Law, Regulation, Cryptography

1. Indecency & Obscenity
2. Libel
3. Privacy
4. Copyright
5. Trademark
6. Advertising

1. Indecency & Obscenity
   • Indecency is different from obscenity
   • In the U.S., true obscenity is illegal in any medium--including the 'Net
   • U.S. obscenity definition (Miller v. California, a 1973 Supreme Court case) is three part:
     1. The average person, using contemporary community standards, judges that the work as a whole appeals to the "prurient" (that is, "having a tendency to incite lustful thoughts ") interest; and
     2. The work depicts or describes sexual conduct prohibited in an applicable state law; and
     3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
   • 'Net does raise one new obscenity issue:
     • How is jurisdiction for obscenity decided?
     • Obscenity is determined by "community standards," but what about a sexually oriented Web site in San Francisco that is viewed by someone in Opp, Alabama?
     • The court can use the community standards of either Frisco or Opp.
• In contrast, indecency is prohibited in mass media (esp. radio and TV); but is protected as part of freedom of speech in magazines and books.
  • Broadcasting's ban on indecency established in FCC v. Pacifica in 1978 (full text online)
    • George Carlin's "Filthy Words" broadcast on a NY radio station (2:00 p.m. Tuesday, October 30, 1973)
    • Supreme Court sides with FCC and allows the regulation of broadcast speech
  • Communication Decency Act (signed into law Feb 8, 1996)
    • Attempted to legislate indecency on the Internet.
    • Defined indecency as:
      • "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." (1)
    • Challenged by the ACLU in ACLU vs. Reno (Justice Dept.)
    • Struck down due to vagueness (full text online)
      • That it would suppress adult speech in violation of the 1st Amendment
      • "Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects." (final ruling, June 12, 1996)
• Would "Our First Time" have been "indecent," "obscene," both or neither?
• Libraries and schools have become a new battleground
  • Internet School Filtering Act (S. 1619, Senators John McCain (R-AZ) and Patty Murray (D-WA)) " would require schools and libraries that receive federal funds for Internet connections to install filtering software to block "inappropriate" material." (passed by Senate, July 21, 1998)
    • Filtering automatically blocks sites that use sensitive/indecent words.
      • E.g., CyberSitter, NetNanny, SurfWatch, The Internet Filter, and CyberPatrol
        
      • The problem? They also block valuable materials on medical and religious sites.
        • E.g., CyberPatrol blocks: (3)
          • Creature's Comfort Pet Care Service
          • The U.S. Army Corps of Engineers Construction Engineering Research Laboratories
          • Dept of Computer Science (http://www.cs.arizona.edu) at the University of Arizona (as containing FullNude SexActs!)
• Protecting minors from indecency and pedophiles
  • Also an ongoing issue
  • S. 1482, a bill to restrict minors' access to certain online materials (Sen. Dan Coats, R-IN), passed Senate July 21, 1998
    • Would punish "commercial online distributors" of material deemed "harmful to minors" with up to six months in prison and up to $50,000 in fines.
      • But, argue ACLU, EFF and others, "The government may not mandate the application of a legal standard to the Internet -- whether it be 'indecency' or speech that is 'harmful to minors' -- that requires speakers to distinguish between adults and minors when such a distinction cannot be made."
  • Being called "CDA II" by some
2. Libel
   • Is the republication of libel also libelous?
     • E.g., Cubby Inc. vs. CompuServe Information Service (summary online)
       • Cubby defamed on CIS
       • Court rules: CIS not responsible
         • CIS is like a library, newsstand or book store
     • E.g., Stratton Oakmont vs. Prodigy
       • Court rules: Prodigy is responsbile, since it controls much of its content
       • CDA, ironically, would have protected Prodigy
3. Privacy
• Electronic Communication Privacy Act of 1986 (ECPA) (full text online)
  • Protects personal information
  • "ECPA makes it illegal . . . for an individual or the government to intercept or disclose private electronic communications." (2)
4. Copyright
• Copyrighted image and music material on Websites.
  • Some is permitted under the notion of "fair use"
  1. Is your use noncommercial?
  2. Is your use for purposes of criticism, comment, parody, news reporting, teaching, scholarship, or research?
  3. Is the original work mostly fact (as opposed to mostly fiction or opinion)?
  4. Has the original work been published (as opposed to sent out only to one or a few people)?
  5. Are you copying only a small part of the original work?
  6. Are you copying only a relatively insignificant part of the original work (as opposed to the most important part)?
  7. Are you adding a lot new to the work (as opposed to just quoting parts of the original)?
  8. Does your conduct leave unaffected any profits that the copyright owner can make (as opposed to displacing some potential sales OR potential licenses of reprint rights)?
  • Motion Picture Association of America (MPAA--Jack Valenti) and Recording Industry Association of America (RIAA) cracking down (StarNet article)
  • In addition to individual copyright holders
  • E.g., Disney, Playboy
• Are ISPs liable?
  • Church of Scientology alleging copyright infringement against NETCOM (1995)
    • For posting of secret Church documents
    • Netcom cleared as it had no knowledge of what a user had posted through it.
• Copyright FAQ
5. SPAM issue
6. • CIS and others attack SPAM king, Sanford Wallace (CyberPromotions)
   • Eventually drives him out of business

Bibliography

1. Mark P. White, Sex in Cyberspace: A Legal View.
2. Electronic Frontier Foundation. Especially its materials on the CDA.
3. Cyberspace Law for Non-Lawyers (1996).
4. The Censorware Project (watchdog for filtering software). Esp. listing of CyberPatrol's blocked sites.
5. Yahoo! listing of filtering software.
6. Yahoo! information on Communications Decency Act.
7. The FCC perspective on the CDA, with its full text.