From: elrose@well.sf.ca.us (Lance Rose) Cyberspace and the Legal Matrix: Laws or Confusion? Cyberspace, the "digital world", is emerging as a global arena of social, commercial and political relations. By "Cyberspace", I mean the sum total of all electronic messaging and information systems, including BBS's, commercial data services, research data networks, electronic publishing, networks and network nodes, e-mail systems, electronic data interchange systems, and electronic funds transfer systems. Many like to view life in the electronic networks as a "new frontier", and in certain ways that remains true. Nonetheless, people remain people, even behind the high tech shimmer. Not surprisingly, a vast matrix of laws and regulations has trailed people right into cyberspace. Most of these laws are still under construction for the new electronic environment. Nobody is quite sure of exactly how they actually apply to electronic network situations. Nonetheless, the major subjects of legal concern can now be mapped out fairly well, which we will do in this section of the article. In the second section, we will look at some of the ways in which the old laws have trouble fitting together in cyberspace, and suggest general directions for improvement. LAWS ON PARADE - Privacy laws. These include the federal Electronic Communications Privacy Act ("ECPA"), originally enacted in response to Watergate, and which now prohibits many electronic variations on wiretapping by both government and private parties. There are also many other federal and state privacy laws and, of course, Constitutional protections against unreasonable search and seizure. - 1st Amendment. The Constitutional rights to freedom of speech and freedom of the press apply fully to electronic messaging operations of all kinds. - Criminal laws. There are two major kinds of criminal laws. First, the "substantive" laws that define and outlaw certain activities. These include computer-specific laws, like the Computer Fraud and Abuse Act and Counterfeit Access Device Act on the federal level, and many computer crime laws on the state level. Many criminal laws not specific to "computer crime" can also apply in a network context, including laws against stealing credit card codes, laws against obscenity, wire fraud laws, RICO, drug laws, gambling laws, etc. The other major set of legal rules, "procedural" rules, puts limits on law enforcement activities. These are found both in statutes, and in rulings of the Supreme Court and other high courts on the permissible conduct of government agents. Such rules include the ECPA, which prohibits wiretapping without a proper warrant; and federal and state rules and laws spelling out warrant requirements, arrest requirements, and evidence seizure and retention requirements. - Copyrights. Much of the material found in on-line systems and in networks is copyrightable, including text files, image files, audio files, and software. - Moral Rights. Closely related to copyrights, they include the rights of paternity (choosing to have your name associated or not associated with your "work") and integrity (the right not to have your "work" altered or mutilated). These rights are brand new in U.S. law (they originated in Europe), and their shape in electronic networks will not be settled for quite a while. - Trademarks. Anything used as a "brand name" in a network context can be a trademark. This includes all BBS names, and names for on-line services of all kinds. Materials other than names might also be protected under trademark law as "trade dress": distinctive sign-on screen displays for BBS's, the recurring visual motifs used throughout videotext services, etc. - Right of Publicity. Similar to trademarks, it gives people the right to stop others from using their name to make money. Someone with a famous on-line name or handle has a property right in that name. - Confidential Information. Information that is held in secrecy by the owner, transferred only under non-disclosure agreements, and preferably handled only in encrypted form, can be owned as a trade secret or other confidential property. This type of legal protection is used as a means of asserting ownership in confidential databases, >from mailing lists to industrial research. - Contracts. Contracts account for as much of the regulation of network operations as all of the other laws put together. The contract between an on-line service user and the service provider is the basic source of rights between them. You can use contracts to create new rights, and to alter or surrender your existing rights under state and federal laws. For example, if a bulletin board system operator "censors" a user by removing a public posting, that user will have a hard time showing his freedom of speech was violated. Private system operators are not subject to the First Amendment (which is focused on government, not private, action). However, the user may have rights to prevent censorship under his direct contract with the BBS or system operators. You can use contracts to create entire on-line legal regimes. For example, banks use contracts to create private electronic funds transfer networks, with sets of rules that apply only within those networks. These rules specify on a global level which activities are permitted and which are not, the terms of access to nearby systems and (sometimes) to remote systems, and how to resolve problems between network members. Beyond the basic contract between system and user, there are many other contracts made on-line. These include the services you find in a CompuServe, GEnie or Prodigy, such as stock quote services, airline reservation services, trademark search services, and on-line stores. They also include user-to-user contracts formed through e-mail. In fact, there is a billion-dollar "industry" referred to as "EDI" (for Electronic Data Interchange), in which companies exchange purchase orders for goods and services directly via computers and computer networks. - Peoples' Rights Not to be Injured. People have the right not to be injured when they venture into cyberspace. These rights include the right not to be libelled or defamed by others on-line, rights against having your on-line materials stolen or damaged, rights against having your computer damaged by intentionally harmful files that you have downloaded (such as files containing computer "viruses"), and so on. There is no question these rights exist and can be enforced against other users who cause such injuries. Currently, it is uncertain whether system operators who oversee the systems can also be held responsible for such user injuries. - Financial Laws. These include laws like Regulations E & Z of the Federal Reserve Board, which are consumer protection laws that apply to credit cards, cash cards, and all other forms of electronic banking. - Securities Laws. The federal and state securities laws apply to various kinds of on-line investment related activities, such as trading in securities and other investment vehicles, investment advisory services, market information services and investment management services. - Education Laws. Some organizations are starting to offer on-line degree programs. State education laws and regulations come into play on all aspects of such services. The list goes on, but we have to end it somewhere. As it stands, this list should give the reader a good idea of just how regulated cyberspace already is. LAWS OR CONFUSION? The legal picture in cyberspace is very confused, for several reasons. First, the sheer number of laws in cyberspace, in itself, can create a great deal of confusion. Second, there can be several different kinds of laws relating to a single activity, with each law pointing to a different result. Third, conflicts can arise in networks between different laws on the same subject. These include conflicts between federal and state laws, as in the areas of criminal laws and the right to privacy; conflicts between the laws of two or more states, which will inevitably arise for networks whose user base crosses state lines; and even conflicts between laws from the same governmental authority where two or more different laws overlap. The last is very common, especially in laws relating to networks and computer law. Some examples of the interactions between conflicting laws are considered below, from the viewpoint of an on-line system operator. 1. System operators Liability for "Criminal" Activities. Many different activities can create criminal liabilities for service providers, including: - distributing viruses and other dangerous program code; - publishing "obscene" materials; - trafficking in stolen credit card numbers and other unauthorized access data; - trafficking in pirated software; - and acting as an accomplice, accessory or conspirator in these and other activities. The acts comprising these different violations are separately defined in statutes and court cases on both the state and federal levels. For prosecutors and law enforcers, this is a vast array of options for pursuing wrongdoers. For service providers, it's a roulette wheel of risk. Faced with such a huge diversity of criminal possibilities, few service providers will carefully analyze the exact laws that may apply, nor the latest case law developments for each type of criminal activity. Who has the time? For system operators who just want to "play it safe", there is a strong incentive to do something much simpler: Figure out ways to restrict user conduct on their systems that will minimize their risk under *any* criminal law. The system operator that chooses this highly restrictive route may not allow any e-mail, for fear that he might be liable for the activities of some secret drug ring, kiddie porn ring or stolen credit card code ring. The system operato...
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