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
include:
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
organizations.
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.)
SWIFT RETRACTIONS MAY REDEFINE LIBEL
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
online.
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."
RESTRICTING ACCESS TO INFORMATION
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
information.
"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."
PROVING IDENTITY AND AUTHENTICITY ONLINE
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
Internet.
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 AND "PROPERTIZING" OF PERSONAL INFORMATION
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
rules.
RATING CONTENT: WHEN DOES A FILTER BECOME A CENSOR?
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,
either."
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 LAW OF THE LAND, WHERE THERE IS NO LAND
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
circumstance."
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."
--30--