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
(Presented Verbatim)
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
will
adapt.
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
consumer.
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.
References:
Active Internet Users by Country. 24 Mar. 2004. Philbert Shih. 1 Dec. 2004 < http://www.clickz.com/stats/sectors/geographics/article.php/3330441>.
BBC News, Wales, North East Wales: Police Tackle Interent Crime. 24 Nov. 2004. BBC. 7 Dec. 2004 <http://news.bbc.co.uk/1/hi/wales/north_east/4035037.stm>.
The Digital Millennium Copyright Act. 2 Feb. 2001. 1 Dec. 2004 < http://www.gseis.ucla.edu/iclp/dmca1.htm>.
The Providence Journal.
Viagra, Vicodin Online?Beware! 5 Dec. 2004, sec. A: 1+.
Internet Censorship and The Freedom of Speech. 19 Dec. 1999. Brian Leatherman. 5 Dec. 2004 < http://www.szasz.com/undergraduate/leathermanpaper.htm>.
KIDK 3Idaho Falls: Doe Arrested for Child Sex. 7 Dec. 2004. Philip Jenson. 8 Dec. 2004 <http://www2.kidktv.com/x18258.xml?ParentPageID=x3963&ContentID=x60265&Layout=kidk.xsl&AdGroupID=x18258>.
Town Online Danvers Hearald Crime. 2 Dec. 2004. William Henderson. 7 Dec. 2004 < http://www2.townonline.com/danvers/localRegional/view.bg?articleid=138765>.
Internet Crimes Increase: The Mining Gazzete. 7 Dec. 2004. Brad Selman. 7 Dec. 2004 < http://www.mininggazette.com/news/story/127202004_new02-n12070.asp>.
Web Hosting Industry News: Virus Damage. 12 Mar. 2004. Philbert Shih. 7 Dec. 2004 < http://thewhir.com/features/virus-damage.cfm>.