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Abstract -- The Law and the Internet : Emerging Legal Issues Policy Track
P3: Law and Fair Use

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The Law and the Internet : Emerging Legal Issues

Appelman, Daniel J. ( dan@hewm.com)

Abstract

The increasing use of the Internet raises questions about the application of the law to communication in cyberspace. This paper examines several important areas of American jurisprudence and suggests ways in which prior legal teachings might apply to the new medium.

In the 1960's, the United States Supreme Court expanded the protection offered against unlawful searches and seizures by the Fourth Amendment to the Constitution. In several landmark cases, the Court found a "reasonable expectation of privacy" to exist even in public telephone booths or to conversations between people walking on a public street. In the 1980's the scope of that protection was reduced when the Court found no reasonable expectation of privacy when conversations were secretly recorded inside a dwelling. There is probably no reasonable expectation of privacy for those posting messages to USENET newsgroups. Whether a reasonable expectation of privacy exists for communication by internet e-mail absent encryption is very much an open question.

In 1986, Congress enacted the Electronic Communications Privacy Act ("ECPA") for the purpose of making unlawful the nonconsentual interception and disclosure of electronic communications. The ECPA represents one attempt to update the laws so that privacy rights in cyberspace are protected. However, the ECPA is a very complex piece of legislation and its application to the Internet is not straightforward. This paper addresses liability under the ECPA for communicants, Internet access providers and third parties.

Expectations of privacy in the workplace increasingly focus on the medium of electronic communication. This paper explores the rights of employers and employees with respect to bulletin boards and electronic mail. The conclusion is that employees have few rights of privacy in communications transmitted electronically using an employer's facilities.

Laws against defamation protect individuals from untrue statements that damage their reputation. To some extent, these laws are at odds with the constitutional rights of free speech and press. In the 1960's the Supreme Court made it more difficult for public officials and public figures to recover damages for defamatory statements made about them. The Internet has made it easier than ever to publish such defamatory statements, and real damage has been done to the reputation of many people as a result. This paper discusses the liability of Internet service providers and several other Internet participants for defamatory statements they themselves did not make.

In the United States, laws protecting minors and others from exposure to obscene material vary in severity from state to state. The same material may be obscene in Kansas and not obscene under New York law. Several recent cases have found Internet publishers liable under the obscenity laws of states they had never been in, simply because those materials violated the laws of those states and were available for downloading there by means of the Internet.

One of the less examined subjects affecting the Internet is the application of export control laws and regulations to the electronic transmission of files and messages. The United States and many other countries have developed significant constraints on the ability to transmit computer software and other technical data outside national boundaries. The violation of these laws can subject the exporter to criminal penalties including incarceration. Furthermore, under U.S. law, the term "export" includes making the material in question available to a foreign national, even in the United States. The paper discusses the liability of Internet access providers and others who may simply be intermediaries for violations of the export control laws.

Finally, this paper examines theories of contributory and vicarious liability and applies those theories to internet service providers and system administrators. To what extent are access providers and system administrators liable for the content they permit to be transmitted and published on their systems? Are they better off monitoring content or ignoring known violations of the law? The paper describes the conundrum and makes recommendations.