2Legal and Regulatory Tutorial Copyright INET 2002June 18, 2002Mike Godwin
3Based 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.
4WHAT IS “INTELLECTUAL PROPERTY” (A.K.A. “IP”)? Rights in commercially valuable information permitting owner to control market for products embodying the informationCopyrights for artistic & literary works (including software)Patents for technological inventions (also including software)
5WHAT 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 confusionCopyright 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.
6ELEMENTS OF ALL IP LAW Subject matter to be protected Qualifications for protectionWho can claimProcedure for claimingSubstantive criteriaSet of exclusive rights (rights to exclude other people's uses of the IP)Limitations on exclusive rightsInfringement standardSet of remedies
7ELEMENTS 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
8COPYRIGHT ELEMENTS (2)Set of exclusive rights (right to exclude others):to reproduce work in copies,to prepare derivative works, including translationsto distribute copies to the public,to publicly perform or display the work, or communicate it to the public (broadcast)“moral rights” of integrity & attributionsome rights to control acts of those who facilitate or contribute to others’ infringement (e.g., ISPs)
9COPYRIGHT ELEMENTS (3) Limitations on exclusive rights: Fair use (e.g., Sony Betamax, Acuff-Rose) in USFair dealing in UK and CanadaFirst sale (e.g., libraries, bookstores)Library-archival copying (e.g., ILL, course reserves)Classroom performancesSpecial 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)
10COPYRIGHT ELEMENTS (4) Limitations on exclusive rights: duration Berne standard: life + 50 yearsEU & US: life + 70 years; 95 yrs from publicationInfringement 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 formsRules and recipesWhite pages listings of telephone directoriesFacts and theories (although particular expressions of facts or theories are copyrightable)Ideas and principlesMethods of operation/processes
12COMPILATIONS 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
13INTERNATIONAL TREATIES Berne Convention for Protection of Literary & Artistic WorksBasic 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
14INTERNAT'AL TREATIES (2) TRIPS (Trade-Related Aspects of Intellectual Property Rights) AgreementSets minimum standards for seven classes of IPR, including copyright, that binds WTO membersMust have substantively adequate laws, as well as adequate remedies and procedures and must enforce effectivelyDispute resolution process now available
15DIGITAL 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.)
16DIGITAL COMPLICATIONS (2) Digital environment lacks geographic boundariesVery cheap and easy to make multiple copies and disseminate via networksVery easy to digitally manipulate w/o detection
17DIGITAL 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)
18DIGITAL 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.
19DIGITAL COPYRIGHT CONTROVERSIES Linking, framingiCraveTV caseCyberpatrol case - extracting list of sitesRIAA v. Diamond (Rio player case)UMG Recordings v. MP3.comNapsterDeCSS casesSklyarov (AKA ElcomSoft)Sonic Blue
20WIPO 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 serviceFair use and other exceptions can apply as appropriate; new exceptions OKMerely providing facilities for communication not basis for liability
21WIPO TREATY (2)Tampering with copyright management information to enable or conceal infringement should be illegalNeed for “adequate protection” and “effective remedies” for circumvention of technical protection systemsTreaty 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).
22DMCA Digital Millennium Copyright Act (1998) “Safe harbor” provisions for ISPs based on notice and takedownSection 1201: anti-circumvention rulesSection 1202: false copyright management information(CMI)/removal of CMI
23DMCA ANTI-CIRCUMVENTION RULES WIPO treaty vagueCampbell-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 outlawedDMCA: illegal to circumvent an access control, 17 U.S.C. s. 1201(a)(1)But 2-year moratorium; LOC study; 7 exceptions
24EXCEPTIONS TO CIRCUMVENTION RULE Legitimate law enforcement & national security purposesReverse engineering for interoperabilityEncryption research and computer security testingPrivacy protection & parental control
25ANTI-CIRCUMVENTION DEVICE PROVISIONS Illegal to “manufacture, import, offer to public, provide or otherwise traffic” inany “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
26MORE ON DEVICE RULES1201(a)(2)-- prohibits manufacture etc. of devices to circumvent effective access controls1201(b)(1)--prohibits manufacture etc. of devices to circumvent effective controls protecting a right of copyright ownersActual & statutory damages + injunctionsFelony provisions if willful & for profit
27PROBLEMS WITH ACCESS/CIRCUMVENTION REGS Existing exceptions overly narrowNo general purpose exceptionNot clear that fair use circumvention is OKMay be used to penalize circumvention when there is no underlying “right” being protected (e.g., when protected work is in public domain)
28MPAA v. REIMERDES CSS is effective access control for DVDs DeCSS circumvents it & has no other commercially significant purposeInjunction against posting of DeCSS on websites or otherwise making it available
29DVD-CCA v. McLAUGHLINTrade-secret misappropriation case (actually, a copyright case presented as if a trade-secret case).CSS = proprietary information; DVD-CCA took reasonable steps to maintain secretInference: someone must have violated clickwrap license forbidding reverse engineeringBreach of agreement was improper meansEven though DeCSS on web for 4 months, not to enjoin would encourage posting trade secret on Web
30DIGRESSION: 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 holderOutgrowth of unfair-competition lawNo “exclusive rights” as such, but protected vs. use of improper means & breach of confidenceIndependent development & reverse engineering are legitimate ways to acquire a trade secretRelief generally limited to period in which independent development would have occurred
31IMPLICATIONS OF DVD-CCA Anti-reverse engineering clauses are common in software licenses; enforceability much debatedJudge treat information obtained through alleged reverse engineering as trade secretJohansen didn’t reverse engineer, nor did many posters, yet held as trade secret misappropriatorsJudge enjoined information that had been public for several months may be error
32Hollings 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.
33CONCLUSIONDigital technology has posed many difficult questions and problems for copyright lawMuch remains in controversy; how current cases are resolved matters a lotPossible to build balance into law, but US “selling” broad anti-circumvention rules.Gap in perception about law between copyright industry and the publicEasier to see the risks than the opportunities
35Three 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.
36The Online Privacy Problem Online Privacy RisksCollection 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 ConcernSurvey data and business experiences show that privacy is a major consumer concern and impediment to e-commerce. (Irony: Most do nothing about it.)
37Fair 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 purpose2. 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).
38FIPs (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.
39FIPs (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 deleted7. Access - a data subject should have access to data about himself, in order to verify its accuracy and to determine how it is being used8. Security - those holding data about others must take steps to protect its confidentiality9. Accountability/ Enforcement - through a combination of informal complaint resolution and law
40The Three Components of Effective Privacy Protection Privacy by designSelf-regulation/consumer educationLaw
41Privacy by Design Building privacy into the technology. Collection limitationDon’t transmit, collect, retain, or share data unless essentialExample: Log retentionAuthentication ≠ IdentificationLimit personally identifiable dataAllow for anonymity, pseudonymity, proxies, trust agentsEnhance user control
42Privacy by Design P3P - the Platform for Privacy Preferences User controlE.g., Wireless location: Handset versus networkPrivacy Enhancing TechnologyEncryptionAnonymizersFree or pre-paid servicesCash - the best privacy technology in the world
43Self Regulation and Consumer Ed TRUSTe and BBB Online - sealsOPA guidelines -DMA - do not call/spam/mail listsPrivacy policiesPrivacy can and will be a source of competitive advantage (?)
44The 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.
45Current 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)
46Current Federal Privacy Laws (2) Electronic Communications Privacy Act (1986)Family Educational Rights and Privacy Act(1974)Sec 445 of the Gen'l Educational Provisions ActPrivacy Protection Act (1980)Sec. 222 of the Communications Act (1996)Cable Communications Policy Act (1984)Telephone Consumer Protection Act (1991)
47EU Data Protection Directive Implemented country-by-countryFIPs - obligations on "data processors"Data protection commissionersExceptionsTransborder flowAdequate level of protectionUS - EU Safe harbor
48Example: Location-Based Services Wireless devices provide desirable new services and generate sensitive information based on locationLogging is a critical issue. Records of location can be a tool for surveillance and a treasure trove in lawsuits.Platform-Specific DifficultiesConstraints on privacy policies, privacy sealsTraditional opt-in/opt-out harder to presentWhat is meaningful notice and choice in the wireless context?
49Location-Based Services (2) Identification and AnonymityWireless 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
50Location-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.
51Location 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.
52Hollings Bill - S. 2201 Online only (FTC rulemaking for offline) Opt-in for senstitiveOpt-out for non-sensitivePrivate right of action - $500/violationState AG enforcementFTC rulemakingSafe harbor for self-regulatory programs
53Stearns Bill - H.R. 4678 Online and offline Opt-out for all info "a" transaction with the consumerNo access provisionBroad preemptionEnforcement only by FTC
54Resources Current laws: www.cdt.org/privacy/guide/protect/laws.html Legislative tracking:International materials:Privacy Design Principles for Justice Systems:
55Legal and Regulatory Tutorial Government Surveillance INET'02June 18, 2002Jim Dempsey
56Constitutional 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.
57The Dichotomies of Surveillance Law Criminal Justice vs. National SecuritySuspicion of crime vs. agent of a foreign powerLive interception vs. Access to Stored CommunicationsTitle III vs. search warrant vs. subpoenaContent vs.Traffic Data and Subscriber Identifying DataT-III or warrant vs. subpoena
58Criminal Justice Surveillance Katz and Berger - S.Ct. 1967Wiretaps are searches and seizures within the meaning of the 4th AmendmentStandard: Legitimate expectation of privacyTitle III , 18 USC 2510 et seq.Probable cause"Wire and oral"
59Electronic Communications Privacy Act (ECPA) - 1986 Added “electronic” to Title III, requiring warrant for real-time interception of and other data communicationsStored - 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”
60National Security - Foreign Intelligence Surveillance Act FISA USC 1801 et seq.Agent of a foreign power - country, faction, international terrorist groupNon-criminal standard for non-US personsQuasi-criminal standard for US personsPurposeCovers oral and electronicPhysical searches, pen/traps, business recordsNo extraterritorial application - Echelon
61Design Mandates - CALEA 1994 Communications Assistance for Law Enforcment ActIsolate and enable LE to intercept contentIsolate and intercept call identifying infoDeliver to LEUnobtrusive and protects privacy and securityDid not change intercept standardsApplies to telecomm carriers, not info srvcs
62USA PATRIOT Act - 2001 FISA - primary purpose FISA - roving taps FISA - access to stored recordsEliminated agent of foreign pwr standardPen/trap for InternetSharing - from LE to intellSneak and peekDid not change intercept standardsNo design mandates
63The Matrix Other Records (subscriber and transactional data) 2703 (d) “specific and articulable facts” court order (for all other non-content records), consentSubpoena with notice (for files, opened ) or consentOther Records(subscriber and transactional data)Contents of CommunicationsPen register/ trap and trace order or consentTitle III order or consent, generallyAcquisition in Real TimeSubpoena (for basic subscriber info only), consentWarrant (for unopened ) or consentHistorical Information
64Real-Time Acquisition of Communications (Interception) Title III (18 USC 2511(1)) makes it a crime to :eavesdrop on others’ communicationsuse or disclose illegally intercepted contentsApplies to oral/wire/electronic comms.Violations may lead tocriminal penalties (5-year felony) [§ 2511(4)]exception for first offense, wireless comms.civil damages of $10,000 per violationsuppression(no use of information)
65Exceptions Publicly accessible system [§ 2511(2)(g)(i)] open chat rooms, lists, web sitesConsent of a partylogin bannerterms of serviceSystem provider privilegesCourt-authorized intercepts
66System Operator Privileges Provider may monitor private real-time communications to protect its rights or property [§ 2511(2)(a)(i)]theft of servicee.g., logging keystrokes of a suspected intruderProvider may intercept communications if inherently necessary to providing the servicePATRIOT Act- trespasser - operator may invite in gov't
67Court-Authorized Monitoring Requires a kind of “super-warrant”a/k/a “Title III order” (or T-3)Probable CauseExhaustionGood for 30 daysMinimization requirementsAnnual report
68Real Time Transactional Records Pen register/trap and trace statute 18 USC 3121Law enforcement may obtain a court order to gather prospective non-content information about a user, such asnumbers dialedaddresses on in/outboundinbound FTP connectionswhere remote user is logging in from (dialup? remote IP address?)
69Stored Communications, Subscriber Identifying Info and Transactional Records Permissive disclosure vs. mandatory“may” vs. “must”Content of communications vs. non-contentcontentunopened vs. openednon-contenttransactional records vs. subscriber informationProviders to the public and not to the public
70Penalties for Stored Records & Communications Violations Civil remedies [18 U.S.C. § 2707]$1,000 minimum per violationattorneys’ feesCriminal 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)]
71Subscriber Content and the System Provider Any provider may freely read stored or files of its customersWhile ECPA imposes no prohibition, contractual agreement with customer may limit right of access
72Public 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 includesubscriber consentnecessary to protect rights or property of providerto law enforcement if contents inadvertently obtained, pertains to the commission of a crimeemergencychild porn
73Government 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?
74Government 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”
75Non-Content Subscriber Info Provider may disclose non-content records to anyone except a governmental entityGovernment needsappropriate legal processor consent of subscriberBasic subscriber information (c)(1)(C)Transactional records (c)(1)(B)
76Basic Subscriber Information Can be obtained through subpoenaProvider must give governmentname of subscriberaddresslocal and LD telephone toll billing recordstelephone number or other account identifiertype of service providedlength of service renderedpayment information
77Transactional Records Not content, not basic subscriber infoEverything in betweenpast audit trails/logsaddresses of past correspondentstelephone toll recordsGovernment may compel via a “section 2703(d) court order”
78Section 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 causeLike warrant (& unlike subpoena), requires judicial oversight & fact-finding
79Preclusion of NoticeIn criminal investigations, general policy is to avoid tipping off targetUnder 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 preservedno court order requireddoes not apply prospectivelyGovernment must still satisfy the usual standards if it wants to receive the preserved data
81Summary Title III order - real time content interception Warrant - unopened /voicPen/trap order - real time traffic data interception§ 2703(d) court order - transactional recordsSubpoenaunopened >180 days old, or stored files (or opened ?)basic subscriber infoHigher-order process always valide.g., warrant can compel transactional logs
82Circuit-SwitchingDedicated facilities (wire pairs, time slice interval, etc.) used only for that callPhysical appearancesAny point along the path receives both directions of the entire callSS7 - separate paths for signaling and content
83Tapping 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 geographyLayered architecture.Fields at different layers may be intended for different partiesOne layer’s content is another layer’s signaling.Signaling is "in-band."Intelligence at the edges, not the middle.
84International Debates Data retentionCOE cybercrime conventionCrimesIntercept and search and seizure proceduresTransborder cooperationJurisdictional issues
86Legal and Regulatory Tutorial Free Expression INET'02June 18, 2002John Morris
87Overview First Amendment Basics Governmental Efforts to Regulate ContentAdults, Minors, Filtering and other topicsDefamationISP LiabilityInternational Approaches to ContentTransnational Efforts to Regulate Content
88First 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 AmendmentDoes not apply to private entities or individuals
89First Amendment Basics (2) Prohibits criminal prosecutions for “protected” speechProhibits “prior restraints”Unless “compelling governmental interest” and the restraint is the “least restrictive means” to further that interestNot all speech protected“Fire,” obscenity, child pornography
90First Amendment Basics (3) Historically, First Amendment protected newspapers and pamphleteersThen telegraph, then radio, then television ….But the government could regulate radio and TV more than newspapersWhy? a scarce resource, invasive, pervasive
91First Amendment Basics (4) How about the Internet?Government argued that the Internet should be treated under the First Amendment just like televisionAudio & video over TV screen-like deviceFree speech advocates argued that the Internet was even more open and democratic than newspapersOpen to all, everyone could speak for little or no money, users must request content
92First Amendment Basics (5) ACLU v. Reno, District Court 1996Four 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 1997Affirmed conclusion that Internet deserves the highest level of First Amendment protection
93Governmental Efforts to Regulate Content Main battleground: sexual contentCommunications 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
94Content Regulation: Indecency Passed in early 1996 and immediately challenged by American Civil Liberties Union, American Library Assoc., othersPlaintiffs had to teach Internet to the courtsPlaintiffs argued that CDA “ineffective” and not “least restrictive means”Plaintiffs advanced filtering technology as a good alternative
95Content Regulation: Harmful to Minors CDA struck down in ACLU v. RenoSecond try by Congress: Child Online Protection Act (“COPA”)Very similar to CDA, but aimed at content that is “harmful to minors”
96Content Regulation: Harmful to Minors (2) ACLU v. Reno II, District Court strikes down COPA for many of the same reasons that CDA was struck downThird Circuit Court of Appeals strikes down COPA because of “community standards” problemAshcroft v. ACLU, Supreme Court sends case back to Third Circuit to reconsider
97Content Regulation: National Academy of Sciences Study Key findings:3/4 of adult content is overseasLaws prohibiting sexual content will not be effectiveFiltering software can be a useful tool to protect kidsEducating kids about Internet safety is criticalSwimming 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.”
98Content Regulation: Filtering Mainstream Loudoun v. Board of Trustees of the Loudoun County LibraryUnconstitutional for library to impose filtering software on all users, including adult usersChildren’s Internet Protection Act (“CIPA”)Requires that any library that receives federal fund must use filtering softwareAmerican Library Association v. United States strikes down CIPA as unconstitutional prior restraint
99Defamation Basic off-line rules apply online But a defamation can reach much fartherYoung v. New Haven Advocate appeal to Fourth Circuit Court of AppealsBut what about an ISP? Liable for defamation of customer?Off-line rule looks at control over and responsibility for defamation
100ISP 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 itStratton Oakmont v. Prodigy Services1995 case that decided that online service providers could be held liable for the posting of an anonymous user to a message board
101ISP 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
102ISP Liability (3)Protection from liability for ISPs is critical for free speechFreedom from government censorship is far less valuable if no privacy Internet service provider will allow particular contentRecall that First Amendment does not apply to private entities like ISPsISP’s “Terms of Service” gain increasing importance
103ISP 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.
104ISP 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 efficiencyHosting - service provider not liable if it does not have knowledge, and, upon obtaining knowledge, acts expeditiously to remove or disable accessNo general obligation to monitor
105International Approaches to Content Numerous countries seek to control Internet content/access through variety of meansMany attempt direct regulation and censorshipThe European approach looks to “self regulation” through industry codes of conduct
106Direct Government Control Many governments seek to control Internet contentChina - censor domestic and foreign contentSingapore -- blocks access to specific web contentSaudi Arabia - filters all Internet traffic through single central serverSyria -- runs the only ISP in the countryAustralia - applies film content standards to Web sitesSweden - requires violent content to be removed from Web sites
107European Approach Encourages self-regulation promotion of industry self-regulation and content-monitoring schemesencouraging industry to provide filtering tools and rating systemsincreasing awareness among users, in particular parents, teachers and childrenICRA - International Content Rating AssociationIncreasingly resorting to direct action
108Universal 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.)
109European 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.”
110Article 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 orfor maintaining authority & impartiality of judiciary.
111ECHR Principles for Judicial Review Exceptions must be narrowly interpretedThe necessity for any restrictions must be convincingly establishedThe state must claim a pressing social needBUT states are granted a “margin of appreciation”
112Internat’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)
113ICCPR: Permitted Restrictions For respect of the rights or reputations of others;For the protection ofnational securitypublic order (ordre public), orpublic health or morals.
114American 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)
115American 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.”
116African 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)
117Transnational 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 siteYahoo, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme (LICRA)California Federal Court holding that French court lacked jurisdiction over YahooFrench criminal charges against Yahoo CEO
118Transnational Efforts to Regulate Content (2) Other countries are following France’s lead:Italy -- claims global jurisdiction for libelGermany -- claims similar jurisdictionAustralia -- asserted jurisdiction over Wall Street Journal in defamation caseEnormous threat to Internet posed by 100+ nations attempting to impose their local law on Internet speakers worldwide
119Highlights of Other Free Expression Issues Spam and “Commercial Speech”Software code as speechAnonymous speechRegulation of, and free speech rights of, Internet access carriers
120Legal and Regulatory Tutorial Impact of Technical Standards INET'02June 18, 2002John Morris
121But Who Really Makes the Rules for the Internet? Historically “unregulated”Current inclination against regulationConstitutional & legal problems with lawsLaws & regulations often ineffective
122Is 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 systemNevertheless, Internet is largely unregulated
123Reasons to keep the Internet “unregulated” Innovation and competition have flourished on the largely unregulated InternetUnique nature of Internet creates constitutional problems for regulationsGlobal nature of Internet means national laws and regulations are often ineffectiveRegulated content moves offshoreVarying standards for content among nations
124Increasingly, 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 themFor example, decentralized nature of Internet means that direct content censorship is impossible in the United States (but not impossible in some other places)
125Examples of the Impact of Technical Design Decisions on Policy Concerns Anonymity and IP Version 6CookiesWireless location informationOpen Pluggable Edge Services (OPES)
126Who Makes These Technical Design Decisions? Private companiesInstant messaging examplePrivate technical standards setting bodies
127Types of Standards Bodies Core Internet Standards GroupsInternet Engineering Task Force (IETF)World Wide Web ConsortiumCore Telecommunications Stand’ds GroupsInternational 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)
128Types of Standards Bodies (2) Secondary Technical Standards GroupsEuropean Computer Manufacturers Association (ECMA)3rd Generation Partnership Project (3GPP)ENUM ForumOpen eBook ForumSupporting Standards GroupsInternet Mail Consortium (IMC)
129Public Policy Concerns about the Work of the Standards Bodies Very little public awareness of work of standards bodiesVery little public input into workHighly technical nature of work hinders public participationBut, government control is not the answerGeopriv, OPES working groups at IETF
130Additional Resources on Internet Law and Public Policy Issues (for lots of good links)