1. Legal and Regulatory Tutorial
INET 2002
June 18, 2002
Jim Dempsey
Mike Godwin
John Morris

2. Legal and Regulatory Tutorial Copyright
INET 2002
June 18, 2002
Mike Godwin

3. Based on materials prepared by Profs
Based on materials prepared by Profs. Pamela Samuelson & David Post for the Computers Freedom & Privacy Conference, April 4, Edited and amended by Mike Godwin, CDT, for INET'01, updated for INET'02.

4. WHAT IS “INTELLECTUAL PROPERTY” (A.K.A. “IP”)?
Rights in commercially valuable information permitting owner to control market for products embodying the information
Copyrights for artistic & literary works (including software)
Patents for technological inventions (also including software)

5. WHAT IS “IP”? (2)
Trade secrets for commercially valuable secrets (e.g., source code, Coke formula)
Trademarks (e.g., Coca Cola, Coke) to protect consumers against confusion
Copyright and trademark law are the areas most likely to have international, civil-liberties significance on the Internet, and, of the two, copyright law is more likely to be significant than trademark law.

6. ELEMENTS OF ALL IP LAW Subject matter to be protected
Qualifications for protection
Who can claim
Procedure for claiming
Substantive criteria
Set of exclusive rights (rights to exclude other people's uses of the IP)
Limitations on exclusive rights
Infringement standard
Set of remedies

7. ELEMENTS OF COPYRIGHT Subject matter: works of authorship
E.g., literary works, musical works, pictorial works. NB: software (for copyright purposes) is a “literary work”
Qualifications:
Who: the author (but in US, work for hire rule)
Procedure: rights attach automatically (but US authors must register to sue; remedies depend on regis.)
Criteria: “originality” (some creativity); [in US] works must also be “fixed” in some tangible medium

8. COPYRIGHT ELEMENTS (2)
Set of exclusive rights (right to exclude others):
to reproduce work in copies,
to prepare derivative works, including translations
to distribute copies to the public,
to publicly perform or display the work, or communicate it to the public (broadcast)
“moral rights” of integrity & attribution
some rights to control acts of those who facilitate or contribute to others’ infringement (e.g., ISPs)

9. COPYRIGHT ELEMENTS (3) Limitations on exclusive rights:
Fair use (e.g., Sony Betamax, Acuff-Rose) in US
Fair dealing in UK and Canada
First sale (e.g., libraries, bookstores)
Library-archival copying (e.g., ILL, course reserves)
Classroom performances
Special inter-industry compulsory licenses (e.g., cable-network TV)
Other (e.g., playing radio in fast food joint)
Constructing functional item from an expressive work (e.g., building a bicycle from a design)

10. COPYRIGHT ELEMENTS (4) Limitations on exclusive rights: duration
Berne standard: life + 50 years
EU & US: life + 70 years; 95 yrs from publication
Infringement standard: violating exclusive right (often copying of “expression” from protected work based on substantial similarity)
Remedies: injunctions, lost profits, infringers’ profits, “statutory damages,” costs, & sometimes attorney fees

11. “UNCOPYRIGHTABLE” STUFF
Ledger sheets and blank forms
Rules and recipes
White pages listings of telephone directories
Facts and theories (although particular expressions of facts or theories are copyrightable)
Ideas and principles
Methods of operation/processes

12. COMPILATIONS AND DERIVATIVE WORKS
Creativity in selection and arrangement of data or other elements = protectable compilation. (There has to be some small degree of creativity at the very least -- see, e.g., Feist v. Rural Telephone.)
Original expression added to preexisting work = protectable d/w (e.g., novel based on movie)
Compilation or derivative work copyright doesn’t extend to preexisting material (e.g., data or public domain play)
Use of infringing materials may invalidate copyright in compilation or derivative work

13. INTERNATIONAL TREATIES
Berne Convention for Protection of Literary & Artistic Works
Basic rule: “national treatment” (treat foreign nationals no worse than do own)
Berne has some minimum standards (duration, exclusive rights, no formalities)
WIPO administers treaties, hosts meetings to update, revise, or adopt new treaties

14. INTERNAT'AL TREATIES (2)
TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement
Sets minimum standards for seven classes of IPR, including copyright, that binds WTO members
Must have substantively adequate laws, as well as adequate remedies and procedures and must enforce effectively
Dispute resolution process now available

15. DIGITAL COMPLICATIONS
Digitized photographs of public domain works (e.g., Microsoft claims ownership in some)
Very easy to reselect and rearrange the data in databases; uncreative databases may be very valuable although not copyrightable; EU has created a new form of IP right in contents of databases to deal with this. (New right is analogous to copyright, but not the same as copyright. Database protection can have civil-liberties, freedom-of-inquiry implications. May affect journalism, scholarship.)

16. DIGITAL COMPLICATIONS (2)
Digital environment lacks geographic boundaries
Very cheap and easy to make multiple copies and disseminate via networks
Very easy to digitally manipulate w/o detection

17. DIGITAL COMPLICATIONS (3)
Can’t access or use digital information without making copies. (U.S. courts began this analysis by stating that even ephemeral RAM or transmission copies are "copies" regulable under copyright law.)
New ways to appropriate information (e.g., Motorola violated the law by “stealing” data from NBA games for sports pager device)

18. DIGITAL COMPLICTIONS (4)
People see that much Internet information is free and expect it all to be (or nearly so).
Many and perhaps most individuals think that private copying doesn’t infringe copyright; much of industry disagrees. Some in industry would like to meter access to copyrighted works, so that all private use is for-pay.

19. DIGITAL COPYRIGHT CONTROVERSIES
Linking, framing
iCraveTV case
Cyberpatrol case - extracting list of sites
RIAA v. Diamond (Rio player case)
UMG Recordings v. MP3.com
Napster
DeCSS cases
Sklyarov (AKA ElcomSoft)
Sonic Blue

20. WIPO COPYRIGHT TREATY (1996)
Reproduction right applies to digital works (but no agreement on temporary copies)
Exclusive right to communicate digital works to the public by interactive service
Fair use and other exceptions can apply as appropriate; new exceptions OK
Merely providing facilities for communication not basis for liability

21. WIPO TREATY (2)
Tampering with copyright management information to enable or conceal infringement should be illegal
Need for “adequate protection” and “effective remedies” for circumvention of technical protection systems
Treaty not yet in effect, but US has ratified and implemented through DMCA; Canada has signed; EU has adopted a directive similar to DMCA (see Hugenholtz analysis/criticism).

22. DMCA Digital Millennium Copyright Act (1998)
“Safe harbor” provisions for ISPs based on notice and takedown
Section 1201: anti-circumvention rules
Section 1202: false copyright management information(CMI)/removal of CMI

23. DMCA ANTI-CIRCUMVENTION RULES
WIPO treaty vague
Campbell-Boucher bill in US: proposed to outlaw circumvention of technological protection systems to enable copyright infringement (would have linked circumvention offenses to intent-to-infringe cases.
MPAA: wanted all circumvention outlawed
DMCA: illegal to circumvent an access control, 17 U.S.C. s. 1201(a)(1)
But 2-year moratorium; LOC study; 7 exceptions

24. EXCEPTIONS TO CIRCUMVENTION RULE
Legitimate law enforcement & national security purposes
Reverse engineering for interoperability
Encryption research and computer security testing
Privacy protection & parental control

25. ANTI-CIRCUMVENTION DEVICE PROVISIONS
Illegal to “manufacture, import, offer to public, provide or otherwise traffic” in
any “technology, product, service, device, [or] component”
if primarily designed or produced to circumvent technological protection systems, if only limited commercial purpose other than to circumvent technological protection systems, or if marketed for circumvention uses

26. MORE ON DEVICE RULES
1201(a)(2)-- prohibits manufacture etc. of devices to circumvent effective access controls
1201(b)(1)--prohibits manufacture etc. of devices to circumvent effective controls protecting a right of copyright owners
Actual & statutory damages + injunctions
Felony provisions if willful & for profit

27. PROBLEMS WITH ACCESS/CIRCUMVENTION REGS
Existing exceptions overly narrow
No general purpose exception
Not clear that fair use circumvention is OK
May be used to penalize circumvention when there is no underlying “right” being protected (e.g., when protected work is in public domain)

28. MPAA v. REIMERDES CSS is effective access control for DVDs
DeCSS circumvents it & has no other commercially significant purpose
Injunction against posting of DeCSS on websites or otherwise making it available

29. DVD-CCA v. McLAUGHLIN
Trade-secret misappropriation case (actually, a copyright case presented as if a trade-secret case).
CSS = proprietary information; DVD-CCA took reasonable steps to maintain secret
Inference: someone must have violated clickwrap license forbidding reverse engineering
Breach of agreement was improper means
Even though DeCSS on web for 4 months, not to enjoin would encourage posting trade secret on Web

30. DIGRESSION: ELEMENTS OF TRADE-SECRET LAW
Information that can be used in business that is sufficiently valuable & secret as to afford an economic advantage to the holder
Outgrowth of unfair-competition law
No “exclusive rights” as such, but protected vs. use of improper means & breach of confidence
Independent development & reverse engineering are legitimate ways to acquire a trade secret
Relief generally limited to period in which independent development would have occurred

31. IMPLICATIONS OF DVD-CCA
Anti-reverse engineering clauses are common in software licenses; enforceability much debated
Judge treat information obtained through alleged reverse engineering as trade secret
Johansen didn’t reverse engineer, nor did many posters, yet held as trade secret misappropriators
Judge enjoined information that had been public for several months may be error

32. Hollings Bill/Tech Mandates/CBDTPA
W/in 1 year, makers of computers and consumer electronics, consumers and copyright owners should develop standards and encoding rules.
If the private sector fails to agree, FCC develops standards. (Linked to DTV policy)
All "digital media devices" -- TVs, audio and video players, and PCs, as well as many other devices -- must respond to those standards.
Rules would have to preserve fair-use rights, e.g., educational/research purposes and some consumer copying.

33. CONCLUSION
Digital technology has posed many difficult questions and problems for copyright law
Much remains in controversy; how current cases are resolved matters a lot
Possible to build balance into law, but US “selling” broad anti-circumvention rules.
Gap in perception about law between copyright industry and the public
Easier to see the risks than the opportunities

34. Legal and Regulatory Tutorial Consumer Privacy Overview
INET 2002
June 18, 2002
Jim Dempsey

35. Three Branches of Privacy
1. Consumer privacy - the right of individuals to control information about themselves generated or collected in the course of a commercial interaction. Referred to in Europe as "data protection."
2. Government records - the right of individuals to fair treatment of PII "voluntarily" submitted to the gov't - tax, welfare, property records.
3. Search and seizure law - right of individuals against unreasonable gov't privacy intrusions involving coercion. In the US, based on the Constitution's 4th Amendment.

36. The Online Privacy Problem
Online Privacy Risks
Collection of information to an extent never before possible: click-stream data, location information.
Aggregation of data across time, space, applications, vendors - creating a detailed dossier of activity and thought.
Retention is cheap and easy.
Distribution is cheap and easy too.
An Enduring Cause of Public Concern
Survey data and business experiences show that privacy is a major consumer concern and impediment to e-commerce. (Irony: Most do nothing about it.)

37. Fair Information Practices
Consumer privacy protection in the US and Europe, as well as under the guidelines of the OECD, is based on the following principles:
1. Notice - before the collection of data, the data subject should be provided notice of what information is being collected and for what purpose
2. Consent/choice - an opportunity to choose whether to accept the data collection and use.
Opt-out versus opt-in: In Europe, data collection cannot proceed unless data subject has unambiguously given his consent (with exceptions).

38. FIPs (2)
3. Collection Limitation - data should be collected for specified, explicit and legitimate purposes. The data collected should be adequate, relevant and not excessive in relation to the purposes for which it is collected.
4. Use/Disclosure Limitation - data should be used only for the purpose for which it was collected and should not be used or disclosed in any way incompatible with those purposes.
5. Retention Limitation - data should be kept in a form which permits identification of data subject for no longer than is necessary for the purposes for which the data was collected.

39. FIPs (3)
6. Accuracy - data must be accurate, complete and up-to-date; reasonable steps must be taken to ensure that inaccurate or incomplete data is corrected or deleted
7. Access - a data subject should have access to data about himself, in order to verify its accuracy and to determine how it is being used
8. Security - those holding data about others must take steps to protect its confidentiality
9. Accountability/ Enforcement - through a combination of informal complaint resolution and law

40. The Three Components of Effective Privacy Protection
Privacy by design
Self-regulation/consumer education
Law

41. Privacy by Design Building privacy into the technology.
Collection limitation
Don’t transmit, collect, retain, or share data unless essential
Example: Log retention
Authentication ≠ Identification
Limit personally identifiable data
Allow for anonymity, pseudonymity, proxies, trust agents
Enhance user control

42. Privacy by Design P3P - the Platform for Privacy Preferences
User control
E.g., Wireless location: Handset versus network
Privacy Enhancing Technology
Encryption
Anonymizers
Free or pre-paid services
Cash - the best privacy technology in the world

43. Self Regulation and Consumer Ed
TRUSTe and BBB Online - seals
OPA guidelines -
DMA - do not call/spam/mail lists
Privacy policies
Privacy can and will be a source of competitive advantage (?)

44. The Government Access Problem
The best corporate privacy practices are of limited help if sensitive information is readily available through other means without adequate privacy protections.
Access can take place in the course of criminal investigations, or civil discovery in a range of contexts. The customer subject to a subpoena or court order need never have violated the law.

45. Current Federal Privacy Laws
Fair Credit Reporting Act (1970)
Privacy Act (1974)
Right to Financial Privacy Act (1978)
Video Privacy Protection Act (1988)
Drivers Privacy Protection Act (1994)
Health Insurance Portability and Accountability Act (1996)
Children’s Online Privacy Protection Act (1998)
Title V of Gramm-Leach-Bliley(1999)

46. Current Federal Privacy Laws (2)
Electronic Communications Privacy Act (1986)
Family Educational Rights and Privacy Act(1974)
Sec 445 of the Gen'l Educational Provisions Act
Privacy Protection Act (1980)
Sec. 222 of the Communications Act (1996)
Cable Communications Policy Act (1984)
Telephone Consumer Protection Act (1991)

47. EU Data Protection Directive
Implemented country-by-country
FIPs - obligations on "data processors"
Data protection commissioners
Exceptions
Transborder flow
Adequate level of protection
US - EU Safe harbor

48. Example: Location-Based Services
Wireless devices provide desirable new services and generate sensitive information based on location
Logging is a critical issue. Records of location can be a tool for surveillance and a treasure trove in lawsuits.
Platform-Specific Difficulties
Constraints on privacy policies, privacy seals
Traditional opt-in/opt-out harder to present
What is meaningful notice and choice in the wireless context?

49. Location-Based Services (2)
Identification and Anonymity
Wireless data services appear to provide a clearer connection between a user’s activities and identity. Ex: Impact of sharing user phone number with wireless applications providers.
Meaningful notice and choice for consumers should be an essential part of the design of location-based services.
Key point: Authentication ≠ Identification

50. Location-Based Services (3) - Federal Legislation
(c) Confidentiality of customer proprietary network information.
(1) Privacy requirements for telecommunications carriers. Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable [CPNI] in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories.

51. Location Based Services (4) - Federal Legislation
(f) Authority to use wireless location information. For purposes of subsection (c)(1), without the express prior authorization of the customer, a customer shall not be considered to have approved the use or disclosure of or access to--
(1) call location information concerning the user of a commercial mobile service (as such term is defined in section 332(d), other than in accordance with subsection (d)(4); or
(2) automatic crash notification information to any person other than for use in the operation of an automatic crash notification system.

52. Hollings Bill - S. 2201 Online only (FTC rulemaking for offline)
Opt-in for senstitive
Opt-out for non-sensitive
Private right of action - $500/violation
State AG enforcement
FTC rulemaking
Safe harbor for self-regulatory programs

53. Stearns Bill - H.R. 4678 Online and offline Opt-out for all info
"a" transaction with the consumer
No access provision
Broad preemption
Enforcement only by FTC

54. Resources Current laws: www.cdt.org/privacy/guide/protect/laws.html
Legislative tracking:
International materials:
Privacy Design Principles for Justice Systems:

55. Legal and Regulatory Tutorial Government Surveillance
INET'02
June 18, 2002
Jim Dempsey

56. Constitutional Roots Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

57. The Dichotomies of Surveillance Law
Criminal Justice vs. National Security
Suspicion of crime vs. agent of a foreign power
Live interception vs. Access to Stored Communications
Title III vs. search warrant vs. subpoena
Content vs.Traffic Data and Subscriber Identifying Data
T-III or warrant vs. subpoena

58. Criminal Justice Surveillance
Katz and Berger - S.Ct. 1967
Wiretaps are searches and seizures within the meaning of the 4th Amendment
Standard: Legitimate expectation of privacy
Title III , 18 USC 2510 et seq.
Probable cause
"Wire and oral"

59. Electronic Communications Privacy Act (ECPA) - 1986
Added “electronic” to Title III, requiring warrant for real-time interception of and other data communications
Stored - search warrant 18 USC 2701 et seq.
Court requirement for pen register and trap and trace devices 18 USC 3121 et seq.
Smith v. Maryland (1979) - dialed digits are not protected. They are voluntarily given to the phone company. People know that the phone company can and does record and use them for billing purposes.
Low standard (mere relevance)
Judicial rubber stamp - “shall approve”

60. National Security - Foreign Intelligence Surveillance Act
FISA USC 1801 et seq.
Agent of a foreign power - country, faction, international terrorist group
Non-criminal standard for non-US persons
Quasi-criminal standard for US persons
Purpose
Covers oral and electronic
Physical searches, pen/traps, business records
No extraterritorial application - Echelon

61. Design Mandates - CALEA 1994
Communications Assistance for Law Enforcment Act
Isolate and enable LE to intercept content
Isolate and intercept call identifying info
Deliver to LE
Unobtrusive and protects privacy and security
Did not change intercept standards
Applies to telecomm carriers, not info srvcs

62. USA PATRIOT Act - 2001 FISA - primary purpose FISA - roving taps
FISA - access to stored records
Eliminated agent of foreign pwr standard
Pen/trap for Internet
Sharing - from LE to intell
Sneak and peek
Did not change intercept standards
No design mandates

63. The Matrix Other Records (subscriber and transactional data)
2703 (d) “specific and articulable facts” court order (for all other non-content records), consent
Subpoena with notice (for files, opened ) or consent
Other Records
(subscriber and transactional data)
Contents of Communications
Pen register/ trap and trace order or consent
Title III order or consent, generally
Acquisition in Real Time
Subpoena (for basic subscriber info only), consent
Warrant (for unopened ) or consent
Historical Information

64. Real-Time Acquisition of Communications (Interception)
Title III (18 USC 2511(1)) makes it a crime to :
eavesdrop on others’ communications
use or disclose illegally intercepted contents
Applies to oral/wire/electronic comms.
Violations may lead to
criminal penalties (5-year felony) [§ 2511(4)]
exception for first offense, wireless comms.
civil damages of $10,000 per violation
suppression(no use of information)

65. Exceptions Publicly accessible system [§ 2511(2)(g)(i)]
open chat rooms, lists, web sites
Consent of a party
login banner
terms of service
System provider privileges
Court-authorized intercepts

66. System Operator Privileges
Provider may monitor private real-time communications to protect its rights or property [§ 2511(2)(a)(i)]
theft of service
e.g., logging keystrokes of a suspected intruder
Provider may intercept communications if inherently necessary to providing the service
PATRIOT Act- trespasser - operator may invite in gov't

67. Court-Authorized Monitoring
Requires a kind of “super-warrant”
a/k/a “Title III order” (or T-3)
Probable Cause
Exhaustion
Good for 30 days
Minimization requirements
Annual report

68. Real Time Transactional Records
Pen register/trap and trace statute 18 USC 3121
Law enforcement may obtain a court order to gather prospective non-content information about a user, such as
numbers dialed
addresses on in/outbound
inbound FTP connections
where remote user is logging in from (dialup? remote IP address?)

69. Stored Communications, Subscriber Identifying Info and Transactional Records
Permissive disclosure vs. mandatory
“may” vs. “must”
Content of communications vs. non-content
content
unopened vs. opened
non-content
transactional records vs. subscriber information
Providers to the public and not to the public

70. Penalties for Stored Records & Communications Violations
Civil remedies [18 U.S.C. § 2707]
$1,000 minimum per violation
attorneys’ fees
Criminal remedies [§ 2701]
only for accessing stored communications without authorization (e.g., one user snooping in another’s inbox)
inapplicable to the provider [§ 2701(c)(3)]

71. Subscriber Content and the System Provider
Any provider may freely read stored or files of its customers
While ECPA imposes no prohibition, contractual agreement with customer may limit right of access

72. Public Providers and Permissive Disclosure
General rule: a public provider (e.g., an ISP) may not freely disclose customer content to others [18 U.S.C. § 2702]
Exceptions include
subscriber consent
necessary to protect rights or property of provider
to law enforcement if contents inadvertently obtained, pertains to the commission of a crime
emergency
child porn

73. Government Access to Stored Communications Content
For unretrieved < 181 days old stored on a provider’s system, government must obtain a search warrant [18 U.S.C § 2703(a)]
Can warrant be served like a subpoena?

74. Government Access to Stored Communications Content
For opened (or other stored files), government may send provider a subpoena and notify subscriber in advance [18 U.S.C. § 2703(b)]
government may delay notice 90 days in certain cases (§ 2705(a))
no notice to subscriber required if not a provider “to the public”

75. Non-Content Subscriber Info
Provider may disclose non-content records to anyone except a governmental entity
Government needs
appropriate legal process
or consent of subscriber
Basic subscriber information (c)(1)(C)
Transactional records (c)(1)(B)

76. Basic Subscriber Information
Can be obtained through subpoena
Provider must give government
name of subscriber
address
local and LD telephone toll billing records
telephone number or other account identifier
type of service provided
length of service rendered
payment information

77. Transactional Records
Not content, not basic subscriber info
Everything in between
past audit trails/logs
addresses of past correspondents
telephone toll records
Government may compel via a “section 2703(d) court order”

78. Section 2703(d) Court Orders
“specific and articulable facts showing that there are reasonable grounds to believe that [the specified records] are relevant and material to an ongoing criminal investigation”
A lower standard than probable cause
Like warrant (& unlike subpoena), requires judicial oversight & fact-finding

79. Preclusion of Notice
In criminal investigations, general policy is to avoid tipping off target
Under ECPA, government may ask a court to prohibit ISP from notifying subscriber that records have been requested from ISP [§ 2705(b)]

80. § 2703(f) Requests to Preserve
Government can ask for any existing records (content or non-content) to be preserved
no court order required
does not apply prospectively
Government must still satisfy the usual standards if it wants to receive the preserved data

81. Summary Title III order - real time content interception
Warrant - unopened /voic
Pen/trap order - real time traffic data interception
§ 2703(d) court order - transactional records
Subpoena
unopened >180 days old, or stored files (or opened ?)
basic subscriber info
Higher-order process always valid
e.g., warrant can compel transactional logs

82. Circuit-Switching
Dedicated facilities (wire pairs, time slice interval, etc.) used only for that call
Physical appearances
Any point along the path receives both directions of the entire call
SS7 - separate paths for signaling and content

83. Tapping the Internet Each packet has source and destination address.
Source address may be forged with little effort.
Different packets can take different paths, though they usually don’t over reasonably short time scales.
Return packets often take a different path through the backbone.
Global - doesn't follow real-world geography
Layered architecture.
Fields at different layers may be intended for different parties
One layer’s content is another layer’s signaling.
Signaling is "in-band."
Intelligence at the edges, not the middle.

84. International Debates
Data retention
COE cybercrime convention
Crimes
Intercept and search and seizure procedures
Transborder cooperation
Jurisdictional issues

85. Resources US: http://www.cdt.org/wiretap/govaccess/
010911:
International:
CALEA, wiretap overview, cybercrime, etc:

86. Legal and Regulatory Tutorial Free Expression
INET'02
June 18, 2002
John Morris

87. Overview First Amendment Basics
Governmental Efforts to Regulate Content
Adults, Minors, Filtering and other topics
Defamation
ISP Liability
International Approaches to Content
Transnational Efforts to Regulate Content

88. First Amendment Basics
The First Amendment
“Congress shall make no law ... abridging the freedom of speech, or of the press .…”
Applies to States under the Fourteenth Amendment
Does not apply to private entities or individuals

89. First Amendment Basics (2)
Prohibits criminal prosecutions for “protected” speech
Prohibits “prior restraints”
Unless “compelling governmental interest” and the restraint is the “least restrictive means” to further that interest
Not all speech protected
“Fire,” obscenity, child pornography

90. First Amendment Basics (3)
Historically, First Amendment protected newspapers and pamphleteers
Then telegraph, then radio, then television ….
But the government could regulate radio and TV more than newspapers
Why? a scarce resource, invasive, pervasive

91. First Amendment Basics (4)
How about the Internet?
Government argued that the Internet should be treated under the First Amendment just like television
Audio & video over TV screen-like device
Free speech advocates argued that the Internet was even more open and democratic than newspapers
Open to all, everyone could speak for little or no money, users must request content

92. First Amendment Basics (5)
ACLU v. Reno, District Court 1996
Four key characteristics of the Internet: “First, the Internet presents very low barriers to entry. Second, these barriers to entry are identical for both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in the medium, and even creates a relative parity among speakers.” (Judge Dalzell)
Reno v ACLU, Supreme Court 1997
Affirmed conclusion that Internet deserves the highest level of First Amendment protection

93. Governmental Efforts to Regulate Content
Main battleground: sexual content
Communications Decency Act (“CDA”)
permitted criminal charges against anyone who “uses any interactive computer service to display in a manner available to a person under 18 years of age” material that is “indecent”
Two huge problems:
vague concept of “indecency”
“display in a manner available to” a minor

94. Content Regulation: Indecency
Passed in early 1996 and immediately challenged by American Civil Liberties Union, American Library Assoc., others
Plaintiffs had to teach Internet to the courts
Plaintiffs argued that CDA “ineffective” and not “least restrictive means”
Plaintiffs advanced filtering technology as a good alternative

95. Content Regulation: Harmful to Minors
CDA struck down in ACLU v. Reno
Second try by Congress: Child Online Protection Act (“COPA”)
Very similar to CDA, but aimed at content that is “harmful to minors”

96. Content Regulation: Harmful to Minors (2)
ACLU v. Reno II, District Court strikes down COPA for many of the same reasons that CDA was struck down
Third Circuit Court of Appeals strikes down COPA because of “community standards” problem
Ashcroft v. ACLU, Supreme Court sends case back to Third Circuit to reconsider

97. Content Regulation: National Academy of Sciences Study
Key findings:
3/4 of adult content is overseas
Laws prohibiting sexual content will not be effective
Filtering software can be a useful tool to protect kids
Educating kids about Internet safety is critical
Swimming pool analogy:
“An analogy is the relationship between swimming pools and children. Swimming pools can be dangerous for children. To protect them, one can install locks, put up fences, and deploy pool alarms. All of these measures are helpful, but by far the most important thing that one can do for one's children is to teach them to swim.”

98. Content Regulation: Filtering
Mainstream Loudoun v. Board of Trustees of the Loudoun County Library
Unconstitutional for library to impose filtering software on all users, including adult users
Children’s Internet Protection Act (“CIPA”)
Requires that any library that receives federal fund must use filtering software
American Library Association v. United States strikes down CIPA as unconstitutional prior restraint

99. Defamation Basic off-line rules apply online
But a defamation can reach much farther
Young v. New Haven Advocate appeal to Fourth Circuit Court of Appeals
But what about an ISP? Liable for defamation of customer?
Off-line rule looks at control over and responsibility for defamation

100. ISP Liability Cubby v. CompuServe Stratton Oakmont v. Prodigy Services
1991 case that concluded that online service was like a library, and could not be liable for content posted to it
Stratton Oakmont v. Prodigy Services
1995 case that decided that online service providers could be held liable for the posting of an anonymous user to a message board

101. ISP Liability (2) Communications Decency Act of 1996:
47 United States Code Section 230(c)(1): “No provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider.”
Numerous cases upholding validity of this element of CDA

102. ISP Liability (3)
Protection from liability for ISPs is critical for free speech
Freedom from government censorship is far less valuable if no privacy Internet service provider will allow particular content
Recall that First Amendment does not apply to private entities like ISPs
ISP’s “Terms of Service” gain increasing importance

103. ISP Liability (4)
Some other countries take the same approach to ISP liability
“Providers shall not be responsible for any third-party content to which they only provide access.” Sec. 5(3), Information and Communication Services Act, Germany.

104. ISP Liability (5) EU E-Commerce directive
"Mere conduit" - service provider is not liable
"Caching" - service provider is not liable for automatic, intermediate and temporary storage for the sole purpose of efficiency
Hosting - service provider not liable if it does not have knowledge, and, upon obtaining knowledge, acts expeditiously to remove or disable access
No general obligation to monitor

105. International Approaches to Content
Numerous countries seek to control Internet content/access through variety of means
Many attempt direct regulation and censorship
The European approach looks to “self regulation” through industry codes of conduct

106. Direct Government Control
Many governments seek to control Internet content
China - censor domestic and foreign content
Singapore -- blocks access to specific web content
Saudi Arabia - filters all Internet traffic through single central server
Syria -- runs the only ISP in the country
Australia - applies film content standards to Web sites
Sweden - requires violent content to be removed from Web sites

107. European Approach Encourages self-regulation
promotion of industry self-regulation and content-monitoring schemes
encouraging industry to provide filtering tools and rating systems
increasing awareness among users, in particular parents, teachers and children
ICRA - International Content Rating Association
Increasingly resorting to direct action

108. Universal Declaration of Human Rights -- Article 19
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”
(300 lang.)

109. European Convention of Human Rights, Article 10
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and receive and impart information and ideas without interference by public authority and regardless of frontiers.”

110. Article 10: Permitted Restrictions
these freedoms -- may be subject to such ... restrictions or penalties as are prescribed by law and are necessary in a democratic society --
in the interest of national security, territorial integrity or public safety,
for the prevention of disorder or crime,
for the protection of health or morals,
for the protection of the reputation or right of others,
for preventing the disclosure of information received in confidence or
for maintaining authority & impartiality of judiciary.

111. ECHR Principles for Judicial Review
Exceptions must be narrowly interpreted
The necessity for any restrictions must be convincingly established
The state must claim a pressing social need
BUT states are granted a “margin of appreciation”

112. Internat’l Covenant on Civil and Political Rights, Article 19
“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
(Eng)

113. ICCPR: Permitted Restrictions
For respect of the rights or reputations of others;
For the protection of
national security
public order (ordre public), or
public health or morals.

114. American Convention, Art. 13
“Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of oneís choice.”
(English); (Espanol)

115. American Convention, Art. 13.3
“The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information or by any other means tending to impede the communication and circulation of ideas and opinions.”

116. African Charter on Human Rights
"Every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law." Article 9.
Individuals should exercise their freedoms "with due regard to the rights of others, collective security, morality and common interest." Art. 27
(English)
(FranÁais)

117. Transnational Efforts to Regulate Content
French Court Action against Yahoo, Inc.
Imposing fines on U.S. company for Nazi related content posted on U.S. web site
Yahoo, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme (LICRA)
California Federal Court holding that French court lacked jurisdiction over Yahoo
French criminal charges against Yahoo CEO

118. Transnational Efforts to Regulate Content (2)
Other countries are following France’s lead:
Italy -- claims global jurisdiction for libel
Germany -- claims similar jurisdiction
Australia -- asserted jurisdiction over Wall Street Journal in defamation case
Enormous threat to Internet posed by 100+ nations attempting to impose their local law on Internet speakers worldwide

119. Highlights of Other Free Expression Issues
Spam and “Commercial Speech”
Software code as speech
Anonymous speech
Regulation of, and free speech rights of, Internet access carriers

120. Legal and Regulatory Tutorial Impact of Technical Standards
INET'02
June 18, 2002
John Morris

121. But Who Really Makes the Rules for the Internet?
Historically “unregulated”
Current inclination against regulation
Constitutional & legal problems with laws
Laws & regulations often ineffective

122. Is the Internet “Unregulated”?
Much rhetoric among advocates and policymakers that the Internet is “not regulated”
But, the Internet is built on top of highly regulated telecommunications system
Nevertheless, Internet is largely unregulated

123. Reasons to keep the Internet “unregulated”
Innovation and competition have flourished on the largely unregulated Internet
Unique nature of Internet creates constitutional problems for regulations
Global nature of Internet means national laws and regulations are often ineffective
Regulated content moves offshore
Varying standards for content among nations

124. Increasingly, Rules are Set by the Technology Itself
Technical requirements, not laws, often govern how people can use the Internet and what constraints are placed on them
For example, decentralized nature of Internet means that direct content censorship is impossible in the United States (but not impossible in some other places)

125. Examples of the Impact of Technical Design Decisions on Policy Concerns
Anonymity and IP Version 6
Cookies
Wireless location information
Open Pluggable Edge Services (OPES)

126. Who Makes These Technical Design Decisions?
Private companies
Instant messaging example
Private technical standards setting bodies

127. Types of Standards Bodies
Core Internet Standards Groups
Internet Engineering Task Force (IETF)
World Wide Web Consortium
Core Telecommunications Stand’ds Groups
International Telecommunications Union (ITU)
Joint Technical Committee 1 of the Intern’l Organization for Standardization (JTC1/ISO)
Committee T1 of the Alliance for Telecommun. Industry Solutions (T1/ATIS)

128. Types of Standards Bodies (2)
Secondary Technical Standards Groups
European Computer Manufacturers Association (ECMA)
3rd Generation Partnership Project (3GPP)
ENUM Forum
Open eBook Forum
Supporting Standards Groups
Internet Mail Consortium (IMC)

129. Public Policy Concerns about the Work of the Standards Bodies
Very little public awareness of work of standards bodies
Very little public input into work
Highly technical nature of work hinders public participation
But, government control is not the answer
Geopriv, OPES working groups at IETF

130. Additional Resources on Internet Law and Public Policy Issues
(for lots of good links)