Date: Tue, 11 Jul 95 14:13:00 EST
Errors-To: Comp-privacy Error Handler <owner-comp-privacy@uwm.edu>
From: Computer Privacy Digest Moderator <comp-privacy@uwm.edu>
To: Comp-privacy@uwm.edu
Subject: Computer Privacy Digest V7#003
Computer Privacy Digest Tue, 11 Jul 95 Volume 7 : Issue: 003
Today's Topics: Moderator: Leonard P. Levine
Re: Exon Coats Amendment
TIME Cyberporn Issue
Advanced Surveillance Conference
Legal Bytes 3.01
Info on CPD [unchanged since 12/29/94]
----------------------------------------------------------------------
From: Dean Ridgway <ridgwad@PEAK.ORG>
Date: 09 Jul 1995 13:23:37 -0700
Subject: Re: Exon Coats Amendment
This stemms from a research paper of mine. I think it covers the
Exon amendment pretty well. It's just a hair on the dry side, but
well worth the read. A good part of my research stemmed from links
on the Center for Democracy and Technologies home page.
http://www.cdt.org/
When all this Exon business first started I jokingly suggested in a few
newsgroups that congress simply make it against the law for minors to
use computer networks. I was royally flamed for even thinking of such
a vile despicable suggestion (which BTW makes a lot more sense to me
than Exon's trash). :-(
I simply can't believe that people would have so little regard for the
Constitution as to support something like Exon's Information
SuperPlayground (term lifted from local paper's political cartoon).
/\-/\ Dean Ridgway | Two roads diverged in a wood, and I-
( - - ) InterNet ridgwad@peak.org | I took the one less traveled by,
=\_v_/= FidoNet 1:357/1.103 | And that has made all the difference.
CIS 73225,512 | "The Road Not Taken" - Robert Frost.
http://www.peak.org/~ridgwad/
PGP mail encouraged, finger for key: 28C577F3 2A5655AFD792B0FB 9BA31E6AB4683126
------------------------------
From: Robert Jacobson <cyberoid@u.washington.edu>
Date: 09 Jul 95 14:44:42 -0700
Subject: TIME Cyberporn Issue
For those who are following the scandal emerging regarding TIME
magazine's coverage of the "cyberporn" issue, there are ongoing
discussions on HotWired on the Web and even more extensively in the
WELL's media conference. (The WELL is a private online conferencing
service available via Telnet: well.com .)
It appears that TIME took at face value a questionable study by one of
Carnegie-Mellon University's undergrads which reportedly evaluated over
900,000 images found online (mostly on BBSs) and found the
overwhelmingly to be pornographic. The study has been cut to shreds by
online authori- ties and the author's own background has been
questioned (he seems to have a long association with the topic), but
the TIME story has now become the centerpiece of the Senate's
censorship campaign.
It's a fascinating tale of spins and exploitation (of the press, not
people). Do check it out if you can!
--
Bob
------------------------------
From: "Dave Banisar" <banisar@epic.org>
Date: 10 Jul 1995 21:58:42 U
Subject: Advanced Surveillance Conference
Advanced Surveillance Technologies
Sponsored by
Privacy International
Electronic Privacy Information Center
4 September 1995
Grand Hotel
Copenhagen, Denmark
This one day public conference will bring together experts on
information technology, privacy and data protection to discuss the
threats to privacy created by leading-edge technologies. It will
focus on little known advanced technologies that have not yet been
addressed by law or public policy. The conference will be interactive,
and will extensively involve the audience. Audience size will be
limited to between sixty and eighty participants.
9am - Introductions and Welcome
9:15 -9:45 Keynote Speech
Simon Davies "Fusing Flesh and Machine"
Simon Davies, Director General of Privacy International and Law Fellow
at the University of Essex, UK will present a lively introduction to
the surveillance technologies being discussed throughout the day. He
will describe the trends in technology, culture, convergence and
politics that are bringing about an era of universal surveillance.
9:45 - 11:00 Perfect Identity
Governments throughout the world have devoted considerable resources to
developing a means of creating perfect identification of their
population. New technologies offer opportunities to achieve this goal.
This panel will discuss advances in biometrics, identity cards and
implant technology
11:00 - 11:15 Break
11:15 - 12:30 Perfect Surveillance
In many countries the era of the private person is at an end.
Information surveillance, automatic visual recognition and geographic
tracking are at an advanced stage, and are set to imperil privacy. This
panel will discuss developments in surveillance, including advanced
Closed Circuit TV, satellite remote sensing, Intelligent Vehicle
Highway Systems, and forward looking infrared radar.
Lunch Break 12:30 - 1:45
1:45- 3:00 Perfect Knowledge.
Despite the introduction of privacy and data protection laws, the
collection and dissemination of personal information is proliferating
at a breathtaking rate. The development of new collection systems
allows intimate knowledge of large populations. The panel will discuss
new technologies such as DNA screening, computer matching, information
warfare, and the implications of future developments such as
nanotechnology.
3:00 - 3:15 Break
3:15 - 4:30 Solutions
This panel will discuss a range of possible responses to the new era of
surveillance. These include regulation, consumer action, and the
development of privacy friendly technologies.
4:30- 5:00 Conclusion and Wrap-up
Registration Fees
[] Standard - 950 Crowns ($175 US)
[] Non-profit organizations/Educational - 400 ($75 US)
Information
Name: ____________________________________________________________
Organization:
____________________________________________________________
Address: ____________________________________________________________
____________________________________________________________
Phone/Fax: ____________________________________________________________
Electronic Mail:
____________________________________________________________
Space is limited. Please contact us immediately if you wish to attend
-------------------------------------------------------------------
About Privacy International
Privacy International (PI) is a human rights organization concerned
with privacy, surveillance and data protection issues worldwide. It
has members in over forty countries and is based in London, England
with offices in Washington, DC and Sydney, Australia. PI has engaged
in numerous campaigns on privacy issues, publishes the International
Privacy Bulletin, and sponsors two yearly conferences. Yearly
memberships or subscriptions to the International Privacy Bulletin are
$75 US for individuals, $125/ Government Agencies/ Libraries, $200 for
organizations.
For more information, contact:
Privacy International Washington Office
666 Pennsylvania Ave, SE, Suite 301
Washington, DC 20003 USA
1-202-544-9240 (phone)
1-202-547-5482 (fax)
pi@privacy.org (email)
www.privacy.org/pi/
_________________________________________________________________________
Subject: Advanced Surveillance Conf.
_________________________________________________________________________
David Banisar (Banisar@epic.org) * 202-544-9240 (tel)
Electronic Privacy Information Center * 202-547-5482 (fax)
666 Pennsylvania Ave, SE, Suite 301 * HTTP://epic.org
Washington, DC 20003 * ftp/gopher/wais cpsr.org
------------------------------
From: "Prof. L. P. Levine" <levine@blatz.cs.uwm.edu>
Date: 09 Jul 1995 12:17:18 -0500 (CDT)
Subject: Legal Bytes 3.01
Organization: University of Wisconsin-Milwaukee
Taken from Computer underground Digest Sun Jul 2, 1995 Volume 7:Issue
55 ISSN 1004-042X
From: David Smith <bladex@BGA.COM>
Date: 13 Jun 1995 00:31:00 -0500 (CDT)
Subject: File 4--Legal Bytes 3.01 (part 1)
---------- Forwarded message ----------
Date--Fri, 2 Jun 1995 11:40:42 -0500
From--owner-legal-bytes@io.com
By George, Donaldson & Ford, L.L.P.
Attorneys at Law
114 West Seventh Street, Suite 1000
Austin, Texas 78701
(512) 495-1400
(512) 499-0094 (FAX)
gdf@well.sf.ca.us
___________________________________
Copyright (c) 1995 George, Donaldson & Ford, L.L.P.
(Permission is granted freely to redistribute
this newsletter in its entirety electronically.)
___________________________________
David H. Donaldson, Jr., Publisher <6017080@mcimail.com>
Peter D. Kennedy, Senior Editor <pkennedy@io.com>
Jim Hemphill, Contributing Editor <JAHEMPH+aGD&F%GDF@mcimail.com>
Jeff Kirtner, Law Clerk
___________________________________
IN THIS ISSUE:
1. WILL THE SHRINK-WRAP LICENSE DILEMMA PLAGUE ON-LINE SALES?
2. SOME LEGAL RISKS POSED BY ON-LINE ADVERTISING
3. LOTUS LOSES FIGHT TO PROTECT ITS USER INTERFACE
4. COPYRIGHT LAW UPDATE: COPYING BY COMMERCIAL RESEARCHERS IS
NOT NECESSARILY A FAIR USE
____________________________________________________
1. WILL THE SHRINK-WRAP LICENSE DILEMMA PLAGUE ON-LINE SALES?
Can software companies unilaterally decide what terms govern
the sale of their software? What's the point of those long,
complicated, one-sided licenses that come with most commercial
software packages? Are they enforceable?
The Purpose of Shrink-wrap Licenses.
Everyone has seen these licenses -- they come with commercial
software and state that opening the package or using the software
means the buyer is agreeing to abide by their terms. While these
documents may be slightly aggravating, software companies use them
for two important reasons -- to protect their copyrights and to
limit their exposure to lawsuits.
Software is terribly easy to copy and distribute; software
developers understandably want to protect themselves from losing
revenue from unauthorized copying. Shrink wrap licenses include
terms restricting the copying of the software in order to help
insure that the sale of a single copy of the software does not give
rise to any implied license to make, distribute or use additional
copies. The licenses might also try add further restrictions, such
as prohibiting resale or leasing of the software.
Shrink-wrap licenses have a second goal: to limit the
software company's legal liability. This need arises not from
copyright law, but from the general laws governing contracts and
the sale of goods -- which in all states (except Louisiana) is the
Uniform Commercial Code, or UCC.
Article 2 of the UCC sets "default" rules that automatically
become part of just about every sale of goods, unless the buyer and
seller agree to change the defaults to something else. Despite
some theoretical questions, most legal authorities agree commercial
software is a "good" under the UCC.
The problem for a software vendor is that the UCC reads into
every sale implied terms that favor the buyer. Rather than adopt
the doctrine of "caveat emptor," the UCC assumes that the seller
has made certain promises or warranties about the quality of the
product. If the product does not live up to these implied
warranties, the buyer can sue. Most importantly, the UCC assumes
that the seller always promises that the product is "merchantable,"
that is, fit for the customary use that such products are put to.
Further, the UCC also assumes that the seller has promised that the
product was fit for the buyer's particular intended use, if the
seller had reason to know of that use.
The seller and buyer can agree to change these terms, such as
when a used car is sold "as is." The buyer and seller can also
agree to limit the scope of the seller's liability if the product
does not live up to the promises that were made. However, when the
seller tries to make these limitations himself, through terms on an
invoice or other document, the limitations must be "conspicuous,"
they must mention "merchantability," and they cannot be "unreason-
able." Moreover, the buyer has to agree to the limits.
Are Shrink-wrap Contracts Enforceable?
There is serious question about how effective a typical
shrink-wrap license is. Various criticisms are made.
First, and most obviously, is whether a purchaser has really
"agreed" to the terms of the shrink wrap license. Typically, the
buyer does not know what the license says when she buys the
software; the purchase is made before the terms are revealed. How
can the buyer "agree" to the terms without knowing what they are?
After a sale is made, one party cannot add new terms. The federal
court of appeals sitting in Philadelphia discussed these issues in
STEP-SAVER DATA SYSTEMS, INC. v. WYSE TECHNOLOGY, 939 F.2d 91 (3rd
Cir. 1991), and decided that a particular shrink-wrap license was
not enforceable. See also David Hayes, Shrinkwrap License
Agreements: New Light on a Vexing Problem, 15 Hastings Comm. Ent.
L.J. 653 (1993).
A second, related objection is one raised to all take-it-or-
leave it contracts, which are derisively named "contracts of
adhesion." These tend to get rough treatment by courts, and
shrink-wrap licenses are a special strain.
Other concerns relate to the technical question of contract
formation -- the sale is usually made between a retailer and the
consumer, but the shrink-wrap license is between the consumer and
the software company. Is that a contract at all? What did the
software company give the consumer that the consumer did not
already have when she bought the product? There are also some
concerns about whether particular restrictive terms in these
licenses (or more accurately, state laws that state that the terms
are enforceable) violate the federal Copyright Act. See VAULT
CORP. v. QUAID SOFTWARE, LTD. 847 F.2d 255 (5th Cir. 1988).
Can These Problems be Fixed by On-line Transactions?
Do these same objections to shrink-wrap licenses apply to on-
line transactions? Maybe not.
The unique nature of interactive on-line transactions offers
vendors the ability to get and record the buyer's agreement to
license terms before a purchase is made. Much of the software that
is distributed on-line, shareware particularly, comes with a
license.doc zipped up with the program files. These licenses will
have the same troubles a shrink-wrap licenses, because they are an
after-the-fact "surprise".
However, most bulletin board systems, and now the World Wide
Web, can easily be configured to require short interactive sessions
before a transaction is consummated. The vendor can display the
license terms, require the buyer's assent before the software is
made available, and importantly, the buyer's assent can be recorded
-- written to a log file. While an on-line seller cannot force the
buyer to read the terms, it surely can record the fact that the
terms were displayed, and that the buyer gave affirmative responses
-- "Did you read the terms of the license?" "I did." "Do you agree
to the terms?" "I do."
This type of interaction before the sale makes the transaction
appear far less one-sided. While take-it-or-leave-it terms might
still be criticized as "adhesion contracts," the unique give-and-
take that's possible on-line removes much of the inequitable sting
that "surprise" shrink-wrap license terms leave on many observers.
___________________________________________________________________
2. SOME LEGAL RISKS POSED BY ON-LINE ADVERTISING
Advertising on the Internet is booming -- not with crass
"spamming" on Usenet newsgroups, but with flashy, multi-media home
pages on the World Wide Web that show off pictures, sound and even
video. Most commercial World Wide Web sites combine a mix of
advertising, information, and entertainment -- honoring the
Internet tradition that tasteful, non-intrusive self-promotion is
acceptable if it comes along with something neat or valuable.
Are there legal risks involved in on-line advertising? There
are, just like any other endeavor. Any business that extends its
advertising to cyberspace must take the same care as it does with
print or broadcast advertising. Electronic advertising also
introduces new questions of jurisdiction -- whose laws apply? On-
line service providers that accept advertising must consider their
own potential liability, too. What is their duty concerning the
content of other companies' ads?
Advertisements are "publications."
Companies that put their ads on the Internet are "publishers"
and face the same potential risks of defamation, invasion of
privacy, etc., from these ads as from print ads. Moreover,
electronic service providers that accept paid advertisement may be
"publishers" of those ads as well, and responsible to some degree
for their content. Absent particular exceptions, advertisements
carried by a publisher are viewed as that publisher's own speech.
For example, the landmark 1964 Supreme Court libel case, New York
Times v. Sullivan, concerned the liability of the New York Times
for a paid advertisement written by others. The Supreme Court's
ruling, although favorable to the Times, made no distinction
between advertisements and other content of the newspaper.
Compuserve, in the now-famous Cubby v. Compuserve case,
successfully defended itself from a libel suit by proving its
ignorance -- that it knew nothing of the content of a newsletter
carried on its service, but provided by an outside contractor.
This defense -- based on the traditional protection granted
bookstores from libel suits -- is unlikely to be available when it
comes to paid advertisements. Publishers, whether on-line or in
print, generally review the content of advertisements before they
are accepted and published, if only to determine pricing. They
usually retain the right to refuse an advertisement based on its
content. (Recall the recent attempts by revisionist "historians"
to place ads in college papers denying that the Holocaust took
place).
Because of this potential exposure to liability, electronic
publishers should be guided by two general principles: (1) review
all proposed advertisements for potential legal problems, and
(2) obtain an agreement that the advertiser will indemnify the
publisher for any legal liability that arises from the ad. This
article reviews several areas of potential concern for electronic
advertisers.
Ads for illegal transactions.
You can't legally advertise marijuana for sale. (Or, more
accurately, the First Amendment does not protect ads for illegal
transactions.) A publisher can't knowingly carry such ads, even if
the publisher would not be a party to the illegal transaction.
A publisher's liability for carrying ads for illegal
transactions has been hashed out in an interesting series of
lawsuits involving the magazine Soldier of Fortune, which
unintentionally carried several classified advertisements submitted
by real live hit men offering the services of a "gun for hire."
The hit men were hired through the magazine ads, and the families
of those people "hit" sued the magazine.
Two federal appeals courts came to entirely opposite
conclusions about very similar Soldier of Fortune ads. The
Eleventh Circuit upheld a multi-million dollar damage award against
the magazine; the Fifth Circuit reversed a finding of liability.
The legal principles these courts announced were relatively
consistent, though: if an advertisement poses a "clearly
identifiable unreasonable risk that it was an offer to commit
crimes for money" the publisher can be held liable if it was
negligent in running the ad. BRAUN v. SOLDIER OF FORTUNE MAGAINZE,
INC., 968 F.2d 1110, 1121 (11th Cir. 1992), cert. denied, 113 S.
Ct. 1028 (1993). A publisher must make sure that the ad, on its
face, does not present a "clearly identifiable unreasonable risk"
that the advertisement is soliciting an illegal transaction. On
the other hand, the courts are less likely to impose liability for
ambiguous advertisements that could have an innocent meaning. See
EIMANN v. SOLDIER OF FORTUNE MAGAZINE, INC., 880 F.2d 830 (5th Cir.
1989), cert. denied, 493 U.S. 1024 (1990). This recognizes courts'
reluctance to impose a duty on publishers to investigate
advertisements beyond what the advertisements say.
There is no reason to believe that this standard is different
for advertisements of so-called "victimless" crimes like
prostitution, although the likelihood of a civil lawsuit might be
less.
Ads for regulated businesses.
Many businesses are regulated, and so is the content of their
advertisements. The First Amendment permits some government
regulation of commercial speech; for example, lawyer advertising is
regulated by state bar associations or courts (although lawyers are
constantly fighting over how far the regulations can go).
Businesses placing ads should know what rules regulate their
advertising. Companies accepting ads have two choices: (1) know
the regulations for all companies for which it accepts ads; or (2)
require the advertiser to guarantee that its ads comply with
applicable regulations, and indemnify the publisher for losses if
they don't.
An example of the difficult legal questions raised by local
regulation in the new borderless world of cyberspace are lottery
and gambling ads. Some states (and territories) regulate or ban
advertising lotteries and gambling. Puerto Rico, for instance,
allows casino gambling. It also allows advertisement of gambling
aimed at tourists, but prohibits such ads aimed at Puerto Ricans.
The U.S. Supreme Court says that this odd regulatory scheme is
constitutional. POSADAS DE PUERTO RICO ASSOCIATES v. TOURISM CO.
OF PUERTO RICO, 478 U.S. 328 (1986).
More recently, the Supreme Court also upheld the
constitutionality of a federal law that forbids radio or television
stations from broadcasting lottery ads into states that don't have
a lottery -- even if the broadcasts are primarily heard in a state
that has a lottery. UNITED STATES v. EDGE BROADCASTING CO., 113
S. Ct. 2696 (1993). This federal law only regulates airwave
broadcasts of lottery ads. However, some states have similar
statutes banning lottery advertising in any medium. For example,
North Carolina prohibits advertising a lottery "by writing or
printing or by circular or letter or in any other way." N.C. Stat.
14-289. Could North Carolina enforce this law against electronic
publishers who carry lottery ads?
Answering that question raises a host of difficult, unanswered
jurisdictional questions and is beyond the scope of this short
article. As a practical matter, it seems unlikely that North
Carolina officials would try to prosecute the State of Texas, for
example, if Texas set up a Web site to advertise its lottery that
of course could be accessed from North Carolina. On the other
hand, a local North Carolina service provider that accepted and
posted ads for the Texas lottery (or even the results of the Texas
lottery) might have something to worry about: the language of the
law prohibits it; the service provider is in easy reach of local
prosecutors; and the U.S. Supreme Court has already looked kindly
on a similar law.
Misleading and deceptive ads.
The First Amendment does not protect false advertisement;
state statutes (and some federal laws) routinely prohibit false,
misleading and deceptive ads. For example, the broad Texas
Deceptive Trade Practices-Consumer Protection Act ("DTPA")
prohibits all sorts of deceptive advertising, and gives deceived
consumers very powerful remedies in court. Such statutes are
primarily aimed at those who place advertisements, rather than the
publishers. Where do electronic publishers fit in? As usual, it's
not clear.
Newspapers cannot be sued under the Texas DTPA because that
law does not apply to "the owner or employees of a regularly
published newspaper, magazine, or telephone directory, or broadcast
station, or billboard." Tex. Bus. & Comm. Code 17.49(a). Is an
internet service provider a "magazine" or "broadcast station?"
Maybe. Is a BBS or a World Wide Web page a "billboard"? Maybe.
The question has not come up yet. While it would be more logical
and consistent with the purpose of the statute to exempt electronic
publishers that perform the same function as a newspaper, courts
are supposed to apply the DTPA "liberally" to provide consumers
with as broad a remedy as possible from deceptive ads -- leaving
the answer in doubt.
Some things are clear. An entity distributing information
regarding its own goods or services cannot claim the "media
exemption" -- a newspaper or BBS that publishes false information
about its goods or services can be sued by consumers under the
DTPA. Also, an entity that has a financial stake in the sale of
the goods advertised is also subject to DTPA liability. This means
that internet service providers that accept a percentage of sales
generated by on-line advertising will be subject to the
restrictions of the DTPA, and should insure that the ads they place
are not deceptive, and that the seller has agreed (and can)
indemnify them for liability. Finally, no publisher -- whether
earthbound or in cyberspace -- is exempt from DTPA liability if the
outlet and/or its employees know an ad is false, misleading or
deceptive.
Remember: It's YOUR service.
Unless an electronic publication accepts all advertisements,
regardless of content, and does not review the content of that
advertising in any way or reserve any right to reject
advertisements (and can prove this in court), the presumption will
be that the service "published" the ad and is responsible for its
content. No one has a First Amendment right to place their
advertisement with any given Internet service provider or on any
commercial information service. Despite lots of on-line rhetoric,
the First Amendment only restricts what the government can do, not
what businesses (even big ones) can do. Remember that a publisher
always has the right to reject an ad for any reason at all and can
require changes before an ad is placed. For ads that are obviously
illegal, slanderous or misleading, the safest bet is to refuse the
ad.
------------------------------
From: "Prof. L. P. Levine" <levine@blatz.cs.uwm.edu>
Date: 29 Dec 1994 10:50:22 -0600 (CST)
Subject: Info on CPD [unchanged since 12/29/94]
Organization: University of Wisconsin-Milwaukee
The Computer Privacy Digest is a forum for discussion on the effect of
technology on privacy or vice versa. The digest is moderated and
gatewayed into the USENET newsgroup comp.society.privacy (Moderated).
Submissions should be sent to comp-privacy@uwm.edu and administrative
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This digest is a forum with information contributed via Internet
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If you read this from the comp.society.privacy newsgroup and wish to
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Contributions generally are acknowledged within 24 hours of
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Login as "ftp" with password identifying yourid@yoursite. The archives
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---------------------------------+-----------------------------------------
Leonard P. Levine | Moderator of: Computer Privacy Digest
Professor of Computer Science | and comp.society.privacy
University of Wisconsin-Milwaukee | Post: comp-privacy@uwm.edu
Box 784, Milwaukee WI 53201 | Information: comp-privacy-request@uwm.edu
| Gopher: gopher.cs.uwm.edu
levine@cs.uwm.edu | Mosaic: gopher://gopher.cs.uwm.edu
---------------------------------+-----------------------------------------
------------------------------
End of Computer Privacy Digest V7 #003
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