The Internet and Constitutional Law Chapter 2 Section 3

Cyberlaw: the law that governs the use of computers in e-commerce and the internet. Deals with: Jurisdiction Trademarks Copyrights Contracts Privacy Obscenity Defamation Security of data Crime

Jurisdiction: power of a court to decide a case What’s your verdict? Trademarks: A unique word, mark, symbol, or device that identifies a product of a particular manufacturer or merchant.

Copyright: protects the expression of a creative work, such as the work of an artist, author, or composer. © Contract: Agreement between two parties that creates an obligation

Defamation: False statement that injures one’s character.

Security of Data: Medical Informatics Group Anthem Blue Cross/Blue Shield Target Identity Theft

Start of the Internet Originated in the Department of Defense Wanted to increase the pace of development of defense information during the Cold War. Linked together computers around the country and ultimately around the world. Moved to academia National Science Foundation took over and developed the Internet Business world became interested; however, NSF users refused. Not until 1991 was it agreed to allow the Internet to be used for commercial purposes.

World Wide Web Hypertext: opened the internet for wide spread use. Nonlinear format for the publishing of information that’s used to send email, transfers tons of data, and talk in chat rooms. Tim Berners-Lee Developed WWW program in spare time. Vision of open access to information for every user. “There is power in arranging information in an unconstrained, web-like way” Use of Internet places responsibility on the user to verify that the information received is correct. User must sort “fact from fiction.” How is information displayed on a browser?

Legal Issues in Cyberspace Jurisdiction Normally, states have jurisdiction over the citizens in that state. Federal courts have jurisdiction over cases involving citizens from two different states or those cases involving a question of federal law. Should the case be settled in the state where it was filed or the state where the e-business is located?

Two legal considerations involved: The laws of the state in which the case is filed must allow suits against nonresident defendants. Long arm statutes allow for this; however, the standards set in this statute must be met or the case will be thrown out for lack of jurisdiction Would allowing the court to decide the case violate the due process requirements of the Constitution? Jurisdiction over the nonresident defendant is only proper if the defendant has either a “substantial, continuous, and systemic presence” in the state (most e-business lack this) or has a “minimum contacts” within the state. Minimum contact: Simply providing an informative website with no means of doing business does not meet minimum contact. However, providing a website through which business can be conducted does meet minimum contact.

International Jurisdiction Governed by international commercial laws Country may only exercise jurisdiction over activities with a substantial effect on or in that country. Pre e-commerce Rule seems to be abandoned in recent cases. Judgments ruled on in foreign courts are entered into the domestic courts of the U.S. for enforcement through various treaties.

Internet Related Constitutional Issues Freedom of Speech Closely guarded right. Very reluctant to curtail this right. Obscenity Roth v. United States Does not have the protection of freedom of speech. Freedom of speech was meant to protect the freely expressed ideas and open exchange that would allow necessary political and social change. All ideas having even the slightest redeeming social importance---unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon [interfere with] the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.

Miller v California Is the material “utterly without redeeming social value.” Toughened standards on what is considered to be obscene. Materials would be considered by the standards of the community affected. Internet: Which community standards should be used? The sender is held to the standards of the community of the recipient.

Communications Decency Act Main purpose was to control the transmittal of obscene material through the Internet Declared Unconstitutional. “Indecent” was considered too broad of a term Child Online Protection Act Required commercial sites to use high tech methods to restrict access to their sites if it contained material harmful to children. Declared unconstitutional due to ambiguous terminology of determining what was considered to be “harmful to children”.

The Right to Privacy Online “Based on reasonable expectations as to whether his or her actions, communications, beliefs, or other personal attributes deserve protection from those who would improperly use them.” Interpersonal communication on social media websites are considered a gold mine for marketers, compilers of commercial databases, and identity thieves. Two red flags: Birth date: through the automated reminders on social media SSN: Identify city and state of birth—first three numbers Birth date: apply the formula that the government used to calculate the remaining 6 numbers

CAN-SPAM law: overseen by the FTC. Regularly broken Use of ‘cookies’ Spammers: Practice of sending unrequested bulk e-mails to hundreds of thousands of potential customers. CAN-SPAM law: overseen by the FTC. Regularly broken Use of ‘cookies’ Packet of information containing the internet address and other personal information about a website visitor. This information is then sold without user’s knowledge or permission.