Should The Internet Be Policed?, Further Readings
A worldwide TELECOMMUNICATIONS network of business, government, and personal computers.
The INTERNET is a network of computers linking the United States with the rest of the world. Originally developed as a way for U.S. research scientists to communicate with each other, by the mid 1990s the Internet had become a popular form of telecommunication for personal computer users. The dramatic growth in the number of persons using the network heralded the most important change in telecommunications since the introduction of television in the late 1940s. However, the sudden popularity of a new, unregulated communications technology raised many issues for U.S. law.
The Internet, popularly called the Net, was created in 1969 for the U.S. DEFENSE DEPARTMENT. Funding from the Advanced Research Projects Agency (ARPA) allowed researchers to experiment with methods for computers to communicate with each other. Their creation, the Advanced Research Projects Agency Network (ARPANET), originally linked only four separate computer sites at U.S. universities and research institutes, where it was used primarily by scientists.
In the early 1970s, other countries began to join ARPANET, and within a decade it was widely accessible to researchers, administrators, and students throughout the world. The National Science Foundation (NSF) assumed responsibility for linking these users of ARPANET, which was dismantled in 1990. The NSF Network (NSFNET) now serves as the technical backbone for all Internet communications in the United States.
The Internet grew at a fast pace in the 1990s as the general population discovered the power of the new medium. A significant portion of the Net's content is written text, in the form of both electronic mail (E-MAIL) and articles posted in an electronic discussion forum known as the Usenet news groups. In the mid-1990s the appearance of the World Wide Web made the Internet even more popular. The World Wide Web is a multimedia interface that allows for the transmission of text, pictures, audio, and video together, known as web pages, which commonly resemble pages in a magazine. Together, these various elements have made the Internet a medium for communication and for the retrieval of information on virtually any topic.
The sudden growth of the Internet caught the legal system unprepared. Before 1996, Congress had passed little legislation on this form of telecommunication. In 1986, Congress passed the Electronic Communications Privacy Act (ECPA) (18 U.S.C.A. § 2701 et seq. ), which made it illegal to read private e-mail. The ECPA extended most of the protection already granted to conventional mail to electronic mail. Just as the post office may not read private letters, neither may the providers of private bulletin boards, on-line services, or Internet access. However, law enforcement agencies can subpoena e-mail in a criminal investigation. The ECPA also permits employers to read their workers' e-mail. This provision was intended to protect companies against industrial spying, but it has generated lawsuits from employees who objected to the invasion of their privacy. Federal courts, however, have allowed employers to secretly monitor an employee's e-mail on a company-owned computer system, concluding that employees have no reasonable expectation of privacy when they use company e-mail.
Criminal activity on the Internet generally falls into the category of COMPUTER CRIME. It includes so-called hacking, or breaking into computer systems, stealing account passwords and credit-card numbers, and illegally copying INTELLECTUAL PROPERTY. Because personal computers can easily copy information—including everything from software to photographs and books—and the information can be sent anywhere in the world quickly, it has become much more difficult for COPYRIGHT owners to protect their property.
Public and legislative attention, especially in the mid to late 1990s, focused on Internet content, specifically sexually explicit material. The distribution of PORNOGRAPHY became a major concern in the 1990s, as private individuals and businesses found an unregulated means of giving away or selling pornographic images. As hard-core and CHILD PORNOGRAPHY proliferated, Congress sought to impose restrictions on obscene and indecent content on the Internet.
In 1996, Congress responded to concerns that indecent and obscene materials were freely distributed on the Internet by passing the Communications Decency Act (CDA) as part of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56. This law forbade the knowing dissemination of obscene and indecent material to persons under the age of 18 through computer networks or other telecommunications media. The act included penalties for violations of up to five years imprisonment and fines of up to $250,000.
The AMERICAN CIVIL LIBERTIES UNION (ACLU) and online Internet services immediately challenged the CDA as an unconstitutional restriction on FREEDOM OF SPEECH. A special three-judge federal panel in Pennsylvania agreed with these groups, concluding that the law was overbroad because it could limit the speech of adults in its attempt to protect children. American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996).
The government appealed to the U.S. Supreme Court, but the Court affirmed the three-judge panel on a 7-2 vote, finding that the act violated the FIRST AMENDMENT. Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329, 136 L. Ed. 2d 236 (1997). Though the Court recognized the "legitimacy and importance of the congressional goal of protecting children from the harmful materials" on the Internet, it ruled that the CDA abridged freedom of speech and that it therefore was unconstitutional.
Justice JOHN PAUL STEVENS, writing for the majority, acknowledged that the sexually explicit materials on the Internet range from the "modestly titillating to the hardest core." He concluded, however, that although this material is widely available, "users seldom encounter such content accidentally." In his view, a child would have to have "some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended." He also pointed out that systems for personal computers have been developed to help parents limit access to objectionable material on the Internet and that many commercial web sites have age-verification systems in place.
Turning to the CDA, Stevens found that previous decisions of the Court that limited free speech out of concern for the protection of children were inapplicable. The CDA differed from the laws and orders upheld in the previous cases in significant ways. The CDA did not allow parents to consent to their children's use of restricted materials, and it was not limited to commercial transactions. In addition, the CDA failed to provide a definition of "indecent," and its broad prohibitions were not limited to particular times of the day. Finally, the act's restrictions could not be analyzed as forms of time, place, and manner regulations because the act was a content-based blanket restriction on speech. Accordingly, it could not survive the First Amendment challenge.
In 1998, Congress responded to the decision by enacting the Child Online Protection Act (COPA), Pub. L. No. 105-277, 112 Stat. 2681. This act was narrower in its application than the CDA, applying only to commercial transactions and limited to content deemed to be "harmful to minors." The new statute was subject to immediate litigation. A federal district court placed a preliminary injunction on the application of the statute, and this decision was affirmed by the U.S. Court of Appeals for the Third Circuit. American Civil Liberties Union v. Reno, 217 F.3d 162 (3d Cir. 2000). Although the U.S. Supreme Court vacated the decision, it was due to procedural grounds rather than the merits of the challenge. Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002). On remand, the Third Circuit again affirmed the INJUNCTION, holding that that statute likely violated the First Amendment. American Civil Liberties Union v. Ashcroft, 322 F.3d 240 (3d Cir. 2003).
The questions raised in Reno and subsequent decisions have also been raised in the debate over the use of Internet filters. Many schools and libraries, both public and private, have installed filters that prevent users from viewing vulgar, obscene, pornographic, or other types of materials deemed unsuitable by the institution installing the software.
The ACLU, library associations, and other organizations that promote greater access to information have objected to the use of these filters, especially in public libraries. The first reported case involving libraries and Internet filters occurred in Mainstream Loudon v. Board of Trustees of the London County Library, 24 F. Supp. 2d 552 (E.D. Va. 1998). A Virginia federal court judge in that case ruled that the use of screening software by a library was unconstitutional, as it restricted adults to materials that the software found suitable for children. Courts have generally been split about his issue, and several have found that the use of these filters in public schools is allowed under the First Amendment.
Pornography is not the only concern of lawmakers and courts regarding potential crime on the Internet. The Internet has produced forms of TERRORISM that threaten the security of business, government, and private computers. Computer "hackers" have defeated computer network "firewalls" and have vandalized or stolen electronic data. Another form of terrorism is the propagation and distribution over the Internet of computer viruses that can corrupt computer software, hardware, and data files. Many companies now produce virus-checking software that seeks to screen and disable viruses when they arrive in the form of an e-mail or e-mail file attachment. However, computer hackers are constantly inventing new viruses, thus giving the viruses a window of time to wreak havoc before the virus checkers are updated. Moreover, the fear of viruses has led to hoaxes and panics.
One of the most infamous viruses, dubbed the Melissa virus, was created in 1999 by David Smith of New Jersey. It was sent through a Usenet newsgroup as an attachment to a message the purported to provide passwords for sexrelated web sites. When the attachment was opened, it infected the user's computer. The program found the user's address book and sent a mass message with attachments containing the virus. Within a few days, it had infected computers across the globe and forced the shutdown of more than 300 computer networks from the heavy loads of e-mail that Melissa generated.
The Melissa virus represented one of the first instances where law enforcement personnel were able to take advantage of new technologies to track the creator of the virus. On April 1, 1999, about a week after the virus first appeared on the Usenet newsgroups, police arrested Smith. He pled guilty to one count of computer FRAUD and abuse. He was sentenced to 20 months in prison and was fined $5,000.
Another area of legal concern is the issue of libel. In TORT LAW, LIBEL AND SLANDER occur when the communication of false information about a person injures the person's good name or reputation. Where the traditional media are concerned, it is well settled that libel suits provide both a means of redress for injury and a punitive corrective against sloppiness and malice. Regarding communication on the Internet, however, there is little case law, especially on the key issue of liability.
In suits against newspapers, courts traditionally held publishers liable, along with their reporters, because publishers were presumed to have reviewed the libelous material prior to publication. Because of this legal standard, publishers and editors are generally careful to review anything that they publish. However, the Internet is not a body of material that is carefully reviewed by a publisher, but an unrestricted flood of information. If a libelous or defamatory statement is posted on the Internet, which is owned by no one, the law is uncertain as to whether anyone other than the author can be held liable.
Some courts have held that online service providers, companies that connect their subscribers to the Internet, should be held liable if they allow their users to post libelous statements on their sites. An online provider is thus viewed like a traditional publisher.
Other courts have rejected the publisher analogy and instead have compared Internet service providers to bookstores. Like bookstores, providers are distributors of information and cannot reasonably be expected to review everything that they sell. U.S. libel law gives greater protection to bookstores because of this theory (Smith v. California, 361 U.S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205 ), and some courts have applied it to online service providers.
TRADEMARK infringement on the Internet has also led to controversy and legal disputes. One of the biggest concerns for registered trademark and SERVICE MARK holders is protection of the mark on the Internet. As Internet participants establish sites on the Web, they must create domain names, which are names that designate the location of the web site. Besides providing a name to associate with the person or business that created the site, a domain name makes it easy for Internet users to find a particular home page or web site.
As individuals and businesses devised domain names in this medium, especially during the mid to late 1990s, they found that the names they created were similar to, or replicas of, registered trademarks and service marks. Several courts have considered complaints that use of a domain name violated the rights of a trademark or service mark holder, and early decisions did not favor these parties' rights.
In 1999, Congress enacted the Anti-cyber-squatting Consumer Protection Act, Pub. L. No. 106-113, 113 Stat. 1501. The act strengthened the rights of trademark holders by giving these owners a CAUSE OF ACTION against so-called "cybersquatters" or "cyberpirates," individuals who register a third-party's trademark as a domain name for the purpose of selling it back to the owner for a profit.
Prior to the enactment of this law, an individual could register a domain name using the trademark or service mark of a company, and the company would have to use a different domain name or pay the creator a sum of money for the right to use the name. Thus, for example, an individual could register the name www.ibm.com, which most web users would have associated with International Business Machines (IBM), the universally recognized business. Because another individual used this domain name, IBM could not create a Web site using www.ibm.com without paying the cyber-squatter a fee for its use. The 1999 legislation eradicated this problem.
During the 1990s, a number of companies were formed that operated completely on the Internet. Due to the overwhelming success of these companies, the media dubbed this phenomenon the "dot-com bubble." The success of these companies was relatively short-lived, as the "bubble" burst in early 2000. Many of these Internet companies went out of business, while those that remained had to reconsider new business strategies.
Notwithstanding these setbacks, the Internet itself has continued to develop and evolve. During the 1990s, the vast majority of Internet users relied upon telephone systems to log on to the Internet. This trend has changed drastically in recent years, as many users have subscribed to services that provide broadband access through such means as cable lines, satellite feeds, and other types of high-speed networks. These new methods for connecting to the Internet allow users to retrieve information at a much faster rate of speed. They will likely continue to change the types of content that are available through this means of telecommunications.
First Amendment; Freedom of Speech; Internet Fraud; Telecommunications; Trademarks.
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