10 June 1998
Thanks to DD

Date:    Thu, 11 Jun 1998 08:07:12 +0000
From:    Denis Dutton <constant.force@clear.net.nz>
Subject: The Law and the Internet
To:      PHIL-LIT@postal.tamu.edu

             Columbia Journalism Review
             May/June 1998

             The Law and the Internet: Beware

             by Denise Caruso

               Caruso is the Digital Commerce columnist 
               for The New York Times.

             The Internet has redefined the practice of
             journalism in the `90s. After an initial
             knee-jerk of technophobia, reporters and
             editors everywhere have assimilated
             e-mail messaging and scouring the World
             Wide Web into their daily routines. As a
             result, not only have they radically
             changed how they communicate with each
             other and with their sources, but they
             have also increased the amount and
             breadth of research they do for their
             stories, and vastly expanded the reach of
             their work as it is instantly distributed
             around the globe.

             But despite these advances -- and
             sometimes because of them -- critical
             legal issues are being raised that
             profoundly challenge the foundations of
             journalism, as both news reporters and
             the news itself continue their inexorable
             march into cyberspace. Those issues

             WHO'S A JOURNALIST?

             The First Amendment includes neither a
             definition of journalism nor guidelines
             about who may be considered a
             practitioner. In cyberspace anyone can
             claim to be a journalist, or at least a
             publisher, creating his or her own
             publication and distributing it around the
             world with a single keystroke. And like it
             or not, the operators of thousands of
             one-man or garage-band news sites on the
             Web are, by federal law at least,
             considered "real" journalists just as much
             as staffers for mainstream news

             Says Roberta Brackman, vice president
             of program content and intellectual
             property for NBC in New York: "There
             are not going to be new definitions of
             journalists. Journalists who research and
             write, whether for online, print, or
             broadcast, should be entitled to all the
             same protections and potential liabilities.
             The First Amendment has been, and will
             be, applied equally."

             Thus Matt Drudge, proprietor of the
             notorious Internet gossip column The
             Drudge Report, is as legally accountable
             as News Corp. or Time Inc. for what he
             writes and distributes. Lately, for
             example, he has been sued by Clinton
             aide Sidney Blumenthal for publishing
             allegations from anonymous sources that
             Blumenthal was a wife beater. He
             retracted the story immediately, but
             Blumenthal proceeded with the suit. (See
             "Is AOL Responsible for Its Hip Shooter's 
             Bullets?" CJR, November/December.)


             The willingness to publish a retraction is often a
             key element in whether a publisher can be sued for
             libel, but retraction statutes that protect journalists
             vary widely from state to state -- and "state" is a
             geographic distinction that does not exist in cyberspace.
             One problem is that some states may interpret the word
             "retraction" too narrowly to include online reporting and
             publishing. For example, an appellate court in Wisconsin
             found that its retraction statutes do not apply to
             messages posted on electronic bulletin-boards or forums
             -- such as America Online -- where individuals can
             "publish" messages at any time of the day or night.

             Says Brackman: "The language in the Wisconsin
             statutes talks specifically about periodicals or
             magazines, and about being published in something
             that appears `at regular intervals.'" The finding
             meant that in Wisconsin, at least, someone offended
             by a story or message published online could file
             suit without first asking for a retraction. Thus many
             legal experts expect the Blumenthal v. Drudge case to set
             a precedent for American libel law and publishing rights

             According to Mike Godwin, staff counsel for the
             Electronic Frontier Foundation, a civil liberties
             organization in San Francisco, the negative effect of
             Drudge's online story "was almost certainly erased by
             subsequent online and traditional press coverage of the
             retraction." Brackman agrees. "The fact that Drudge went
             back the next day and [retracted] ought to have an impact
             on Blumenthal's ability to succeed. That's where online
             provides an unparalleled opportunity. You can make
             corrections on a moment's notice. If we correct our
             mistakes in a reasonable and timely matter, the law will
             have to find a way to accommodate that."


             As this story goes to press, the Clinton
             administration is pressing hard on Congress to pass
             an updated and profoundly restrictive copyright law
             for the age of the Internet. Called the "World
             Intellectual Property Organization Copyright
             Treaties Implementation Act," the WIPO bill would
             give big media and software companies --
             represented by the U.S. Patent & Trademark Office,
             which wrote the proposed law -- the legal muscle
             to protect their property from unpaid electronic
             distribution, ostensibly by pirates who want to
             resell it. But the WIPO bill goes much further than
             that. It also has the potential to bar access to all
             kinds of information now available -- for free -- to
             journalists, scientists, researchers, librarians, and
             ordinary citizens under "fair use" provisions of the
             existing Copyright Act.

             Fair use describes the circumstances under which
             someone can excerpt others' copyrighted work
             without having to pay them. It is by far the most
             critical component of copyright law for journalists,
             allowing them to cite information from books, magazines,
             movies, and virtually any other form of copyrighted

             "That's the ultimate purpose of copyright -- to
             promote knowledge and discussion," says Pamela
             Samuelson, an intellectual property law specialist
             at the University of California, Berkeley. But this
             concept often runs counter to the goals of large
             copyright holders.

             The most profound implications of the
             administration's current proposal are likely to come from
             its provision for what is called "anti-circumvention."
             Let's say, for example, that a drug company has decided
             it will distribute information about its controversial
             AIDS drug only online -- and then only for a price. It
             uses a technology called "copy-protection" to ensure that
             only people who pay a fee can unscramble and read it. If
             the Clinton administration's proposal becomes law, anyone
             who tries to crack that barrier -- journalist or ordinary
             citizen -- is breaking the law, even when the information
             itself, by law, should be made available for fair use.

             Such a law has the potential to stop the flow of
             information dead in its tracks. Says Julie Fenster,
             vice president for law and business affairs of Time
             Inc. New Media: "Obviously we are creating
             enormous amounts of copyrighted materials every
             day, and of course I want to protect it. If someone is
             misusing or making money off what we create, then we try
             to stop it. But I'm scared that eventually there may be
             no fair use. Journalists may not be able to get at
             information without paying someone."


             Journalists are accustomed to trusting that the
             people they interview by telephone are who they
             say they are, but online communication presents
             much more serious challenges to identity. E-mail is
             unique as a medium because it is faceless and
             voiceless but seems very personal, sometimes more
             personal than a phone conversation. At the same
             time, it is easy to forge and alter. All the textual
             artifacts that give e-mail its distinctive look -- its
             "to" and "from" memo format, its time and date stamp --
             can be falsified from any computer keyboard with a simple
             text editor, and transmitted with little effort or skill
             on the part of the sender. And desktop publishing has
             reached an astonishing level of sophistication: anyone
             with access to a computer, a scanner, and a color laser
             printer can create perfect copies of security badges,
             company logos, and official documents that can be
             presented in person, mailed or posted on the Web.

             Existing fraud laws can usually handle identity
             scams and the falsifying of documents online. But at some
             point, news organizations might actually be held
             accountable, by misrepresented story subjects or sources,
             for not sufficiently protecting themselves against e-mail
             or document fraud. A possible solution would require
             reporters and their sources to use "digital signature"
             security software on their computers. With a technique
             called "public key encryption," digital signatures are
             able to confirm both the identity of message senders and
             the authenticity of the documents they transmit. If the
             use of digital signatures were sufficiently widespread,
             it would not have been possible, for example, for Mary
             Schmich's Chicago Tribune column to be distributed around
             the world, disguised as a commencement address by
             novelist Kurt Vonnegut -- as happened last summer via the

             Public key encryption programs for e-mail -- called
             PGP, for "Pretty Good Privacy" -- are available
             free, for non-commercial use, on the Web. (One
             place to find them is at http://www.pgp.com.) The
             software is still too complicated for neophytes to
             use, but it may become a de facto requirement for
             journalists and activists eager to protect their
             information and messages from spoofers, as well as
             from the prying eyes of government.


             Privacy issues are becoming increasingly important
             in a networked world. What is unclear is whether
             citizens will have greater legal redress against
             violators of their privacy -- including journalists
             and paparazzi -- or whether we simply will become
             resigned to lives whose intimate details are utterly
             exposed to public view.

             Technology has made these issues more complex
             and critical. Before the advent of sophisticated
             computer networks and databases, it would have
             been unthinkable to store a person's criminal
             records in the same file cabinet with his Medicare
             or Internal Revenue Service records. A reporter
             would have to request information from each of the
             agencies individually.

             But digital networks now make it possible to "link"
             all these private records, for example, so they can
             be viewed together on the same computer screen,
             simply by connecting the computers in which these
             data are collected.

             Other online databases, compiled from public
             information sources, also make it much easier for
             ordinary citizens to gather sensitive data about their
             neighbors: property tax assessments, bankruptcy filings,
             police blotter data.

             But that's just a tiny fraction of the personal
             information that's compiled about individuals every
             day. Your local video store has records of all the
             movies you rent. The phone company knows every
             phone number you call, including 900 numbers.
             Supermarket scanners record your alcohol, tobacco,
             and cholesterol consumption. Your credit card
             company knows your income range, the size and
             composition of your family, the stores you frequent, your
             travel habits. Your doctor, your psychiatrist, your
             hospital, your pharmacist, and your medical insurance
             company store the minutiae of your physical and emotional
             health on networked computers.

             The ability to compile all this information into
             extensive "database dossiers" is much desired by
             some government agencies, which so far have not
             been allowed to do so, and especially by
             marketeers who traffic in personal data. In a
             consumer culture, information about consumers'
             private habits is a valuable commodity. And except
             for constraints placed upon some agencies,
             financial institutions, and companies that control
             medical records, there are almost no restrictions in the
             U.S. on who can collect personal information and what
             they can do with it.

             Today, in fact, whole books have been written
             about how ordinary citizens can snoop out personal
             information from online databases, and some
             professional snoops -- scrupulous and otherwise --
             brag online that they can find out anything about any
             individual within twenty-four hours.

             "What we're talking about here is information that's
             traditionally been public if the journalist has the
             patience and fortitude to find it," says NBC's Brackman.
             From the civil liberties perspective, she says, the ease
             with which database dossiers can be assembled from online
             sources is certainly frightening. "But if you put your
             journalist hat on, isn't it manna?"

             Unlike the United States, the European Union has
             strict privacy controls on the gathering and
             dissemination of such information. It's illegal, for
             example, for a vendor to sell the name of a customer for
             any reason without that person's permission. This
             effectively gives EU citizens control over the
             distribution and sale of virtually all of their personal
             information -- and a way to track culprits who break the


             When almost anyone can be a publisher, the result
             is a tidal wave of "news" from sources far beyond
             the trusted, familiar shores of the mainstream press.
             This influx of fresh voices is a wondrous effect of
             technology, but no one can know whether such "news" is
             propaganda, a spoof, or real reportage.

             The way we judge accuracy and credibility has
             become an issue in journalism on the most basic
             level, since any system that rates or ranks or filters
             information can accurately be called "censorship." One
             group, the Internet Content Coalition, which was formed
             to protect the online interests of professional
             journalists and media makers, hit the wall last year when
             it tried to forge a ratings system that would rank the
             quality of news sites on the Web. Quickly slammed as both
             self-serving and a possible violation of the First
             Amendment for limiting access to other people's speech,
             the group abandoned the idea. Says Julie Fenster, whose
             company was a founder of the ICC: "Time Inc. has taken
             the position that we'll never rate our own content, and
             we aren't talking about rating other people's content,

             The ICC was also motivated by worries about
             another, more subtle form of censorship -- software
             filters such as NetNanny, which block access to
             Web sites containing objectionable material. The
             ICC felt that such devices, in their haste to censor sex
             and violence, would also block out news sites with
             stories that mentioned those subjects.

             Filters pose another problem for journalists as
             well. At first, they were embraced as a neutral
             alternative to government censorship -- any
             special-interest group could devise its own set of
             filters according to its tastes and preferences. But
             because software filters are programmed not to allow
             access to any site that does not meet their individual
             criteria -- even if a computer user specifically types in
             the web address -- legal scholars now fear that filtering
             systems have created a private means of global censorship
             untouchable in a court of law.

             With software filters, any private group -- from the
             Christian Coalition to Disney to Microsoft -- can render
             invisible to their members or customers huge chunks of
             the Internet for any reason they choose, including
             blocking access to unpopular viewpoints or to the Web
             sites of competitors. Lawrence Lessig, the Harvard Law
             School professor who briefly served as special master in
             the Justice Department's antitrust case against
             Microsoft, says this type of private regulation of the
             Internet "is a greater danger to free speech than public
             regulation." If Microsoft employs filters -- for example,
             to block access to its competitors' Web sites, such as
             Netscape, or even Disney -- it's a "private action,"
             Lesser says, and can't be tested in court.


             The global nature of the Internet creates potentially
             knotty questions about accountability and liability.
             Libel and free-speech laws, in particular, vary widely
             from country to country; Kitty Kelley's book on Princess
             Diana, for example, could not be published in the United
             Kingdom because libel laws are more restrictive there
             than in the U.S.

             So what happens if The New York Times on the
             Web -- which is accessible from anywhere in the
             world -- is sued for libel by someone in, say,
             Botswana? If The New York Times has no assets in
             Botswana, "a libel judgment about the Internet
             could be worthless because U.S. courts won't
             enforce it," says Guylyn Cummins, a First
             Amendment specialist and partner of Gray Cary
             Ware & Friedenrich in San Diego. Of more concern
             is Mexico, where U.S. firms have substantial
             interests, Cummins points out. "If you say something bad
             about someone in Mexico, they can attach your assets,"
             she says. "The First Amendment means nothing in that

             But in the final analysis, the global reach of the
             Internet -- no matter how the legal issues are
             resolved -- will remain one of its most enticing
             features for American journalists. If a story is
             significant, it needs to be on the Web, and let the
             legal chips fall where they may.

             "Journalists have an important opportunity to have
             their material read, seen, and heard in places
             which, up to this point, had no access to it," says
             NBC's Brackman. "But that opportunity carries
             responsibility as well. Journalists have to continue to
             practice as we have before, and not write to the lowest
             legal common denominator of the places where our
             reporting may end up."