for all times without additional compensation. The Authors Guild, the American Society of Journalists and Authors, and the National Writers Union joined forces to fight rights-grabbing contracts. In 1995, the Author's Registry was created, with over 50,000 writers, 95 literary agencies and 30 groups aligned to establish a new and convenient way for publishers to pay for electronic rights.
Senator John Ashcroft of Missouri has introduced legislation that addresses copyright issues raised by the Internet. His legislation would create a take-down notice procedure for handling materials that infringe copyright. But copyright is not simply a U. S. problem. The World Intellectual Property Organization created the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty in 1996 to address these issues throughout the international community. The treaties have been submitted to the U.S. Senate for ratification andare under consideration.
Fair Use and Unfair Competition
Copyright was designed as incentive for authors to create new works from which to profit. Fair use is a provision of copyright law that allows a limited amount of copying for educational purposes, so long as that use does not diminish the market value of the work for the creator, or allow the second party to profit from someone else's work. Photographers and song writers have founda technology allowing "digital watermarks" so their work displayed in cyberspace can be identified and protected from unlawful use. When someone downloadsa digitally marked photograph, for example, he can click on the copyright symbol and be connected to the company holding copyright information. The company can check on illegal use of the photograph by sending web crawlers to search the web for the imbedded mark and report the location of photos to the company with a database of legal users of the photograph.
Audio watermarks are even more remarkable. They remain intact even when the sound is transformed from digital to analog for radio broadcast, so that monitoring equipment hears the mark and reports the artist and song back to the company.
When The New York Times entered a contractual arrangement with Barnes & Noble to link book reviews in the online newspaper to the online bookstore source, 26 independent bookstores and the American Booksellers Association protested the partnership as an unfair business practice and filed suit claiming the deal put them at a competitive disadvantage and posed a threat to their survival. But, Advertising Age editors say such arrangements are a proper use of the new technology, and that critics are engaging in "a misguided effort to apply rigid, print-driven rules to fluid cyberspace." The use of thelinks serves the readers.
Trademark Law
A trademark is any word, symbol or device, or a combination of the three, that identify an individual's or company's goods or services. Trademarks are registered with the Patent and Trademark Office, but must be protected by the owner. Letters, threats of lawsuits and legal actions are used to stop other people from using the mark. No government agency opposes trademark violation. If public use of the mark is unopposed, the trademark becomes generic and canno longer be claimed exclusively by the individual or company.
In cyberspace, trademark protection has taken strange turns. One area is thedomain name for Web sites. In 1992, a Virginia-based firm called Network Solutions won a government contract for a monopoly on Internet name registration.Domain names were handed out on a first-come, first-served basis, and many companies found they were unable to buy their own name for a domain because ithad already been sold. In June of 1998, the U. S. government issued a policypaper calling for a non-profit organization to take over domain name management because a corporate name is valuable and third parties should not be allowed to claim or abuse it. The Clinton Administration plans to end federal financing for the management of Internet domain names.
In August of 1998, a Los Angeles judge ruled that one company, Mailbank, didnot have the right to register the domains of avery.net and dennisn.net sincethey were the trade names of office supply venders.
Courts are deciding if trademark infringement is possible when it is invisible, such as when hidden meta tags direct search engines to list a different site from what the consumer expects. For example, Chrysler Corporation has filed against two New York Internet companies, accusing them of trademark infringement for sending would-be customers to a pornographic site. CNN filed suit in Atlanta accusing The Net, Inc., of diluting its trademark and tarnishing its name because The Net uses a Web address similar to CNN's to sell pornography. In 1997, Playboy won a judgment forcing site operators to remove words from their meta tags that made search engines send would-be Playboy visitors elsewhere.
Online Sale of Software
Most software comes with so called shrink-wrap licenses which are legal contracts that end with a button that reads "I accept." Consumers must click in order to install the software, thereby agreeing to the contract. States are inprocess of passing legislation known as Article 2B of the Uniform CommercialCode (UCC 2B) making these contracts binding even when they are incomprehensible. UCC 2B may outlaw the right to make back-up copies of software without permission from the manufacturer.
Secure Payment
The Internet has become a 24-hour shopping mall, with first quarter ad revenue for 1998 at $350 million. Recently, a company got federal approval to let online investors buy shares in its mutual funds with credit cards. In late 1998, the first Internet bank was granted a national charter by federal regulators. Paper checks are used for 50 percent of online payments and credit cardspay the rest. Yet merchants and credit card companies need to agree on payment standards for online card use. New payment options beyond the credit card have emerged, such as electronic wallets-browser - linked applications that manage a consumer's payment accounts and digital certificates, and Echecks--
- secure checks send via e-mail. Protecting payment is key, and an inexpensive new chip introduced in 1998 that reads fingerprints for identification maysolve the problems of fraud and theft without new legislation.

Further Readings

  • Harper, Christopher. And That's the Way it Will Be: News and Information in a Digital World. NY: New York University Press, 1998.
  • Platt, Charles. Anarchy Online: Net Sex Net Crime. NY: Harper Prism, 1997.
  • Provenzo, Eugene F., Jr. The Educator's Brief Guide to the Internet and the World Wide Web. NY: Eye on Education, 1997.

Additional topics

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