Regulating Cyberspace

Should cyberspace be regulated?

Can it be regulated?

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Which aspects of the 'Net should be
regulated?
Who should be responsible for carrying out
the regulatory functions – the government,
private organizations, or Internet users
themselves?
Cyberspace Regulation

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
Two questions need to be answered:
(1) What exactly do we mean by
cyberspace?
(2) What exactly is meant by regulation
(and, in particular, "regulation" as it applies to
cyberspace)?
The Ontology of Cyberspace

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Cyberspace, which for our purposes can be
equated with the Internet, can be defined as
the network of interconnected computers.
What exactly is cyberspace?
Is it a "place" – i.e., a virtual space that
consists of all the data and information that
resides in the connected servers and
databases that make up the Internet?
Or is cyberspace a "medium" of some sort?
Cyberspace as a Medium




Mike Goodwin (1995) believes that the Internet is a
new kind of medium.
It is a medium that is significantly different from
earlier media, such as the telephone or television.
The telephone as a "one-to-one medium," and
television as a "one-to-many medium.“
Goodman suggests that the Internet be characterized
as a "many-to-many medium" in which one does not
need to be wealthy to have access and in which one
does not need to win the approval of an editor or a
publisher to speak his or her mind.
Cyberspace as a public space


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Camp and Chien (2000) note that there are four types of media:
publisher, broadcast, distributor, and common carrier.
An example of a publisher would be a newspaper or a
magazine; and examples of broadcast media include television
and radio.
Telephone companies and cable companies can be considered
instances of common carriers.
Camp and Chien argue that none of the four media models are
appropriate for understanding the 'Net. Instead, they believe
that a spatial model – one in which cyberspace is viewed a
"public space with certain digital characteristics" – is a more
plausible way to conceive of the Internet.
Camp and Chien also believe that operating from such a model
can influence our decisions about public policies on the Internet.
Figure 9-1: The Ontology
of Cyberspace
Cyberspace
Public Space (or Place)
(bookstore model)
Broadcast Medium
(common carrier model)
Two Different Senses of
"Internet Regulation“


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To "regulate" typically means to monitor or control a certain
product, process, or set of behaviors according to certain
requirements, standards, or protocols.
At least two different senses of “regulation” have been used to
debate the question of cyberspace regulation.
Sometimes the focus is on regulating the content of cyberspace,
as in the case of whether on-line pornography and hate speech
should be censored on the 'Net.
And sometimes it focuses on processes – i.e., rules and policies
– should be implemented and enforced in commercial
transactions in cyberspace.
In physical space, both kinds of regulation also occur.
Regulatory Agencies in Physical
Space

Content-based examples:

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FDA;
Local and State Boards of Health;
Liquor Control Board.
Process-based examples:

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FTC;
FCC’
SEC.
Figure 9-2: Two Modes of
Cyberspace Regulation
Cyberspace
Regulating Content
Speech
Regulating Process
Commerce
Four Modes of Regulating
Cyberspace: The Lessig Model

Lessig (1999) describes four distinct but
interdependent constraints, which he
calls "modalities," for regulating
behavior:

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Laws;
social norms;
market pressures;
Architecture.
Analogy: Regulating Smoking
Behavior in Physical Space

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Using the Lessig Model, we can:
1. Pass Laws Against Smoking;
2. Apply Social Pressure (Norms);
3. Apply Market Pressure (e.g., in
Pricing Practices);
4. Use Architecture (e.g., no cigarettes
in vending machines).
Regulation by Code

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In cyberspace, Lessig notes that code is law.
Lessig compares the architectures of NET 95
(Chicago) to NET 98 (Harvard).
Net 95 favors Anonymity.
Net 98 favors control.
Elkin-Koren (2000) worries that control is
exacerbated because information is being
privatized.
Privatizing Information Policy


Litman (1999) also argues that information policy in cyberspace
is becoming increasingly privatized.
In 1998, a series of events contributed a transformation of the
Internet into what Litman describes as a "giant American
shopping mall."

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That year Congress passed three copyright-related acts that favored
commercial interests: the DMCA, SBCTEA, and the NET Act.
Also, the federal government transferred the process of registering domain
names from the National Science Foundation – an independent government
regulatory body – to ICANN, a private group that has been favorable to
commercial interests.
The Recording Industry of America sought to ban the manufacture of
portable MP3 players on grounds that such devices could be used to play
pirated music.
The recording industry also tried to pressure computer manufacturers to
embed code in their future computer systems that will make it impossible to
use personal computers to download MP3 files and to burn CDs.
Internet Domain Names and
“Cybersquatting”

The National Science Foundation (NSF)
formerly controlled the licensing of
domain names.



www.domainname.com/gov/org.
ICANN (Internet Corporation of
Assigned Names and Numbers) took
over the process from NSF.
ICANN has been more business friendly.
Anti-Cybersquatting Act



In 1999, the Anticyberquatting
Consumer Protection Act was passed.
This Act protected against “trademark
infringements” and “dilutions” for
trademark owners.
Controversial case arose: Amazon
Bookstore vs. Amazon.com.
HTML Metatags

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Metatags are used in HTML Code for Web sites.
keyword metatags vs. description metatags.
Keyword metatags, such as <baseball> and <Barry
Bonds> enable Web page designers to identify
search terms that can be used by search engines.
Descriptive metatags enable the designer of a Web
page to describe the contents of his or her page. For
example, the description of a Web site for Barry
Bonds might read: "Barry Bonds...plays for the San
Francisco Giants...broke major league baseball's
home record in 2001..."

The description typically appears as one or more sentence
fragments, directly beneath the Web page's listing in an
Internet search result.
HTML Metatags (continued)

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Controversial cases involving the use of metatags.
Hypothetical case in the text (involving Keith, a
student at Technical University, USA).
Actual case – Bihari v. Gross.

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Bahari is a company in New York City that provides interior
design services;
Gross, a former associate of Bihari, registered "bihari.com"
and "bahiriinteriors.com" domain names;
Gross was forced to relinquish the domain names;
Gross then embedded the keyword metatag "Bihari
Interiors" in the HTML code for his Web site and included
derogatory remarks about Bihari on his Web site.
Hyperlinking on the Web

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Controversial issues in Deep Linking.
Important question: Is a Web site analogous
to property?
Scenario in textnook – Maria’s Gallery
Actual Case – Ticket Master vs. Microsoft.
The controversy surrounding hyperlinking is
still not resolved in the courts – the Ticket
Master case was settled out of court.
Spam

Spam is e-mail that is (1) unsolicited, (2)
promotional, and (3) sent in bulk to multiple
users.

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This three characteristics distinguish spam from
other forms of e-mail.
Because spam is unsolicited, it can also be
viewed as a form of communication that is
nonconsensual.
Not every nonconsensual e-mail that one
receives, however, should necessarily be
considered an instance of spam.
Spam (continued)
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Spam "shifts costs" from the advertiser to several other parties,
including Internet Service Providers (ISPs) and the recipients of
their service (Spinello 1999).
The cost shifting even affects the individual users of the
Internet who are indirectly inconvenienced by spam.
Because others must bear the cost for its delivery, spam is not
cost free.
Spam consumes valuable computer resources because:
 When spam is sent through ISPs, the result in wasted
network bandwidth for the service providers;
 Spam puts an increased strain on the utilization of system
resources such as disk storage space.
Is Spam Unethical?

Spinello argues that spam is morally
objectionable because:

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(a) It has harmful consequences;
(b) It violates the individual autonomy of
Internet users.
Spam consumes and strains valuable
computing resources and “degrades”
the fragile ecology of the Internet.
Spam (continued)

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Many argue that explicit laws need to
be passed to control the threat of spam.
The e-Bay v. Bidder’s Edge case, which
is not really about spam per se,
illustrates some of the arguments used
against spam as a form of behavior that
consumes valuable system resources.
Free Speech vs. Censorship and
Content Control in Cyberspace

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Should certain forms of speech on the
Internet should be censored?
Do all forms of speech deserve to be
protected under the constitutional guarantee
of free speech.
According to the First Amendment of the US
Constitution:


Congress shall make no law...abridging the
freedom of speech, or of the press...
The right to free speech is a conditional right.
Censorship

Catudal (1999) believes that an important
distinction can be drawn between two types
of censorship:

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"censorship by suppression“;
"censorship by deterrence."
Both forms of censorship presuppose that
some "authorized person or group of
persons" has judged some text or "type of
text" to be objectionable on moral, political or
other grounds.
Censorship (continued)



Censorship by suppression affects the
prohibition of the objectionable "text" or
material from being published, displayed, or
circulated.
Banning certain kinds of books from being
published or prohibiting certain kinds of
movies to be made would be examples of
censorship by suppression.
In this scheme, pornography and other
objectionable forms of speech would not be
allowed to exist on the Internet.
Censorship (continued)

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Censorship by deterrence is a less drastic means of
censoring.
It does not suppress or block out objectionable
material or forbid it from being published.
Rather, it depends on threats of arrest, prosecution,
conviction, and punishment against those who make
an objectionable "text" available and those who
acquire it.
Heavy fines and possible imprisonment can be used
to deter the publication and acquisition of this
objectionable content.
Pornography in Cyberspace
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The concept of pornography is often debated in the legal sphere
in terms of notions such as obscenity and indecent speech.
In Miller v. California (1973), the court established a three-part
guideline for determining whether material is obscene under the
law, and thus not protected by the First Amendment.
According to this criteria, something is obscene if it:
1. depicts sexual (or excretory) acts whose depiction is
specifically prohibited by law.
2. depicts these acts in a patently offensive manner, appealing
to prurient interest as judged by a reasonable person using
community standards.
3. has no serious literary, artistic, social, political, or scientific
value.
Pornography (continued)
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The Miller case has been problematic in
attempting to enforce pornography
laws.
The second criterion includes three
controversial notions:
1"prurient interest“;
2 "reasonable person“;
3 "community standards."
Censorship (Continued)

The term prurient is usually defined as having to do
with lust and with lewd behavior.
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Has been challenged as being vague and arbitrary.
Also, many have challenged the question of who
exactly would count as a "reasonable person.“
Until recently, one might have assumed that the
notion of a "community standard" would be fairly
straightforward
But what exactly is a community in cyberspace?
Where more than one community is involved in a
dispute involving pornography, whose community
standards should apply?
Censorship/Pornography

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The Amateur Auction BBS made sexually explicit images available to its
members.
Because the BBS was an electronic forum, its contents were available
not only to residents of California but to users in other states and
countries who had Internet access.
A person living in Memphis, Tennessee became a member of the BBS
and then downloaded on his computer in Tennessee sexually explicit
pictures.
Although including sexually explicit images on a BBS may not have
been illegal in California, viewing such images was illegal under
Tennessee State law. Criminal charges were brought against the
operators of the California-based BBS, who were prosecuted in
Tennessee.
Censorship/Pornography
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The California couple was found guilty under
Tennessee law of distributing obscenity under the
local community standards that applied in Memphis
Tennessee.
This case raised issues that had to do with what was
meant by "community standards" on the Internet.
Can a community in cyberspace be defined simply in
terms of geography?
Or in the age of the Internet, should "community" be
defined in terms of some other criteria? For example,
can a cyber-community be better understood as an
"electronic gathering place" where individuals who
share common interests come together?
Internet Pornography Laws
and Protecting Children Online
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Many people first became aware of the amount of pornographic
material available on the Internet through a controversial news
story, entitled CyberPorn, which appeared in Time magazine in
the summer of 1995.
Time reported that there were 900,000 sexually explicit
pornographic materials (pictures, film clips, etc.).
Many people, including most lawmakers, were outraged when
they learned about the amount of pornographic material that
was so easily accessible to Internet users, including minors.
It was later pointed out that the Internet study on which the
Time magazine story was based, which had been conducted by
a researcher at Carnegie Mellon University, was seriously
flawed.
Internet Pornography Laws
and Protecting Children Online


The Carnegie Mellon study accurately reported the
number of pornographic images and pornographic
Web sites that were available.
But it failed to put this information into proper
perspective.

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For example, the study made no mention of the fact that the
percentage of pornographic sites relative to other sites on the Web
was very low.
However, the report caught the eye of many
influential politicians, who set out to draft legislation
in response to what they saw as the growth of the
"pornography industry" on the 'Net.
The result was the passage into law of
Communications Decency Act (CDA) in early 1996.
Pornography Laws
The CDA was considered controversial from the outset,
especially the section of the Act referred to as the Exon
Amendment that dealt exclusively with on-line pornography.

The constitutionality of CDA was soon challenged by the ACLU,
as well as by other organizations.

In the summer of 1996, CDA was struck down by a court in
Philadelphia on grounds that it was too broad and that it
violated the US Constitution.
A portion of the CDA, known as the Child Pornography Protection
Act (CPPA) of 1996, was determined to be constitutional.

So even though CDA itself was overturned, critics took some
refuge in the fact that the provision for child pornography
remained in tact.

Child Pornography Laws

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CPPA significantly broadens the definition of child
pornography to include entire categories of images
that many would not judge to be "child
pornographic."
The CPPA's definition of child pornography includes
categories of images that some would judge not to
be pornographic at all.
Child pornography, according to CPPA, is defined as:

...any depiction, including a photograph, film, video, picture,
or computer or computer-generated image or picture,
whether made or produced by electronic, mechanical, or
other means, of sexually explicit conduct...
Pornography (Continued)
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In June 1998, Congress passed The Child On-Line Pornography
Act (COPA).
Many of COPA's proponents believed that this Act would pass
constitutional muster.
In February 1999, the US Supreme Court ruled that COPA was
unconstitutional.
So the only remaining federal law specifically directed at on-line
pornography, which had managed to withstand constitutional
scrutiny, was the CPPA of 1996 (a section of the original CDA).
According to the CPPA, it was a crime to "knowingly send,
receive, distribute, reproduce, sell, or possess more than three
child pornographic images."
On April 16, 2002, the US Supreme Court, in a ruling of 6-3,
struck down a controversial section of CPPA as unconstitutional.
Table 9-1: Internet-specific
Child Pornography Laws
CDA (Communications
Decency Act)
Passed in January 1996 and
declared unconstitutional in July
1996. The lower court's decision
was upheld by the US Supreme
Court in 1997.
CPPA (Child Pornography
Protection Act)
Passed as part of the larger CDA,
but was not initially struck down
in 1997 with the CDA. It was
declared unconstitutional in April
2002.
COPA (Child On-line
Pornography Act)
Passed in June 1998 and was
declared unconstitutional by the
US Supreme Court in February
1999.
Two types of Controversial
Speech in Cyberspace

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In addition to pornography, two additional kinds of speech that
have been controversial in cyberspace are:
 hate speech;
 forms of speech that can cause physical harm to individuals
and communities.
Hate speech on the Internet often targets members of certain
racial and ethnic groups.
 For example, white supremacist organizations such as the
Klu Klux Klan (KKK) can include on their Web pages
offensive remarks about African Americans and Jews.
Because of the Internet, international "hate groups," such as
"skin heads" in America, Europe, and Russia, can spread their
messages of hate in ways that were not previously possible.
Hate Speech

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Whereas the US has tended to focus its attention on
controversial Internet speech issues that involve online pornography, European countries such as France
and Germany have been more concerned about online hate speech.
In 1997, Germany enacted the Information and
Communications Act, which was directed at censoring
neo-Nazi propaganda. However, the German statute
applies only to persons who reside in Germany.
Initially, the statute was intended to regulate the
speech transmitted by ISPs outside of Germany, as
well.
Hate Speech (continued)

Another controversial form of hate speech on
the Internet is one that has involved radical
elements of conservative organizations.


For example, right-wing militia groups, whose
ideology is often anti-federal-government, can
broadcast information on the Internet about how
to harm or even kill agents of the federal
government.
Consider the kind of anti-government rhetoric
that emanated from the militia movements in
the US in the early 1990s, which some
believe led to the Oklahoma City bombing.
Speech That Can Cause Harm
to Others

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Some forms of hate speech on the Internet are such
that they might also result in physical harm being
caused to individuals.
Other forms of this speech are, by the nature of their
content, biased towards violence and physical harm
to others.
Two examples of how certain forms of speech on the
Internet can result in serious physical harm:
 information on how to construct bombs;
 information on how to abduct children for the
purpose of molesting them.
Should such information be censored in cyberspace?
Speech That Can Cause Harm
to Others (Continued)

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Recall the Amy Boyer cyberstalking case.
Was the posting on Liam Youen's Web site,
describing his plans to murder Boyer, an
example of hate speech?
It resulted in physical harm to Boyer – viz.,
her murder.
Should the ISPs that enable users to
construct Web sites that contain this form of
speech be held legally liable?
Software Filtering Programs
as an Alternative to
Censorship on the Internet



Many believe that filtering also provides a
reasonable alternative to censoring speech on
the 'Net.
Others are less enthusiastic about the
promise of software filters as a panacea for
resolving the censorship-free speech debate
in cyberspace.
Software filters can be defined as programs
that screen Internet content and block access
to unacceptable Web sites.
Software Filtering Programs


Some filters have been criticized because they screen too much,
and others because they screen too little.
Filtering out objectionable material through the use of the
keyword "sex" could block out important literary and scientific
works.

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For example, it could preclude one's being able to access certain works by
Shakespeare, as well as books on biology and health.
Filtering schemes that are too broad, on the other hand, might
not successfully block non-obvious pornographic Web sites, such
as the www.whitehouse.com site.
Software filtering programs such as NetNanny are available.
Many of these programs have been found to be inadequate.
Some Objections to Filtering



Not everyone has been impressed with the use of
software filters for self-regulatory purposes.
Larry Lessig (1999) believes that architectures like
PICS (Platform Independent Content) are a form of
"regulation by code."
He argues that PICS is a "universal censorship
system," which can be used to censor any kind of
material, not just pornography and hate speech.

For example, software filters can be used to block unpopular
political speech or dissenting points of view.
Objections to Software Filtering
(Continued)



Rosenberg (2001) motes that filters could
also be used by conservative school boards to
block out information about evolutionary
theory.
The American Civil Liberties Union (ACLU) has
also recently taken a similar position on the
use of filtering.
A 2001 ACLU report expressed it fear that
using censoring mechanisms such as filters
may "burn the global village to roast the pig."
Case Illustration: Mainstream
Loudon v. Board of Trustees



Adult members of the Loudon County public libraries
sued the Board of Trustees of the library for what
they alleged to be the impermissible blocking of
access to Internet sites.
The library pointed out that its use of filtering was
designed to block child pornography and obscene
material.
The plaintiffs complained that the filtering devices
also blocked access to non-pornographic sites such
as the Quaker Home Page, the American Association
of University Women, and others.
Mainstream Loudon Case
(continued)



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
The district court in Virginia ruled in favor of the
plaintiffs.
It determined that the installation of filtering
software on public access computers in libraries
violates the First Amendment.
But no clear direction was given as to how to resolve
the problem.
One solution would have been for libraries to provide
no Internet access at all.
This would not have been a satisfactory alternative
for obvious reasons.
Mainstream Loudon Case
(Continued)


Another solution would be for the library to
set aside one or more sections for children, in
which computer with filtering programs could
be provided.
Because children are protected under the
Child Pornography Protection Act (CPPA) of
1996, it was argued that it would be
permissible for libraries to include filtering
devices on computers intended for use by
children in restricted sections of the library.
Defamation in Cyberspace
and the Role of ISPs


Spinello (2000) defines defamation as
"communication that harms the reputation of
another and lowers that person's self esteem
in the eyes of the community."
Defamatory remarks can take two forms:


libel, which refers to written or printed
defamation;
slander, which refers to oral defamation. John
Mawhood and Daniel.
Defamation (Continued)

Tysver (2000) point out that it is not only through
words that defamation can occur.




For example, a person can be defamed through pictures,
images, gestures, and other methods of signifying meaning.
A picture of a person that has been scanned and
changed by merging another image can also suggest
something defamatory.
Anyone who passed on such an image could also be
held liable by the person filing defamation charges.
Our concern here is with defamation involving words.
Defamation (Continued)
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Libelous speech on the Internet can be distinguished from
certain kinds of inflammatory speech.
Inflammatory remarks made in on-line forums are sometimes
referred to as "flames."
A person who is the victim of such a remark is described as
someone who has been "flamed."
But most "flames" do not meet the legal standards of
defamation.
On-line Flames, as in the case of genuine defamatory remarks,
are still problematic.
In response to behavior involving flaming, some on-line user
groups have developed their own rules of behavior or
"netiquette" (etiquette on the Internet).

For example, some Internet chat rooms have instituted rules to the effect
that any individual who "flames" another member of the group will be
banned from the chat room.
The Role of ISPs in Defamation





In the 1991 case of Cubby, Inc v. Compuserve, the court ruled that
Compuserve was not liable for disseminating an electronic newsletter
with libelous content.
The court determined that Compuserve had acted as a distributor, and
not as a publisher, since the service provider did not exercise editorial
control over the contents of its bulletin boards or other on-line
publications.
A different interpretation of the role of ISPs was rendered in the1995
case of Stratton Oakmont v. Prodigy Services Company.
There, a court found that Prodigy was legally liable since it had
advertised that it had "editorial control" over the computer bulletin
board system (BBS) it hosted.
The court noted that Prodigy had positioned itself as a proprietary,
family-oriented, electronic network that screened out objectionable
content, thereby making the network more suitable for children.
ISPs and Defamation (Continued)




ISPs argued that they provide the "conduits for communication
but not the content."
This view of ISPs was used in the Zeran v. AOL case in 1997,
where AOL was found not to be legally liable for content
disseminated in its electronic forums.
The Zeran case was the first to test the new provisions for ISPs
included in Section 230(c) of theCommunications Decency Act
(CDA), which we examined earlier in our discussion of on-line
pornography.
The 1996 law protects ISPs from lawsuits similar to the one filed
against Prodigy. According to the relevant section of the CDA:
"[n]o provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by
another information content provider."
Defamation and ISPs (Continued)




Spinello (2001) argues that simply because
an ISP presents an "occasion for defamation"
does not necessarily imply that ISP is
accountable.
Rather, for an ISP to be accountable, two
conditions are required:
(a) the ISP must also have had some
capability to do have done something about
the defamation;
(b) the ISP failed but failed to take action.
Defamation and ISPs (Continued)
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For Spinello, ISPs are required to take three
steps or actions to avoid responsibility:
(1) prompt removal of the defamatory
remarks;
(2) the issuance of a retraction on behalf of
the victim;
(3) the initiation of a good faith effort to
track down the originator so that the
defamation does not reoccur.
Implications for the Amy Boyer
Case
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Should Tripod and Geocities, the two ISPs that
enabled Liam Youens to set up his Web sites about
Boyer, be held morally accountable for the harm
caused to Boyer and to her family?
Should those two ISPs be held morally accountable,
even if they were not responsible (in the narrow
sense) for causing harm to Boyer and even if they
can be exonerated from charges of strict legal
liability?
It would be reasonable to hold these ISPs
accountable if it also could be shown that the ISPs
were capable of limiting the harm to persons that
result from their various on-line forums.