Internet (Encyclopedia of Science)
The Internet is a vast network that connects many independent networks and links computers at different locations. It enables computer users throughout the world to communicate and to share information in a variety of ways. Its evolution into the World Wide Web made it easy to use for those with no prior computer training.
The Internet could not exist until the modern computer came to be. The first electronic computers were developed during the 1940s, and these early machines were so largeainly because of all the bulky vacuum tubes they needed to perform calculationshat they often took up an entire room by themselves. They were also very expensive, and only a few corporations and government agencies could afford to own one. The decade of the 1950s proved to be one of silent conflict and tension between the Soviet Union and the United States period called the "cold war"nd computers naturally came to play a large role in those nations' military planning. Since each country was obsessed with the possibility of a deliberate or accidental nuclear war breaking out, the United States began to consider how it might protect its valuable lines of communication in case such a disaster did occur. By the 1960s, both nations had become increasingly dependent on their rapidly-improving computing technologies, and the United States eventually developed a means of linking its...
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Internet (West's Encyclopedia of American Law)
A worldwide TELECOMMUNICATIONS network of business, government, and personal computers.
The INTERNET is a network of computers linking the United States with the rest of the world. Originally developed as a way for U.S. research scientists to communicate with each other, by the mid 1990s the Internet had become a popular form of telecommunication for personal computer users. The dramatic growth in the number of persons using the network heralded the most important change in telecommunications since the introduction of television in the late 1940s. However, the sudden popularity of a new, unregulated communications technology raised many issues for U.S. law.
The Internet, popularly called the Net, was created in 1969 for the U.S. DEFENSE DEPARTMENT. Funding from the Advanced Research Projects Agency (ARPA) allowed researchers to experiment with methods for computers to communicate with each other. Their creation, the Advanced Research Projects Agency Network (ARPANET), originally linked only four separate computer sites at U.S. universities and research institutes, where it was used primarily by scientists.
In the early 1970s, other countries began to join ARPANET, and within a decade it was widely accessible to researchers, administrators, and students throughout the...
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The Internet (Great American Court Cases)
An estimated 44 million individuals participate in the Internet, and the audience is doubling each year. On each day in 1997, 71,000 new users logged on. Sixty percent of Internet content originates in the United States. Those interested in regulation efforts include the government, which swears to protect children from inappropriate material, parenting groups who are concerned about what their children may encounter, First Amendment free speech watchdogs who are concerned about preserving the unrestricted state of the cybercommunity, and the average curious individual who may just want to click on some pretty raunchy content. As a general rule, the Constitution forbids the government from silencing speakers because of their particular message. The Federal Communication Commission (FCC) is empowered to "describe" measures it believes to be "reasonable, effective, and appropriate" to block minors' access, but it cannot "approve, sanction, or permit, the use of such measures."
Several cases serve as guides for regulating Internet content. A federal statute passed in 1993 prohibits persons from making indecent comments, requests, and suggestions by telephone. The Supreme Court had struck down an earlier version which aimed to protect minors from dial-a-porn messages. The Court concluded that a blanket ban on indecency in telephone communications exceeded...
(The entire section is 2598 words.)
Internet (Encyclopedia of Public Health)
The Internet allows multimedia documents to be moved between any two computers, using an "internetwork" of relaying computers. Multimedia documents can be found by those seeking information using a web browser to "pull" information off the "World Wide Web," or using an e-mail system to "push" information to those currently uninterested or unaware of an issue.
The Internet has been called an "engine of empowerment" that creates healthy "virtual communities." Others, however, say it increases may social and health-related problems, including individual isolation and risky sexual practices by fragmenting relationships and by increasing the anonymous distribution and viewing of pornographic material. These seemingly contradictory outcomes can be reconciled in understanding that the Internet, like any communications technology, amplifies the intentions of its users. It amplifies these intentions by primarily increasing the "reach" of both the sender and receiver, who often share a common interest. As a result, its use may only increase the sharing of information that reinforces and amplifies preexisting life patterns.
(SEE ALSO: Advertising of Unhealthy Products; Information System; Information Technology; Patient Education Media; Self-Help Groups; Social Health)
The Internet (Encyclopedia of Management)
The Internet is the world's largest computer network. It is a global information infrastructure comprised of millions of computers organized into hundreds of thousands of smaller, local networks. The term "information superhighway" is sometimes used to describe the function that the Internet provides: an international, high-speed telecommunications network that offers open access to the general public.
The Internet provides a variety of services, including electronic mail (e-mail), the World Wide Web (WWW), Intranets, File Transfer Protocol (FTP), Telnet (for remote login to host computers), and various file-location services.
Electronic mail, or e-mail, is the most widely used function used on the Internet today. Millions of messages are passed via Internet lines every day through-out the world. Compared to postal service, overnight delivery companies, and telephone conversations, e-mail via the Internet is extremely cost-effective and fast. E-mail facilities include sending and receiving messages, the ability to broadcast messages to several recipients at once, storing and organizing messages, forwarding messages to other interested parties, maintaining address books of e-mail partners, and even transmitting files (called "attachments") along with messages.
Internet e-mail messages are sent to an e-mail address. The structure of an e-mail address is as follows: PersonalID@DomainName
The personal identifier could be a person's name or some other way to uniquely identify an individual. The domain is an indicator of the location of that individual, and appears to the right of the "at" (@) sign. A domain name is the unique name of a collection of computers that are connected to the Internet, usually owned by or operated on the behalf of a single organization (company, school, or agency) that owns the domain name. The domain name consists of two or more sections, each separated by a period.
From right-to-left, the portions of the domain name are more general to more specific in terms of location. In the United States, the rightmost portion of a domain is typically one of the following:
- comndicating a commercial enterprise
- edundicating an educational institution
- govndicating a governmental body
- milndicating a military installation
- netndicating a network resource
- orgndicating a nonprofit organization
In November of 2000 seven new domain names were created and made available: biz, .info, .name, .pro, .aero, .coop, and .museum.
In non-U.S. countries, the rightmost portion of a domain name is an indicator of the geographic origin of the domain. For example, Canadian e-mail addresses end with the abbreviation "ca."
Commercial abuse of e-mail continues to be problematic as companies attempt to e-mail millions of online users in bulk. This technique is called "spam," so named after a skit by the comedy troupe Monty Python that involved the continuous repetition of the word. Online users are deluged with a massive amount of unwanted e-mail selling a wide array of products and services. Spam has become a network-wide problem as it impacts information transfer time and overall network load. Several organizations and governments are attempting to solve the spam problem through legislation or regulation.
Computer viruses spread by e-mail have also grown as the Internet has grown. The widespread use of e-mail and the growing numbers of new, uninformed computer users has made it very easy to spread malicious viruses across the network. Security issues for both personal computers and for network servers will continue to be a crucial aspect of the ongoing development of the Internet and World Wide Web.
WORLD WIDE WEB
The World Wide Web (WWW) is a system and a set of standards for providing a graphic user interface (GUI) to Internet communications. The WWW is the single most important factor in the popularity of the Internet, because it makes the technology easy to use and gives attractive and entertaining presentation to users.
Graphics, text, audio, animation, and video can be combined on Web pages to create dynamic and highly interactive access to information. In addition, Web pages can be connected to each other via hyperlinks. These hyperlinks are visible to the user as high-lighted text, underlined text, or images that the user can click to access another Web page.
Web pages are available to users via Web browsers, such as Mozilla/Firefox, Netscape Navigator, or Microsoft's Internet Explorer. Browsers are programs that run on the user's computer and provide the interface that displays the graphics, text, and hyper-links to the user. Browsers recognize and interpret the programming language called Hypertext Markup Language (HTML). HTML includes the ability to format and display text; size and position graphics images for display; invoke and present animation or video clips; and run small programs, called applets, for more complex interactive operations. Browsers also implement the hyperlinks and allow users to connect to any Web page they want.
Sometimes a user knows what information she needs, but does not know the precise Web page that she wants to view. A subject-oriented search can be accomplished with the aid of search engines, which are tools that can locate Web pages based on a search criterion established by the user. Commonly used search engines include Google, Yahoo, Teoma, and Alta Vista.
The ease with which users can publish their own information using the World Wide Web has created an opportunity for everyone to be a publisher. An outcome from this is that every topic, hobby, niche, and fetish now has a thriving community of like-minded people. The ease of publishing information on the Web became easier with the advent of Web logs or "blogs," online diaries that opened the floodgates to an even greater level of individual participation in information sharing and community.
UNIFORM RESOURCE LOCATORS (URL)
A Uniform Resource Locator (URL) is a networked extension of the standard filename concept. It allows the user to point to a file in a directory on any machine on the Internet. In addition to files, URLs can point to queries, documents stored deep within databases, and many other entities. Primarily, however, URLs are used to identify and locate Web pages.
A URL is composed of three parts:
This is the first part of the address. In a Web address, the letters "http" stand for Hypertext Transfer Protocol, signifying how this request should be dealt with. The protocol information is followed by a colon. URL protocols usually take one of the following types:
- httpor accessing a Web page
- ftpor transferring a file via FTP
- fileor locating a file on the client's own machine
- gopheror locating a Gopher server
- mailor submitting e-mail across the Internet
- newsor locating a Usenet newsgroup
This is the name of the server/machine at which the query should be directed. For an "http" request, the colon is followed by two forward slashes, and this indicates that the request should be sent to a machine.
PATH AND FILE NAME.
The rest of a URL specifies the particular computer name, any directory tree information, and a file name, with the latter two pieces of information being optional for Web pages. The computer name is the domain name or a variation on it (on the Web, the domain is most commonly preceded by a machine prefix "www" to identify the computer that is functioning as the organization's Web server, as opposed to its e-mail server, etc.).
If a particular file isn't located at the top level of the directory structure (as organized and defined by whoever sets up the Web site), there may be one or more strings of text separated by slashes, representing the directory hierarchy.
Finally, the last string of text to the right of the rightmost slash is the individual file name; on the Web, this often ends with the extension "htm" or "html" to signify it's an HTML document. When no directory path or file name is specified (e.g., the URL http://www.domain.com), the browser is typically pointed automatically to an unnamed (at least from the user's perspective) default or index page, which often constitutes an organization's home or start page.
Thus, a full URL with a directory path and file name may look something like this:
Lastly, a Web URL might also contain, somewhere to the right of the domain name, a long string of characters that does not correspond to a traditional directory path or file name, but rather is a set of commands or instructions to a server program or database application. The syntax of these URLs depends on the underlying software program being used. Sometimes these can function as reusable URLs (e.g., they can be bookmarked and retrieved repeatedly), but other times they must be generated by the site's server at the time of use, and thus can't be retrieved directly from a bookmark or by typing them in manually.
INTERNET SERVICE PROVIDERS
To gain access to the Internet a user typically subscribes to an Internet Service Provider (ISP). ISPs are companies that have permanent connection to the Internet. Subscribers to ISPs can connect to the ISP's server computer, and through that connection can gain access to the Internet. Some well-known commercial ISPs include America Online, MSN, and Earthlink, although there are hundreds of such services.
An alternative access to the Internet is provided via academic institutions (i.e. colleges or universities) and government agencies. Most students and faculty in colleges have accounts on the school's computer system, through which they can gain access to the Internet.
TRANSMISSION CONTROL PROTOCOL/ INTERNET PROTOCOL (IP)
The Internet is a network of computers, or more accurately, a vast network of networks. These networks are connected to each other via a high-speed backbone, a communication link that joins the major Internet host computers. These hosts are primarily mainframe computers at academic institutions. The communication along the Internet follows the Transmission Control Protocol (TCP)/Internet Protocol (IP) communications standard.
TCP is called a connection-based protocol, which enables two hosts to establish a direct connection and exchange streams of data. TCP guarantees delivery of data and also guarantees that packets of data will be delivered in the same order in which they were sent. In this regard, TCP acts like a telephone conversation.
IP is a connectionless protocol, acting something like the postal system. It allows you to address a data packet and drop it in the system, but there's no direct link between you and the recipient.
Each node (or computer) on the Internet is assigned a unique IP address. IP addresses are 32-bit numbers, normally written as 4 octets (in decimal), e.g., 188.8.131.52. These identify the particular network and host. IP addresses are numeric values. However, most users prefer symbolic names to identify the hosts they want to access. Thus, the Internet provides the Domain Name Service (DNS), which allows users to use symbolic names to locate Internet hosts.
Internet technology has become extremely beneficial for businesses and other organizations as a cost-effective means of implementing their corporate-wide telecommunications needs. However, the public nature of the Internet poses a challenge to any company wishing to take advantage of its potential. The TCP/IP protocol does not provide adequate security for commercial institutions. It is relatively easy to eavesdrop on transmissions, and there is no inherent authentication mechanism. Thus, many companies adopt intranets, private networks based on Internet technology.
Intranets use the company's existing network infrastructure, together with the TCP/IP protocol, Web browsers, Web server technologies, and HTML-formatted Web pages. The key distinction between an intranet and the Internet is the use of a firewall, which is a security system with specialized software and/or hardware that can prevent unauthorized users from gaining access to the company's intranet server.
Intranets have many advantages over other corporate-wide network implementations. They are comparatively inexpensive to implement and easily allow different types of computers to communicate with each other, which overcomes a major obstacle to corporate-wide information sharing.
Most companies have a wide variety of computer platforms, including PCs, mainframes, and minicomputers, spread throughout the organization. Web technology and TCP/IP communications standards enable these diverse platforms to maintain a consistent user interface, thus reducing the amount of time it takes users to become proficient on the network.
Intranets are used for many business purposes, ranging from distribution of corporate documents to facilitating group collaboration via groupware and teleconferencing, to full-blown transaction-processing applications.
FILE TRANSFER PROTOCOL
The File Transfer Protocol (FTP) is a method of moving files between two Internet sites. Files can contain software, text, graphics, or other file formats.
Early Internet users developed FTP so researchers could copy files from one place to another across the Internet. Until 1995 and the popularization of the World Wide Web, FTP accounted for more traffic on the Internet than any other service. Nowadays, the bulk of traffic is done via the Web. However, even when downloading files via an Internet browser, FTP is the protocol involved. In this case, the URL begins with the protocol "ftp://" instead of "http://".
Although using FTP to transfer files from one system to another usually requires a user ID on both systems, many host systems provide anonymous FTP services. Anonymous FTP lets anyone in the world have access to a certain area of disk space on the host system and allows some files to be publicly available. Some systems have dedicated entire disks or even entire computers to maintaining extensive archives of source code and information. These sites are called anonymous FTP servers.
Once a user logs onto an FTP server, he or she can transfer data to or from that server using common FTP commands. The basic syntax for FTP commands is based on the UNIX operating system; however, many software products are available that provide graphic interfaces to FTP and thus simplify the file transfer process.
ARCHIE, GOPHER, AND VERONICA
As FTP sites proliferated over the Internet, it became necessary to create directories and indexes to allow Internet users to quickly locate desired information. Three commonly used tools exist for this purpose. An Archie is a database server that provides keyword search to locate relevant FTP files. Gophers, originally developed at the University of Minnesota, are menu-oriented directories to FTP files and sites. The menus are arranged in hierarchical structure based on topics, and are hyperlinked to FTP sites and even to other Gopher sites. Finally, a Veronica (Very Easy Rodent-Oriented Netwide Index) is a keyword-search tool that searches Gopher sites for relevant subject material.
Although these three tools are useful, their use has declined with the advent of the World Wide Web. One can think of the Archies, Gophers, and Veronicas of the world as being precursors to the modern search engines of the Web. In fact, Gophers are themselves accessible from the Web, and have their own URL protocol.
Telnet is the Internet standard protocol for remote terminal connection, allowing a user at one site to interact with a remote timesharing system at another site as if the user's terminal were connected directly to the remote computer. A Telnet program is the terminal emulation software you use to log in to an Internet host; the host has similar Telnet software. Thus, via Telnet, your computer becomes a terminal connected to the host computer, and your interaction with that computer is the same as it would be if you were sitting at a terminal wired directly to that computer.
Telnet is a text-based connection protocol, providing only character-based communications capabilities with the host. Thus, Telnet has been greatly overshadowed by the Web, as there is limited content available by Telnet and it requires knowledge of various system commands. However, there are still many Telnet sites available. Most Internet browsers allow access to Telnet sites by specifying the Telnet protocol as the first part of a URL.
The peer-to-peer (P2P) protocol began to gain in popularity in the late 1990s and early 2000s. This protocol allows for the sharing of individual computer hard drives and storage devices. P2P spreads the network usage and downloading across all of the linked computers distributing the load more evenly. It also allows for a lack of accountability in serving and acquiring data. It has been extremely popular for downloading music, videos, and books.
The first and most well-known instance of P2P was Napster in 1999, a file sharing application for exchanging music files between users without regard to copyright restrictions or royalties. A significant amount of litigation took place between Napster and the Recording Industry Association of America to stop promoting copyright infringements. Napster eventually acquiesced to the legal actions; however P2P downloading continues to be a corporate issue.
Usenet is an Internet news/discussion group forum that allows ongoing conversations on a given topic to occur over an extended period of time (weeks, months, and even years). These newsgroups are organized in a bulletin board framework, so that any Internet user can read or post messages to any topic area. Although Usenet newsgroups existed long before the WWW, they are still in wide use and accessible from the Web via their own URL protocol.
HISTORY OF THE INTERNET
The idea for the Internet began in the early 1960s as a military network developed by the U.S. Department of Defense's Advanced Research Project Agency (ARPA). At first, it was a small network called ARPANET, which promoted the sharing of super-computers amongst military researchers in the United States. A few years later, ARPA began to sponsor research into a cooperative network of academic time-sharing computers. By 1969, the first ARPANET hosts were constructed at Stanford Research Institute, University of California Los Angeles (UCLA), University of California Santa Barbara, and the University of Utah.
In the early 1970s, use of ARPANET expanded dramatically. Although it was originally designed to allow scientists to share data and access remote computers, e-mail quickly became ARPANET's most popular application, as researchers across the country used it for collaborating on research projects and discussing topics of interests.
In 1972, the InterNetworking Working Group (INWG) was established as the first standards-setting organization to govern the growing network. Under the leadership of Vinton Cerf, known as the "father of the Internet," INWG began to address the need for establishing agreed-upon protocols and enforce standardization in ARPANET functionality. Two early protocols, Telnet and FTP, are still in use today.
By 1973, ARPANET crossed national boundaries, establishing connections to University College in London, England, and the Royal Radar Establishment in Norway. In 1974, a commercial version of ARPANET, called Telenet, was developed by Bolt, Beranek, and Newman, Inc. (BBN), one of the original ARPA contractors that had helped get ARPANET running. It began a move away from the military/research roots of the original ARPANET.
In 1979, faculty members and graduate students at Duke University and the University of North Carolina created the first Usenet newsgroups, enabling users from all over the world join discussion groups on a myriad of subjects including politics, religion, computing, and even less-than-savory topics. Usenet influenced a continuing wave of growth.
Between 1981 and 1988, ARPANET grew from around 200 hosts to more than 60,000. Many factors influenced this explosive growth. First was the boom in the personal computer industry. With more people using inexpensive desktop machines, and with the advent of powerful, network-ready servers, many companies began to join this vast computer network for the first time, using it to communicate with each other and with their customers.
A second factor in growth was the National Science Foundation's NSFNET, built in 1986 for the purpose of connecting university computer science departments. NSFNET combined with ARPANET to form a huge backbone of network hosts. This backbone became what we now think of as the Internet (although the term "Internet" was used as early as 1982).
The third factor in growth was the concept of internetworking, which began to appear in popular culture in the 1980s. William Gibson's 1984 novel Neuromancer coined the ubiquitous term "cyberspace" to describe the new virtual communities, cultures, and geographies that the Internet provides.
The explosive growth of the Internet came with major problems, particularly related to privacy and security in the digital world. Computer crime and malicious destruction became a paramount concern. One dramatic incident occurred in 1988 when a program called the "Morris worm" temporarily disabled approximately 10 percent of all Internet hosts across the country. The Computer Emergency Response Team (CERT) was formed in 1988 to address such security concerns.
In 1990, as the number of hosts approached 300,000, the ARPANET was decommissioned, leaving only the Internet with NSFNET as its sole back-bone. The 1990s saw the commercialization of the Internet, made possible when the NSF lifted its restriction on commercial use and cleared the way for the age of electronic commerce.
Electronic commerce was further enhanced by new applications being introduced to the Internet. For example, programmers at the University of Minnesota developed the first point-and-click method of navigating the Internet files in 1991. This program, which was freely distributed on the Internet, was called Gopher, and gave rise to similar applications such as Archie and Veronica.
An even more influential development, also started in the early 1990s, was Tim Berners-Lee's work on the World Wide Web, in which hypertext-formatted pages of words, pictures, and sounds promised to become an advertiser's dream come true. At the same time, Marc Andreessen and colleagues at the National Center for Supercomputing Applications (NCSA), located on the campus of University of Illinois at Urbana-Champaign, were developing a graphical browser for the World Wide Web called Mosaic (released in 1993), which would eventually evolve into Netscape.
By 1995, the Internet had become so commercialized that most access to the Internet was handled through Internet service providers (ISPs), such as America Online and Netcom. At that time, NSF relinquished control of the Internet, which was now dominated by WWW traffic.
Partly motivated by the increased commercial interest in the Internet, Sun Microsystems released an Internet programming language called Java, which promised to radically alter the way applications and information can be retrieved, displayed, and used over the Internet.
By 1996, the Internet's twenty-fifth anniversary, there were 40 million Internet users, and Internet-based electronic commerce had reached major proportions, with more than $1 billion in Internet shopping mall transactions.
DIRECTION OF THE INTERNET
The Internet is now truly global, with 150 countries connected. In less than 30 years, the Internet migrated from an American military information management tool to an information superhighway serving the entire world.
The Internet revolutionized late twentieth and early twenty-first century society as dramatically as the railroads and the Industrial Revolution of the nineteenth century. Telecommuting, e-commerce, blogs, and virtual communities have broken geographic boundaries and brought people closer together.
At the same time, the internet has introduced significant social challenges. There is a danger of creating a second-class citizenship among those without access. Privacy and security are a continuing concern. The workplace is drastically altering society as the information age makes industrial-era skills obsolete. The twenty-first century will be strongly influenced by the dispersion of information technology, and the Internet promises to be the conduit of this technology.
Berners-Lee, Tim. Weaving the Web: The Original Design and Ultimate Destiny of the World Wide Web. New York, NY: HarperBusiness, 2000.
Grauer, Robert, and Gretchen Marx. Essentials of the Internet. Upper Saddle River, NJ: Prentice Hall, 1997.
Hafner, Katie. Where Wizards Stay Up Late: The Origin of the Internet. New York, NY: Simon & Schuster, 1998.
Kalakota, Ravi, and Andrew B. Whinston. Electronic Commerce: A Manager's Guide. Reading, MA: Addison-Wesley, 1996.
Advertising (Encyclopedia of Everyday Law)
The number of people who see an advertisement on the Internet and click on it to get more information is growing. For these people, the Internet is a means of streamlining commerce. Depending on the sophistication of the ad, the viewer may be able to get product information, comparison information on other products, a listing of current vendors who sell the product (along with the price each charges), and an electronic order form. The Internet allows people to purchase anything from travel tickets to groceries online, and people are drawn to online products via ads.
It is also true that people who have clicked on an online ad have in all likelihood provided the advertiser with a way to collect information about them. Some of this information may seem innocuous favorite hobby, product preferences. In some cases, however, the site may gather more information about viewers than they realize, and it may do so more actively than they wish.
Because the Internet is a relatively new phenomenon (having become popular as a communications tool in the 1990s), there are still a number of questions about how to use it effectively. Moreover, because the Internet exchanges information between computers, it allows users to be "tracked" to varying degrees. Not surprisingly, this ability has made the Internet a particularly attractive tool for advertisers and marketers. An advertisement placed on the Internet has the potential to reach literally millions of people anywhere in the world, at a fraction of the cost of traditional print or broadcast advertising. As with traditional advertising, some people welcome the information, while others simply wish to be left alone. In most cases this is not a problem; an Internet user who sees an ad has the option of clicking it and being put on an electronic mailing list if he or she chooses, while someone who is not interested can ignore the ad. In fact, many people do wish to be placed on such lists. Being on these lists might allow a consumer to receive information about new products and special offers via email. To some, this is seen as a convenience.
Some Internet sites, however, are set up to collect information about visitor usage patterns. They use this information to target potential customers via mail, telephone, and email. For every person who sees this as a convenience, there is someone else who views it as a threat to security and privacy. Although the issue will likely be a work in progress for some time, various groups in the government and the private sector are working to ensure that Internet advertising is safe and secure and that it respects the privacy of viewers and customers.
Before the Internet
Using advertising as a means of tracking customers and their preferences is hardly new. The twentieth century witnessed the growth of targeted marketing based on information supplied, willingly, by consumers. This could be accomplished by many means, with the dual goal of finding out which advertising is most effective and which customers are most receptive.
Print, Radio, and TV Advertising
A simple example is a print advertisement in a newspaper or magazine that includes the line, "Mention this ad and receive an additional discount on our services." The advertiser had an accurate and cost-effective way of determining how successful the ad was; if hundreds of people mentioned it, the ad was working, but if no one mentioned it, the ad needed to be changed or dropped. Ads of this type also appear on radio and television.
An ad that asks people to list their name and address and asks them to send that information to the advertiser is designed to perform two functions. First, it allows the advertiser to track individuals and reach them directly with product and service offers. Second, it allows the consumer to receive targeted information about products that he or she may be interested in purchasing. For a consumer who sees this as a service, this works well for everyone concerned. A consumer who has no interest in getting mail or telephone calls from advertisers can simply ignore requests for additional information.
Advertising Becomes More Intrusive
As technology made it easier for records to be kept, it became increasingly difficult for people to remain anonymous. As marketing became a more definitive science in the latter half of the twentieth century, more people found themselves subjected to ads in the mail and on the telephone. Anyone with a telephone number and a mailing address could expect to be contacted by advertisers. People who did business with a company and paid by credit card or people who submitted their names to local businesses offering free prizes, might find themselves being targeted with specific offers. Junk mail, junk phone calls, and even junk faxes have become a fact of life for virtually everyone. People who switch to unlisted telephone numbers often find that they get calls for the last person before them to hold that number. Organizations such as the Direct Marketing Association (DMA) can help consumers get off mail and telephone lists, but other lists do continue to crop up.
Benefits of Internet Advertising
Despite the negative aspects of Internet ads, they do actually serve a useful function for both consumers and those who have websites. For consumers, Internet advertising provides them with one enormous advantage: free access to websites. Many websites use the revenue generated by ads to pay for the web hosting service that allows them to appear in the Internet in the first place.
From the website's perspective, accepting ads allows people to have free access. Without the ads, the sites would likely need to charge a fee to remain viable and pay for web hosting services (which include the space on the Internet to run the site).
Advertising can be done via email as well. This is a highly cost-effective way for companies to reach customers or potential customers. Typically, a company will collect the email addresses of customers and ask them whether they wish to be sent special offers or company news via email. Those who say yes will get periodic product updates and special purchase officers delivered electronically. Customers can opt into or out of the system. Email has the advantage of quick delivery and minimal cost; even a company that has no website can send e mail.
Anyone who has visited a website on the Internet is familiar with the ad that flashes across the screen, known as the banner ad. Banner ads often have some sort of graphic element that catch the viewer's attention, along with an invitation to learn more about the product being advertised.
Banner ads are often considered intrusive and many people simply ignore them. Other ads that are less easy to ignore actually pop up on the screen while the viewer is looking at a website. Some of these ads open up in a new window, and the viewer must physically close these windows to get rid of the ad.
What many people fail to realize is that by clicking on to an Internet ad, they are authorizing a tracking device to be placed on their computer. This device will allow the advertiser to monitor the potential customer's computer use, including other sites visited and purchases made. Many people who believe they are safe from Internet advertisers are surprised to find themselves getting offers online or in the mail because they are unaware that clicking onto a banner ad launches this tracking device, known as a cookie.
Despite the whimsical name, cookies are a powerful tracking tool for advertisers. They are designed to store small pieces of information on a computer to make it easier for websites to remember the computer user. In its most innocuous form the cookie is a useful item. Cookies are used to save passwords and user ID information, which is useful for people who visit websites of organizations they belong to. Thanks to cookies, the computer can "remember" this information instead of forcing the user to type it in each time he or she visits a site.
Cookies can also be used, however, to gather more personal information about users, including what they purchase, how much time they spend at different sites, what they click on, and what they purchase. Often, banner ads include cookies, so anyone who clicks on a banner ad gets a cookie placed on his or her computer. That may be fine if the cookie only tracks the user's visits to that particular ad. Unfortunately, many banner ad companies actually collect data from cookies for all their member companies. This is how clicking on one particular ad can generate junk email, phone calls, or print mail.
Unsolicited electronic advertising, or spam, has become an increasingly common nuisance to anyone with an email account. Spam is essentially electronic junk mail. Those who send spam may purchase email lists, or they may use technology that sends to random email names in a particular domain name (in much the same way computerized telemarketing will dial different telephone numbers at random). Spam may advertise anything at all from magazines to electronic equipment to travel packages. One of the most pervasive, and offensive, uses of spam is advertising of pornographic websites and literature.
Spam is popular with advertisers because it is convenient and because it costs a fraction of what mass mailings cost. With an actual mailing, the advertiser has to pay for paper, printing, and postage. With email advertisements, none of those costs exists. As with telemarketing, the danger of offending potential customers is offset many times over by the number of new customers who see email marketing as a convenient way to receive information.
A number of companies offer spam-filtering services that are designed to identify mail that looks like spam and prohibit its delivery. Usually the spam is stored where the would-be recipient can view it at his or her leisure and delete as necessary. Some Internet service providers (ISPs) also offer anti-spam functions. Electronic communication experts recommend that those who wish to minimize the amount of spam they get can send complaints to the ISP's postmaster (for example, if the domain name is sample.com, the complaint would be sent to email@example.com.) Often the ISP has no idea that a customer is using spam and will be only too happy to remove that client from its roster. Replying to a spam message, even when there are instructions for getting off of a list, is not recommended because even an angry note tells the sender that they have reached a live person, and they may continue to send spam anyway.
Internet Advertising and Children
Children are particularly vulnerable when it comes to advertising. Marketers have long known that television advertising can be highly effective in reaching children, who are not savvy enough to understand that ads can be misleading.
Congress enacted legislation in 2000 to protect children, as well as their parents, from unscrupulous or unwitting advertisers who try to solicit information. Known as the Children's Online Privacy Protection Act (COPPA), it requires websites to obtain verifiable parental consent before collecting data from children. This data could include names, mailing addresses, email addresses, birth dates, and other private or personal information that children may not realize should not be shared online.
There have been cases, for example, in which children have been asked to provide this sort of information to websites as part of the entry rules for an online contest. COPPA mandates that in the case of such contests, children cannot be asked for information that is not deemed reasonably necessary. Companies that violate COPPA can face large fines. COPPA covers all websites for children ages 13 and under, as well as any website that collects data from children.
Making Internet Advertising Work for Users
Used properly, Internet advertising can be appealing to consumers and cost-effective to advertisers. Consumers who wish to get the most out of Internet advertising can follow some simple guidelines to ensure that they are not being placed unwittingly on mailing lists.
- Provide only the necessary information to conduct online transactions. Some websites ask for name, mailing address, home and work phone numbers, email address, date of birth, etc. Users probably do not need to divulge all this information. In most online forms, "required fields" (those that must be filled out for the form to be accepted) are marked with an asterisk; everything else is optional.
- If users belong to any online lists or frequent any sites where they make purchases, they can check their preferences to see what information is available. About 2001 Yahoo, which offers services such as listserve hosting, upgraded its technology. In so doing, it set all Yahoo customers to a DEFAULT setting in which they all consented to receiving solicitations by mail, phone, and email. Yahoo did notify its customers and provided instructions on how to change those preferences, but if they belong to other list groups or if they make purchases from a particular site they should periodically check their settings.
- Do not respond to spam. Sending a reply to spam asking to be removed from a list almost never works. Users can contact their Internet service provider to find out if it can help them track down spam; there is also software on the market that can screen some spam.
Some organizations on the Internet provide information about online privacy issues, advertising, legal action, and spam. The Electronic Frontier Foundation (http://www.eff.org) offers a variety of information and also has links to other information.
Ultimately, dealing with Internet advertising is like dealing with any other type of advertising. Understanding how it works may not eliminate ads, but it will help users know how to minimize their impact.
Advertising and Marketing on the Internet: Rules of the Road. Federal Trade Commission, Bureau of Consumer Protection, 1998.
Advertising on the Internet Zeff. Robbin Lee, and Brad Aronson, Wiley, 1999.
Advertising on the Web. Sterne, Jim, Que, 1997.
Cybermarketing. Keeler, Len, AMACOM, 1995.
E-Advertising and E-Marketing: Online Opportunities. Haegele, Katie, Rosen Publishing Group, 2001.
Electronic Frontier Foundation (EFF)
454 Shotwell Street
San Francisco, CA 94110 USA
Phone: (415) 436-9333
Fax: (415) 436-9993
Primary Contact: Shari Steele, Executive Director
Federal Communications Commission (FCC)
445 12th Street SW
Washington, DC 20554 USA
Phone: (888) 225-5322
Fax: (202) 418-0232
Primary Contact: Michael K. Powell, Chairman
Federal Trade Commission (FTC)
600 Pennsylvania Avenue NW
Washington, DC 20580 USA
Phone: (202) 382-2537
Primary Contact: Frederick J. Zirkel, Inspector
Consumer Rights And Protection (Encyclopedia of Everyday Law)
The Internet has raised a variety of legal issues since it first became widely used in the mid-1990s, most in the area of consumer rights and protections. But because the Internet is relatively new, regulations affecting consumer rights have often lagged behind the development of e-commerce as important new revenue source for businesses in the United States.
At the end of the 1990s and beginning of the twenty-first century, legislation affecting consumer and business rights in areas such as privacy, cybersquatting, and electronic signatures was passed. This legislation marked some of the first attempts to regulate the Internet marketplace. Because the Internet is still changing and developing, these new laws will almost certainly not be the last in terms of Internet regulation. It remains to be seen what will develop for this extraordinarily powerful marketing and selling tool.
Development of the Internet
The Department of Defense first created the Internet in the late 1960s as a way of making sure communications between different facilities could withstand a war. It was originally called APRAnet, and in time this network came to link CORPORATIONS and educational institutions as well. As this system developed, its aptitude for commercial applications became more and more apparent. The introduction of the first Internet browsers, along with the development of domain nameshe names used by their owners to identify specific Internet addresses (e.g. www.gale.com)nd hypertext transfer protocols (HTTP), hastened this changeover. By 1995, when the National Science Foundation finally stopped supervising the Internet and Netscape introduced the first commercial Internet browser, it was clear that the Internet was going to become something big.
Since that time, companies offering various commercial services have popped up all over the Internet. Amazon, E-Bay, and Yahoo are the most widely known of the thousands of retail companies that have taken advantage of the Internet's lack of overhead and its ease of use. Internet commerce exploded from less than $100 million in 1995 to $33 billion in 2001.
But with this tremendous increase in trade has come concern for the rights of consumers who use the Internet to buy everything from soap to cars. Because the Internet has grown so fast in a relatively short while, many unusual consumer issues have arisen that have required both regulatory agencies such as the FTC and the legislative branches to pass new rules and laws specifically adapted to the situation.
Consumers and Privacy
One of the most controversial issues facing consumers using the Internet has been privacy. Consumers have been concerned not just about having important information such as credit card numbers given out to the wrong people but also other information such as addresses and phone numbers.
One of the biggest controversies over privacy and the Internet has concerned so-called informational databases that companies accumulate when individuals buy something or registers on their sites. These databases contain personal information that can be sold to other corporations wishing to target those consumers. Corporations have traditionally treated these databases as a normal business asset. Recently Congress has stepped in to enact legislation making it more difficult to sell or purchase these databases without the consent of the consumer providing the information. There are questions about the reach of some of this legislation, however.
Computer Fraud and Abuse Act
The Computer FRAUD and Abuse Act (CFAA), first passed in 1984, was amended in 1996 to punish anyone who "intentionally accesses a computer without authorization or exceeds authorized access and thereby obtains information from any protected computer." Computers used for e-mail communication between states or used for online purchases from online vendors from other states are presumably included under the definition of protected computer that states that it includes any computer "which is used in interstate or foreign commerce or communication."
Thus, any user who covertly collects personal information of web-users engaged in transactions is in violation of this act. However, the CFAA has been used sparingly in prosecutions so far, and there are questions about its reach in regard to Internet privacy issues.
Electronic Communications Privacy Act
Like the CFAA, the Electronic Communications Privacy Act (ECPA) was originally passed in the 1980s. The ECPA prohibits the intentional interception of electronic communications, the intentional disclosure of electronic communications wrongfully obtained, and the intentional use of electronic communications wrongfully obtained.
The ECPA contains an exception to its general rules about electronic communications that allows the interception and dissemination of electronic communications when one party to the communication has given consent. This would limit the use of EPCA in terms of online profiling since the site the user is in direct contact with would be allowed to use the consumer's information under this exception.
Children's Online Privacy Protection Act
The Children's Online Privacy Protection Act (COPPA), passed in 1998, marks the first action by the government specifically limiting companies' dissemination of private information over the Internet. COPPA prohibits an operator of a website or online service directed at children or any operator that has actual knowledge that children are using its website, from collecting personal information from a child, unless the operator meets certain regulatory requirements.
These regulatory requirements include providing notice on the website as to what information is collected from the children and how the operator plans to use the information. In addition, the operator must obtain verifiable parental consent for the collection, use, or disclosure of personal information from children. Finally, operators are required, upon the request of a parent, to provide a description of the specific types of personal information collected from the child by that operator and an opportunity to prevent further collection or use of such information.
COPPA applies to websites and online services that are specifically directed at children under the age of thirteen and to operators of websites where the operators have actual knowledge they are collecting information from children under the age of thirteen. In 2000, the Federal Trade Commission filed its first action under COPPA, against a website called Toysmart. After it declared BANKRUPTCY, Toysmart had attempted to sell the data it had collected selling toys. The FTC and Toysmart eventually agreed to a consent degree which allowed Toysmart to sell its database but only to a qualified buyer who focused its business in the same area that Toysmart did and agreed to the same limitations on that information that Toysmart had to follow under COPPA.
Cybersquatting refers to the registration of a domain name in which the person has no legitimate interest. Cybersquatting is the attempt to profit by reserving and later reselling the domain name to the companies or individuals that have the trademarked right to the domain name. This can happen because domain names are registered on a first come, first serve basis. As an example, a cybersquatter may register the name "Exxon.com" and attempt to sell this name back to the Exxon corporation, or alternatively, may attempt to block Exxon from using Exxon.com as an address to conduct business on the Internet. The cybersquatter may use the Exxon.com address to post disparaging information about Exxon or to try to DEFRAUD consumers wishing to do business with Exxon into thinking they have accessed the official Exxon site.
In response to the tremendous amount of LITIGATION that occurred as a result of cybersquatting, the Anticybersquatting CONSUMER PROTECTION Act (ACPA) was passed in 1999. This law provides that persons are liable for civil damages if they register, use, or traffic in domain names that are identical or confusingly similar to a distinctive or famous mark owned by the plaintiff and the person has a BAD FAITH intent to profit from such activity.
The ACPA is a fairly broad act that prevents many of the actions of cybersquatters discussed above. To assist in the bad faith determination, the court provides a non-exhaustive list of factors the court may examine in looking at a person's registration of a domain name. These include:
- The trademark or other intellectual property rights of the person in the domain name
- The extent to which the domain name consists of the legal name of the person or a name that is commonly used to identify that person
- The person's prior use of the domain name for a commercial purpose
- The person's prior use of the domain name for noncommercial purposes
- The person's intent to divert consumers from the mark owner's online location to a site that could harm the good will represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark
- The person's offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used the domain name in the bona fide offering of any goods or services
- The person's provision of material and misleading false contact information when applying for the registration of the domain name
- The person's registration or acquisitions of multiple domain names that the person knows are identical or confusingly similar to the marks of others
- The extent to which the mark incorporated in the person's domain name registration is or is not distinctive and famous.
Electronic Signatures and E-Sign
One of the most difficult issues to resolve in the area of consumer rights and the Internet is the role of "electronic signatures." Traditionally, signatures have had a hallowed place in the arena of contract law, where they have been seen as crucial to making a valid contract between parties. But on a computer, it is impossible to sign a name; at least in the traditional way it has been done. Yet consumer transactions between parties require some sort of indication of agreement even over the Internet, some sort of indication there has been a "meeting of the minds."
On Oct. 1, 2000, in answer to these concerns, the E-Sign Act took effect. E-Sign established a uniform federal framework for validating electronic commerce transactions. E-Sign allows electronic signatures for two scenarios: a transaction that occurs in "electronic form," and a transaction that utilizes an electronic signature or electronic record. In both of these scenarios, E-sign upholds the effects of electronic transactions regardless of the type of method of electronic record or signature employed by the transacting parties.
E-Sign applies only to transactions where parties have agreed to do business electronicallyhrough the Internet or other electronic methods. In addition, where an existing law requires that information relating to a transaction be made available to a consumer in writing, a consumer must affirmatively consent to an electronic record in place of the written record, and must be provided with an easy to understand way to withdraw such consent.
E-Sign does not change existing state law regarding the necessity or effect of signatures. It merely provides one more way for such signatures to be recorded.
"Consumer Protection and Antitrust Enforcement at the Speed of Light: The FTC Meets the Internet." Graubert, John, Jill Coleman, Canada-United States Law Journal, 1999.
"Fighting Back on the Internet: A Primer on the Anticybersquatting Consumer Protection Act." Toth, Justin T., Utah Bar Journal, November, 2001.
"From Wax Seals to Hypertext: Electronic Signatures, Contract Formation and a New Model for Consumer Protection in Internet Transactions." Balloon, Anthony M., Emory Law Journal, Summer 2001.
"The New Economania: Consumer Privacy, Bankruptcy, and Venture Capital at Odds in the Internet Marketplace." Wingate, John M., George Mason Law Review, Spring 2001.
"The Rise and Fall of Internet Fences: The Overbroad Protection of the Anticybersquatting Consumer Protection Act." Ward, Jonathon M., Marquette Intellectual Property Law Review, 2001.
Electronic Frontier Foundation (EFF)
454 Shotwell Street
San Francisco, CA 94110-1914 USA
Phone: (415) 436-9333
Fax: (415) 436-9993
Primary Contact: Brad Templeton, Chairman of the
Federal Trade Commission (FTC)
600 Pennsylvania Avenue, N.W.
Washington, DC 20580 USA
Phone: (202) 326-2222
Primary Contact: Timothy J. Muris, Chairman
National Consumer Law Center
77 Summer Street, 10th Floor
Boston, MA 02110-1006 USA
Phone: (617) 542-8010
Fax: (617) 542-8028
Primary Contact: Willard P. Ogburn, Executive
Free Speech (Encyclopedia of Everyday Law)
In the United States, FREEDOM OF SPEECH is guaranteed by the First Amendment of the U.S. Constitution, the highest law in the land. This law protects what individuals say, what they write, and their right to meet freely with other people in just about any forum: clubs, demonstrations, organizations, and rallies. This cherished protection applies to everyone in the United States.
The advent of the Internet and the huge variety of data it makes accessible has been hailed by free speech advocates as an incredible boon to the United States and the world. On the other hand, the notion that such a vast array of speech can be disseminated so easily and broadly, all without any restrictions or review, concerns and offends many individuals and groups. Some groups have called for an array of content regulations and restrictions, for example, legislative initiatives that would force electronic communications providers to censor the material they distribute or to deny access to various potential users. On the other side of the debate, there are concerns that such regulation contravenes the protections of the First Amendment, ultimately providing control at the cost of free speech.
The Internet poses certain challenges to traditional First Amendment law. Some groups assert that the Internet should be allowed to regulate itself. These groups assert that government regulations would lag behind the rapidly developing technology. Even so, there have been many attempts to regulate the Internet, and these have frequently raised legal questions and challenges.
Radio, Television, and the Internet
To use television or radio airtime, get ideas published in a newspaper or magazine, or use traditional types of communications media to share thoughts with thousands or millions of listeners, people must first obtain the approval and assistance of publishers and broadcasters. But, such concerns are not as relevant in cyberspace. On the Internet, people can publish themselves, and their messages are instantly distributed around the globe. Through the Internet and the World Wide Web, individuals now possess an unprecedented degree of freedom regarding the words and images shared with others.
The urge to regulate new communication technologies is certainly nothing new. Practically every new technological communications development has been subjected to the same legislative fervor for review in its earliest days. Even though the U.S. Supreme Court has traditionally vigorously supported First Amendment rights, the Court has been somewhat inconsistent when it applies the First Amendment to providers of mass communications. A typical maneuver is for the Court to find differences in the characteristics of the new medium that it uses to justify different treatment in the First Amendment standards that apply to it.
Previously, radio and television broadcasters encountered similar problems. In the early days of radio, there were calls for restricting broadcasting only to persons licensed by the federal government, and only on the frequencies and at the times assigned to them. Laws such as the Radio Act of 1927 required broadcasters to censor obscene and profane language from their programs. At the same time, the Radio Act purported to prohibit the government's control over the content of broadcasts. In the 1940s, radio broadcasters asserted that such regulations violated their First Amendment rights. But the Supreme Court cited the difference between radio and other forms of communication because it is not available universally. This difference, the Court found, made radio subject to government regulation. One of the consequences of such regulation has been less stringent First Amendment protection for providers of mass communications media. This restricted view dominated legal discourse on the subject for the second half of the twentieth century.
Similar to the legislative and regulatory challenges prior communications media providers endured, there are as of 2002 numerous appeals for legislation and regulation of electronic media. Current events outside the communication industries have also driven the impetus to regulate. For example, after the Oklahoma City bombing, some groups demanded that government control Internet sites on which individuals can learn about making bombs. Following a Carnegie Mellon study on Internet PORNOGRAPHY and a subsequent Time Magazine article that brought the study's findings to mainstream America, there were fresh calls for immediate legislative and regulatory crackdowns on the content available on electronic networks. These regulations were intended to protect children from seeing materials that would harm them. This Carnegie Mellon study quickly attracted intense criticism for flawed research and distorted statistics of the quantity of porn to be found on the Internet. But public concern pushed attempts by Congress to do something to address these concerns. What resulted was the Communications Decency Act of 1995 (CDA).
The federal courts have helped to provide guidelines for First Amendment rights of online services. The courts have ruled on various challenges to Internet providers and groups who provide content for Web sites. Of course, judicial protection can never be guaranteed. But generally, it is safe to say that the First Amendment allows restriction of speech that is obscene or defamatory in certain situations and the First Amendment does not protect speech that is an imminent threat of action.
The Courts are nevertheless striking out into new territory. For example, in 1991, the Supreme Court case of Cubby v. CompuServe helped clarify the parameters of First Amendment protections extended to businesses that provide digitized information. The court held that an online service provider is acting as a kind of digital, profit-based library when it makes publications available online as long as the service provider has no editorial control over the content. This extends First Amendment protections given to news distributors and conventional libraries. In arguing its case, CompuServe asserted that in this age of cyber-publication, there is no way that an online service provider can have knowledge of the content of each message or communication transacted over its service. CompuServe also argued that to do so would be to inappropriately assume editorial control of the speech of its users, and doing so would make the service more like a publisher than a distributor.
The Communications Decency Act of 1996
The Communications Decency Act of 1996 (CDA) was enacted as a means to prevent the transmission of indecent and patently offensive materials to minors over the Internet. There were two key provisions to the CDA:
- The first prohibited companies or individuals from knowingly transmitting obscene or indecent messages to anyone under 18.
- The second prohibited companies or individuals from knowingly sending or displaying patently offensive communications.
The CDA imposed broadcast-style content regulations on the Internet; many felt that this severely restricted the First Amendment rights of U.S. Internet users. Some claimed that the Act threatened the very existence of the Internet itself. A major problem for the CDA, despite its good intentions, was its impracticability. How can such a law be effective at controlling content on a global communications medium when a website in the Netherlands is as accessible as a site in Tulsa?
Soon after the CDA was enacted, the activist group, Citizens Internet Empowerment Coalition (CIEC), was assembled to challenge the CDA. CIEC is a broad coalition of the following groups: book associations, libraries, civil liberties groups, magazines newspapers, online service providers, over 56,000 individual Internet users, and recording industry associations. In terms of composition, CIEC is a fairly good representation of the breadth of the Internet community. CIEC asserted that the Internet is a unique communications medium deserving broad First Amendment protections. Basically, CIEC argued that the inability of Internet users and providers to reliably verify the age of information recipients prevented them from engaging in indecent speech, which traditionally has received strong protection under the First Amendment.
It is important to keep in mind that the CDA was not intended to outlaw child pornography, OBSCENITY, or STALKING children. These acts were made crimes many years earlier under other laws. Rather, the CDA prohibited users from posting indecent or obviously offensive materials in public forums on the Internet. These included chat rooms, newsgroups, online discussion lists, or web pages. Under the CDA, books such as the Catcher in the Rye, Ulysses, Fanny Hill, and many other texts, although offensive to some people, have the full protection of the First Amendment if they are published in a newspaper, magazine, or a book, or posted in the public square.
After a lengthy HEARING that included many examples and on-line demonstrations, a special three-judge district court (which was created by the CDA in anticipation of constitutional challenges) agreed with the groups and ruled that the provisions violated the First Amendment. This decision went to the Supreme Court on appeal.
Reno v. ACLU
A major U.S. Supreme Court case on Internet free speech is Reno v. ACLU. In that case, the Supreme Court struck down the CDA. As part of its ruling, the Court granted the highest level of First Amendment protection to speech conducted over the Internet. In Reno, the Court distinguished the Internet which has much weaker First Amendment protections from broadcast media and placed the Internet squarely among traditional media such as books and newspapers. By doing so, the Court helped establish unequivocally that the Internet is entitled to the broadest First Amendment protections.
In 1997, the Supreme Court held unanimously in Reno v. American Civil Liberties Union that the CDA constituted an unconstitutional restriction on speech on the Internet. The court found the Internet to be a "unique and wholly new medium of worldwide human communication" deserving of full First Amendment protection. Lawmakers may only regulate obscenity; consequently, the regulations contained in the CDA would reduce the constitutionally protected material available to adults "to only what is fit for children." According to the Supreme Court, the unique features of Internet communications such as its availability and ease of use were critical to its decision.
The Child Online Protection Act
In October of 1998, the federal government enacted the Child Online Protection Act (COPA). In some ways, COPA can be described as the "sequel" to CDA. COPA provides criminal penalties for any commercial distribution of information harmful to minors. The law was challenged almost immediately, and in February 1999, the plaintiffs obtained an injunction that prevented the government from enforcing COPA. Eventually, COPA was declared unconstitutional by the Supreme Court on the grounds that each individual who tries to disseminate speech over the Internet would have to conform that speech to the most restrictive and conservative state's standard of what constitutes material harmful to minors.
Internet users can publish material that can reach millions of people at very low cost. This differs greatly from television and radio, which have a limited channel capacity and cede little control to viewers or listeners. Additionally, Internet users can control a great deal of the content they receive online. For example, Internet users can prevent their children from viewing certain material by employing inexpensive and easy-to-use technologies that can block or filter content based on the individual tastes and values of parents.
The Children's Internet Protection Act
In December 1999 Congress passed the Children's Internet Protection Act (CIPA). This legislation requires schools and libraries receiving federal funds for Internet access to install filtering software on their computers in order to block access to materials that are obscene or otherwise harmful to minors. CIVIL RIGHTS and Free Speech advocates filed suit to block implementation of the law citing the potential that filtering software would block protected, harmless, or innocent speech. As of 2002, the case had been argued and the court's opinion was pending.
The plaintiffs in the CIPA case caution that software limiting the availability of electronic material may jeopardize free expression and facilitate government CENSORSHIP. Proponents of filters and rating systems frequently characterize these systems as features or tools. On the other hand, filters and rating systems also are seen as fundamental architectural changes that may actually suppress speech far more than laws ever could. For example, several popular Internet filters block the Web sites of benign HUMAN RIGHTS organizations. Basically, the problem with filters appears to be their inability to consider context. What troubles free speech advocates far more than inadvertent context-based blocking is blocking legitimate sites based on a set of morals or political points of view. In a similar fashion, blocking software at libraries can prevent adults as well as children from getting access to valuable speech in the areas of sex education, abuse recovery discussions, and protected speech concerning lesbian and gay issues.
The Yahoo! Case
In 2000, a French court ruled that the Internet company, Yahoo!, must ban its French users from English-language sites that auctioned Nazi books and other paraphernalia. Basically, the court was asking Yahoo! to filter out French users to certain parts of its many sites. Yahoo! claimed that because Yahoo.com services are governed by U.S. law, auctions of such materials cannot be barred because of the U.S. constitutional right to freedom of speech. In November 2001, a U.S. District Court ruled that this French decision could not be enforced in U.S. courts. The court held that the First Amendment protects content created in the United States by American companies from regulation by countries that have more restrictive free speech laws. Subsequently, the League Against Racism and Anti-Semitism and the French Union of Jewish Students have sought an appeal claiming that French law should not be overruled by U.S. law.
Anonymity in the context of communications is the ability to hide one's identity while communicating. Doing so helps individuals to express their political ideas without fear of government intimidation or public retaliation in three important areas:
- Participate in governmental processes
- Membership in political associations
- The practice of religious belief
In three cases between 1960 to 1999, the Supreme Court reaffirmed the notion that sacrificing anonymity "might deter perfectly peaceful discussions of public matters of importance." Additionally, the Supreme Court has upheld disclosure laws (laws that reduce anonymity in political contexts) only in cases in which the government can demonstrate the existence of a compelling government interest. For example, a compelling governmental interest exists in assuring the integrity of the election process by requiring campaign contribution disclosures.
The feature of anonymity has been embraced by a huge number of Internet users. Some of the venues especially suitable for anonymity are message boards, chatrooms, and various informational sites. Anonymity allows individuals to consume and/or provide unpopular, controversial, or embarrassing information without sacrificing privacy or reputations. But such anonymity is increasingly being assailed as civil litigants have begun using the adversarial DISCOVERY process to get around online anonymity measures. Since 1998, there have been many DEFAMATION lawsuits filed against "John Doe" defendants by plaintiffs who ALLEGE they have been harmed by anonymous Internet postings.
As of 2002, any civil litigant may allege defamation against an Internet poster and bring a civil suit. If, during discovery, the court approves a SUBPOENA calling for the identity of a poster, the Internet service provider must disclose the individual's name, even before the poster's statement is proven defamatory. This enables companies or other powerful groups to use the legal discovery process to intimidate anonymous users. This issue has been litigated in New Jersey; that court imposed strict rules to protect the identities of anonymous Internet posters in the discovery process. Nationally, the law is far from settled:
Code and Other Laws of Cyberspace. Lessig, Lawrence, Basic Books, 1999.
Governance in 'Cyberspace': Access and Public Interest in Global Communications. Grewlich, Klaus W., Kluwer Law International, 1999.
Issues in Cyberspace: Communication, Technology, Law, and Society on the Internet Frontier. Samoriski, Jan, Allyn and Bacon, 2002.
The Law of the Internet. 2nd ed. Delta, George B., and Jeffrey H. Matsuura, Aspen Publishers, Inc., 2002.
Liberating Cyberspace: Civil Liberties, Human Rights, and the Internet. Edited by Liberty (National Council for Civil Liberties), Pluto Press, 1999.
The Center for Democracy & Technology (CDT)
1634 Eye Street NW, Suite 1100
Washington, DC 20006 USA
Phone: (202) 637-9800
Fax: (202) 637-0968
Computer Professionals for Social Responsibility (CPSR)
PO Box 717
Palo Alto, CA 94302 USA
Phone: (650) 322-3778
Fax: (650) 322-4748
Electronic Frontier Foundation (EFF)
454 Shotwell Street
San Francisco, CA 94110-1914 USA
Phone: (415) 436-9333
Fax: (415) 436-9993
1101 Wilson Blvd.
Arlington, VA 22209 USA
Phone: (703) 528-0800
Fax: (703) 284-3770
People for the American Way (PFAW)
2000 M Street NW, Suite 400
Washington, DC 20036 USA
Phone: (202) 467-4999
Fax: (202) 293-2672
Internet Crime (Encyclopedia of Everyday Law)
Internet crime is among the newest and most constantly evolving areas of American law. Although the Internet itself is more than three decades old, greater public usage began in the late 1980s with widespread ADOPTION only following in the 1990s. During that decade the Net was transformed from its modest military and academic roots into a global economic tool, used daily by over 100 million Americans and generating upwards of $100 billion in domestic revenue annually. But as many aspects of business, social, political, and cultural life moved online, so did crime, creating new challenges for lawmakers and law enforcement.
Crime on the Net takes both old and new forms. The medium has facilitated such traditional offenses as FRAUD and child PORNOGRAPHY. But it has also given rise to unique technological crimes, such as electronic intrusion in the form of hacking and computer viruses. High-speed Internet accounts helped fuel a proliferation of COPYRIGHT INFRINGEMENT in software, music, and movie PIRACY. National security is also threatened by the Internet's potential usefulness for TERRORISM. Taken together, these crimes have earned a new name: when FBI Director Louis J. Freeh addressed the U. S. Senate in 2000, he used the widely-accepted term "cybercrime."
Lawmakers have scrambled to keep up with cyber-crime. The skyrocketing growth of Internet usage and the rapid advance of technology quickly revealed the inadequacy of existing laws, particularly those drafted to fight COMPUTER CRIME in the mid-1980s. In the 1990s, headlines frequently announced high-profile cyber crimes such as the estimated $80 million in damages caused by the nationwide outbreak of the computer virus Melissa in 1999, unauthorized intrusion into military computer systems, and brazen hacker attacks that ranged from denying service to major CORPORATE websites to defacing U. S. government websites of the CIA, FBI, and others. Simultaneously, the computer software industry announced massive losses due to piracy, $12 billion in 1999 alone, according to the Washington-based Business Software Association (BSA), the leading U.S. software industry watchdog. Regarding these concerns, Congress acted repeatedly. Its legislative response ranges from provisions governing hacking, viruses, and denial of service attacks to fraud, OBSCENITY, copyright infringement, and terrorism.
- The COUNTERFEIT Access Device and Computer Fraud and Abuse Act of 1984 launched federal cybercrime law. The law safeguarded classified government information as well as certain financial information stored digitally, while also creating offenses for malicious damage of computer systems and trafficking in stolen computer passwords. It was superseded by the Computer Fraud and Abuse Act of 1986, which was amended significantly in 1994, 1996, and 2001, and remains the backbone of federal Internet law.
- The Electronic Communications Privacy Act of 1986 was passed to prevent the unauthorized interception of digital communications and later amended to specifically bar unauthorized reading of e-mail by third parties, network operators, and Internet access providers.
- The National Information Infrastructure Protection Act of 1996 expanded the Computer Fraud and Abuse Act. Amendments covered the confidentiality, integrity, and availability of computer networks, essentially broadening the definition of computer hacking punishable under federal law.
- The No-Electronic Theft Act (NET Act) of 1997 tightened restrictions on the reproduction and dissemination of copyrighted intellectual property like software, music, and movies, while the Digital Millennium Copyright Act (DMCA) of 1998 prohibited the circumvention of copyright protection systems.
- The Communications Decency Act (CDA) of 1996 criminalized the dissemination of obscene or indecent material to children over computer networks. It was ruled unconstitutional under the First Amendment in 1997.
The Child Online Protection Act (COPA) of 1998 modified the scope of the CDA by criminalizing the use of the World Wide Web to sell material harmful to minors. It, too, was ruled unconstitutional in a case that has since been granted review by the Supreme Court.
- The Protection of Children from Sexual Predators Act of 1998 included Internet-specific provisions for reporting child pornography to authorities and prohibiting federal prisoners from unsupervised Internet usage.
- The Patriot Act of 2001 was passed in response to terrorist attacks upon the United States. Modifying the Computer Fraud and Abuse Act, it provides new investigative powers to the U. S. attorney general to order monitoring of Internet communication and usage for the purpose of protecting national security.
Fraud is the broadest category of cybercrime. Fraud includes many types of criminal activity, ranging from credit card abuse, wire fraud, and business fraud to misrepresentation and the failure to deliver purchases. The Federal Trade Commission monitors and regulates Internet commerce, and it maintains advice for avoiding fraud at its website:. The Federal Bureau of Investigation investigates and prosecutes cybercrimes. In partnership with several federal agencies, the FBI maintains the Internet Fraud Complaint Center online for accepting complaints at .
Traditional CONSUMER PROTECTION laws apply to fraud on the Internet, but federal law also contains specific Internet-related laws as well. First among these is fraud involving access devices. Federal law defines access devices as cards, codes, account numbers, serial numbers, and so forth that are used to obtain money, goods, and services or to initiate a transfer of funds. A typical example is the FRAUDULENT use of another person's credit card over the Internet.
The law targets several forms of fraud regarding the use of access devices:
- Producing, using, or trafficking in access devices
- Obtaining anything of value aggregating $1,000 or more during a one-year period
- Possessing fifteen or more counterfeit or unauthorized access devices
- Possessing or controlling COUNTERFEITING access device equipment
- Effecting transactions with access devices issued to another person
- Offering to sell access devices or information on how to obtain them
- Possessing equipment modified to obtain unauthorized use of telecommunications services
- Possessing "scanning receivers" capable of intercepting wire or electronic communication
- Possessing hardware or software that modifies telecommunications identifying information in order to obtain unauthorized telecommunications service
- Unauthorized charges to credit cards
Penalties for violations range from fines to IMPRISONMENT from between five to 10 years per offense.
Types of Unauthorized Access
Popularly known as hacking, unauthorized computer access is a crime punishable under the Computer Fraud and Abuse Act (as codified in 28 U.S.C. § 1029). The law begins by defining hacking in two ways:
- Unauthorized access to computer systems
- Access that exceeds a person's authorized limits
The prohibition thus covers trespassers who have no right at all to use a given computer, as well as those who are allowed to use a given computer but manage to access parts of the system that are off limits.
The Computer Fraud and Abuse Act creates a separate offense of unauthorized or exceeded authorization in access for purposes that are damaging to national security. These crimes include obtaining state secrets protected by STATUTE or Executive order, along with military data or any information governed by the Atomic Energy Act of 1954, when such information could be used to injure the nation or to provide an advantage to a foreign nation. Minimum penalties may include fines, imprisonment for up to ten years, or both.
Illegally Obtaining Information
Federal law broadly prohibits hacking in order to gain information. It criminalizes obtaining three categories of information from different types of computer systems:
- Financial data, including records of financial institutions, credit card companies, and credit bureaus
- Information from any department or agency of the United States
- Information from any computer used in interstate or foreign communication
These are known in the Computer Fraud and Abuse Act as "protected" computer systems. The last categoryomputers used in interstate or foreign communication - essentially covers most computers connected to the Internet. The law does not go into detail on the types of information it intends to protect; instead, the intent is to prohibit unauthorized access to any information on protected systems. Minimum penalties may include fines, imprisonment for up to one year, or both.
Affecting U.S. Government Computers
The law forbids any unauthorized access of computers belonging to, or used by, a department or agency of the U. S. Government if the access merely "affects" their usage. As with the prohibition on gaining unauthorized information, the law is generally written in broad language to encompass the widest range of possible offenses. Minimum penalties may include fines, imprisonment for up to one year, or both.
Intent to Defraud
A separate offense occurs when a person gains unauthorized access with the intent to DEFRAUD. The law is violated if anything of value is obtained. Minimum penalties may include fines, imprisonment for up to five years, or both.
Damage is defined as any impairment to the integrity or availability of data in any of four ways:
- The damage causes loss aggregating at least $5,000 in value during any 1-year period to one or more individuals
- The damage modifies or impairs, or potentially modifies or impairs, medical diagnosis, treatment, or care of one or more individuals
- The damage causes physical injury to a person
- The damage threatens public health or safety
- Three grades of damage to computer systems are defined. In increasing degree of severity, these are:
- Reckless damage
- Intentional damage
Damage is distinguished by criminal intent. Mere damage involves all forms of injury to data or equipment that were not intended yet still occurred. Reckless damage involves NEGLIGENCE, the result of the criminal's carelessness. The third category, intentional damage, involves knowingly transmitting "a program, information, code, or command" that leads to damage. Examples of intentional damage include maliciously deleting files on a computer or releasing a computer virus or worm.
Convictions on any of the offenses can lead to fines, imprisonment, or both, with the prison sentences scaling upwards depending upon intent. Damage carries a PENALTY of one year of imprisonment. Reckless damage carries a penalty of up to five years imprisonment. Intentional damage is a FELONY and carries a penalty of up to five years.
Typically, passwords for computer access or online accounts are restricted to individuals. Since computer hackers often need to obtain them in order to enter systems without being detected, the law targets the illegal acquisition, sharing, or dealing in passwords. Two conditions trigger an offense:
- The trafficking must affect interstate or foreign commerce
- The computer is used by or for the U. S. Government
Minimum penalties may include fines, imprisonment for up to one year, or both.
EXTORTION occurs when a person communicates a threat to damage a protected computer system with the goal of obtaining some reward, such as money. This element of the law addresses a widely publicized trend in the 1990s involving hackers who sought to profit from their ability to infiltrate the security of computer systems.
Unauthorized access with intentional extortion is an offense when committed upon any of the following:
- Educational Institution
- Financial Institution
- Government entity
- Other legal entity
Minimum penalties may include fines, imprisonment for up to five years, or both.
Additional Penalties and Legal Recourse
The Computer Fraud and Abuse Act prescribes penalties for either attempting or actually committing its offenses. The minimum penalties for each offense are only available to first-time offenders who are not convicted in conjunction with other offenses under the law. For multiple and repeat offenses, the law doubles the prescribed imprisonment time.
Besides these criminal penalties, the law specifically provides for civil lawsuits. Thus anyone who suffers damage or loss through a violation of the Computer Fraud and Abuse Act can bring suit against the violator and seek COMPENSATORY DAMAGES, court orders to end specific behavior, or other forms of relief. Such lawsuits must be brought within two years of the date of the complaint or the date of the DISCOVERY of the damage.
Damaging Communications Lines, Stations, or Systems
In addition to the damage provisions under the Computer Fraud and Abuse Act, broad protections to the nation's communication infrastructure are found in Federal law at 18 U.S.C. § 1362. The law criminalizes damaging any of the communications systems operated or controlled by the United States. These crimes include maliciously obstructing, hindering, or delaying the transmission of any communication. Penalties may include fines, imprisonment for up to ten years, or both.
Interception and Disclosure of wire, Oral, or Electronic Communications
Federal law protects communication over the Internet in much the same way it protects communication by the more traditional means of telephone and mail. Just as it has long been a federal offense to intercept another person's telephone calls or mail, it is illegal to intercept or disclose communications that occur over the Internet as e-mail, voice mail, Internet-based telephone calls, or any other private Internet-based communication.
Under 18 U.S.C. § 2511, federal law specifically protects individuals from eavesdropping and companies from industrial ESPIONAGE. All third parties are prohibited from unauthorized interception or disclosure of private communications, except under certain exceptions. Exceptions to the prohibition cover employees of the Federal Communications Commission (FCC), law enforcement personnel, and the employees of Internet service providers. FCC employees may intercept communications in the course of monitoring responsibilities for enforcement of federal communications law. Generally, law enforcement personnel require court approval in order to intercept private communications; however, in certain cases involving national security, this is not required. Employees of Internet service providers are banned from intercepting private communications except in the normal course of their employment under certain exceptions:
- The interception is necessary incident to the rendition of his or her service or to the protection of the rights or property of the Internet provider
- Observing or random monitoring is only permissible for mechanical or service quality control checks
- The service has been ordered by law enforcement officials to intercept communications in the course of a criminal investigation
Penalties may include fines, imprisonment from one to five years, or both.
In response to terrorist attacks upon the United States on September 11, 2001, Congress passed the Patriot Act of 2001. This law provides several new powers to the U.S. attorney general to combat terrorism. Several provisions relate to cybercrime and electronic EVIDENCE:
- Expanded authority for ordering wiretapping in a wider range of criminal investigations
- Relaxed restrictions for obtaining access to voice-mail and stored voice communications
- Expanded scope of data that can be subpoenaed, such as Internet access logs and other digital records of Internet usage
- Expanded authority for obtaining access to cable Internet records previously kept private by cable TV laws
- Provided grounds for Internet service providers to make voluntary emergency disclosures to law enforcement about customer records in emergencies involving immediate risk of death or serious physical injury to any person
- Removes geographical restrictions on tracing Internet and other electronic communication
- Expands authority to monitor actions of computer trespassers
- Permits federal courts to issue nationwide search warrants for e-mail
- Raises certain penalties for computer hackers to prevent and deter "cyberterrorism"
- Creates a new offense for damaging computers used for national security and criminal justice
Because of concerns about civil liberties, several of the new powers are temporary. Subject to so-called sunset provisions, they expire on December 31, 2005 unless renewed by Congress. Lawmakers built in these limitations in recognition of the potential for abuse of such powers, which they wished to limit to usage in combating the extraordinary dangers presented by the war on terrorism.
Unlawful Access to Stored Communications
Besides criminalized illegal interception of communication as it occurs, federal law prohibits unauthorized access to stored communications. Under 18 U.S.C. § 2701, it is illegal to intentionally gain access or exceed authorized access to a facility that provides an electronic communication service, such as an Internet provider that handles e-mail. The law spells out two main offenses:
- Accessing the service without authorization or exceeding authorization
- Obtaining, altering, or preventing proper access to the service's stored communications
Minimum penalties include fines and prison sentences of six months. However, if the offense is committed for purposes of commercial advantage, malicious destruction or damage, or private commercial gain, prison sentences may range from one to two years.
Pornography and Sexual Predators
Federal law regarding pornography on the Internet remained tied up in the courts in 2001. During the previous decade, Congress twice enacted laws aimed at protecting children from exposure to pornography. The Communications Decency Act of 1996 broadly criminalized the dissemination of obscene or indecent material to minors over computer networks but was ruled unconstitutional the following year in Reno v. ACLU. In response, Congress modified the law, enacting the Child Online Protection Act (COPA) of 1998. COPA narrowed the scope of the previous law by criminalizing the act of selling material harmful to minors over the World Wide Web. Following a ruling that it was also unconstitutional, the case was on appeal to the Supreme Court with a decision expected in 2002.
However, while pornography remains widely available on the Internet, child pornography is treated severely under the law. Both federal and state law enforcement agencies routinely target child pornography online, and both U. S. Customs and the FBI maintain programs that encourage citizen reporting of criminal images of minors found on websites.
Specific Internet offenses are targeted in portions of the Protection of Children From Sexual Predators Act of 1998:
- Provides for the prosecution of individuals for the production of child pornography if the materials have been mailed, shipped, or transported in interstate or foreign commerce, including by computer
- Requires Internet service providers to report evidence of child pornography offenses to law enforcement agencies
- Prohibits Federal prisoners from being allowed Internet access without supervision by a government official, and urges that state prisons adopt the same policy
- Directs the attorney general to request that the National Academy of Science study technological approaches to the problem of the availability of pornographic material to children on the Internet
The problem of piracy unauthorized storage, copying, or dissemination of copyrighted material such as computer software, music, movies and books burgeoned along with the growth of the Internet. Existing federal copyright law makes it a crime to duplicate, store, or disseminate copyrighted materials for profit. But under the No Electronic Theft Act of 1997, it is also illegal merely to reproduce or distribute copyrighted works even without the defendant's having a commercial purpose or private financial gain. This aspect of the law targets the popular free trade of copyrighted material on the Internet.
Federal copyright law provides for both criminal and CIVIL ACTION against offenders. Criminal penalties may include fines, jail sentences up to three years, or both. Civil penalties can reach as high as $150,000 per violation.
The Digital Millennium Copyright Act (DMCA) of 1998 marked the first significant revision of federal copyright law in a generation. Among its chief reforms, the law made it a criminal offense to bypass or defeat security provisions built into products by manufacturers to prevent copying. The applicability of that aspect of the law to the Internet was shown in Universal City v. Reimerdes (2001). In that high-profile case, a federal appeals court upheld a lower court verdict that a hacker website violated the DMCA by publishing information about defeating the anti-copying protection software built into movie DVDs.
State Laws and Policing
Most states have enacted Internet laws. Generally, these laws have evolved alongside and therefore mirror federal law. Most state Internet laws criminalize fraudulent use of computer systems for hacking, damage to computer systems, and unauthorized interception of communication. Several laws have enacted statutes that extend their existing laws on traditional crimes to the Internet, such as a 1995 Connecticut state law that targets online STALKING: the law creates criminal liability for sending messages with intent to harass, annoy, or alarm another person. And while Congress in 2000 and 2001 often debated the issue, most states have enacted their own laws to ban online gambling.
More than a dozen states have passed laws targeting online pornography and sexual predators. Generally, these laws have sought to protect minors from access to porn or other material deemed harmful, such as California's 1997 law, or they have extended state child pornography laws to cover Internet images, as Kansas and Georgia both did as early as 1995. But as with federal legislation in this area, not all state laws have survived legal challenges. In 1997, a federal court overturned New York State's anti-pornography law in ALA v. Pataki, ruling that its ban on sending "indecent" materials to minors over the Internet was an unconstitutional regulation of commerce. Georgia was also prohibited in 1997 from enforcing a statute that made it a criminal offense to communicate anonymously over the Internet in an attempt to protect children from sexual predators; the law was held unconstitutionally vague and overbroad in ACLU v. Miller.
In the twenty-first century, states are also adopting proactive law enforcement policies. Examples include Washington State, which in 2000 launched a combined federal-state program called the Computer Law Enforcement of Washington (CLEW) initiative. Under CLEW, local, state and federal law enforcement agencies share information, maintain a high-tech crime strike force, and publish tips online to help fight fraud and other crime. Several states, such as New Jersey, established special cybercrime units in order to investigate crimes from industrial espionage to drug trafficking. Because of the cross-jurisdictional nature of much Internet crime, state attorneys general have also pursued innovative information-sharing programs. Legal observers expect to see further law enforcement cooperation among states.
A Parent's Guide to Internet Safety. FBI, 2001. Available at: .
Computer Crime and Intellectual Property Section (CCIPS). Criminal Division of the U. S. Department of Justice, 2001. Available at: http://www.cybercrime.gov.
Consumer Protection: E-Commerce and the Internet. Federal Trade Commission, 2001. Available at: .
Cybercrime. Statement by Louis J. Freeh, Director of Federal Bureau of Investigation, in Senate testimony, February 16, 2000. Available at: .
Internet Fraud Preventive Measures. FBI Internet Fraud Complaint Center, 2001. Available at: .
Software Piracy and the Law. Business Software Alliance, 2001. Available at: http://www.bsa.org/usa/freetools/consumers/swandlaw_c.phtml.
U. S. Code, Title 18, Section 1029: Fraud and Related Activity in Connection with Access Devices. U.S. Congress. Available at: http://www.usdoj.gov/criminal/cybercrime/usc1029.htm.
U. S. Code, Title 18, Section 1030: Fraud and Related Activity in Connection with Computers. Available at: http://www.usdoj.gov/criminal/cybercrime/1030_ new.html.
U. S. Code, Title 18, Section 1362: Communication Lines, Stations, or Systems. Available at: http://www.usdoj.gov/criminal/cybercrime/usc1362.htm.
U. S. Code, Title 18, Section 2511: Interception and Disclosure of Wire, Oral, or Electronic Communications Prohibited. Available at: http://www.usdoj.gov/criminal/cybercrime/usc2511.htm.
U. S. Code, Title 18, Section 2701: Unlawful Access to Stored Communications. Available at: http://www.usdoj.gov/criminal/cybercrime/usc2701.htm.
U. S. Code, Title 18, Section 2702: Disclosure of Contents. Available at: http://www.usdoj.gov/criminal/cybercrime/usc2702.htm.
West Encyclopedia of American Law. West Group, 1998.
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J. Edgar Hoover Building, 935 Pennsylvania
Washington, DC 20535-0001 USA
Phone: (202) 324-3000
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Washington, DC 20580 USA
Phone: (877) 382-4357
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Primary Contact: Ron Dick, Director
Internet Filters In Schools And Libraries (Encyclopedia of Everyday Law)
Internet filters are software programs that control what is shown while a computer user is viewing pages on the World Wide Web. Emerging on the commercial market for home use in the mid-to-late 1990s, the filters are designed to protect minors from viewing PORNOGRAPHY, hate speech, and other controversial online content. They work by intercepting and blocking attempts to view particular web pages and their controls cannot be disabled except by an administrator. Marketed primarily toward parents who wish to allow their children to surf the Internet without constant adult supervision, filters currently available include Cyber Patrol, Net Nanny, and Cyber Snoop.
Government interest in filters emerged after early, unsuccessful attempts to directly regulate Internet content. Prompted by the explosion of popularity in Internet usage in the early 1990s, lawmakers responded to public complaints about the accessibility of pornography. While such imagery represented only a small percentage of web sites, studies have shown it amounts to as little as 2%, Internet search engines made locating the material easy even for young people. Thus, unlike with printed material controlled at the point of sale in newsstands and bookstores, minors using the Internet could obtain or accidentally suffer exposure to hard core pornography. In an effort to combat this problem, Congress first sought to control what could be shown on web pages.
- The Communications Decency Act of 1996 (CDA) was passed to prohibit Internet users from communicating material that would be deemed offensive to minors under contemporary community standards. The controversial law carried fines and IMPRISONMENT for offenders, but enforcement was immediately blocked by a federal court. Attacked by critics as CENSORSHIP, the law was later over-turned unanimously by the Supreme Court as an unconstitutional violation of the First Amendment in Reno v. ACLU in 1997.
- The Child Online Protection Act of 1998 (COPA) was passed to meet the objections of the Supreme Court to the CDA. The new law attempted to be more specific in order to overcome constitutional problems, this time targeting commercial purveyors of material deemed harmful to minors. However, in 1999, it, too, was immediately blocked by a court injunction, and subsequently a district court and federal appeals court both found the law unconstitutional because it would require every Web page to abide by the most restrictive community standards. The Supreme Court agreed to hear an appeal, ACLU v. Ashcroft, scheduled for 2002.
- When the courts proved unwilling to allow federal control of what was communicated, lawmakers pursued a new avenue. Internet filtering offered a mechanism by which the law could control what was received on publiclyunded computers connected to the Internet. In December 2000, Congress passed both the Children's Internet Protection Act (CIPA) and the Neighborhood Internet Protection Act (Neighborhood Act), highly similar bills that were added to an appropriations measure, signed by President William J. Clinton and enacted as PUBLIC LAW 106-554. Together, the two acts place restrictions on Internet usage in public libraries and public schools that receive federal funding. For enforcement, the law employs a carrot and stick approach: continued computer and Internet funding depends upon libraries and schools using filtering software and, in some cases, establishing broader controls as part of a new, comprehensive Internet safety policy.
Federally-required Internet filtering in schools and libraries immediately proved as controversial as earlier congressional measures. In particular, critics argued that Internet filtering software is highly imprecise; it has the tendency to erroneously block harmless, non-pornographic material as well because it cannot determine the context in which the material it filters appears. As the law went into effect in Spring 2001, LITIGATION promptly followed. Separate lawsuits brought by the American Library Association (ALA) and another by a coalition including publishers and civil liberties groups challenged the law on First Amendment grounds similar to those brought successfully against the CDA and COPA. After a court found that both challenges have valid legal grounds to continue, trial was scheduled to begin in February 2002.
Public elementary and secondary schools and public libraries are required to certify annual compliance with the law if they wish to maintain eligibility for federal funding for computers and/or Internet access. The extent to which they are regulated depends upon what types of federal funding they already receive. There are three distinct federal programs that provide subsidies to institutions for Internet access, service, internal connections, and personal computers:
- Universal Service (E-rate) discounts for Internet access, Internet service, or internal connections.
- Library Services and Technology Act (LSTA) state grant funding to buy computers used to access the Internet or to pay direct Internet access costs.
- Title III funding under the Elementary and Secondary Education Act (ESEA) to buy computers used to access the Internet or to pay direct Internet access costs.
The libraries and schools that receive E-rate funding face the broadest range of new requirements, including installation of filters, public notification and participation, and other measures. The law governs all such federal funding, whether it is disbursed directly or through a state intermediary agency. However, it does not apply to academic or college libraries, which do not qualify for the types of federal funding in question.
Lawmakers gave the Federal Communications Commission (FCC) regulatory authority over the law. In the broadest possible application of the rules for eligibility, institutions must meet three requirements:
- Adopt an Internet safety policy.
- Provide notice and hold at least one public meeting on the proposed Internet safety policy.
- Certify that they have adopted and implemented the policy, which must include Internet filters.
For eligibility for E-rate funding, institutions must meet all three requirements. However, those institutions receiving only LSTA or ESEA funding must only meet the filter requirement.
Internet Safety Policy
The Internet safety policy requirement covers five areas. It is designed to be a comprehensive policy governing Internet usage by minors in public schools and libraries and, as such, goes beyond the issue of filtering web pages. More broadly, libraries and schools must monitor several types of Internet usage. Under FCC rules, the policy must address five key areas.
- Access by minors to "inappropriate matter" on the Internet and the World Wide Web.
- The safety and security of minors when using electronic mail, chat rooms, and other forms of direct electronic communications.
- Unauthorized access, including so-called "hacking," and other unlawful online activities by minors.
- Unauthorized disclosure, use, and dissemination of personal information regarding minors.
- Measures designed to restrict minors' access to materials harmful to minors.
Prior to adopting an Internet safety policy, schools and libraries must provide public notice of the process and hold at least one public HEARING or meeting on the proposed policy. The actual adopted policy must be available for review by the FCC.
The Internet safety policy must include what the law defines as a "technology protection measure," i.e., a software filter or blocker that prevents the display of certain visual depictions, photographs, and illustrations. No particular brand of filter is required, however, but the filter must perform specific duties. It must govern Internet access by both adults and minors and block three types of visual depictions.
- Child pornography.
- Material that is "harmful to minors."
The law does not provide an express definition of obscenity. Under Miller v. California in 1973, the Supreme Court laid out its famous three-part "community standards" test now typically used to determine what is obscene. The test requires a court determination of three parts:
- Whether "the average person, applying contemporary community standards," would find that the material, taken as a whole, appeals to the prurient interest.
- Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state or federal law to be obscene.
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The Internet law goes into some specific detail as to what constitutes material "harmful to minors," who are defined as anyone under the age of 17. It states that the term "means any picture, image, graphic image file, or other visual depiction" that has the following characteristics:
- Taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion.
- Depicts, describes, or represents in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals.
- Taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.
Adults are not subject to the restrictions on material harmful to minors. Text on web pages is not regulated under the law like visual depictions are.
The law makes a further distinction between what is "harmful" to minors and what is merely "inappropriate" for minors. While it carefully defines harmful material, it leaves the definition of inappropriate material up to local community control. The FCC declined to be more specific in this area in its rule-making capacity, instead leaving such definitions up to school boards, library boards, and other local authorities.
Under some circumstances, Internet filters may be legally disabled. While forbidding Internet users to disable the filters themselves, the law permits a school or library administrator to disable filtering software in order to allow bona fide research or other lawful use by an adult. However, the law does not specify what constitutes such usage. In its April 2001 rules, the FCC acknowledged criticism of this measure: libraries complained that the law's vagueness meant they would be required to spend considerable time determining the validity of each adult request for filter disabling. Nevertheless, the FCC here, too, declined to be more specific. The commission noted that prescribing rules would "have a chilling effect" on adults' Internet usage and "significantly impinge" on library staff time and resources. As such all libraries must develop their own policies.
Congress and the FCC do not expect these changes to occur overnight. In each affected federal program, the law phases in its requirements over two years. For the first year, the deadline of October 28, 2001, was established for schools and libraries to certify that they are taking steps to put in place their Internet safety policy. In the second year, these institutions must demonstrate that their policies and the required filtering technology is in place. As such, some library patrons may not encounter filtering software until 2002 or later.
The law prescribes different types of enforcement. In each case, the responsible funding agencies must make determinations about compliance. For institutions receiving E-rate funding, failure to submit certification annually will result in ineligibility, and failure to comply with the law can result in institutions being suspended or required to reimburse funding. For those receiving funds under ESEA or LSTA programs, the responsible funding agency may withhold further payments, suspend the funding, or issue a complaint to compel compliance; recovery of funding is, however, specifically prohibited.
Complaints about an institution could lead to an agency finding that it is out of compliance. However, legal analysts are in doubt as to whether the law creates a cause of action egal grounds that may serve as the basis for litigationor citizens to sue institutions over failure to comply.
Expedited Legal Review
Foreseeing likely legal challenges to the law, Congress provided for any litigation contesting its constitutionality to receive expedited JUDICIAL REVIEW first by a three-judge federal appeals panel and, if necessary, by the Supreme Court.
State and Local Restrictions
Even before enactment of the 2000 federal law, five states had passed their own statutes. Nearly 20 states had some form of legislation under consideration in 2001. Most of these laws are directed at libraries, some at schools, and at least one mandates that no filters be used at all in public libraries.
During the late 1990s, cities, counties, and library boards began enacting Internet usage policies that varied widely and often differed from community to community in the same state. Michigan demonstrates this variety. In Holland, Michigan, where the nation's first ballot measure on library Internet filters was held in February 2000, residents of the 32,000-strong city voted 55 percent to 45 percent against the proposal, despite heavy spending by proponents such as the American Family Association in a controversial political battle that attracted national attention. Nearby Georgetown Township, which is slightly larger, installed filters. And then later in the year, the state enacted a law requiring filters, rendering local differences moot.
For the nation's nearly 9,000 public libraries, the issue is still clearly unsettled. Some had already begun installing filters independently in the late 1990s, and the American Library Association estimated that as many as 25 percent had done so by 2001. However, most had resisted filtering. The ALA reported that many had adopted resolutions similar to its 1997 anti-filtering declaration, which holds that federally-mandated filtering is unconstitutional and violates the organization's Library BILL OF RIGHTS. For thousands of libraries, the ALA's pending litigation against the federal filtering law is closely watched and will ultimately shape future policies.
In two cases, filtering advocates have lost legal challenges. In 1998, in Mainstream Loudoun V. Board of Trustees of Loudoun County, a federal district court in Virginia ruled that a library violated the First Amendment by using filtering software. In 2001, a California federal appeals court upheld a ruling that rejected a parent's lawsuit against a library where her 12-year-old son downloaded sexually-explicit photos on the library's Internet connection. The court in Kathleen R. v. City of Livermore held that the city is not subject to suit for damages, nor could it be forced to censor the Internet usage of its library patrons.
Not all legal action on library filtering has focused upon the needs of library patrons. In a Minneapolis, Minnesota dispute that attracted national attention, twelve librarians filed SEXUAL HARASSMENT claims based on unwanted exposure to patrons viewing pornography on the library's Internet computers. They argued that such exposure subjected them to a so-called "hostile work environment," one of the legal standards commonly pursued under sexual harassment law. In June 2001, the U. S. Equal Employment Opportunity Commission agreed with their complaint.
More broadly than public libraries, a majority of schools have adopted restrictive Internet policies. In 2000, a national survey by Quality Education Data Inc. found that more than 90 percent of teachers reported that schools had established acceptable use policies for Internet usage. Often these policies have involved installing software solutions, whether fitting each computer with off-the-shelf filters, blocking data at the school server level, or monitoring student Internet activity with so-called "sniffing" software that inspects their communication for behavior such as illegally downloading copyrighted music or seeking weapons information.
The following states and cities have enacted specific filtering legislation. However, other state and local laws may also apply to Internet usage on public computers. Concerned individuals can check with their school or library for a copy of its Internet usage policy.
ARIZONA: Public schools are required to filter Internet services to prevent minors from accessing harmful material, with each school district prescribing its own standards and rules. Public libraries must equip computers with Internet filters, implement policies, and follow statewide library rules. Schools and libraries in compliance with the law are protected from criminal liability and liability for damages.
KENTUCKY: Public schools are required to be filtered via so-called proxy software installed on Internet servers. However, schools and districts are free to exercise control over what they consider inappropriate.
MICHIGAN: Public libraries are required to choose from three options for preventing children from accessing inappropriate Internet sites. They may install filters, monitor children's behavior, or require adult supervision.
MINNESOTA: Public and school libraries are required to block Internet access for obscenity and child pornography for both adults and children. They may choose between using either filtering software or "other effective methods."
SAN FRANCISCO: The city banned the use of Internet filters on most public-access library computers, thus codifying a 1999 San Francisco Public Library policy in opposition to filters.
SOUTH CAROLINA: Public and school libraries must filter computers for pornographic pictures or text; those not in compliance face losing half their state funding.
TENNESSEE: All public school computers have Internet web pages filtered system wide, making the state the first in the nation to employ this approach.
Children's Internet Protection Act and the Neighborhood Internet Protection Act, as contained in Public Law. 106-554 Available at:
"CIPA's Internet Filter Software Mandate Takes Effect." Brian Matross. . June 3, 2001. Available at:
"Digital Chaperones for Kids: Which Internet Filters Protect the Best? Which Get in the Way?" Consumer Reports Online. March 2001. Available at: http://www.consumerreports.org
"Fahrenheit 451.2: Is Cyberspace Burning? How Rating and Blocking Proposals May Torch Free Speech on the Internet." Ann Beeson, et al. American Civil Liberties Union. 1997 Available at: http://www.aclu.org/issues/cyber/burning.html
"Filth, Filtering, and the First Amendment: Ruminations on Public Libraries' Use of Internet Filtering Software." Bernard Bell. Federal Communications Law Journal. March, 2001.
"The Internet Filter Farce." Geoffrey Nunberg. The American Prospect. Volume 12, Issue 1. January 1-15, 2001.
American Civil Liberties Union (ACLU)
125 Broad Street, 18th Floor
New York, New York 10004 USA
Phone: (212) 549-2500
Primary Contact: Nadine Strossen, President
American Family Association
P.O. Box 2440
Tupelo, MS 38803 USA
Phone: (662) 844-5036
Fax: (662) 842-7798
Primary Contact: Donald E. Wildmon, President
American Library Association (ALA)
1301 Pennsylvania Avenue NW, Ste. 403
Washington, DC 20004 USA
Phone: (202) 628-8410
Fax: (202) 628-8419
Primary Contact: Emily Sheketoff, Executive
Director Washington Office
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110 USA
Phone: (415) 436-9333
Fax: (415) 436-9993
Primary Contact: Brad Templeton, Chairman
Internet Privacy (Encyclopedia of Everyday Law)
Among the many legal issues presented by the Internet, privacy is a leading problem. In fact, Internet privacy covers a broad range of concerns: fears about the safety of children in chat rooms and on the World Wide Web, the privacy of e-mail, the vulnerability of web users to having their Internet use habits tracked, the collection and use of personal information, the freedom of people to chat and post messages anonymously. Moreover, the rapid evolution of the Internet has frequently brought such privacy concerns before lawmakers and the courts.
Privacy concerns are frequently newsworthy. During the 1990s, child safety advocates highlighted special online dangers for children following high-profile abuse cases. Internet commerce has also been affected, too. The Federal Trade Commission (FTC) report noted in 2000 in its annual report to Congress that survey data demonstrated 92% of consumers are concerned about the misuse of personal information online. Privacy concerns over unsolicited commercial messages arose as Internet users battled to keep this so-called "spam" out of their e-mail inboxes, while in 2001, civil liberties advocates opposed potential abuse by the Federal Bureau of Investigation of its Carnivore hardware, a data-collecting technology attached to Internet services for criminal investigation.
Congress has been reluctant to enact legislation, relying upon a privacy law last revised in 1986 and passing only one new Internet privacy law in the 1990s. This was not for want of ideas. Numerous bills proposing Internet privacy protections were submitted in Congress during the late 1990s and early 2000s, and the Federal Trade Commission (FTC) also proposed legal reform. But lawmakers showed deep reservations about trifling with Internet regulation of privacy, expressing fears about hurting online commerce and creating an unenforceable regulatory scheme. Internet crime laws passed, but these criminalized intrusive and destructive behaviors without directly creating privacy rights.
The legal framework for online privacy thus rests largely on two federal laws, a subdued federal regulatory approach, a mixture of state laws, and contradictory CASE LAW from the courts:
- In 1986, Congress significantly updated the Electronic Communications Privacy Act (ECPA), originally enacted two decades earlier in 1968 to prevent telephone WIRETAPPING. The law protects the privacy of much online communication, such as e-mail and other digital messaging, but far from all of it. The law offers little privacy protection to electronic communication in the workplace, which courts have further restricted.
- The Children's Online Privacy Protection Act of 1998 was passed amid complaints that websites frequently sought too much personal information from children. The law requires website operators to maintain privacy policies, grants parents powers to control information gleaned from their children by websites, and grants regulatory power to the FTC.
- Throughout the 1990s, the FTC studied and recommended proposals for new Internet privacy laws. The commission made such recommendations again in its annual 2000 report on the issue, but in 2001 new FTC leadership called for more study of the issue and a continued emphasis on self-regulation by business.
- Passed in response to the September 11, 2001 terrorist attacks upon the United States, the Patriot Act of 2001 appeared likely to significantly impact online privacy. The law dramatically increases federal police investigatory powers, including the right to intercept e-mail and track Internet usage.
- Courts have offered mixed verdicts on anonymity on the Internet. In 1997, Georgia was prohibited from enforcing a STATUTE that barred anonymous communication in ACLU v. Miller. In subsequent cases, courts have allowed plaintiffs to force disclosure of the identities of anonymous users of Internet message boards, but some have required that strict evidentiary standards are met by plaintiffs first.
Purpose of the law
The Electronic Communication Privacy (ECPA) of 1986 creates limited STATUTORY privacy rights for Internet users. First enacted in 1968, the law originally sought to prevent wiretapping by determining limits on electronic surveillance. By 1986, growing federal concern about privacy in an age of new communication technology led to a major overhaul. Lawmakers amended the ECPA to extend its privacy protection to several forms of contemporary electronic communication, from cell phones and pagers to computer transmissions and e-mail.
On the Internet the ECPA protects both digital transmissions and stored messages. In general, the law prohibits their interception or disclosure by third parties. It spells out several separate offenses:
- Intercepting or endeavoring to intercept communication
- Disclosing communication without consent
- Using electronic, mechanical, or other devices to intercept communication
- Intercepting communication for commercial purposes
- Intercepting communication for the purpose of impeding criminal investigations
Besides criminal penalties, the statute authorizes that injured parties may bring civil suits for any damages suffered, PUNITIVE DAMAGES, and other relief.
Protected Internet Communication
Electronic communication is defined in broad terms as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system." Thus the ECPA extends privacy protection to everything from e-mail to drawings, pictures, and sounds as well. For communication to receive the law's protection, it cannot be simply sent between two computers: the communication must take place in the course of interstate or foreign commerce.
However, numerous exceptions are spelled out in the law. These fall into three categories:
- Limited exceptions allowing employees of network services access to communication under specific circumstances
- Broad workplace exceptions allowing employers access to employee e-mail
- Conditional government authority to carry out criminal investigations
Exceptions for Employees of Network Services
The ECPA prohibits employees of Internet providers from eavesdropping on subscribers' e-mail or other communication. However, it is not unlawful for these employees to intercept or disclose communication in the normal course of employment under two conditions:
- While engaged in the normal required performance of their jobs
- For the protection of the rights or property of the provider of the service
The statute further restricts how such exceptions may occur, specifying that "service observing" and "random monitoring" may only be carried out for mechanical or quality control checks.
Exceptions for Employers
In contrast to private home usage of the Internet, Internet communication in the workplace is given far less privacy protection under the ECPA. Underpinning this difference are philosophical assumptions about how much privacy individuals may expect at home as opposed to what they may normally expect at work. As courts have long recognized, several factors influence this question: the nature of the workplace, the relationship between employees and employers, and the legal concerns of employers are all issues that shape why the employee has a lesser expectation of privacy at work than at home.
The law permits private employers to monitor worker e-mail usage in two main ways:
- In the ordinary course of business
- When employees have given consent
Because employer monitoring of employees has been at the heart of much LITIGATION, the courts have helped to define what these conditions mean. In determining whether monitoring is legal in the ordinary course of business, courts generally examine the reasons that businesses conduct the monitoring. Generally, workplace monitoring has been held to be legal under the ECPA where employers have provided notice of the policy to conduct monitoring and limited it to monitoring communication that is business-related rather than personal.
Private business and public sector employees come under different laws. While employees may give consent to monitoring, the courts have also found that "implied consent" may exist. This consent occurs when employees know or should have known that their employers intercept their electronic communications. Public sector employers are subject to a different legal standard. Monitoring in a government workplace may trigger constitutional issues such as the First Amendment right to free speech or the Fourth Amendment right to be free from an unreasonable search or seizure.
Exceptions for Government Authorities
The ECPA governs law enforcement access to private electronic communication. This statutory privacy is not absolute; however, the law recognizes that law enforcement must be able to conduct its work. But the government's power to have access to electronic communication unlimited. Like protections afforded by the Fourth Amendment to the U. S. Constitution, the law spells out limits upon government intrusion in this area of private life.
Government agents must take specific steps before intercepting communication over the Internet, gaining access to stored communication, or obtaining subscriber information such as account records and network logs from Internet service providers. Generally, they must issue subpoenas or seek and execute court orders such as search warrants. Greater degrees of invasiveness require court authority. Thus investigators can SUBPOENA basic subscriber information, but they must obtain a SEARCH WARRANT for EXAMINATION of the full content of an account.
An additional exception is created for employees or agents of the Federal Communications Commission (FCC). They may intercept or disclose communications in the normal course of employment duties or in discharging the FCC's federal monitoring responsibilities spelled out in Chapter 5 of Title 47 of the United States Code.
Additional Exceptions Under the Patriot Act of 2001
Signed into law by President George Bush on October 26, 2001, the Patriot Act of 2001 authorizes new investigatory powers for law enforcement in response to terrorist attacks upon the nation. Not all of its powers are limited to use in fighting TERRORISM, however. The 350-page law amends over one dozen existing statutes, including the ECPA, for use in investigations of COMPUTER CRIME and other offenses. Some of the ECPA changes relate to the law's protections for technologies other than the Internet, but a few circumscribe the existing privacy protections for Internet communications and usage. Not all are permanent. Many are subject to sunset provisions provided by lawmakers out of concern over potential long-term harm to civil liberties.
Under the changes, law enforcement agents are able to conduct investigations with fewer legal hindrances:
- Agents may use the ECPA to compel cable Internet service providers to disclose customer Internet records without obtaining court orders.
- Agents have broader authority to obtain stored voice communications. This change to the ECPA allows agents to use a search WARRANT for examining all e-mail as well as any attachments to e-mail that might contain communication without having to seek further court authority. This change will sunset on December 31, 2005.
- Internet service providers may voluntarily make so-called "emergency disclosures"of information involving information previously prohibited from disclosure under the ECPA. This information includes all customer records and customer communications. The disclosures are permitted in situations involving immediate risk of death or serious physical injury to any person. However, the law merely permits such disclosure but does not create an obligation to make them. This change will sunset on December 31, 2005.
Without altering the ECPA, other provisions of the Patriot Act also increase police powers that potentially impact Internet privacy. These include:
- Extending the authority to trace communications on computer networks in a manner similar to tracing telephone calls, along with giving federal courts the power to compel assistance from any communication provider
- Allowing agents to obtain nationwide search warrants for e-mail without the traditional requirement that the issuing court be within the relevant JURISDICTION. This change will sunset on December 31, 2005
Purpose of the law
Designed to protect minors who use the Internet, the Children's Online Privacy Protection Act (COPPA) governs how websites and online services may interact with children under 13 years of age. COPPA restricts the online collection of personal information from these young Internet users and creates certain statutory rights for their parents. Effective April 21, 2000, the law grants regulatory and enforcement authority to the Federal Trade Commission (FTC).
Who Must Comply
Businesses, groups, and individuals that collect information from children must comply with COPPA. Two broad categories exist:
- Operators of commercial websites and online services "directed to children" that collect personal information from children
- Operators of general audience websites that have actual knowledge that the site collects personal information from children
The FTC weighs several factors in determining whether a site is directed to children:
- Subject matter
- Visual or audio content
- The age of models on the site
- Whether advertising on the site is directed to children
- Information regarding the age of the actual or intended audience
- Whether a site uses animated characters or other child-oriented features
The FTC determines whether someone is a website operator by considering the following:
- Ownership and control of the information.
- Payment for the collection and maintenance of information
- Pre-existing contractual relationships
- What role the website plays in collecting or maintaining information
Basic Compliance Provisions
Under COPPA, website and online service operators must meet three main forms of compliance:
- Send a direct notice to parents and obtain parental consent before collecting information from children
- Obtain new consent when the site's information practices change in a material way
- Types of personal information collected, such as name, home address, email address, or hobbies
- How the site will use the information
- Whether the information is given to advertisers or third parties
- A person who may be contacted at the site
Obtaining Parental Consent
In many cases, a special notice seeking parental consent must be sent to the child's parents. The operator must notify a parent:
- That it wishes to collect personal information from the child
- That the parent's consent is required for the collection, use, and disclosure of the personal information
- How the parent can provide consent
The notice may be sent by e-mail or regular postal mail. Replies via e-mail are acceptable when the operator merely wishes to collect personal information from the child. When answers are delayed, operators may seek confirmation of consent by letter or telephone call.
Consent requirements are more strict when the operator wants to disclose a child's personal information to a third party or make the information publicly available. In such cases, the FTC requires a more reliable form of consent. Forms of consent include:
- A signed form from the parent via postal mail or fax
- Acceptance and verification of a credit card number
- Acceptance of calls from parents through a toll-free number
- E-mail accompanied by a so-called digital signature
Whenever operators make material changes to their information policies, they must send a new notice and request for consent to parents.
Exceptions Not Requiring Consent
Consent is not required when obtaining a child's e-mail address for several limited purposes:
- Responding to a one-time request from the child
- Providing notice to the parent
- Ensuring the safety of the child or the site
- Sending a newsletter of other information regularly provided parents are notified and allowed to refuse the arrangement
COPPA creates two kinds of statutory rights for parents:
- Parents may compel a site to disclose both general and specific kinds of personal information they collect online from children
- Parents may revoke their consent at any time, refuse to allow further use of the child's information, and direct the operator to delete the information
Verifying Parental Identity
In order to protect children, operators must take reasonable steps to verify the parent's identity before divulging personal information:
- A signed form from the parent via postal mail or fax
- Acceptance and verification of a credit card number
- Acceptance of calls from parents through a toll-free number
- E-mail accompanied by a so-called digital signature or a PIN number or password
The law provides protection from liability under federal and state law for inadvertent disclosures of a child's information to someone who purports to be a parent.
Under COPPA, industry groups and others can create self-regulatory programs to meet compliance with the law. These so-called safe harbors require approval from the FTC.
Violations FTC rules for COPPA are treated as unfair or deceptive trade practices, punishable under the Federal Trade Commission Act.
The Internet has popularized the use of anonymous online identities. For privacy purposes when communicating with strangers, using public message boards, or in Internet gaming, many people avoid using their legal name and instead choose aliases. Advocates of online privacy such as the American Civil Liberties Union strongly back protections for this anonymity. Publishing anonymously has a long tradition at COMMON LAW, but anonymity is not guaranteed by statute.
Legal battles over anonymity have become increasingly common since the late-1990s. In particular, companies have sought to discover the identities of their online critics by issuing subpoenas to force their disclosure. Civil liberties advocates have argued that the threat of legal action by powerful plaintiffs can stifle online speech, which, they say, depends upon anonymity. Opponents have regarded anonymity as merely cover for DEFAMATION and libel.
Courts have provided different results, and no consistent body of law exists. In an October 2000 ruling in Hvide v. John Does, a Florida appeals refused to overturn a lower court order that Yahoo and America Online must divulge the identities of eight anonymous message posters sought by a subpoena in a defamation lawsuit. Courts in other jurisdictions have responded differently, articulating tough evidentiary standards for obtaining subpoenas. In November 2000, a Pittsburgh state court ruled in Melvin v. Doe against a public official seeking to discover the identity of anonymous critic. And in Dendrite International v. John Does, the Superior Court of New Jersey ruled in November 2000 against a company seeking to compel disclosure of anonymous critics ACCUSED of making false statements, holding that the right of companies to sue "must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously." Case law on anonymity thus remains in flux in the early 2000s, and it is hard to predict how this area of online privacy law will develop in future years.
Several states have enacted Internet privacy laws. Since most crime is prosecuted in state courts rather than at the federal level, states have commonly tried to keep pace with the federal government's protections. As a result, many have modeled e-mail privacy laws upon the federal Electronic Communications Privacy Act, such as New Jersey's and Pennsylvania's respective Wiretapping and Electronic Surveillance Control Acts. A number of other states protect children's privacy online, much in the way that the federal Children's Online Privacy Protection Act does. In another respect, state courts recognize common law claims involving the tort of invasion of privacy, so not all privacy rights depend upon statutory protections.
Demonstrating a strong approach to new technology issues, state legislatures have gone further than Congress in protecting e-mail privacy. Several states, such as Arkansas and Maryland, prohibit harassment through e-mail. A few address workplace concerns, with recent legislation emerging that protects employee rights. Under a Delaware law that took effect in August 2001, employers who monitor employee e-mail or Internet transmissions must inform workers about the monitoring before it begins.
Following the lead of pioneering legislation like Washington State's 1998 law, at least eighteen states have passed laws restricting how e-mail may be used by companies that send unsolicited commercial messages to consumers. Popularly known as "spam," this digital equivalent of junk mail has raised widespread concerns among private individuals who prefer not to receive it and companies that prefer not to pay the costs associated with processing it.
Anti-spam laws protect Internet service providers as well as consumers. Two of the toughest laws were passed in the late 1990s in Washington State and California. Washington State's law forbids sending commercial e-mail messages using a third party's domain name without permission, containing false or missing routing information, or with a false or misleading subject line. California's law allows Internet Service Providers to sue companies that mail spam in violation of the service's anti-spam policy, while also requiring spam to contain so-called opt-out instructions and clear labeling in the subject line describing the spam as an advertisement.
But state anti-spam laws have faced difficulties with enforcement as well as challenges to their constitutionality. Courts have reached different verdicts. In Ferguson v. Friendfinder, a San Francisco Superior Court judge ruled in June 2000 that key portions of California's anti-spam law were violations of the federal constitution's Commerce Clause. But in June 2001, the Washington Supreme Court upheld the constitutionality of its state anti-spam law: State of Washington v. Jason Heckel marked the first appeals court ruling on such cases. In October 2001, the U.S. Supreme Court declined to hear an appeal to the case, allowing the verdict to stand.
"Cyber Liberties." American Civil Liberties Union, 2001. Available hmcl.html at: http://www.aclu.org/issues/cyber/
FBI Develops Eavesdropping Tools. Bridis, Ted, Associated Press, November 22, 2001.
"Kidz Privacy." Federal Trade Commission, 2001. Available at: .
Privacy Rights in a High-Tech World: Monitoring Employee E-Mail, Voicemail, and Internet Use.Morgan Lewis Counselors at Law, June 2001. Available at .
U.S. Code, Title 13, Section 1301: Children's Online Privacy Protection Act of 1998. Available at http://www.ftc.gov/ogc/coppa1.htm.
U.S. Code, Title 18, Section 2510 et seq.: Electronic Communications Privacy Act of 1986. Available at http://www.usdoj.gov/criminal/cybercrime/cclaws.html.
You've Got Spam. Stim, Rich, Nolo.com, 2001. Available at http://www.nolo.com/encyclopedia/articles/ilaw/gotspam.html.
West Encyclopedia of American Law. West Group, 1998.
American Civil Liberties Union (ACLU)
125 Broad Street, 18th Floor
New York, NY 10004 USA
Phone: (212) 549-2500
Primary Contact: Nadine Strossen, President
Electronic Frontier Foundation (EFF)
454 Shotwell Street
San Francisco, CA 94110 USA
Phone: (415) 436-9333
Fax: (415) 436-9993
Primary Contact: Brad Templeton, Chairman
Federal Bureau of Investigation (FBI)
J. Edgar Hoover Building, 935 Pennsylvania
Washington, DC 20535-0001 USA
Phone: (202) 324-3000
Primary Contact: Robert S. Mueller III, Director
Federal Trade Commission (FTC)
Washington, DC 20580 USA
Phone: (877) 382-4357
Primary Contact: Timothy J. Muris, Chairman
Internet Regulation (Encyclopedia of Everyday Law)
The Internet is an immense labyrinth of more than 200 million computers, computer networks, and databases interconnected across the world. Through its user interface, known as the World Wide Web, the Internet gives users access to a vast amount of information, including typewritten text, tabular and graphic material, sound recordings, video images, pictures, and computer programs, which are stored at locations called "Web sites." Each Web site has a unique address, identified by its alphabetic Universal Resource Locator (URL) and its numeric Internet Protocol (IP). For example, http://www.montana.edu is the URL for Montana State University's Web server, while 184.108.40.206 is the IP for the school's Web site. The Internet also enables users to communicate to each other through e-mail, instant messaging, chat rooms, and message boards.
Most users do not access the Internet directly but instead go through an Internet Service Provider (ISP). ISPs typically charge subscribers an hourly or monthly fee for the service they provide. In addition to providing users with a connection to the Internet, many ISPs offer content of their own, ranging from e-mail and video games to personal banking, home shopping, tax, and research services. Subscribers connect to ISPs in a variety of ways, including cable modems and satellite uplinks. However, the most common means of accessing an ISP is over a telephone line. ISPs provide subscribers with telephone numbers that dial into servers that are connected to the Web.
Once connected, users literally have the world at their fingertips. Web sites today are as diverse as they are countless. Governments, governmental watchdogs, non-profit organizations, commercial entities, CONSUMER PROTECTION groups, educational institutions, religious institutions, news media, and members of the sports and entertainment industries are just a few of the entities hosting Web sites on the Internet. The group of users visiting these Web sites is similarly large and diverse. In September 2001 researchers estimated that approximately 420 million people were accessing the Internet each day in at least 27 countries. Despite the enormous amount of daily global Internet traffic, no single authority exists to regulate it.
In fact, the Web was designed in part to thwart outside control and withstand foreign attack. The Internet evolved from the Advanced Research Project Agency Network (ARPANET), which was created by the U. S. Department of Defense in 1969 to function as a decentralized, self-maintaining national communications network that permitted computer-tocomputer transmissions across vast distances in case the United States came under nuclear attack. ARPANET was programmed to work without human intervention, and sometimes in spite of it. For example, if a communications processing hub became disabled, ARPANET would re-route all transmissions through a different hub.
In the early 1980s the National Science Foundation relied on Internet technology to create the NSF Network (NFSNET), a high-speed communication network that facilitates research at remote academic and governmental institutions. NFSNET now serves as the technological backbone for all Internet communications in the United States. In 1989 English computer scientist Tim Berners-Lee developed the first prototype of the World Wide Web as means for the general populace to access the Internet. A year later he invented the concept of hypertext browsing, a method for imbedding shortcuts into on-screen text, a look that still defines the Internet today. In 1991 the World Wide Web debuted on the Internet, and by 1995 16 million people were reported "surfing" it each day.
As more people posted content on the Web and more people used the Web for personal, governmental, and business purposes, the Internet soon opened the door to an array of lawsuits and legal disputes. In one sense, the legal disputes were as novel as the Internet itself. But in another sense, the disputes merely presented new variations on longstanding legal controversies. As the millennium approached, law schools, lawyers, and judges were recognizing a distinct area of JURISPRUDENCE known as Internet law.
Internet law consists of state and federal statutes, CASE LAW, and other legal norms that regulate activity on the World Wide Web. Although the law governing the Internet is in many ways no different than the law governing other areas of life in the United States, legal disputes involving the Internet have generally centered on four bodies of law: (1) intellectual property; (2) free speech; (3) privacy; and (4) contracts.
TRADEMARKS consist of words, logos, symbols, slogans, and other devices that are used to signify the origin and authenticity of a good or service to the public. Established trademarks symbolize the quality of the goods or services they are associated with, and enable consumers to make effective and reliable buying decisions. For example, the circular black, blue, and white emblems attached to both ends of motor vehicles manufactured by Bavarian Motor Works (BMW) represent a familiar trademark that has come to signify meticulous craftsmanship to many consumers. However, the federal Trademark Act only protects marks that are distinctive and not merely generic. 15 U.S.C.A. sections 1051 et seq. Once a mark is sufficiently distinctive, competitors are prohibited from luring customers away from each other by using confusingly similar marks in commerce. Competitors are also prohibited from using marks that dilute or tarnish the value of another's mark in commerce.
Most Internet trademark LITIGATION has revolved around domain name disputes. A domain name is the portion of a URL that follows the "" prefix. A domain name can be reserved for use on the Internet by registering it with any one of several registrars that are accredited by the Internet Corporation for Assigned Names and Numbers (ICANN). Domain-name litigation typically arises when a business that has invested heavily in developing good will for a famous trademark is thwarted from using that mark for its Web site by a so-called "cybersquatter." Cybersquatters are individuals who intentionally reserve a third-party's trademark as a domain name for the purpose of selling it back to the owner for a profit.
A leading case on this issue is Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998), in which the DEFENDANT was sued after reserving approximately 240 domain names that were extremely similar to the trademarks of famous commercial entities, including "deltaairlines.com," "britishairways.com," "crateandbarrel.com," and "ussteel.com." One of the commercial entities sued the defendant. The defendant admitted he had no intention of ever using the marks to sell goods or services, and thus the plaintiff could not claim that consumers were likely to be confused by the similar names. Instead, the court found that the defendant diluted the plaintiff's trademark by curtailing the exploitation of its value on the Internet.
A year later Congress codified the rights of Trademark owners against cybersquatters, passing the Anti-Cybersquatting Act of 1999 (ACPA). The Intellectual Property and Communications Omnibus Reform Act of 1999, PL 106-113, 113 Stat 1501 (November 29, 1999). ACPA imposes civil liability upon defendants who have registered, trafficked in, or used a domain name that is identical to or confusingly similar to a trademark owned by the plaintiff, so long as the mark is distinctive and the defendant acted with a BAD FAITH intent to profit from the plaintiff's mark. Bad faith can be shown in a number of ways, including a pattern of registering widely known trademarks as domain names to divert Internet users from the trademark owner's Web site. 15 U.S.C.A. section 1125(d). The law empowers courts to dispose of a domain name when the owner cannot be found or served with a SUMMONS and complaint in the United States.
A COPYRIGHT is an intangible right granted by STATUTE to the originator of certain literary or artistic productions, including authors, artists, musicians, composers, and publishers, among others. For a limited period, copyright owners are given the exclusive privilege to produce, copy, and distribute their creative works for publication or sale. Applicants seeking copyright protection for their work must establish that the work is original and has been reduced to a "tangible medium of expression." 17 U.S.C.A section 102(a). "Originality" does not mean "novelty" for the purposes of copyright law. It simply means that the work in question is the work of the person seeking copyright protection and not the creation of a third party from whom the work was copied. The phrase "tangible medium of expression" means that the work manifests itself in a concrete form, as when something is written on a piece of paper, recorded on an audiotape, captured on a videotape, or stored on a computer disk, hard drive, database, or server.
There are a number of defenses to copyright INFRINGEMENT suits, but "fair use" is the most frequently asserted. Fair use refers to the use of a copyrighted work that does not violate the exclusive rights of the copyright owner. The defense allows original works to be reproduced for the purpose of criticism, comment, news reporting, teaching, scholarship, research, and personal consumption. 17 U.S.C.A. section 107. Whether a particular use is "fair" depends on a court's application of the following factors: (1) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for the copyrighted work, including the extent to which the use diminishes the economic value of the work.
Copyright thus has important implications for the Internet. It is not uncommon for Web sites to make copyrighted works available to Internet users or for users to alter copyrighted works downloaded from the Internet. Nor is it uncommon for either Web site owners or Internet users to distribute original or altered copyrighted works across the Internet. But unless they are doing so with the permission of the copyright owner, both Web site owners and Internet users face possible claims for infringement, even if the distribution does not directly profit the distributor and even if the recipients are using copyrighted works for personal pleasure.
For example, in the case of A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), where the U.S. Court of Appeals for the Ninth Circuit ruled that the fair use doctrine does not allow an Internet service to facilitate the transfer of copyrighted MP3 digital audio files between service users who pay no fee to the copyright owners. Napster, the defendant Web service, created a system whereby service users interested in obtaining MP3 files, which reproduce high-quality music in a compressed and easily transferable format, could connect to Napster and contact others interested in exchanging digital recordings. The users would then send MP3 files to each other through the Internet, but the files would never pass through Napster's servers. Recognizing that the individual users were mostly high school and college students exchanging the music for personal consumption, the court still found that the purpose and character of their use was commercial in nature. "Napster users get for free something they would ordinarily have to buy," the court observed. The court said that Napster reduced audio CD sales among those students who used its service, thereby diminishing both the size of the copyright owners' market and the value of the copyrighted work.
PATENTS give individuals and businesses the exclusive rights to make, use, and sell specific types of inventions, such as software programs, mechanical devices, manufacturing processes, chemical formulas, and electrical equipment. Federal law grants these exclusive rights in exchange for full public disclosure of an original work or invention. The inventor or author receives complete legal protection for his or her intellectual efforts, while the public obtains valuable information that can be used to make life easier, healthier, or more pleasant. For example, U.S. PATENT No. 5,625,781 gives International Business Machines Corporation (IBM) the exclusive rights over a Web browsing tool that allows users to navigate through a list of hypertext links that are displayed on a Web site and then return to the list without having to backtrack through the intermediate links. Were another company to make the same technology available for its own Web-browsing product, IBM would have a viable claim for patent infringement.
Obscenity and Pornography
The Supreme Court has always had difficulty distinguishing obscene material, which is not protected by the First Amendment, from material that is merely salacious or titillating, which is protected. Justice Potter Stewart once admitted that he could not define OBSCENITY, but quipped, "I know it when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964). Nonetheless, the Supreme Court has articulated a three-part test to determine when sexually oriented material is obscene. Material will not be declared obscene unless (1) the average person, applying contemporary community standards, would find that the material's predominant theme appeals to a "prurient" interest; (2) the material depicts or describes sexual activity in a "patently offensive" manner; and (3) the material lacks, when taken as a whole, serious literary, artistic, political or scientific value. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
The Internet added new challenges to free speech regulation by making hardcore PORNOGRAPHY readily available to Web users young and old. Congress tried to curb children's access to indecent and offensive material by passing the Communications Decency Act of 1996 (CDA). Pub.L. 104-104, 110 Stat. 56 (1996). The CDA made it unlawful to knowingly transmit indecent messages or "patently offensive" displays or images to all persons under 18 years of age. But the CDA failed to withstand scrutiny in Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), where the U. S. Supreme Court declared the law violative of the First Amendment. The Court reasoned that the law imposed a blanket restriction on the targeted speech, and thus was not narrowly tailored to accomplish the government's objective of curtailing minors' access to obscene material.
Congress attempted to refine its approach by passing the Child Online Protection Act (COPA). Pub. L. No. 105-277, § 231, 112 Stat. 2681-2736 (1999). COPA called for the implementation of an age-verification system that would shield minors from accessing hard core pornography on the Internet. This law was also successfully challenged in court. The U. S. District Court for Eastern District of Pennsylvania issued an injunction barring enforcement of COPA. In affirming the district court's decision, the U. S. Court of Appeals for the Third Circuit said that the law would allow the most conservative communities in the country to dictate the level of CENSORSHIP for the rest of the country, a result directly contrary to the Miller test that required a community-by-community approach to obscenity. American Civil Liberties Union v. Reno, 217 F.3d 162 (3rd Cir. 2000). However, the case was appealed to the Supreme Court, which is expected to rule on it in 2002.
Meanwhile, Congress passed Children's Internet Protection Act (CIPA)in 2000. Pub. L. No. 106-554, 114 Stat. 2763 (2000). The law requires public schools and libraries that receive federal technology funding to block objectionable material on the Internet by installing filtering software. CIPA was challenged in March of 2001 when the American Civil Liberties Unions (ACLU) filed a lawsuit in federal court. However, the trial is not slated to begin until sometime in 2002.
The First Amendment permits governmental regulation of commercial speech so long as the government's interest in doing so is substantial, the regulations directly advance the government's asserted interest, and the regulations are no more extensive than necessary to serve that interest. The Supreme Court has ruled that the government has a "substantial interest" in regulating false, deceptive, and misleading advertisements. However, the Supreme Court had not been asked to consider whether the First Amendment allows the government to regulate the distribution of unwanted advertisements. It may be asked shortly to do so with the prevalent use of "spamming" on the Internet.
Spamming is a term that describes the mass distribution of unwanted and unsolicited e-mail that advertises the sale of goods and services. Large-scale delivery of electronic advertisements on the Internet is not only annoying to users but also to ISPs and Web site owners whose mail servers can be overburdened by bulk e-mail. Sixteen states have banned spamming to some extent, and Congress has several bills before it aimed at achieving the same purpose. However, legal challenges are slowly creeping into courts across the country.
The Washington State Supreme Court, for example, upheld the state's anti-spamming law. State v. Heckel, 143 Wash.2d 824, 24 P.3d 404 (Wash. 2001). The court concluded that the law served the legitimate purpose of banning cost-shifting inherent in the sending of deceptive unsolicited bulk e-mail, and the only burden it placed on spammers was in prohibiting the distribution of e-mail with misleading subject lines. RCWA 19.190.010 et seq. The court found that this prohibition was consistent with other state statutes outlawing false and deceptive advertising. However, not all courts agree on this issue. The U. S. District Court for the Southern District of Ohio found that spamming constitutes an illegal form of TRESPASS. CompuServe, Inc. v. Cyber Promotions, Inc., 962 F.Supp. 1015 (S.D.Ohio 1997).
The law of DEFAMATION addresses harm to a party's reputation or good name through the torts of LIBEL AND SLANDER. The COMMON LAW rules underlying the doctrines of libel and slander have developed over time and typically vary from state to state. At common law libel law governed injurious written communications, while slander law governed injurious oral communications. In general the elements for libel and slander are a false and defamatory statement concerning another, made in a negligent, reckless, or malicious manner, and which is communicated to at least one other person in such a fashion as to cause sufficient harm to WARRANT an award of COMPENSATORY DAMAGES. As long as these elements are satisfied, a suit for defamation will not offend the First Amendment to the U. S. Constitution. A stricter set of elements must be satisfied when the allegedly injured party is a public official or a PUBLIC FIGURE. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
The Internet makes it easier than ever before to disseminate defamatory statements to a worldwide audience. The risk of liability associated with defamatory statements is an important consideration for parties seeking to communicate with others on the Internet, as well as for parties that provide the technological means for such communications. Even satirical or humorous communication can give rise to a cause of action for libel or slander if the communication reasonably asserts a factual charge that is defamatory. However, the U. S. Court of Appeals for the Fourth Circuit limited the liability of ISPs, when it ruled that 47 U.S.C.A. § 230(c)(1) insulates them from libel or slander claims stemming from defamatory statements that are made by persons using the Internet through their service. Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).
Privacy Concerns on the Internet
Advances in technology now allow Web site operators, advertisers, and others to intercept, collect, compile, and distribute personal information about users browsing the Internet. Every time individuals browse the Internet they leave a trail of electronic information along the way, and most Web sites employ a variety of devices to automatically gather this trail and analyze it, sometimes offering it for sale to third parties who may use the information for targeted marketing. Known as "clickstream data," this information may include the user's e-mail address, the type of computer, and the browsing software.
Privacy may also be compromised on the Internet by "hackers" who unlawfully intercept Web transmissions without authorization or consent. In the early days of the Internet it was far more common to hear reports of individuals breaking into commercial, governmental, academic, or private sites or transmissions for the purpose of stealing credit card numbers, social security numbers, phone numbers, passwords, and other information that could facilitate a FRAUDULENT scheme to make money. While such incidents still occur, encryption software is now widely deployed to keep hackers out. By and large, encryption software is effective. However, some experts predict that the next generation of computer viruses will allow hackers to take over control of infected operating systems from remote locations.
Laws Regulating Privacy on the Internet
There is no comprehensive legislation in the United States that regulates the collection, storage, transmission, or use of personal information on the Internet. As new technologies have developed, the response has been to enact laws designed to target specific privacy-related issues on an AD HOC basis. As a result, the law governing privacy issues on the Internet consists of an assortment of state and federal legislation, regulations, and court decisions interpreting them.
In 1999 Congress enacted the Financial Modernization Act (FMA), which requires federal agencies to issue regulations implementing restrictions on a financial institution's ability to disclose nonpublic personal information about consumers to nonaffiliated third parties. Pub. L. No. 106-102, 113 Stat. 1338 (1999). Affected agencies include the Federal Trade Commission (FTC), SECURITIES and Exchange Commission(SEC), and the Federal Reserve. Pursuant to the act, the FTC issued a final rule requiring financial institutions to provide notice to consumers about its privacy policies and practices and set forth the conditions under which a financial institution may disclose nonpublic personal information about consumers to nonaffiliated individuals and entities.
The Electronic Communications Privacy Act (ECPA) regulates intrusions into electronic communications and computer networks. 18 U.S.C.A sections 2510 et seq. Subject to various exceptions, ECPA makes it illegal to intercept e-mail at the point of transmission, while in transit, when stored by an e-mail router or server, or after receipt by the intended recipient. ECPA specifically prohibits the intentional interception, disclosure, or use of any wire, oral, or electronic communication. The act provides both criminal and civil penalties for its violation. However, one federal court ruled that ECPA could not be interpreted to support a CLASS ACTION alleging that an advertising corporation had unlawfully stored cookies on the hard drives of Web users who had visited particular Internet sites. IN RE DoubleClick Inc. Privacy Litigation, 154 F.Supp.2d 497 (S.D.N.Y. 2001)
The FAIR CREDIT REPORTING ACT (FCRA), as amended by the Consumer Reporting Reform Act of 1996, regulates the collection and use of personal information by consumer reporting agencies. Fair Credit Reporting Act of 1970, 15 U.S.C.A sections 1681-1681u (1997); Consumer Credit Reporting Reform Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-426 (1996). The law requires that consumer reporting agencies establish "reasonable measures" addressing the commercial need for consumer credit information in a manner that ensures "confidentiality, accuracy, RELEVANCY, and proper utilization" of the information. Among other things, the law prohibits the disclosure of a consumer report in the absence of written consent from the consumer, unless the disclosure is made pursuant to a court order or for legitimate business purposes.
Many states have enacted laws that mirror or expand upon the above federal acts. For example, Article 250 of New York's Penal Law prohibits intercepting or accessing electronic communications without the consent of at least one party to the communication. N.Y. Penal L. sections 250 et seq. States have also enacted privacy legislation relating to medical records and employment records. Conn. Gen. Stat. Ann sections 13-128a et seq. One state has modified its existing privacy laws so they apply to information collected over the Internet. Va. Code Ann. § 2.1-379. Another state passed a law prohibiting gambling on the Internet to quell concerns over the kinds of information that might be exchanged to partake in such activity. 720 ILCS 5/28-1.
At the heart of electronic commerce is the need for parties to form valid and legally binding contracts online. Basic questions relate to how contracts can be formed, performed, and enforced as parties seek to replace paper documents with electronic equivalents. It is often difficult, if not impossible, to be certain about the identity of the party with whom one is dealing on the Internet. Web transactions, particularly consumer-oriented transactions, often occur between parties having no preexisting relationship. Not knowing the identity of a party to an online transaction can raise concerns about whether a seemingly valid contract is actually enforceable. Appropriate use of digital signatures has been one solution to this problem.
The term "digital signature" describes a technology that is not based upon hand-signed instruments but rather on complex mathematical algorithms that facilitate the verification, integrity, and authenticity of electronic communications to make them nonreputable. "Nonreputable" means that EVIDENCE exists to link the identity of a party to the substance of an electronic message or data and that the evidence is sufficient to prevent a party from falsely denying having sent the message or data. The evidence usually comes in the form an electronic "seal" on a digital work, which typically requires that the parties signing a contract have access to cryptographic software.
The Uniform Electronic Transactions Act (UETA) endorses the use of digital or electronic signatures. UETA provides that "a record or signature may not be denied legal effect or enforceability solely because it is in electronic form." It also provides that electronic records may substitute for typewritten or handwritten records when the law requires that a document be in writing. Finally, for contracts and agreements that require a signature to be enforceable UETA provides that an electronic or digital signature will suffice. UETA has been adopted in 22 states.
Other Legal Considerations
The four areas of law discussed above are amongst the most heavily litigated for cases involving Internet-related issues. But by no means are they the exclusive and definitive source for Web jurisprudence. Depending on the circumstances of a particular case, Internet law and regulation can be nearly as inclusive and encompassing as the entire corpus of all U. S. law. If a Web site fails to accommodate a blind person with voice-recognition software, handicapped users might have a claim for DISABILITY DISCRIMINATION. If another Web site entices users to visit it and then preaches anti-race and anti-gender sentiments, visitors may have a claim under relevant harassment or hate speech laws. Stockowners desiring to trade shares over the Internet will need to determine what disclosure rules they must comply with before consummating a deal. Consumers living in one state and buying goods over the Internet in another state should be aware of applicable sales taxes in both jurisdictions. Protestors condemning a foreign government's behavior on an Internet message board might want to consider if they are in violation of foreign or international laws by doing so.
But the biggest challenge facing the future of Internet regulation may come from random attacks by computer viruses and worms unleashed by Web terrorists. The increase of virus outbreaks over the past two years has been highlighted by the widespread recognition they have received. "SirCam," "Melissa," and "Love Bug" are just three widely known viruses that experts estimate to have caused more than a billion dollars in damage worldwide. Security breaches by hackers cost U. S. companies another $10 billion every year. Private companies, government agencies, and academic institutions invest millions more in developing technology and educating their employees to protect their computer systems from these dangers. Nonetheless, the dangers persist. As a result, many federal lawmakers have urged changing the focus from preventing the spread of worms and viruses to developing effective means of identifying the individuals who have released them and then punishing those individuals severely enough to deter others from engaging in similar behavior.
American Jurisprudence. West Group, 1998.
Doing Business on the Internet: Forms and Analysis. Millstein, Jullian S., Jeffrey D. Neuburger, and Jeffrey P. Weingart, American Lawyer Media, 2000.
Intellectual Property in a Nutshell: Patents, Trademarks, and Copyright. West Group.
McCarthy on Trademarks and Unfair Competition. West Group, 2001.
U. S. Constitution: First Amendment. Available at: http://caselaw.lp.findlaw.com/data/constitution/amendment01.
West's Encyclopedia of American Law. West Group, 1998.
American Bar Association
740 15th Street, NW
Washington, DC 20002 USA
Phone: (202) 544-1114
Fax: (202) 544-2114
Primary Contact: Robert J. Saltzman, President
Free Speech Coalition
904 Massachusetts Ave NE
Washington, DC 64196 USA
Phone: (202) 638-1501
Fax: (202) 662-1777
Primary Contact: Jeffrey Douglas, Director
U. S. Copyright Office, The Library of Congress
101 Independence Avenue, SE
Washington, DC 20559-6000 USA
Phone: (202) 707-3000
Fax: (202) 707-2600
Primary Contact: Marybeth Peters, Register of Copyright
U. S. Patent and Trademark Office
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Washington, DC 20231 USA
Phone: (800) 786-9199
Fax: (703) 305-7786
Primary Contact: Nicholas Godici, Director
Online Business (Encyclopedia of Everyday Law)
At the beginning of the Internet revolution, many proclaimed the World Wide Web would "change everything." Although it was impossible for the Internet to live up to the dizzying expectations and frenzied hype it garnered at its inception, its contribution to the business world cannot be understated. The exponential explosion of the Internet in the mid-1990s spawned an entirely new creature: the online business. Whether one calls the wired business world the dotoms, the new economy, or eiz, the Internet has definitely made it easier and relatively inexpensive for these businessesig or small, new or old, local or internationalo reach out to a larger population and customer base.
Because of the ease and economics of the Internet, thousands of brand-new ventures have been created exclusively online and "old economy" businesses have branched out to form online extensions of their "brickndortar" bases. The following projections and facts illustrate this trend.
- Forrester Research projects that by 2003, business-to-consumer e-commerce revenues will total $108 billion in the United States while business-to-business revenues will total $1.3 trillion in the United States
- International Data Corp. (IDC) projects that business-to-business purchases through e-commerce will total $4.3 trillion by 2005
- Jupiter Media projects that there will be 120 million online buyers in the United States by 2005, an increase from 65 million buyers in 2001
- Donaldson, Lufkin & Jenrette projects that by 2003, there will be 183 million worldwide online purchasers
- Keenan Vision projects that total online purchase revenues will equal $1.4 trillion by 2004
- According to IDC, nearly 75% (5 million) of small businesses with PCs are on the Internet; while 2 million small firms maintain their own homepage and Website
- IDC found that 725,000 small companies were actively selling online by 2001
With the influx of thousands of online businesses, legal issues that entrepreneurs and seasoned business executives never had to consider, or could have even imagined, just a few years ago are now crucial to starting and maintaining an online business. Obscure or even nonexistent to the traditional business, issues such as domain names, customer privacy, links, metatags, and digital signatures have become an everyday concern. Further, entirely new rules, statutes, laws, and the fresh application of old laws have been created or modified to fit the landscape of the emerging online business world. At the local, state, federal, and international levels, laws are being debated and passed every day, and these new enactments are being tested regularly in courts of law. The online business must know these latest legal rules and the ramifications of starting and doing business on the Net in order to survive and thrive.
Domain Names and Trademarks
One of the first tasks in starting an online business is to purchase a domain name, such as aol.com, amazon.com, and ebay.com. The top-level domain is the.com,.gov,.cc.,.net, etc., of a web address. The second-level domain can be a company name, trademark, or industry buzzword. Obviously, no two domain names are the same. Over 33,000,000 domain names have already been registered, so finding a unique and unused name may be more difficult than appears at first glance.
The legal problems surrounding the registration of domain names most often involve trademark and service mark violations. TRADEMARKS and service marks are words, names, symbols, or devices used by businesses to identify their products and services. Even if one finds a domain name that has not yet been registered, that does not mean that it will not run afoul of trademark law. Typically, the first to register a domain name is entitled to keep it. However, if one registers a domain name that has been previously registered as a trademark, he or she may be in violation of the Anticybersquatting CONSUMER PROTECTION Act (ACPA), which created a new cause of action under Section 43(d) of the LANHAM ACT, 15 U.S.C. 1125(d). The ACPA contains penalties for bad-faith use of another's trademark of up to $100,000 per domain-name violation. This law applies even if the trademark owner has not registered it as a domain name.
Similarly, if someone has used another person's trademark for a domain name, legal action may be necessary. All domain names registered after January 1, 2000 contain ICANN's (International Corporation for Assigned Names and Numbers) Uniform Domain Name Dispute Resolution Policy (UDNDRP), which requires all such disputes to be determined by an administrative panel. The only remedy under the UDNDRP for the BAD FAITH use of another's trademark is transfer of the domain name to the trademark owner. Even after such a determination, though, one may still seek REDRESS in a court of law.
Sound legal advice is for a new online business to protect its domain name by registering it as a trademark first. A trademark may be obtained electronically at the PATENT and Trademark Office web site using the Trademark Electronic Application System. Once individuals obtain trademarks, they may also then want to monitor the Internet for cybersquatters improperly using their trademarks. There are fee-based firms that will monitor usage of your trademark in the United States. Trademark owners may also avoid costs associated with hiring such a firm by doing manual searches for trademarks using search engines. Whois.net will find all domain names that contain the string of words a person's wishes to check and may also provide the registrar's name, address, email address, and other useful information that can be used to begin an investigation as to whether such entity is cybersquatting.
However, the holder of a trademark right is not automatically entitled to the same domain name that uses the trademark. In Strick Corp. v. Strickland (E.D.Pa. Aug. 27, 2001), 162 F.Supp.2d 372, Strick Corp., a provider of transportation equipment and trademark holder of the name, sued a provider of computer consulting services that had registered the domain name Strick.com. Strick Corp. claimed there was blurring and dilution of trademark occurring when Internet searches using "Strick" as a search term encountered the alleged diluter's web page and concluded that the trademark holder had no Internet presence. The federal court found that the use of Strick.com by the computer consulting company did not dilute the trademark and did not violate the Lanham Act or state law. The court determined that any initial confusion that arose from the defendant's use of the domain name was not substantial enough to be legally sufficient. The judge also found that there was not "dilution by blurring" because a reasonable consumer would not associate the two uses of the trademark in his or her own mind. The sensible practice to avoid an inevitable lawsuit for using another's trademark in a domain name is first either to hire an attorney to run a trademark search or check with the U. S. Patent and Trademark Office database at www.uspto.gov before registering the domain name.
Through their own analyses or the help of online advertising agencies, online businesses can track users' buying, what they look at, how long they look at it, what the referring site was, what other sites were visited, the time of day they browse, and where they live, not to mention the detailed information the browser supplies voluntarily through registration and purchases. Indeed, the browsing public knows the threat of websites gathering their personal information. PriceWaterhouseCoopers found that nearly 77% of those surveyed said that the disclosure of personal details was a barrier to purchasing online. Another 48% stated they do not shop online because they do not trust web retailers. Twenty-seven percent of Internet users surveyed by CyberDialogue said they had abandoned an online purchase because of privacy concerns regarding the abuse of personal data. This apprehension and mistrust have not gone unnoticed by lawmakers. As a result, online businesses must now pay careful attention to an array of privacy laws.
The Children's Online Privacy Protection Act (COPPA), 15 U.S.C. 6501 et seq., enacted in 1998, applies only to web sites that target children under 12 years old as users or have actual knowledge that information is being collected from a child. COPPA requires that such a web site post privacy policies describing what personal information it collects and what it may do with such information. The law further requires that the online operator get prior "verifiable parental consent" before collecting, maintaining, or disclosing information about the child. The law also provides a "safe harbor" for those web sites that act in compliance with a self-regulatory program approved by the FTC. Any online business that may be marketing toward children must be aware of COPPA and its requirements.
The Uniform Commercial Code and Online Business
Article Two of the UNIFORM COMMERCIAL CODE (UCC) applies to all contracts, both business-to-business and business-to-consumer, for the sale of goods, unless the parties agree to vary the terms of their agreement. Louisiana is the only state that has not adopted Article Two, and versions of Article Two vary from state to state. Further, unless otherwise agreed upon, if two parties are from countries that have joined the United Nations Convention on the International Sale of Goods (UNCISG), the UNCISG may have control over the UCC with regard to their transaction. Four general provisions are particularly important to online businesses: the writing requirement, contract formation, warranties, and remedies.
The writing requirement of Article Two requires that for the sale of goods over $500, there must be some writing sufficient to indicate a contract. For online businesses, it is likely sufficient for there to be an electronic record of the acceptance of the terms by the buyer or an indication of acceptance via email. A typed name on the email or the filling-in of the name on the online order is also likely to constitute sufficient signatures. (See UCC Section 1-201(39): "signed" includes any symbol that demonstrates the intention of a party. See also "Electronic and Digital Signatures" below.)
The requirement of contract formation requires that an offer can be accepted in any reasonable manner. An acceptance by e-mail is acceptable if the offer was by e-mail. If the offer was made by another medium, it is suggested that one first inquire if acceptance by e-mail is acceptable.
The WARRANTY requirements of Article Two provide that there is an express warranty, IMPLIED WARRANTY of merchantability, implied warranty of fitness for particular purpose, and implied warranty of title and noninfringement. Many online businesses limit these warranties through "clickwraps," which are a set of contract terms that an online customer accepts by clicking on an "accept" or similar button, usually on a separate screen. Online businesses should allow the consumer to agree to the limitations before completing the transaction. Under the remedies requirement of Article Two, buyers may obtain from sellers after a breach of contract certain remedies, including actual damages, incidental damages, and consequential damages. Many online sellers limit the buyer's remedy in the clickwraps to the damages of repair, refund, or replacement of the purchased goods. Consequential damages, however, may not be limited or excluded if "unconscionable."
Electronic and Digital Signatures
An electronic signature is generally any electronic data used to validate and authenticate the parties to a transaction. A digital signature, which is a form of an electronic signature, is a unique, encrypted code affixed to an electronic document or contract that authenticates the signor. The use of such electronic signatures allows parties to use the Internet to conduct transactions quickly and securely while reducing paperwork.
The most important federal legislation on electronic signatures is the Electronic Signatures in Global and National Commerce Act (E-SIGN), 15 U.S.C. sec. 7001 et seq., which became effective on October 1, 2000. E-SIGN provides that a signature or contract may not be denied legal effect "solely because it is in electronic form," except as provided in the Act itself. See section 101(a)(1) and (2). An electronic signature is defined as any "electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or accepted by a person with the intent to sign the record." Although E-SIGN does not apply to all transactions and writings, it applies to "any transaction in or affecting interstate or foreign commerce." Because a "transaction" is defined as "an action or set of actions relating to the conduct of business, consumer, or commercial affairs site, and place it on the page." For example, an online businesses may use an HREF link to link to a manufacturer's web site or use an IMG link to insert images of a product from the manufacturer's web site onto its own web site. Generally, there are no laws against HREF linking to another web page because the HREF link merely contains the coded information of the target's address. Because the code is pure information, no COPYRIGHT or any other intellectual property laws provide protection. However, online businesses should keep in mind several issues related to the practice of HREF and IMG linking.
When one incorporates content from another's page via an unauthorized IMG link, there is no direct copyright INFRINGEMENT by the creator of the link because the image is not copied. As explained above, the visiting browser has provided the user's browser with instructions to retrieve the image. It is actually only the web viewer who has copied the image. However, the creator of the link may still be liable under copyright law for contributory infringement, which occurs when one knowingly makes an infringement possible. Further, it is possible that a web site could be liable for copyright infringement if IMG links use several copyrighted images to form an entirely new "derivative work" on its web site. Generally, it is considered proper protocol for a web site to get permission from a copyright owner before placing an IMG link on its own web site. Web site operators should also be certain to properly attribute works or images that may be reached or created with links and not misrepresent the ownership of the work. Online businesses must also be careful not to infringe on the trademarks of others. If a web site falsely leads the user to believe that the web site is affiliated, approved, or sponsored by the trademark owner, it could be liable for trademark infringement.
A link to another's page or image may also be potentially defamatory if it communicates a false and damaging statement about a person or entity. Further, even if a statement alone is not defamatory, it could become defamatory by providing a link within, before, or after the statement that directs the viewer to further information or identification.
Framing is a technique that puts a frame, or several frames, on a webpage that stays in place even when the viewer links to another site. The practical purpose of a frame is to be able to see information from several different sources on one display. However, because the original web site's logo, color scheme, design, or other characteristics may still be on the frame(s), viewers may be led to believe that they are still on the original web site and seeing content created by the original web site. This situation creates a problem for some situations, such as when a web site that is being framed by another web site does not want to be associated with the framing web site but appears to be so because of the frame. Thus, framing can raise the same issues as HREF and IMG linking. Although the legality of framing is not certain, web site operators should appreciate the potential legal liability of linking other's pages into frames without permission.
It should also be noted that some consider "deeplinking" to be web PIRACY if it is done on a large scale. Deep-linking is when a link is provided to a specific web page within another's web site and not merely to the homepage. Some web operators are angered by this practice because the link takes the viewer directly to the page and bypasses its homepage, eliminating the ability of the homepage to build brand recognition, to supply important information, and to serve advertising functions. However, there is no law against deep-linking, and it is an extremely common practice that most see as not problematic, as long as it is not deceptive. Deep-linking has also been found legal by at least one federal court. See Ticketmaster Corp. V. Tickets.Com, Inc. (C.D.Cal. Mar. 27, 2000), No. CV-99-7654 (use of deep links to Ticketmaster.com did not violate copyright law because there is no copying involved, and the online ticket consumer is openly and obviously transferred to Ticketmaster's website; deep-linking also did not constitute UNFAIR COMPETITION because a disclaimer negated any confusion as to the true source of the ticket purchase).
E-mailing and "Spamming"
Many online businesses use e-mail as an advertising and marketing tool because of the potentially vast reach it has and the very inexpensive cost of sending e-mail. Some e-mail used for these purposes is targeted to a specific group of consumers who have requested such useful information. However, an ever-growing amount of commercial e-mail is unsolicited, bulk e-mail sent en masse. This latter type is often referred to as "spam." One commentator from Spam.abuse.net cites several reasons for the maligning of spam: the receiver pays more in aggravation than the sender does in time and money; as spam grows, it will crowd out mailboxes and render them unusable; many spammers send their junk e-mail via innocent intermediate systems to avoid filters; spam clogs providers' systems; spam messages are nearly exclusively worthless, deceptive, and partially or totally FRAUDULENT; and some spam may be illegal.
While the annoyance of having an e-mail inbox filled to the virtual brim with these clogging and often useless solicitations has raised the ire of millions of e-mail users, it apparently has not touched the federal legislators enough for them to enact federal laws directly pertaining to it. Several Federal laws were pending at the time of this writing in the 107th Congress, including the Anti-Spamming Act of 2001 (H.R. 718), Anti-Spamming Act of 2001 (H.R. 1017), Controlling the ASSAULT of Non-Solicited PORNOGRAPHY and Marketing (CAN SPAM) Act of 2001 (S. 630), Netizens Protection Act of 2001 (H.R. 3146), Unsolicited Commercial Electronic Mail Act of 2001 (H.R. 95), and Wireless Telephone Spam Protection Act (H.R. 113). However, as discussed below, many states have enacted legislation regulating unsolicited e-mails.
Therefore, although spamming is generally not in violation of any federal laws at this time, it may soon be and is considered an extremely poor, if not unethical and despicable, business practice. Any business that wishes to use targeted, solicited e-mail as an advertising tool should be careful to steer clear of sending bulk, unsolicited advertising to unwitting recipients because doing so may tarnish its reputation and run afoul of the many state laws on the subject, as discussed below.
Metatags are invisible HTML programming codes that contain commands to search engine programs that index web pages. In normal practice they provide keywords relating to the content of the page so a search engine will display the page in its results when a user inserts them as search terms. Thus, by successfully using metatags, a web operator can increase the frequency a search engine will index a site.
However, website operators quickly figured out that by using metatags unrelated to their own content or metatags that contained a competitor's company or product name, they could increase their own traffic. Even though metatags are not visible on the page (they may be viewed by clicking "View" and then "Source"), this deceptive practice has been the basis for numerous lawsuits brought by individuals, companies, and web sites asserting that unrelated websites are illegally using metatags.
In general, courts have enjoined the use of trademarks in a non-owner's metatag when the parties were competitors or when the use of the trademark in a metatag was used to divert business to the site for profit. The key factor courts consider in determining whether a website has infringed on another's trademark through its use in a metatag seems to be whether there could be consumer confusion. See, e.g., Playboy Enterprises, Inc. v. Calvin Designer Label (N.D. Cal. 1997), 985 F.Supp. 1220 (web site may not use "Playboy" and "Playmate" in metatags on web site because web site was attempting to profit by confusing consumers and diverting business to the site).
The improper use of metatags by online businesses can also raise issues of unfair competition or trademark dilution. Unfair competition prohibits a company from deceptively claiming a connection with or endorsement from another. Trademark dilution occurs when one uses the trademark of another in such a manner that it blurs the significance of the mark or when using a similar mark in an objectionable manner tarnishes the meaning of the mark. For an example, see Ken Roberts Co. v. (N.D. Cal. May 10, 2000), No. C99-4775-THE (competitor's use of plaintiff's name in metatags interfered with plaintiff's prospective economic advantage by knowingly diverting plaintiff's current or potential customers from plaintiff's website to competitor's, constituting unfair competition and trademark dilution).
However, businesses may use another company's trademark under certain circumstances. An online business may generally use another company's trademark as a metatag on a webpage with a comparison advertisement. Of course, an online business would also be permitted to use another's trademark as a metatag if it was a distributor of the trademark owner's product and had a license from the manufacturer to use the trademark. Courts have also refused to find trademark infringement when the metatag is used to indicate content that provides a description of goods or services of the mark owner or their geographic origin. Such are permitted as a "fair use" of a trademark. See, e.g., Playboy Enterprises v. Welles (S.D. Cal. 1998), 7 F.Supp.2d 1098, aff'd without opinion, (9th Cir. 1998), 162 F.3d 1169 (it was "fair use" for former Playboy Playmate of the Year to use "playboy" and "playmate" in metatags of her website because they were key words that identified her source of recognition to the public). However, outside these limited circumstances, online businesses should not use a trademark as a metatag without permission, particularly if the trademark belongs to a competitor. Many companies and trademark owners regularly search the Internet for metatag trademark violations, and such searches are simple to conduct.
Internet Sales Tax
On November 28, 2001, President George W. Bush signed H.R. 1552, the Internet Tax Non-Discrimination Act. The Act extends the moratorium on new, special, and discriminatory Internet taxes and Internet access taxes originally enacted in October 1998 as part of the Internet Tax Freedom Act (47 U.S.C. 151). The new legislation extends through November 1, 2003.
Electronic and Digital Signatures and E-SIGN
As the Internet grew in popularity, many states quickly moved to enact legislation pertaining to electronic and digital signatures. When E-SIGN took effect in October 2000, the question that then arose was whether E-SIGN preempted such state laws on the subject. Preliminarily, it is clear that E-SIGN preempts state laws that conflict with or frustrate ESIGN's basic policy, as spelled out in Section 101(a)(1) and (2), that electronic signatures and records cannot be denied legal effect solely because they are in electronic form. However, E-SIGN clearly does not preclude other laws that do not conflict with the validation principles contained in Section 101 of E-SIGN.
In 1999, to combat problems that could arise when parties from two jurisdictions entered into an electronic transaction, the National Conference of Commissioners on Uniform State Laws recommended the Uniform Electronic Transactions Act (UETA) for enactment in all states. UETA recognized electronically-based transactions and records as the "functional equivalent" of paper transactions where the parties agreed to use electronics. In formulating E-SIGN, the drafters clearly took UETA into account. Indeed, Section 102 of E-SIGN specifically recognizes UETA and acknowledges that individual states, through the enactment of UETA, can modify, limit, or supersede the effect of the validation provisions in Section 101 of E-SIGN without federal preemption. However, the state must enact UETA in its "pure" form (without modification) and express its intention to supersede E-SIGN. Still, because UETA only applies when the parties agree to use electronics, E-SIGN would apply in cases where there was no mutual agreement. Thus, these "opt-out" provisions provide for uniformity of state law, even though the provisions in UETA may differ from E-SIGN. E-SIGN also provides that a state may modify, limit, or super-cede the validation terms of Section 101 if the state law specifies the alternative procedures for use of electronic signatures or records and those procedures are consistent with E-SIGN and do not validate only a particular type of technology. Therefore, online businesses should note that, although E-SIGN must be followed, individual states could enact additional laws affecting electronic signatures.
E-mailing and "Spamming"
Although Congress has failed to enact any legislation specifically regulating unsolicited, bulk, commercial e-mailing, many laws have been passed at the state level. In July 1997, Nevada became the first state to enact an anti-spam law. The following states have also passed spam laws: California, Colorado, Connecticut, Delaware, Idaho, Illinois, Iowa, Louisiana, Missouri, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Virginia, Washington, and West Virginia. The statutes in these states are variously worded and provide a wide range of protection against unsolicited, commercial e-mail. The anti-spam laws in the following states require "opt-out" instructions, and most also require that the opt-out requests be honored: California, Colorado, Idaho, Iowa, Missouri, Nevada, Rhode Island, and Tennessee. The anti-spam legislation in the following states applies to e-mails that are delivered to a resident of that state via a provider's facilities or equipment located in that state: California, Colorado, Connecticut, Illinois, Iowa, Oklahoma, Tennessee, and Virginia. The anti-spam legislation in Delaware and Rhode Island applies to e-mails originating outside the state if the recipient is located in that state and the sender is or should have been reasonably aware that the recipient is a resident of that state. North Carolina's law applies to e-mails sent into or within the state. In Washington and West Virginia, the anti-spam laws apply if a message is sent from within the state or if the sender knows that the recipient is a resident of that state. The following states require unsolicited, bulk, commercial e-mail to have certain labels in the subject line, such as "ADV" (advertisement) or "ADLT" (adult): California, Colorado, Nevada, Pennsylvania, and Tennessee.
Internet Sales Tax
In Quill Corp. v. Heitkamp (1992), 504 U.S. 298, the United States Supreme Court found that states cannot require out-of-state retailers to collect sales taxes unless they have a physical presence, or nexus, within the state. Thus, online sellers do not have the power to collect tax on Internet sales to customers in other states, as such taxes are considered an interference with interstate commerce. However, if an online business is selling TANGIBLE PERSONAL PROPERTY, it is likely required to collect SALES TAX in the state where its inventory is located or where it has a "bricksndortar" store. Also, although no state may require out-of-state e-businesses to collect and remit taxes on sales to its residents, states may still require residents to remit such taxes themselves. Such a tax is referred to as a "use" tax. The difficulty is that it is nearly impossible for states to enforce such laws, so states have no choice but to rely on the honor system in collecting use taxes.
States have complained about their lack of ability to collect sales tax for Internet purchases, citing lost taxes as high as $13 billion for 2001. However, exclusively online e-tailers argue that if they are required to collect sales taxes and pay them to the proper taxing authorities, it will be extremely difficult to comply with nearly 8,000 state and local taxing jurisdictions, each with different rates and rules. One proposal that the National Governors' Association (NGA) has countered with is for the establishment of a "trusted third party," which would calculate and collect for the online businesses the appropriate local and state sales taxes. However, the NGA's LOBBYING efforts to allow states to tax such online purchases from remote sellers has yet been to no avail, as indicated by the passage of the Internet Tax Non-Discrimination Act.
101 Things You Need to Know About Internet Law. Bick, Jonathan, Three Rivers Press, 2000.
The E-Business (R)Evolution: Living and Working in an Interconnected World. Amor, Daniel, Prentice Hall, 2000.
Internet Law and Business Handbook: A Practical Guide. Brinson, J. Dianne, and Mark F. Radcliffe, Ladera Press, 2000.
Alan Gahtan's Cyberlaw Encyclopedia
Findlaw for Legal Professionals
The Internet Law Journal
The John Marshall Law School
Nolo Law for All
Pornography (Encyclopedia of Everyday Law)
Internet PORNOGRAPHY is a battlefield in U.S. law. Since the explosion of PUBLIC INTEREST in the Net in the 1990s, the public, lawmakers, and the courts have argued over how to control online porn. Congress and state legislatures have passed several laws aimed at protecting children from exposure to socalled cyber porn, but the most sweeping of these have often failed to pass constitutional tests. The failure of these laws in court means this popular yet controversial medium faces few regulations. According to Forbes magazine, the online porn business in 2001 swelled to $1 billion a year, a significant part of a larger industry estimated to earn anywhere between $3 and $8 billion annually.
In some respects, the issue continues a legal struggle many decades old. Opponents of pornography have long tried to control it on moral grounds, even as proponents sought to protect it as a valid expression of free speech. Traditionally, opponents won these battles. The Supreme Court established that OBSCENITY is not protected by the First Amendment, but the difficult question in each case has been defining what is and what is not obscene. Its rulings gradually shifted from a broad, forbidding position of the late 1950s to holding in the 1970s that communities could set their own standards for obscenity. Replayed in countless courtrooms, the tug-of-war between these camps has continued ever since.
But the fight over cyber porn carries traditional arguments into new areas shaped by technology. A chief concern is that the Internet allows minors easy access to it through search enginesometimes even accidentally. In 2001, U.S. SOLICITOR GENERAL Ted Olson contended that minors could stumble upon or intentionally enter 28,000 commercial porn websites. Also of worry is the Internet's ability to facilitate the illegal dissemination of child pornography. And the ubiquity of Internet access has raised new social problems by introducing pornography into new settings, such as public libraries and the workplace.
Milestones in the development of Internet pornography law include the following.
- The Supreme Court established that obscenity is not protected by the First Amendment in Roth v. United States (1957), declaring obscenity to be "utterly without redeeming social importance."
- After subsequent cases showed the difficulty of finding a conclusive definition of obscenity, the Court restated its definition in Miller v. California (1973). It substituted a detailed three-part test ultimately to be used by each localityhe so-called "community standards" test.
- The Court ruled that child pornography is not a form of expression protected under the constitution in New York v. Ferber (1982). It has also upheld a state law prohibiting the possession and viewing of child porn in Osborne v. Ohio (1990).
- Seeking to control Internet porn, Congress first passed legislation in 1996. The Communications Decency Act (CDA) criminalized the dissemination over computer networks of obscene or indecent material to children.. Immediately blocked from enforcement by the courts, it was ruled unconstitutional under the First Amendment in 1997.
- Seeking to update federal child pornography law for the Internet, Congress passed the Child Pornography Prevention Act (CPPA) of 1996. Among other features, the law criminalized any visual depiction that "appears to be" child pornography, including so-called virtual porn created by computer. After lower courts struck down provisions of the STATUTE, the U.S. Supreme Court agreed to hear an appeal in Ashcroft v. Free Speech Coalition, with a verdict expected in late 2002.
- The Child Online Protection Act (COPA) of 1998 revived the CDA by modifying its scope. COPA criminalized the use of the World Wide Web to sell material harmful to minors. Ruled unconstitutional, the case remained on appeal before the Supreme Court with a decision expected by summer 2002.
- The Protection of Children from Sexual Predators Act of 1998 included Internet-specific provisions for reporting child pornography to authorities and prohibiting federal prisoners from being allowed unsupervised Internet usage.
- Two federal laws regulate access to Internet pornography at libraries and schools, the Children's Internet Protection Act (CIPA) and the Neighborhood Internet Protection Act. Together, they require so-called filtering software to be installed on computers in public schools and libraries as a condition for federal funding. Both laws were challenged in court in early 2002, with their outcome uncertain.
As these federal cases suggest, recent outcomes have favored those who regard federal control of Internet pornography as CENSORSHIP. That does not mean the issues are settled, as indeed partisans on both sides of the issue eagerly anticipate forthcoming court decisions on major cases in 2002.
Child pornography has long been treated severely under both federal and state law. Congress first addressed the issue with the Protection of Children Against Sexual Exploitation Act of 1977. Lawmakers later toughened restrictions in the Child Protection Act of 1984, the Child Protection and Obscenity Enforcement Act of 1988, and the Child Protection Restoration and Penalties Enhancement Act of 1990.
In the 1990s, lawmakers twice passed legislation targeting child porn online. The first was the Child Pornography Prevention Act (CPPA) of 1996, designed both to close loopholes in existing federal child pornography law and address new technological issues by the following:
- Criminalizing the act of knowingly possessing, selling, receiving, sending, or transmitting child pornography via the internet or e-mail.
- Criminalizing so-called "virtual" depictions of child pornography, those that appear to involve minors and those created by computer graphics software.
Lower federal courts split over the constitutionality of some provisions in the law, and an appeal in Ashcroft v. Free Speech Coalition will be decided by the U.S. Supreme Court in 2002.
The Protection of Children from Sexual Predators Act of 1998 contains further anti-child porn provisions. Title II of the law contains the following provisions:
- Provides for the prosecution of individuals for the production of child pornography if the visual depiction was produced with materials that have been mailed, shipped, or transported in interstate or foreign commerce, including by computer.
- Tightens previous federal law by making it a criminal offense to possess for even one depiction of child pornography
- Outlines responsibilities for Internet Service Providers in reporting child pornography to authorities
- Increases federal criminal penalties for child pornography, which include fines and prison sentences ranging from 15 to 30 years
Disseminating Cyber Porn to Minors
Although several federal laws have sought to control Internet porn, none has specifically tried to forbid it. In large part this is a recognition of the legal protections pornography enjoyed toward the end of the twentieth century. CASE LAW has established that much pornography is protected speech under the First Amendment. Obscenity is not protected. However, as the Supreme Court's "community standards" doctrine acknowledges, communities measure obscenity differently: what is likely to be considered obscene by a jury in Utah is not guaranteed to similarly move a jury in New York. The difficulty of formulating one broad standard of obscenity for all communities is made even greater by the Internet's being a global network, available everywhere at once.
Thus rather than trying to eliminate cyber porn, Congress has twice sought to protect children from exposure to it. These laws have yet to be enforced. Both wound up in court, where sections of each were ruled unconstitutional. Crucially, the fate of one law still remains as of 2002 on appeal.
The Communications Decency Act (CDA) of 1996 was lawmakers' first attempt to regulate the availability of indecent and obscene material online to minors. The CDA prohibited the "knowing" dissemination of such material to minors over computer networks or telephone lines, establishing penalties for violations of up to five years IMPRISONMENT and fines of up to $250,000. But it quickly fell to a legal challenge brought by the American Civil Liberties Union (ACLU) and a coalition of major publishers. Bringing a traditional First Amendment case against censorship, they argued successfully that the law was too broad: in trying to protect kids, its prohibitions would have limited the speech of adults to a level suitable for children. After a special three-judge panel ruled against the law in Philadelphia in 1996, the Supreme Court by 7-2 vote in American Civil Liberties Union v. Reno (1997) held that the law unconstitutionally abridged FREEDOM OF SPEECH, and thus struck down key provisions.
Seeking to draft a constitutionally viable law, Congress responded by passing the Child Online Protection Act (COPA) of 1998. More narrowly written, COPA took aim at commercial online porn sites that disseminate material to minors. And, anticipating constitutional objections, it mandated that criminal cases brought under it would be tried according to contemporary community standards. The law set stiff penalties of $150,000 for each day of violation and up to six months in prison. However, COPA suffered similar setbacks in court after the ACLU and several non-pornographic online websites successfully contested it, first in federal district court in Philadelphia and then before the U.S. Court of Appeals for the 3rd Circuit. As before with the CDA, the JUSTICE DEPARTMENT has continued to appeal; this time, it has argued that online porn is even more readily accessible to children and thus in need of urgent control. The U.S. Supreme Court heard oral arguments in late 2001 and was expected to rule on the case, Ashcroft v. ACLU, in summer 2002.
If the Supreme Court reverses the two lower rulings, an enforceable COPA would represent a milestone in the evolution of Internet law. It would almost certainly open a flood of LITIGATION by opponents of pornography and pose new, difficult questions of JURISDICTION. But even if the Court finds the law unconstitutional, few legal observers believe this will be the last word. It is likely that legislators will continue to press forward to find other legal means to regulate the availability of online porn to minors.
Filtering in Federally-funded Public Schools and Libraries
In another attempt to protect children from exposure to cyber porn, Congress passed two laws in 2000 aimed at public schools and public libraries. Federally-funded institutions of this kind are required to put in effect Internet safety policies in order to continue qualifying for federal support. They must install socalled Internet filters on their public computers: these are commercially-available software programs, with names like Cyber Patrol and Net Nanny, that intercept and block pornographic materials. Under the terms of the Children's Internet Protection Act (CIPA) and the Neighborhood Internet Protection Act (NCIPA), filters had to be in place by 2001, although libraries were ultimately given extra time to comply.
Proving as controversial as the CDA and COPA, the laws have been challenged by the American Library Association and civil liberties groups. They have argued that the law will result in censorship because it relies upon inaccurate technology, citing EVIDENCE that some software filters erroneously block non-pornographic material, too. Oral TESTIMONY on the case was heard in spring 2002, with a verdict expected later in the year.
State laws on Internet pornography have evolved rapidly. Prior to the rise in popularity of the Internet, most states already had laws on the books regulating age limits for purchasing pornography as well as statutes criminalizing child pornography. Many legislatures saw a need for legislation to respond to the vicissitudes of new technology. Between 1995 and 2002, nearly two dozen states considered bills that would control in some fashion access to Internet pornography. More than a dozen states enacted them.
Closely resembling federal law, state laws break down into two broad categories. In the first and broadest, the laws forbid the access by minors to what the laws usually call "harmful materials"verbal and visual information that includes, but is not necessarily limited to, pornography. Sometimes these laws target "indecent" material; for example, Oklahoma and New York law each criminalize the transmission of indecent materials to minors.
Most state laws on transmission of indecent materials target exposure in public schools and libraries. Their remedy is to require, and in at least one case merely recommend, that these facilities install socalled Internet filtering software on their computers. At least six states have passed such laws: Arizona, Kentucky, Michigan, Minnesota, South Carolina, and Tennessee. Twenty more states were considering such legislation in 2001-2002.
Like federal law, a second category of state law targets virtual child pornography. Aggressively defining this new category of criminal offense, these laws treat so-called virtual porn as severely as actual photography of minors. In the mid-1990s, for instance, both Kansas and Montana expanded their existing statutes to prohibit transmission and possession of such images, while other states such as Missouri and Minnesota enacted new laws.
In early court challenges, much more sweeping state cyber porn laws failed to pass constitutional tests in three states. In American Library Association v. Pataki (1997), a federal judge blocked enforcement of a New York statue prohibiting online indecency that had been modeled on the federal Communications Decency Act, ruling that it violated the Constitution's Commerce Clause. In ACLU v. Johnson (1998), a federal district judge ruled on First Amendment grounds that New Mexico could not enforce a law criminalizing the online dissemination of any expression that involves nudity or sexual content. And in another victory for First Amendment advocates, a federal judge blocked Michigan's 1999 law criminalizing online communications deemed harmful to minors in Cyberspace v. Engler (1999).
Like ongoing litigation over federal laws, the battle over state cyber porn law is far from over. Many legislatures are looking expectantly to the Supreme Court's 2002 decision on Internet filters before pursuing further legislation of their own. And still other states are trying new strategies, including more aggressive legislation that would put pressure on Internet service providers (ISPs) to supervise their customers: under a new Pennsylvania law enacted in 2002, owners and operators of ISPs will be responsible for blocking access to child pornography with high fines and prison sentences for violators. Ongoing action and controversy is likely in this area of law for the foreseeable future.
Constitutional Amendments: 1789 to the Present. Kris E. Palmer, ed., Gale Group, 2000.
Cyber Liberties. American Civil Liberties Union Website. Available hmcl.html. at http://www.aclu.org/issues/cyber/hmcl.html.
Petitioner's Brief, Ashcroft v. Free Speech Coalition. U.S. Department of Justice, 2000. Available at http://www.usdoj.gov/osg/briefs/2000/3mer/2mer/2000-0795.me... .
State Internet Laws Face a Different Constitutional Challenge. Kaplan, Carl S., The New York Times, July 2, 1999.
U. S. Supreme Court Considering Law on 'Virtual Child Porn.' Kleder, Martha, Culture and Family Institute. Available at
West Encyclopedia of American Law. Theresa J. Lippert, ed., West Group, 1998.
American Civil Liberties Union (ACLU)
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American Family Association
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Federal Bureau of Investigation
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Primary Contact: Robert S. Mueller III, Director