P3: Law and Fair Use

Laws of Electronic Communities and Their Roads: High Noon?

Harter, Peter ( pfh@nptn.org)

Abstract

One of the most important elements to consider in running an online computer network is the policy that governs the available information and permissible conduct. Acceptable use policies are tools that can provide governance and protection. What follows is an overview of what acceptable use policies are and why they are necessary.

Why Are Acceptable Use Policies Needed?

New applications and uses of computer mediated communications and related telecommunications technologies pass by legal standards daily, pressing some precedents beyond their dusty capacities (e.g., copyright). Old forms of behavior and wholly new forms of conduct are transpiring in electronic communities. One way to safeguard one's electronic community and to maintain its usefulness in the face of such problems is with a user-enforced acceptable use policy.

When people access an online computer network, disputes as to what is acceptable use of the system arise. Users, system administrators, content providers, public officials, visitors, technical support and telecommunications providers, hardware and software vendors, and interested third parties are all potentially in the fray. Such disputes can and do happen on community computer networks, university campus networks, corporate internal networks, government and military networks, and commercial online services networks. Such disputes happen here in the U.S. and all over the world.

To date, similar disputes on similar computer systems are being handled dissimilarly. Dissimilarities are not necessarily broken down by country; instead, dissimilarity exists from one electronic community to the next. It is important to keep in mind that while some electronic communities possess users with a common geographical location, many others do not. In fact, many electronic communities have users from a disparate variety of cultures and countries.

Standardization of policy mechanisms to resolve such disputes, to date, is somewhat of an anathema to most electronic communities. However, despite the independence and decentralization which permeates the medium of the Internet, many common threads can be found within the acceptable use policies of various systems.

Fortunately, basic legal principles of fairness and justice can be newly applied to disputes which occur between networks. The applications of these legal principles are still evolving and people from all walks of life still have the opportunity to help shape the eventual form of laws in cyberspace. In fact, the democratic nature of electronic communities coupled with the ever increasing numbers of people joining the Internet require continual change in the application of these legal principles. Because users of electronic communities can determine the rights and duties of their fellow participants via an acceptable use policy, commonalty may be achieved as disparate groups in different networks realize independently similar conclusions regarding how to apply fairness and justice in their electronic community.

What Is An Acceptable Use Policy?

Members of an electronic community register with the system administrator in order to get their account on that particular system. In return for their registration they receive an I.D. and a password which enable them to use that system. Part of registration includes agreeing to abide by the system's acceptable use policy or "terms of service". Also, as part of the registration process, some systems also provide disclaimers and statements referring to applicable laws proscribing certain conduct. Violation of the acceptable use policy can result in revocation of the account and even the involvement of local, state, federal, and or non-domestic authorities.

At its heart an acceptable use policy is a contract between the user and the other users of the network, overseen by the system administrator. This contract connects each user together; this contract represents the ties that bind individuals and institutions together to form their electronic community. By agreeing to a common bond, users of a system are letting this contract be their collective conscience.

Typically, an acceptable use policy touches upon a variety of legal and policy issues ranging from e-mail etiquette to child pornography, from copyright infringement to software piracy, from freedom of speech to electronic stalking, from privacy to safety of records and monitoring. An acceptable use policy is phrased broadly so that it may encounter new forms of behavior not specifically contemplated at the time the acceptable use policy was created.

How Durable Are Acceptable Use Policies?

As more and more people new to the medium gain access to computer networks, the strength of acceptable use policies will be tested. It has been noted that the culture of the Internet has changed since its recent rise in notoriety; this cultural change phenomenon holds true as well for even the smallest network that is one of tens of thousands that comprise the Internet itself. Such change will continue and it will intensify. Some users may decide to leave their electronic communities if it changes too much; however, the medium is becoming so vast that it is unlikely that such users will have to look far in order to find another community that is suitable, comfortable, and useful.

By agreeing to the acceptable use policy, one may be compromising some of one's beliefs or opinions on how a system should operate. But by being a registered user one gains the ability to join in the governance of the system by perhaps serving on the Board of Trustees or through some other governance mechanism. Also, one gains the freedom to associate with a community of one's own choosing; for if every system were to be subject to the same policy, then where could one go if one's opinion differed? Some may try to impose their beliefs on all systems, no matter the community or the specific purpose. There may be good reason for standardization in some instances such as child pornography or other forms of illegal activity. However, standardization in general may conflict with other interests.

For example, one of many debates out on the 'Net concerns the issue of freedom of speech. In the United States citizens enjoy a fairly robust right to express themselves as they choose. In contrast, many other nations have less open systems for individual expression. When a citizen from a robust speech nation and a citizen from a restrictive speech nation are both members of the same electronic community, whose speech standard prevails? Can the rules of their electronic nation prevail despite its flowing over and through the physical borders of other nations? Do the significant and perhaps supervening interests in comity and respect for the self-determination of a nation's culture prevail? Or, must a new sense of multiple citizenships be explored as a solution?

If a solution is not explored, access to robust networks may be denied to people who happen to reside in restrictive speech nations. This situation has arisen already for the issue of speech between one local community versus another, based upon their geographical location and local traditions and standards (e.g., what is obscene in one community is not in another). This situation may arise for other issues besides that of freedom of speech.

Besides content focused issues like freedom of speech, there is another category of possible conflicts confronting electronic communities. This second category concerns access aspects; to illustrate: If a user on Network A sends an image file to a user on Network C, and if the file has to go through Network B, then what is the solution if the acceptable use policy of Network B, the intermediary access provider, proscribes the conduct of sending image files through its network unless it can verify that the images are not obscene? Immediately, there is the issue of conflicts of acceptable use policies between networks.

And it is such a conflict which challenges the durability of acceptable use policies: If acceptable conduct on one network cannot be transmitted to another like-minded network, then the intermediary has a chilling effect on the more robust networks. Also, in this hypothetical the intermediate network's acceptable use policy permits it to inspect the content passed through it by other networks. While such inspection processes allow Network B to abide by its own acceptable use policy, such an inspection may subvert the policies of Networks A and B as well as the expectations of their users. If these types of conflicts exist between acceptable use policies, there are two possible results: (1) the decentralized interconnectivity which the networks making up the Internet enjoy may be at risk; and (2) user confidence in the integrity of their network and in the Internet may be lessened.

Path Forward....

No matter the disputes within electronic communities nor the conflicts of laws between physical communities, the thousands of computer networks that are appearing on the electronic frontier strive to maintain their independence and individual character. A vibrant and user supported and enforced acceptable use policy may be the best form of protection and governance available. If acceptable use policies are user supported and enforced, they have the incidental effect of empowering its users, making them more involved with their community and literate about the medium. Such literacy may be one of the best stimuli for the continued growth of computer networks of all kind and of the Internet.

Contact Information:

Peter F. Harter, Executive Director & General Counsel
The National Public Telecomputing Network (NPTN)
Offices: 30680 Bainbridge Road, Solon, Ohio 44139-2268 U.S.A.
U.S. Mail: P.O. Box 1987, Cleveland, Ohio 44106-0187 U.S.A.
E-mail: pfh@nptn.org Voice: 216/498-4050 Fax: 216/498-4051
II. Comparison of Track Topics to Keywords:

o       Network Technology                      Standards; Open Networks
o       Network Engineering and Operation       Security; Monitoring; Reporting
o       Application Technology                  Filtering Software
o       Users                                   Self-Governance; Enforcement
o       Regional Issues                         Local Control and Standards
o       Policy Issues                           Acceptable Use Policies
o       Commercial and Business Aspects         Network Policy Conflicts
o       Education                               Literacy; Content