Cyberspace and the Legal Matrix Laws or Confusion

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Privacy Act ("ECPA"), originally enacted in response to Watergate, and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

ed (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