Syllabus: August 24, 2001.
Time/Place: Fall Semester, 2001: Tues. 9:00-9:50 Rm 109; Thur., Fri. 10:00-10:50 PM; Law Bldg: 107
Professor: Kevin D. Ashley
Learning Research and Development Center, 3939 O'Hara St., Room 519,
(412) 624-7496, email@example.com
o Classroom participation is very important in this course. Prof. Ashley may assign individual students responsibility for being prepared to discuss individual readings.
|Date||Readings||Topics for Discussion|
|8/28,30,31||SURF THE WWW!
I.A.1. ACLU v. Reno Findings of Fact
I.A.2. "15 Minute Series" modules at http://www.dgl.com/15min/. Read through training category entitled "The Basics".
I.A.3. Hardy Article pp. 993-1055
I.A.4. Reidenberg Article
Explore cites listed in I.B. and I.C.
A. Gov't in Cyberspace
B. Entering Cyberspace, Pop. ???
C. Demonstration cites
|9/4,6,7||II.A.1. Florida AG Opinion
II.A.2. Minnesota AG Opinion
II.B.1. Blumenthal v. Drudge
II.B.2. Bensusan Rest. v. King
II.B.3. Zippo Mfg. v. Zippo Dot Com
II.B.4. Lanza Article.
II.B.5. Yahoo! v. La Ligue Contre Le Racisme
II.B.6. Amicus Brief of Yahoo's Motion for Summary Judgment
|II. Law enforcement on Internet
A. Enforcement problems
B. Personal Jurisdiction, Choice of Law
|III.A.1. Goldstone Article pp. 335-402
III.A.2. Note on Alderwood Assoc.
III.B.1. Reno v. ACLU (Supreme Ct.)
III.B.2. ACLU v. Reno (District Ct.)
|III. First Amendment Issues
A. Forum Analysis
B. Offensive/Indecent Language
|9/18,20,21||III.B.3 ACLU v. Reno (3d Cir. 2000)
III.B.4. Fahrenheit 451.2
III.B.5.Childrens' Internet Prot. Act.
III.B.6. Note on Obscenity
|III. First Amendment Issues
B. Offensive/Indecent Language
|9/25,27,28||III.C.1. Catching Jellyfish (Brooks) Article
pp. 461-490 &
Note on Libel
III.C.2.a. Cubby v. Compuserve pp. 135-144
III.C.2.b. Stratton Oakmont v. Prodigy pp. 1794-1799
III.C.2.c. Denial of Defendant's motion in Stratton Oakmont pp. 1126-1128
III.C.3.a. Godwin Article pp. 1-2
III.C.3.b. CDA Sec. 230
II.C.3.c. Blumenthal v. Drudge
|III. First Amendment Issues
2. Who is liable?
3. New Standards
|10/2,4,5||IV.A. Burk Article pp. 1-19
IV.B. Lanham Act, 15 USCA §§ 1114, 1125
IV.C. Brookfield Comm. v. Westcoast Entertainment
IV.D. Intermatic v. Toeppen pp. 1227-1243
IV.F. ACPA. Lanham Act, 15 USC 1125d
|IV. Who Owns What in Cyberspace
|10/9, 11,12||V.A.1. Excerpts, Copyright Act, 17 USC
V.A.2. Feist v. Rural Telephone
V.A.3. Sega v. Accolade
V.A.4. Sony v. Universal City Studios
|V. Who Owns What in Cyberspace
A. Copyright Basics
|10/16, 18, 19||V.B.1. Playboy Ent. v. Frena pp. 1552-1563
V.B.2. Sega v. Maphia
V.B.3. Grossman article
V.B.4. Religious Tech. Ctr. v. Netcom pp. 1361-1383
V.B.5. Testimony of Wm Cook pp. 1-21
V.B.6. 17 USCA §512
V.B.7. - 9. A&M Records v. Napster
|V. Who Owns What in Cyberspace
|10/23, 25,26||V.C.1. Tanenbaum Article pp. 1-6
V.C.2. Samuelson "Grab" Article pp. 1-10
V.C.3. Newcomb Response pp. 1-2
V.C.4. Samuelson "Confab" Article
V.C.5. DMCA §§1201-4
|V. Who Owns What in Cyberspace
|10/30, 11/1,2||VI.A. Step-Saver Date Sytems v. Wyse Tech. pp.
VI.B. ProCD v. Zeidenberg pp. 1447-1455
VI.C. UCITA exerpts
VI.D. "Battle" Article
|VI. Who Owns What in Cyberspace
Shrink-wrap and clip-wrap licensing
|11/6,8,9||VII.A.1. Shulman Article
VII.A.2. Smith Article
VII.B. Amazon.com v. Barnesandnoble.com
VII.C. Amazon cite
VII.D. Raul et al. Article
VII.E. eBay v. Bidder's Edge
VII.F. Proposed DB protection bills
|VIII.A. Buba Article
VIII.B.1. Cohen Article. pp. 981-1039
VIII.B.2.a. Freiwald Article Excerpts pp. 950-960
VIII.B.2.b. Rimm Article pp. 1849-1852, 1911-1912
VIII.B.2.c. McKinnon Article pp. 1959-1967
|VIII. Privacy in Cyberspace
|11/20,27,29||VIII.C.1&2. Digital Cash websites
VIII.C.3. Froomkin Article excerpts pp. 449-471
VIII.C.4. Digital Signatures URL
VIII.D.1.Froomkin Article excerpts pp. 479-505
VIII.D.2. Cookies URL
VIII.D.3. EPIC v. DoubleClick
VIII.D.4 URL's re protecting children
|VIII. Privacy in Cyberspace
C. Regulating Data Collection and Profiling
|11/30||VIII.E.1. Lee Article pp. 139-177
VIII.E.2. Smyth v. Pillsbury pp. 97-101
|VIII. Privacy in Cyberspace
|12/4,6||IX.A. Radlo Article pp. 1-11
IX.B. Bernstein v. US Dept. of State
IX.C. Junger v. Daley
IX.D. Universal City Studios v. Reimerdes
|IX. Encryption in Cyberspace Communications: Security vs. Privacy|
Part II. Annotated Syllabus
2. Internet Concepts and Definitions: Read modules at http://www.dgl.com/15min/ on training category entitled "The Basics".
3. Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55 U. Pitt. L. Rev. 993-1055 (1994). The article suggests which issues involving cyberspace are unique to the medium and which are merely extensions of traditional legal frameworks. It raises specific questions concerning issues we plan to cover in the course. Hardy concludes that initial adoption of the most flexible rules possible is the prudent approach.
4. Joel Reidenberg, Lex Informatica: The Formulation of Information Policy Rules through Technology, 76 Texas L. Rev. 553 (1998). Where do rules come from in Cyberspace?
2. See http://www.statmarket.com/ (real-time source of Internet statistics and user trends), http://www.survey.net/inet1r.html (Internet Survey #1 - Current Results)
3. http://www.yahoo.com/. See search category Computers and Internet: Internet: Statistics and Demographics.
2. Minnesota Attorney Generalís Office, Formal Opinion (citation omitted).
Background reading: Seth Gorman & Anthony Loo, Comment, "Blackjack or Bust: Can U.S. Law Stop Internet Gambling?," 16 Loy. L.A. Ent. L.J. 667 (1996). The authors suggest possible solutions to the jurisdictional and enforcement problems of regulating Internet gambling. They propose holding access providers civilly liable such that they will block or limit access to domestic and international sites. They alternatively suggest limited legalization combined with providing Internet casinos and parents with blocking technology to limit access to adults within certain jurisdictions.
2. Bensusan Restaurant Corp. v. King, 126 F.3d 25 (2d Cir. 1997).
3. Zippo Mfg. Co. v. Zippo Dot Com, Inc. 952 F.Supp. 1119 (W.D. Pa. 1997)
4. Emily Lanza, Personal Jurisdiction Based on Internet Contacts, 24 Suffolk Transnat'l L. Rev. 125 (2000)
5. Yahoo! Inc. v. La Ligue Contre Le Racisme, Case Number 00-21275 JF (N.D. Cal 2001)
6. Amicus Brief in Support of Yahoo's Motion for Summary Judgment
1. David R. Johnson and David Post, Law and Borders -- The Rise of Law in Cyberspace, pp. 1-23 (48 Stan. L. Rev. 1367) (article argues that traditional justifications for geographic basis of jurisdiction and choice of law do not apply in cyberspace; article makes use of trademark example to illustrate contention that the relationship between the cyber-citizen and the cyber-sovereign is unique and calls for a wholly new set of rules to maintain order and fairness.)
2. William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 Wake Forest L. Rev. 197-220 (1995) (Part IV discusses virtual violence and virtual punishment; article suggests that cyberspace should be its own jurisdiction in which punishment fits the crime (e.g. virtual death penalty); author hopes courts will defer to legislature with respect to regulating the Internet, and calls for cyberusers to organize and lobby legislators to protect their own interests).
3. David G. Post, Anarchy, State, and the Internet: An Essay on Law-Making in Cyberspace, 1995 J. Online L. Art. 3.
2. Note on Alderwood Associates v. Washington Environmental Council,
635 P.2d 108 (Wash. 1981) (holding privately owned shopping mall subject
to state constitution free speech provisions). The case demonstrates how
state constitutions can protect speech when even the federal constitution
does not. It provides a rationale for placing limitations on private property
ownersí ability to censor.
2. American Civil Liberties Union v. Reno, 929 F.Supp. 824-884 (E.D. Pa. June 11, 1996) A comparison/contrast of the three opinions that make up the majority reveals differing justifications for protecting speech on the Internet from the legislative regulation in question.
3. American Civil Liberties Union v. Reno, 217 F.3d 162 (3d Cir. 2000) Congress revised the CDA but with similar results.
4. New approaches to protecting minors: American Civil Liberties Union, "Fahrenheit 451.2: Is Cyberspace Burning? How Rating and Blocking Proposals May Torch Free Speech on the Internet" (1998) <http://www.aclu.org/issues/cyber/burning.html>
5. Childrens' Internet Protection Act. On June 23, 1999 the Senate Commerce Committee approved an amended version of S. 97. See: http://www.ala.org/cipa/Law.PDF.
6. Note on Obscenity: United States v. Thomas, 74 F.3d 701-716 (6th Cir. 1996). Thomas involved a conviction under federal obscenity statutes for transportation of obscene material through electronic bboards from its source in California to an undercover postal inspector in Tennessee (the prosecution was in Tennessee). Thomas applies Miller v. California, 418 U.S. 915, 94 S.Ct. 3206 (1974) (3-prong test for obscenity; obscenity is "category" of speech outside First Amendment) in the medium of cyberspace. Thomas, 74 F.3d at 710. The novel questions raised under the case include whether the defendant actually "sent" the material, as apparently required by the statute (thus being similar to more common "mail order" cases). Defendants unsuccessfully argued that a more technically accurate description of the process is that the Tennessee recipient in effect went to California, copied the material, and brought it back to Tennessee. The court also quickly dispensed with the defense argument that the graphics file did not meet the statutory requirement that the material be in a "tangible" form. The case also contains an interesting discussion of proper venue. The venue discussion is relevant to the question of which communityís standards should be applied in the first prong of Miller. Should the proper standards be those of a "virtual" community, or any community to which the material is transmitted? Since current technology does not allow the material posted by potential defendants to be selectively available to limited communities, does the decision require bboard operators to post material which conforms to only the most conservative community standards? Although the case does not address the question directly, the issues faced by the court also suggest the practical problem of enforcing state and federal obscenity laws when the source is outside U.S. territory. Jurisdictional issues raise concerns that purveyors of obscenity will respond to the threat of prosecution by simply relocating to locations beyond the reach of U.S. law.
John S. Zanghi, "Community Standards" in Cyberspace, 21 U. Dayton L. Rev. 95 (1995).
Bernard W. Bell, "Filth, Filtering, and the First Amendment: Ruminations
on Public Libraries' Use of the Internet Filtering Software, 53 Fed.
Comm. L.J. 191 (2001)
Note on Libel: The traditional approach to libel imposes increasingly higher standards of liability when private individuals are defamed and the statements are private in nature. This framework has historically been justified due to the difficulties private individuals have experienced in rebutting defamatory statements with limited access to the media. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964) (establishing actual malice standard for libel suits by public officials); Gertz v. Welch, 418 U.S. 323 (1974) (state may define appropriate standard of liability for private plaintiffs libeled on matters of public concern, but there must be some showing of fault; plaintiff cannot recover presumed or punitive damages without proving actual malice); and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (private plaintiff can recover punitive damages without showing actual malice when statement at issue addresses matter of private concern).
2. Who is liable for libel in Cyberspace? - To what degree, if at all, should online service providers shoulder the responsibility for preventing defamatory statements by individual users?
b. Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) (service provider exercising significant editorial control acted as publisher, analogous to a newspaper publisher, and thus subject to liability in libel action). The fact that Prodigy promulgated and enforced content guidelines subjected it to liability for a userís statement under the theory that "one who repeats or otherwise republishes a libel is subject to liability as if he had originally published it." Stratton Oakmont, Inc., 1995 WL 323710 at 2. The court believes that acceptance or rejection of the additional liability that necessarily attends the exercise of significant editorial control is merely one of the market decisions providers must make.
c. Denial of Defendantís motion for reconsideration in Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 805178 (N.Y. Sup. Ct. Dec. 11, 1995) (noting that because law has thus far not kept pace with technology, there is pressing need for some precedent to serve as guidance until the law can gain a perspective that only comes with time).
Cubby and Stratton Oakmont provide a good contrast as to the multiple roles online service providers can play and the corresponding degrees of liability which can attach. The cases demonstrate the conflicting positions service providers may find themselves in depending on the level of control they exercise. Providers typically do not want to be treated as common carriers so that they can regulate the speech of their users with regard to indecency, hate speech, etc. (consistent with the providerís conduct in Stratton Oakmont ). However, the more editorial control the providers exercise, the greater the exposure to liability for usersí defamatory statements. On the other hand, if the provider adopts a more hands-off editorial approach, as in Cubby, they may limit their ability to curb sexually explicit or otherwise offensive speech by their users.
b. Communications Decency Act of 1996, Section 230. Congress to the rescue!
c. Blumenthal v. Drudge 992 F.Supp. 44 (D.D.C. 1998)
B. Lanham Act, 15 USCA §§ 1114, 1125.
C. Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999)
D. Intermatic Inc. v. Toeppen, 947 F. Supp. 1227-1243 (N.D. Ill. 1996)
E. Uniform Domain Name Dispute Resolution Policy (UDRP) adopted by the Internet Corporation for Assigned Names and Numbers (ICANN), http://www.icann.org/udrp/udrp-policy-24oct99.htm, and a recent decision, http://www.arbforum.com/domains/decisions/92054.html
F. Anticybersquatting Consumer Protection Act ("ACPA") Lanham Act, 15 USC 1125d
2. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 111 S.Ct. 1282, (1991)
3. Sega Enterprises Ltd. v. Accolade, Inc. 977 F.2d 1510 (9th Cir. 1992)
4. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 104 S. Ct. 774 (1984)
2. Sega Enterprises Ltd. v. MAPHIA, 857 F.Supp. 679 (N.D.Cal., Mar 28, 1994)
3. Wendy M. Grossman, "alt.scientology.war," Wired 3.12, pp. 1-8 (http://www.mcs.net/~sorkin/wired/altsci.html). Journalistic summary of events leading to criminal copyright infringement prosecutions. The Church of Scientology attempted to use copyright law to prevent posting of internal documents by ex-members whose goal was to expose the organization.
4. Religious Tech. Center v. Netcom On-Line Comm., 907 F. Supp. 1361-1383 (N.D. Cal. 1995)
5. Testimony of William J. Cook before House Judiciary, Courts, and Intellectual Property Committee on Copyright Protection on the Internet (February 8, 1996), pp. 1-21 (http://www.house.gov/judiciary/445.htm). Testimony argues for greater protection for publishers through legislation to hold Internet service providers liable for direct, vicarious, and contributory copyright infringement. Cook proposes imposing upon service providers a duty to remove copyrighted material from their systems. Cook describes holdings in Playboy and Sega cases, and contrasts them with the Church of Scientology case (which he believes was wrongly decided).
6. 17 USCA §512 http://www.dfc.org/
7. A&M Records, Inc. v. Napster, Inc., 2000 WL 573136 (N.D.Cal., May 12, 2000)
8. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001)
9. A&M Records, Inc. v. Napster, Inc., 2001 WL 227083 (N.D. Cal., 2001)
10. Hypertext linking and copyright infringement
2. Pamela Samuelson, "The Copyright Grab", Wired 4.01 (Jan. 1996), pp. 1-10 (http://www.mcs.net/~sorkin/wired/copgrab.html). In depth analysis of proposed amendments and strong critique of the effects on the fair use doctrine. Samuelson presumes that private use has up until now been non-infringing, as opposed to merely unenforceable infringement.
3. Newcomb Response (http://www.wired.com/wired/archive/4.04/rants.html) Letter to the Editor of Wired from Jon Newcomb, President and CEO of Simon & Schuster (writing for the Creative Incentive Coalition, an organization representing the interests of publishers) in response to Pamela Samuelson article.
4. Pamela Samuelson, "Confab Clips Copyright Cartel", Wired 5.03 (Mar. 1997), pp. 1-8 (<http://www.wired.com/wired/archive/5.03/netizen_pr.html>)
5. Digital Millenium Copyright Act of 1998 Sec. 1201-1204, Copyright Protection and Management Systems. http://www.dfc.org/
B. ProCD Inc. v. Zeidenberg, 86 F.3d 1447-1455 (7th Cir. 1996) (court enforced a mass-market shrink-wrap license based on analysis of U.C.C § 2-204).
C. UCITA (Uniform Communications Information Transactions Act) Formerly proposed amendments to U.C.C. Excerpts from Article 2B (Draft).
D. Battle Over UCITA Heats Up As Both Sides Claim Support. Dugie Standeford. E-Commerce Law Weekly February 16, 2000 http://www.lawnewsnetwork.com/practice/techlaw/news/A16336-2000Feb16.html
Background material: Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. Cal. L. Rev. 1239-1294 (1995) (a critique of the proposed changes to the U.C.C. [now UCITA] that would strengthen enforceability of software shrink-wrap licenses). This article has an extensive background section that analyzes the current state of the law of shrinkwrap licenses. The author concludes that the proposed UCC revisions are too favorable for licensors and deny licensees federal copyright rights. The author proposes a small amendment to the proposed UCC section on mass-market licenses that would protect the rights of licensees. It should be noted that the article cites a draft of the UCC revision that is no longer current. The author's overall analysis still applies to the later drafts, but the later drafts may be even more pro-licensor than the draft that the author reviewed.
A.2. Gary W. Smith, Patenting Business Methods in Cyberspace: 2B or Not 2B, 45-APR B.B.J. 12 (2001)
B. Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343 (Fed. Cir. 2001)
C. 1) The site where Amazon describes its one-click process <http://www.amazon.com/exec/obidos/subst/help/one-click-learn-more.html/103-7989593-2547067>; and 2) a site dedicated to fighting Amazon's patent claim, <http://www.noamazon.com/>.
D. Who Owns the Data? Evolving Protections for Facts, Secrets
and Personal Information in Cyberspace. Alan
Charles Raul, Edward R. McNicholas,
A. von Pervieux
Sidley & Austin, Washington, D.C. April, 2000 http://www.sidley.com/cyberlaw/features/protecting_fd.asp
E. eBay v. Bidder's Edge U.S.D.Ct. (No. C-99-21200 RMW) 100 F. Supp. 2d 1058 (May 24, 2000 N.D.Calif.)
F. Pointers to proposed database protection legislation
B. Anonymous Reading: Is there a realistic expectation of privacy, and if so, should it be recognized and protected?
Marie Clear, "Falling Into the Gap: The European Union's Data Protection Act and It's Impact on U.S. Law and Commerce", 18 J. Marshall J. Computer & Info. Law 981 (2000)
Testimony and Statement for the Record of Marc Rotenberg, www.epic.org/privacy/intl/rotenberg-eu-testimony-598.html
Catherine L. Glenn, "Protecting Health Information Privacy: The Case for Self-Regulation of Electronically Held Medical Records", 53 Vand. L. Rev. 1605 (2000)
2. "No thanks, Iím just browsing": Controversy over tracing website visits
b. Marty Rimm, "Marketing pornography on the Information Superhighway: A Survey of 917,410 Images Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in Over 2000 Cities in Forty Countries, Provinces, and Territories", 83 Geo. L.J. 1849-1852, 1911-1912 (1995) (Section E. of Part IV. of the study focuses on privacy issues in collecting the data). Rimm acknowledges the privacy concerns of unrestricted access to user logfiles, but defends his study as not reporting individual identities.
c. Note re Catherine McKinnon, "Vindication and Resistance: A Response to the Carnegie Mellon Study of Pornography in Cyberspace", 83 Geo. L.J. 1959-1967 (1995). Article defending integrity of Rimm study. McKinnon believes that identifying pornography consumption justifies compromising individual privacy.
E.g. Snooper program: (http://wwwj.cs.unc.edu/Courses/wwwp-s99/members/maglaugh/html/snooperPdesc.html)
demonstrates how merely visiting a site can unknowingly reveal personal
information. The site also offers a program, which allows the user to surf
2. Note on how digital cash facilitates feasibility of copyright management enforcement (e.g. Millicent: <http://www.research.digital.com/SRC/millicent> Permits tenth of a cent transactions which could allow payment for licensing of small amounts of copyrighted material).
3. Michael Froomkin, "Flood Control on the Information Ocean: Living with Anonymity, Digital Cash, and Distributed Databases", 15 J.L. & Comm. 395-507 (1996), pp. 449-479 (pp. 449-471 provides a technical background for understanding the various electronic currency systems available. pp. 471-479 offer policy arguments regarding the systems). Constitutional privacy rights are implicated by Internet commerce in information (as opposed to commerce in ordinary tangible goods via the Internet; "there is no generalized right to shop anonymously." p. 479). Since there is no way to create anonymous digital cash exclusively for the purchase of tangibles, any regulation of anonymity to protect legitimate state interests in law enforcement and tax collection necessarily implicates and impinges on anonymous speech.
4. How do digital signatures work? http://www.abanet.org/scitech/ec/isc/dsg-tutorial.html
Background material: Catherine M. Downey, Comment, "The High Price of a Cashless Society: Exchanging Privacy Rights for Digital Cash?", 14 J. Marshall J. Computer & Info. L. 303 (1996); Henry H. Perritt, Jr., "Legal and Technological Infrastructures for Electronic Payment Systems", 22 Rutgers Computer & Tech. L.J. 1 (1996).
2. Cookies: http://www.cookiecentral.com/
3. EPIC's FTC Complaint against DoubleClick Inc. <http://www.techlawjournal.com/privacy/20000210com.htm>
4. Protecting children from corporate snooping: Childrenís Online Privacy Protection Act.
E.g., Microsystems Cyber Patrol http://www.netspaceonline.com/netspace/cpatrol.htm (Software that allows parents to restrict their children from not only the bad sites on the Internet, but also what time of day Internet usage is allowed, what chart rooms they can visit, and customizable filtering criteria.)
E.g., Kidscom: http://www.kidscom.com/
Site provides entertainment and product information for children, but
includes survey requesting detailed personal information. The company states
that the information is purely for market research.
Background: Larry O. Natt Gantt II, An Affront To Human Dignity: Electronic Mail Monitoring in the Private Sector Workplace, 8 Harv. J.L. & Tech. 345 (1995). A more comprehensive survey of privacy law.
2. Smyth v. Pillsbury Co., 914 F.Supp. 97-101 (E.D. Pa. 1996).
The case concerned the wrongful discharge claim of an at-will employee.
The court recognized the possibility of a cause of action when the discharge
"threatens or violates a clear mandate of public policy." Smyth,
914 F.Supp. at 99. The employer had assured employees that "all e-mail
communications would remain confidential and privileged." Id. at
98. The employer further assured employees that e-mail "could not be intercepted
and used by defendant against its employees as grounds for termination
or reprimand." Id. However, state law prevents "estopped from firing
an employee based upon a promise, even when reliance is demonstrated."
at 100. The court also analyzed the claim as possibly encompassing the
invasion of privacy tort of intrusion upon seclusion. The court concluded
that the plaintiff had failed to state a claim. The court declined to find
a reasonable expectation of privacy in e-mail communications which it characterized
as voluntary, thus distinguishing such monitoring from urinalysis and personal
property searches that involve mandatory disclosure of personal information.
The court added that any privacy interest the employee might have in the
e-mail contents is outweighed by "the companyís interest in preventing
inappropriate and unprofessional comments or even illegal activity over
its e-mail system." Id.
Peter H. Lewis, Computer Jokes and Threats Ignite Debate on Anonymity, New York Times, (December 31, 1994), pp. 1-6 (http://www.clas.ufl.edu/~avi/NII/NYT_anon-amok.txt). Article describing issues raised by remailers. An example of a spoof involving Microsoft, Associated Press, and the Catholic Church demonstrates how anonymous speech can cause temporary havoc with no recourse against the spoofer.
E.g., Java Script problems: (http://www-genome.wi.mit.edu//WWW/faqs/www-security-faq.html). Questions 59-61 discuss how certain scripts could allow surreptitious access to a userís e-mail address, disk directories, and history and cache files (containing lists of recently visited URLs.)
Background Reading: A. Michael Froomkin, Flood Control on the Information Ocean: Living with Anonymity, Digital Cash, and Distributed Databases, 15 J.L. & Comm. 395 (1996), pp. 414-449 (pp. 414-427 provides a technical description of anonymous remailers, while pp. 427-449 engages in a legal analysis and poses policy arguments).
B. Bernstein v. U.S. Department of State, 176 F.3d 1132 (9th Cir. May 6, 1999) opinion withdrawn; case ordered to be reheard en banc 192 F.3d 1308 (9th Cir. Sept. 30, 1999)
C. Junger v. Daley, 209 F.3d 481 (6th Cir. April 4, 2000)
D. Universal City Studios, Inc. v. Reimerdes, 111 F. Supp.2d 294 (2000)
E. New encryption export regulations: http://www.cdt.org/crypto/admin/
Background reading: A. Michael Froomkin, The Metaphor is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. Pa. L. Rev. 709 (1995), Chapters 1-3.
Note: The Gold Key Campaign of the Internet Privacy Coalition (http://www.privacy.org/ipc). Online campaign advocating proliferation of encryption technology to maximize individual privacy protections, and providing actual encryption programs for download and use.
Background material: Karn v. U.S. Department of State, 925 F.Supp. 1-14 (D.D.C. 1996) remanded 107 F.3d 923 (D.C.Cir. 1997) (cryptography info on diskette is "defense article" statutorily subject to export restrictions).