Internet, Law, and the Possibility of Government Regulation
By: Derick Ariyam
December 9, 2004
“Mr. Watson, come here…” During the first telephone conversation from Alexander Graham Bell to Thomas Watson, there were only two people that used a telephone—now, there are virtually millions. The same is true with the first radio and the first television. From humble beginnings, these innovations would later explode in popularity and become ubiquitous devices, used daily in millions of homes in America, and around the world. Initially, there is only a sense of awe and wonderment towards these devices. But after time, this fades away, and the technology is accepted into the routine of society; strict laws and regulations are then enacted to protect the integrity of the device, as it is embraced and relied upon by more and more people. The Internet has started to enter into this latter phase. It has transcended from the curious and entered into the pragmatic, from a gadget to an appliance. The next step: strict laws and regulation—or will the Internet pose the exception.
What exactly is the Internet? The Internet is a vast array of intertwined networked computers, comprised of various communication protocols, all working together to provide a broad expanse of information and telecommunication. Schools, businesses, government agencies, home users, on an international level, are all connected together, sharing a wealth of information. The enormity and prevalence of this information, has of late caused much dispute, since it may satiate a variety of motivations, from the malicious to the innocuous. And the global scope of the internet limits governmental jurisdiction and its ease towards anonymity limits accountability. But there is something that can be done. The same censoring that is currently exercised over American media, TV, Radio, to ward of indecent material, can be applied to the internet. This would make it in essence, a governmentally regulated internet. As many as there are that favor this idea, there are an equal amount that are vehemently against it. Many argue that the internet is not owned by the government; thereby they cannot in good faith control it. “No one owns the internet, its like saying who owns the moon”, says Mark xxxxxxxxx, an IT and E Commerce manager for xxxxxxxxx Inc. Regulation or no regulation, as new issues continue to arise over the internet, law markers are grinding away at new legislature, trying to seal off as many holes as they can without stepping on too many toes.
Specific Threats over the Internet
The FDA (Food and Drug Administration) is a federally run department responsible for regulating the disbursement of food and medicine into the American public. It provides a safety net, to protect the public from any consumed substance that may threaten the health and well-being of the public. Their control of prescription medicine itself is done with such fastidious care, requiring pharmaceutical companies to pass a high bar of safety before medicine can be disseminated. However, the overwhelming numbers of individuals purchasing medicine over the Internet, without a prescription, where the FDA has little jurisdiction, has recently begin to surface the mainstream press. The Providence Journal recently ran an article citing millions of Americans buying prescription drugs over the internet in this manner. Although some online pharmacies are legitimate and follow FDA regulations, the majority do not.
The internet has provided a means to circumvent the traditional safeguards in place that prohibit the purchase of these drugs, allowing potentially hazardous unregulated substances to circulate and perhaps harm the American public. A lot of these drugs pose the risk of being counterfeit pills, or worse, the wrong drug. Overseas in China this is a more defined problem. A Chinese news channel reported that more than 100,000 Chinese people have been killed by counterfeit drugs. The biggest threat is from fraudulent websites based outside the US. In these cases, the FDA simply does not have the jurisdiction to close down these websites, and the public is left with just an admonishment to use discretion, caveat emptor.
The prescription medication issue beckons the question, should the government be more aggressive in regulating the websites that the public is allowed to visit. Like the FCC regulations on indecent broadcasting, should this be extended to the internet, and potentially risky websites, like fraudulent online pharmaceuticals like these, be blocked and inaccessible to the American public. There is support on both ends of this argument. On one side stands the protection advocates, supporting the government’s solemn duty to protect the American public. Then there are those who feel this is overstepping the bounds of the public’s inherent right to information, guaranteed by the Constitution. Overall it falls on the more personal question, can the public be trusted to handle themselves, and simply be cautious on the internet, or should the internet be child-proofed, and access be denied to items deemed potentially “offensive”.
Copyright Issues and Piracy
While some companies have benefited due to the internet, others have severely suffered. RIAA (Recording Industry Association of America) and MPAA (Motion Picture Association of America) have both reported heavy losses through copyright infringement over the Internet. In 1999, a program written by Shawn Fanning called Napster, and the entrance of many other P2P (peer to peer) file sharing networks, would reveal an ominous future for intellectual property. There were virtually millions of people using Napster and other programs like it, and millions of dollars of revenue that would have went to the recording industry, were lost as the Internet provided a new free and convenient way to acquire your favorite tunes. This would later extend from music into other types of media, particularly movies, and software. This is not to infer that piracy, as it is called, the unlawful acquisition of media, happened only after these popular applications were written. The problem did exist before, but never was it such an immediate problem until software applications allowed the general public, not just the computer savvy, to take part in piracy.
As profits took a steep dive, RIAA and the MPAA, couldn’t just sit back and watch their future be pecked away by the Internet—something needed to be done. Through litigation, and threats of litigation, a more aggressive stance against US Copyright law was imposed on the Internet. Napster and many of the major peer-to- peer file sharing networks were forced offline, slightly ameliorating this threat, but it did not eliminate it.
Programs like Napster and other P2P networks revealed a tremendous weakness that intellectual property faced as the Internet continues to grow. The use of the Internet cannot be left alone as a benign system, not needing legal restraints and law enforcement. It is too powerful a medium, too populated a system, that as this truth became a painful realization, the need to impose law started to become more of a priority.
Various Other Threats
Besides piracy, which abounds over the internet, there are other things that pose a more serious threat to the safety and well-being of the community. In Rexburg Virginia, a man was arrested for sexually assaulting and luring a Madison County teenager over the Internet. Madison County deputy writes: “It used to be 'know where your kids are at’, now it's 'even if they're home, know what they're doing at home.'" Sexual predators have a found a new home on the internet, especially in places known as Chat Rooms, a place on the internet were people can have interactive, real-time conversations with each other. The anonymity of people on the Internet provides the perfect mask for these offenders to be more successful in there attempts.
Lisa Rose of Massachusetts was horrified one morning to learn that someone had fraudulently racked up 10,000 in debt under her name. Like Lisa, millions are reported annually to be victims of Identity theft. An NBC television news channel reports that over 7 million people were victims of identity theft just last year, and the numbers keep rising. The FBI internet Crimes Unit reports that the “total dollar loss from fraud more than doubled from 2002 to 2003, from $54 million to $125 million”.
In the business world, with companies lately starting to shift more of their focus on E-Commerce (business over the Internet), due to its lucrative potential, there are new risks that companies have to be aware of to survive. The BBC ran an article addressing the burgeoning problem of hi-tech crime against businesses. In London, 83% of UK businesses have reported internet-related electronic crime during this past year. The Internet also demands diligent and thorough efforts to secure computers and their own personal networks from the myriad strands of virus and malicious software that exist over the internet. The 2004 pandemic MyDoom Virus was reported to have caused 43.9 billion in economic damages in 215 countries in a matter of only 2 weeks.
There are many other schemes that have been facilitated by the internet and that a pose risk to society. The latest annoyance being something called Ad Ware and Spy Ware, software that surreptitiously installs itself, forcing various advertisements to show without provocation, or clandestinely monitors your computer, sending information to a 3rd party without your consent.
Whether you’re a parent, a teacher, a student, a child, or a huge conglomerate, it is evident that no one is entirely impervious to these risks. And, as the situations continue to rise, they continue to augment the case for more accountability, more legal restraints, and perhaps more government involvement to alleviate some of these concerns, and to preserve the integrity of one the greatest innovations of the modern era.
The “Good” in the Internet
The internet is not all gloom and doom. It is not a complete sewer of criminal activity, viruses, and sexual predators. No, there are so many innumerable positive facets of the internet that people use on a daily basis, which have only bettered modern life.
Besides the plethora of information that can be researched or learned from the internet, that we already know about, there are other various innovations in communication that have stemmed forth. Email has become a popular way of communication, slowly gaining pace with current contemporary ground mail, which through juxtaposition on speed, has been popularly re-termed as snail mail. Email allows someone to send a message to another person in a matter of minutes, and sometimes even instantaneously, without stamps, to anywhere in the world, granted the recipient has e-mail access and an email account. Following email, there are other means of communication. Web video conferencing has been made popular over the internet. It is similar to a telephone conversation, but with the added accompaniment of live video. There are many others, including chat rooms, instant messages, discussion groups, all providing better, convenient methods of communicating.
There are even more tools that people have started to rely on over the internet. You can get door to door directions to places, imputing only the address and zip code of your destination. Up to the minute news stories, online auction websites like the popular EBay, online shopping, all are being used by hundreds of millions of people every day, and the usefulness of these features are too great to measure.
Current legal restraints
The law making body of our government has made a few efforts to thwart some of the illegal and dangerous threats that the internet can present.
On October 12, 1998, President Clinton signed the Digital Millennium Copyright Act, one of the first major pieces of American legislature that has been wielded against Internet users. A major portion of this act addresses the liability of those involved in piracy over the Internet and redirects culpability from Internet Service Providers, to the user. The law also makes it a criminal offence to tamper with or try and circumvent any type of encryption or electronic key, that software and media manufactures put on copyright protected merchandise, all in an effort to prevent illegal copying and piracy. The Act has met some resistance, particularly in the academic sector that says this will stifle academic research in the field of security and encryption.
Issues involving email also made itself into legislation, particularly SPAM. SPAM is the unsolicited and unwanted emails which often times outnumber legitimate emails in millions of inboxes. As the pragmatic use of email continues to rise, so does the quantity of SPAM. But, new law has recently been implemented to try and reduce the quantity of SPAM, called the CAN-SPAM Act. The words “CAN-SPAM” in the title of the Act is an acronym for Controlling the Assault of Non-Solicited Pornography And Marketing. This piece of legislature was signed in 2003 and effectively made “live” on January 1, 2004. Basically, the new law requires unsolicited email to be clearly noticeable upon inspection, making it illegal to use fake misleading subject-lines, and in addition, all unsolicited email must provide a method of “opting-out”, so that the recipient may be able to prevent future emails from the same vendor.
Although the warnings are dire and the sentencing significant that accompany this Act, it simply has not had much success. Spam still floods millions of Inboxes. It almost seems unmoved by this new law and the only thing that seems to help are new innovations to filtering out SPAM, not legislation. The volume of SPAM that circulates the internet is too great, and the origins are often so deeply fuddled and masked, it is very difficult for offenders to land in court rooms.
A First Person View and Analysis
I had the opportunity to interview Mark xxxxxxxx, an IT manager, and relatively recent Computer Science graduate working for xxxxxxxxx Incorporated, a company responsible for 70% of law enforcement badges used by both local and federal law enforcement. Being someone with an intimate knowledge of computers, having recently been in the academic venue, and now having to provide effective E-Commerce to his company, Mark offers an interesting look at our modern dilemma of the seemingly unabated lawlessness of the Internet. I asked Mark whether he felt the proliferation of malicious software over the Internet could be effectively combated, and whether a bigger law enforcement role would ameliorate this threat. Mark supports the notion that proactive steps need to be implemented by users, and it is the user and their diligence to this effort that will thwart proliferation: “…Steps can be taken to reduce the adverse affect of malicious programs by being vigilant, patching software, locking down and hardening systems”. This is a sound suggestion, but it’s slightly idealistic. Similar to national security, to prevent attacks you need to be on your guard, and “right” 100% of the time, while the attackers need to be right only once. Wouldn’t it be more effective in combating this threat if a sizable entity such as the government implemented harsher sentencing, more legal restraints, and possibly filtered out the threats before it reached us, wouldn’t this perhaps be more effective in combating these threats? Mark believes otherwise: “I don't think that malicious programs can be entirely stopped, since the Internet is global, US legislation won't have much effect. Internet is such that it is a wild west, lawlessness on the internet will abound. The only solution is a global law that applies to the internet that all governments will adapt.” Mark brings an interesting nuance that most overlook about this issue, and reveals a large dilemma in controlling the internet—the fact that it is global.
Litigation usually lands dead in the water when the offender originates from a country outside of the United States. This is the primary reason why law has had little success pursuing misanthropes over the internet—the domain of culpability is often limited to our boarders. There are exceptions to this rule, especially with closely aligned countries like the UK and Canada, but for the most part a frivolous lawsuits against an 18-year-old Norwegian that tried to hack into you personal digital picture collection, will never pass muster. If there is one thing globally understood, it is that the internet is larger than one country; Americans make up almost 47% of the Internet’s global users, with the rest sporadically dispersed over many countries, the next closest country is the UK at less than 1%. Although the US does make up a high number of the internets users, it is still less than half. That means for ever intent to pursue a criminal suit against someone on the internet, there is a 50% shot that this person is not from the US, ergo out of jurisdiction. The most Draconian law our legislature can conjure up will still fall short of completely protecting users from internet-related threats. But there is an option, albeit a drastic one.
If the government sought to be more regulatory of the online content on the internet, it would probably be the most effective way to reduce offending content. In the United States, you can turn on a television set to any public channel and be confident that explicit language, pornographic material, or any form of “indecent” material will not spill out of any broadcast. The same is true with the radio. The FCC (Federal Communications Commission) recently passed legislature, exacerbating the existing fines for broadcasters that air indecent material. This may at first seem a curtailing of the first amendment, the freedom of speech, but it is not. Pornography is not illegal in this country; a movie containing explicit language is not banned from production. These can be acquired by the public, but only upon the consent of the individual. But the internet is a different story. If you’re not looking for indecent material, it may still surely appear. The same confidence you feel when turning on a radio, or turning on the TV, can not be applied to the internet. Email inboxes can be flooded with sexually explicit material, unprovoked. What would seem to be benign web-link from a reputable search engine could potentially be a Trojan horse full of pornography.
It may seem at first glance, that the natural transition would be to impose the same regulations that are being exercised on broadcasting and media, over to the Internet. This has been tried, however, unsuccessfully. Janet Reno a prior US Attorney General vouched for a bill called the Communications Decency Act. The act would provide for stricter fines for those disseminating indecent material online to minors. Under a landmark case between the ACLU (American Civil Liberties Union) and Janet Reno, the Supreme Court blocked this bill, stating it violated the first amendment, the freedom of speech. Another attempt at regulation, also involving Janet Reno involved something called the Child Online Protection Act. This provided even more restrictions and fines for those that would solicit indecent material to minors, and again this was blocked in court.
Will we ever see a regulated internet, and although it may deter pornography to minors and questionable language, would it do anything about the other issues, viruses, spam, hacker intrusions? Regulating the internet from just a indecency standpoint is such a enormous undertaking, that the other online threats, which are already illegal, may be caught by the same net. In the world of television or radio, at any given location, there are at most a few hundred different television channels available, and perhaps a few dozen radio stations. Regulation on this scale is containable, but the Internet, on the other hand, is prodigious. Google, a very popular online search engine, has currently indexed over 8 billion websites and these are just websites. An effective regulation is a huge undertaking. But if it was possible, and the government could regulate that many websites, it would seem a very small hole to hide for those that would use the internet for mischief. But the internet is a complicated animal. There are still other issues that impede this effort—anonymity for one.
The broad expanse of the Internet, its structure of intertwining networks, so numerous and so complex, facilitates anonymity. I asked Mark, his thoughts on anonymity over the internet, and whether he felt it was a good thing, or a bad thing:
“Higher level of anonymity is a good thing… Ben Franklin put it best, ‘They who would give up an essential liberty for temporary security, deserve neither liberty or security.’”
With this issue, you can find proponents on either side. But regardless of whether it’s a good thing or bad thing, it would have to be removed in order to have any effectiveness at regulation. More accountability and more personal responsibility will have to be construed. And this is just another hot button, split issue that could not easily be resolved without much public dissent and discourse.
There are so many hurdles in the way of the government, preventing any means of controlling the internet. The Internet is too large, it’s too global, there are too many split unresolved moral issues, and this is only the surface. The question soon changes from “should the internet be governmentally regulated”, to “can this even be done”. The internet is a growing entity, growing larger and larger every minute. And like life, the complexities never abate—harsher strands of viruses, ad ware, spam, another scam, another predator, will continually thrive. But alongside, new technologies are emerging, the latest research is being published, new businesses are burgeoning, and much more. Who will be responsible to keep the Internet in check? If the government cannot do it, the task is left to the public. Like the Earth, it is too large for any one person to maintain it; it is left to its inhabitants. The internet is a technological masterpiece. It has changed modern life like nothing else before. But as we all know, it is not all auspicious, with the innumerable benefits the internet has brought in, there are also many threats it has posed on society. Piracy is a growing threat to software developers, and other types of intellectual property. Counterfeit and potentially dangerous medicines are being purchased daily over the internet. Children are being lured in by predators. And there is a whole slew of various financial crimes all being perpetrated via the internet. Do to the sheer volume of the internet, and to many various factors, law enforcement has a hard time getting a good grip over the internet, to successfully handle all of these crimes. What about if the government put all of its efforts, not just in law enforcement, but in internet regulation? A question wondered by many, not only would it be difficult to have a unanimous decision supporting this, it has been tried on a few occasions, but again the magnitude of the internet, it’s global nature, the ease of anonymity, and other issues, pose questions of whether this is even possible. But the internet is growing in popularity, estimated currently at over 300,000,000 users. Its usefulness is starting to be appreciated and embraced by a broader range of people. There may be at once an understanding that like the planet we live in, the internet is a shared entity with millions of inhabitants. Eventually there will be a realization, that it is everyone’s duty to protect the land that they live in.
Interview Conducted Over Email
With Mark xxxxxxxx
Hi Mark, I understand you're responsible for E-commerce and IT security at your place of business. I'd like to ask you just a few questions on the Internet.
1. So Mark, what company is it you work for, what is your position there?
xxxxxxxxxxxx Inc., we manufacture law enforcement badges ranging from the
local level all the way up to the federal level. We have 70% of the market
share of the law enforcement badges as we are the oldest and have the
greatest reputation. My position is IT Manager. I am responsible for system
administration, ecommerce/web development, software development, database
development, and PC support.
2. Do you feel safe conducting business transactions over the internet?
Relatively yes, we deal with reputable vendors who have a track record of
maintaining secure websites. There is a level of trust involved.
3. Spam, ad ware, viruses, etc. are on the rise, how do you think this
can be combated? Do you think heavier sentences and more law
enforcement would slow down proliferation?
We are seeing a growth in new businesses that take care of these malicious
programs. They have varying degrees of success. It is unfortunate that the
antivirus companies have not stepped up to address these problems. Steps can
be taken to reduce the adverse affect of malicious programs by being
vigilant, patching software, locking down and hardening systems.
I don't think that malicious programs can be entirely stopped, since
Internet is global, US legislation won't have much effect. Internet is such
that it is a wild west, lawless on the internet will abound. The only
solution is a global law that applies to the internet that all governments
4. It is suggested, that law is always years behind modern technology.
For example: SPAM laws would not be implemented until years after SPAM
becomes a problem. In general, do you agree with this sentiment?
Science and technology moves at a very rapid pace these days and we all know
how long it takes for the law makers to be advised of such matters. So yes,
lawmakers are behind issues brought by innovation. If we look back in time
after cars were first on the road, there were almost no traffic laws.
Lawmakers soon realized that there had to be traffic laws governing traffic.
There needs to be a motivating factor to push legislations through.
Spyware/Phishing legislation was only being pushed through the US
legislature only after a Senator's daughter was victim of a phishing scam.
5. It is also suggested, that lawyers and judges, and those in a
position to make laws and enforce them, have little or no experience
in computer science and technology. These people argue that the same
basic moral issues don't change, and can still be aptly applied
without any computer understanding. Do you agree that moral dilemmas
are the same, and laws can still be applied without an intimate
understanding of computers?
Judges are usually advised by computer experts just like they would be on
any another subject, so I don't think that judges are misinformed for the
most part. It is the lawmakers who are lobbied heavily by the likes of RIAA
and MPAA that make bad decisions that are not in the best interest of the
6. Do you think the high level of anonymity the internet provides, is
a good thing/bad thing?
Higher level of anonymity is a good thing. In this day of age of where the
government wants to find out what everyone is doing on the internet is
wrong. People argue, that for the sake of security the government should be
able to pry in everything internet related. However, Ben Franklin put it
best, "They who would give up an essential liberty for temporary security,
deserve neither liberty or security."
7. Right now, radio, TV, and other broadcast media are regulated by
our government, so that indecent information cannot be dispersed to
the public; do you think the internet would benefit from a similar
type of government regulation?
While I do not think that the Internet should have too much government
interference, I do thing there should be some law and order on the net. For
example, regulations against child porn and hate groups come to mind.
8. Who owns the Internet, Government, the People, can it be owned?
No one own the internet, its like saying who owns the moon.
9. If there is something you can change, in a legal sense, about the
internet, what would that be? Background check on domain
registrations? Provide better Identification methods on the internet,
less anonymity, etc
I would support a law prohibiting silent installing of programs, ie spyware.
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