Legal research on – and legal issues raised by – the Internet.
By Erik J. Heels
First published 11/2/1994; Law Practice Management magazine; American Bar Association
Bismarck reportedly said that Russia is never as strong — or as weak — as it seems. That is how I feel about the Internet: it is not as useless — or as useful — as people say that it is. This article is an overview of what the Internet is, what law-related information is available on the Internet (The Law ON the Internet), what legal issues arise out of the Internet (The Law OF the Internet), and how to get on the Internet.
There has been a flood of news stories about the Internet lately. In fact in 1993, there were more references to the Internet in The New York Times than in all previous years combined. Some of these news articles have bemoaned the problems caused by user-overload as the number of Internet users increases, and others have heralded the opening of the Internet as the answer to all of society’s information needs. The truth is somewhere in between these two reported extremes. There are problems on the Internet, but they are being resolved intelligently, and there is a wealth of information available on the Internet, but a great deal of the information is not easily accessible. Where the Internet goes from here will depend on where the Internet community wants to take it.
What is the Internet?
Internet History. The Internet grew out ARPAnet (formed in 1969 as a product of the Advanced Research Project Agency), a network of government computers connected so that they could exchange information and use each others programs. ARPAnet was later discontinued, but other networks (primarily government and educational) had been formed and interconnected, and the resulting network of networks has come to be known as the Internet. Today, the Internet is an international network of computer networks that are connected via telephone lines, microwave links, and satellite links. The networks that are part of the Internet speak the same language, the TCP/IP (Transmission Control Protocol/Internet Protocol) protocols. Some of the computers on these networks themselves use the TCP/IP protocols (most notably UNIX-based computers) while others (for example, the computers that comprise the commercial value-added networks such as CompuServe, America Online, and Delphi; as well as those computers on BITNET and UUCP networks) do not but are still able to use some TCP/IP protocols via gateways. Current estimates of the number Internet users range from 25 to 100 million. Formerly used exclusively by government, military, and research users, the Internet is now being used by people in all lines of work, including lawyers and their clients.
The Internet is NOT (as is often reported) the largest network in the world: the telephone network is. (Some would even argue that the electric power grid is number one, telephones number two, and the Internet number three.) The number of telephone users world-wide is approximately ten times greater than the estimated number of Internet users. And just as the telephone network uses a standard set of protocols to establish communication links, so, too, does the Internet: the TCP/IP protocols. Anyone who is amazed that one can send electronic mail (e-mail) via the Internet from the United States to Finland in a matter of seconds should be equally amazed that one can direct-dial Finland from the United States by simply dialing a few numbers on the telephone. What should matter to the Internet-user is not how the Internet works but how to make it work. When one writes a letter and sends it via the United States Postal Services (USPS), one knows that the “to” and “from” addresses must be written in a certain place, that mail may be returned if there is a problem, and that mail may be disposed of after sitting idly on the shelf of the post office (if, for example, both addresses are illegible). Internet e-mail works in much the same way. Some of the TCP/IP protocols (primarily the Simple Mail Transfer Protocol (SMTP)) deal with how to send, return, and dispose of e-mail.
The advantages of Internet e-mail over USPS mail and telephone calls are numerous. Unlike with USPS mail, and Internet user does not have to find a stamp and drive to the nearest mailbox to send Internet e-mail. Also, unlike the telephone, Internet e-mail is never busy. Even if the telephone is not busy, the recipient might not be available, and the caller may not want to leave a substantive message an a voice-mail system or with a receptionist. Among the least useful telephone messages I receive are those that say “Bob called to ask about something.” Bob would have been better off sending an e-mail message containing the something rather than leaving a message that only invites telephone tag. With Internet e-mail, I could have responded to Bob’s e-mail when I had time, returning portions of his original e-mail message with my response to provide the necessary context that is often lost in USPS mail or in phone messages.
As I mentioned earlier, the networks that are connected as the Internet use the TCP/IP protocols. Three of these should briefly be explained at this point. SMTP (Simple Mail Transfer Protocol) is the protocol used to exchange e-mail. FTP (File Transfer Protocol) is the protocol used to allow a user from one machine to login to another machine for the limited purpose of copying files to and from the remote machine. The remote machine is called an FTP site (and if anonymous FTP login is allowed, it is called an anonymous FTP site), and it is like a computer bulletin board. Telnet is the protocol used to allow a user from one machine to login to another machine for the purpose of using the programs hosted by the remote machine.
Law ON the Internet
On the Internet one can find primary law (cases, statutes, and treaties), secondary law (law review articles and the like), and tertiary law (discussion groups, unpublished manuscripts and the like). The key players in providing law-related information on the Internet are law schools and government institutions. Since the Internet is a network of networks, with each network independently owned and operated, some of the information is easier to get than other. Ultimately, if the case, the statute, or the law review article that the Internet user seeks exists on the Internet, it exists as a file on a hard disk (or other storage medium) on a computer on a network somewhere on the Internet. It may exist in more that one location, and one location’s version may be more up-to-date than another’s. To make it easier to find what you’re looking for, several search programs and interfaces have been created. These interfaces themselves are not law-related ends but instead are the means of getting to the law-related ends–the files of data. The interfaces include Gopher (an Internet client/server protocol, developed in April 1991 by the University of Minnesota), WWW (which stands for World Wide Web, a distributed hypermedia system originated by CERN, the European Laboratory for Particle Physics), WAIS (which stands for Wide Area Information Servers, a networked full text information retrieval system developed by Thinking Machines, Apple Computer, and Dow Jones). The search programs include archie (a set of programs developed by McGill University used for searching a database of file names hosted at anonymous FTP sites) and VERONICA (which stands for Very Easy Rodent-Oriented Net-wide Index, a set of programs developed by the University of Minnesota used for searching a database of Gopher menus and items).
The following are a few examples of the kinds of law-related information available via the Internet:
1. For information on how to receive a weekly mailing of all of the patents listed in the most recent issue of the US Patent and Trademark Office Patent Gazette, contact:
Source Translation & Optimization
PO Box 404
Belmont, MA 02178
Phone: (617) 489-3727
2. The Legal Information Institute (LII) at Cornell Law School provides an e-mail bulletin and an e-mail full-text delivery service of U.S. Supreme Court Decisions. E-mail bulletin subscribers will receive the syllabi of decisions of the Supreme Court as they are placed on the Internet. To subscribe to the e- mail bulletin, send the following message (all on one line) to firstname.lastname@example.org:
subscribe liibulletin Name, Address, Telephone Number
To have the full text of a decision e-mailed to you, send the following message to email@example.com:
where docket_number is the docket number of the case you want sent. (E.g. “request 91-611” is the proper format for a request.) You can request several decisions at once by putting the docket numbers on separate lines.
For more information, contact:
3. To subscribe to an electronic discussion group dedicated to Internet law sources, send a message to firstname.lastname@example.org, with subscribe lawsrc-l your name in the body of the message (where your name is your real name, not your e-mail address).
The Law OF the Internet
The growth of the Internet itself raised some interesting legal questions regarding the First Amendment, privacy, and copyright law. An excellent article entitled “Of Bytes and Rights; Freedom of Expression and Electronic Communications” appeared in the November 1992 issue of Technology Review (edited at the Massachusetts Institute of Technology, (617) 253-8250). In that article, the author, Herb Brody, addresses the issue of whether Constitutional rights to freedom of expression and privacy extend into the territory of electronic communications. For example, is a posting to an electronic bulletin board like publishing a book, where the author is responsible for the content, or is it like writing an article in a newspaper, where the newspaper has final say over the content of the article? How free is electronic speech?
Late 1993, Gregory N. Steshenko, a graduate student in electrical engineering at the University of Texas at Dallas (UTD) had his Internet account at UTD taken away from him. Steshenko sued UTD, arguing that his account had been taken away because of his comments on Ukrainian and Russian politics that he had posted on an Internet discussion group. Ultimately, the case may be decided on narrower grounds, as UTD points out, because Steshenko appears to have violated a contract with UTD that required him to use his Internet account only for instructional, research or administrative purposes.
Another legal question involves the right of privacy. Today, because of how Internet e-mail sent–i.e. copied and stored on one machine, forwarded to another, and then deleted–it is only as secure as a postcard. Like a postcard, you never know how an Internet e-mail message is going to get from here to there–the Internet is designed to avoid traffic jams. All it takes is one person reading the right (or wrong) file at the right (or wrong) time for your privacy to be violated. The law of the Internet is developing, and advocacy groups have sprung up in an attempt to influence its development. One such group is the Electronic Frontier Foundation (EFF) that was founded in 1990. (For membership information, send a message to email@example.com.) The right of privacy is an issue currently being hotly debated by the EFF and others, largely due to the proposed Clipper computer chip, an encryption chip that federal law enforcement agencies are advocating as standard equipment in all telephones and computers. With such an encryption chip, only the intended recipient of a sender’s telephone call or e-mail message would be able to hear or read the message, but government law enforcement agencies would also hold a key that could be used for listening in on the telephone conversations or e-mail communications. The EFF and others believe that individual privacy rights would be threatened by–rather than secured by– such an encryption system.
A key problem with the law of the Internet is that there is little case law, and the statutory law is outdated. A case in point is the recent indictment of David LaMacchia on April 7, 1994. LaMacchia was indicted for conspiracy to commit wire fraud in violation of a federal statute, despite the fact that he has not profited from his activities. The federal wire fraud statute was enacted in 1952 to combat wire fraud — the use of the telephone to defraud unsuspecting individuals. Mr. LaMacchia is accused of running a computer bulletin board used for uploading (copying to) and downloading (copying from) copyrighted commercial software. Mr. LaMacchia apparently was aware that the copying was going on, although he has not been accused of any illegal copying. He also apparently used the computer for other purposes whose legality has not been questioned. It appears that the federal government has a very good case for saying that Mr. LaMacchia has done some things that are not very nice, but it also appears that they do not have a wire fraud case at all. (Mr. LaMacchia is being represented by Harvey A. Silverglate, firstname.lastname@example.org, and Sharon L. Beckman from the Boston firm Silverglate & Good; and by David Duncan from the Boston firm Zalkind, Rodrigues, Lunt & Duncan.)
Wherefore the Internet?
As more people get on the Internet, fewer people will be able to ignore the Internet. I believe that the Internet is here to stay, and for those lawyers who want to communicate with their clients via the Internet (because there surely will be clients who want to do so) or who want to shape the future of the law OF the Internet, now is the time to get on. Here’s how.
1. Get an account on one of the commercial value-added networks such as CompuServe (1-800-848-8990), America Online (1- 800-827-6364), or Delphi (1-800-695-4005). For about $10-20 per month, you can ask questions and electronically look over peoples’ shoulders to learn about the Internet. Or, if you are already on the Internet, you can consider trying one of the providers listed in the Public Dialup Internet Access List (PDIAL). To receive a copy of PDIAL (an approximately 50-page file), send a message to email@example.com with “send PDIAL” in the body of the message.
2. Read up on the Internet. The bible of Internet reference guides is “The Whole Internet User’s Guide and Catalog” by Ed Krol (O’Reilly and Associates, 707/829-0515). This will help you learn your way around the Internet.
3. Consider adding your law firm to the Internet, rather than just having an individual account on somebody else’s machine. This is more expensive than a simple commercial account, but there are inexpensive options (such as asynchronous dial-up PPP (Point to Point Protocol) and UUCP (Unix to Unix Copy Protocol) accounts), and you will gain flexibility and control. For example, you could set up your own FTP server, and your e-mail address would be firstname.lastname@example.org rather than email@example.com. The Krol book lists many companies who are in the Internet domain (rather than account) business.
Whither the Internet?
The Internet has been called, among other things, the information superhighway, the national information infrastructure, and cyberspace. I prefer to refer to the Internet as the Internet because I do not believe that this well- established institution needs a nickname. Where does the Internet go from here? That’s up to you.