EDUCATION LAW INSTITUTE
COLLISIONS ON THE INFORMATION HIGHWAY
Professor Sarah E. Redfield
Further information on the topics illustrated in the role-play about the Internet can be found in the 6th Annual Education Law Institute Proceedings (available from the Franklin Pierce Law Center.) In addition, please see:
1) DECENCY AND FILTERING ISSUES
a) Federal Statutory Initiatives
CDA. The US Communications Decency Act (CDA), enacted as part of the Telecommunications Act of 1996, would have imposed criminal penalties for the knowing transmission of obscene or indecent materials to those under 18 and for sending to a specific person under 18 any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." See 47 U. S. C. A. §223(a)(1)(B)(ii) and § 223(d); the Telecommunications Act of 1996 can be found online at the Thomas site, http://thomas.loc.gov/
Reno v. American Civil Liberties Union. In this highly publicized case, the United States Supreme Court struck down these provisions of the CDA in 1997 as "facially overbroad" and violative of the First Amendment. Reno v. ACLU, 117 S.Ct. 2329 (1997); the decision can be found online at http://www.ciec.org/SC_appeal/decision.shtml.
COPA. The Child Online Protection Act, enacted as part of Public Law 105-277 on October 21, 1998, to amend 47 U.S.C.A. § 231, followed the CDA and would have made it a criminal offense to distribute material that is "harmful to minors" without confirming the identity and age of the recipients.
American Civil Liberties Union v. Reno. In this case the federal district court enjoined enforcement of the COPA finding that 1) the plaintiffs had standing to bring the lawsuit and showed a likelihood of success on the merits, and 2) because it involved content-based regulation of non-obscene sexual expression the statute was to be viewed as presumptively invalid and subject to strict judicial scrutiny. 31 F. Supp. 2d 473 (E.D. PA 1999); this decision is also available at the Eastern District of Pennsylvania's website, http://www.paed.uscourts.gov/opinions/98D1170P.HTM
Title 47 U.S.C.A § 230. Enacted as part of the Telecommunications Act of 1996 this section provides "Good Samaritan" immunity for interactive computer service providers. The explicit immunity is:
(c) Protection for "Good Samaritan" blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of--
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
(d) Obligations of interactive computer service
A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers
of such protections.
Interactive computer service provider is defined as: "The term 'interactive computer service' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." 47 U.S.C.A § 230(f)(2).
b) The classic cases
There are four major Supreme Court cases dealing with constitutional rights of children in schools that will undoubtedly play a major role in legal analysis of the new Internet issues. They are discussed in many of the presentations at the Education Law Institute and are cited here just for easy reference:
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)(recognizing that students do not abandon their constitutional rights at the schoolhouse gate and supporting -- in the absence of actual or likely "substantial disruption of, or material interference with, school activities" -- a student's "pure speech" in wearing black armbands to protest the Vietnam war)
Bethel School District Number 403 v. Frazer, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986)(supporting the school's limitation on and sanction of student speech that was lewd and indecent)
Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988)(supporting school regulation of content of school newspaper and recognizing school authority where control is based on reasonable pedagogical concerns)
Board of Education, Island Trees Union Free School District Number 26 v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982)(plurality opinion limiting the removal of books from school libraries.)
c) Recent federal litigation
The Loudoun library case. Here is the first U.S. decision in a case where plaintiffs object to filtering. In this case against the library for requiring Internet filtering software, which the library said was for the purpose of protecting juveniles from pornography and preventing a sexually harassing hostile environment, the court finds the library's policy unable to meet the strict scrutiny standard of review. The court notes that more narrowly drawn measures to achieve these ends were not adequately tried. Mainstream Loudoun v. Bd. of Trustees of the Loudoun County Library, 24 F. Supp. 2nd 532 (E.D. VA 1998).
The Virginia statute limiting access. This case deals with a state statute that limits access to the Internet for state employees, including university employees. In Urofsky the court upheld a statutory provision that prohibited state employees from using the state's computer facilities to "access, download, print or store any information infrastructure files or services having sexually explicit content..." without approval) Urofsky v. Gilmore, 167 F. 32d 191 (4th Cir. 1999).
The University policy limiting access. This is another case that deals with limiting access to the Internet, here on the university faculty level. The court upholds a policy to block or limit access to certain news servers and for certain purposes based on indecency. Loving v. Boren, 956 F. Supp. 953 (W.D. OK 1997), aff'd (on standing grounds), 133 F.3d 733 (10th Cir. 1998)
d) State litigation. It is likely that cases involving kids and the Internet will be litigated in state courts as well as federal courts. The first of these
to garner national attention is the Livermore library case. ( Doe v. America Online, 718 So. 2d 385 (FL 1998) discussed infra, also involves state law claims.)
The Livermore issues. The mirror image of Loudoun, this is a suit brought by a parent against a library for not protecting its students and not installing filtering software. The case was dismissed, the court finding that the City was immunized under 47 U.S.C.A. § 230, Kathleen R. v. City of Livermore, V-015266-4 (California Superior Ct. October 21, 1998), available online at http://www.techlawjournal.com/courts/kathleenr/Default.htm .
e) Dealing with potential problems via school filtering and Internet policies
For an interesting column about the role of filtering and parents written when the CDA case was being argued in the U.S. Supreme Court, see
http://www.nytimes.com/library/cyber/week/032497decency-filter.html. This site also includes references to some of the more popular filtering software sites.
Many commentators see the "answer" to Internet issues for schools to be the adoption of school policies that govern computer use. For further information on such policies, often referred to as "acceptable use" policies, see:
http://responsibleuse.uoregon.edu -- This is the homepage for the Center for Responsible Use of Information Technologies of the University of Oregon College of Education and presents a thoughtful and thorough site for considering responsible use issues.
http://www.aclu.org/issues/cyber/box.html#appendix3 - This site is part of the American Civil Liberties Union materials on "Cyber-liberties -- Censorship in a Box" including ACLU's reference to other cumulated sites on acceptable use policies.
http://www.ci.oswego.or.us/library/poli.htm - Here Oswego Library provides a thorough examination of acceptable use policies; lots of examples and details about various elements. (This site is no longer being updated, but has a good collection.)
f) General reading
Kimberly S. Keller, From Little Acorns Great Oaks Grow: The Constitutionality of Protecting Minors from Harmful Internet Material in Public Libraries, 30 Saint Mary's Law Journal 549 Summer 1999
Leora Harpaz, "Digital Discipline," Education Law Institute Materials, 1999.
Tomas A. Lipinski, New Life for Pico: Filtering and Other Responses to Controversial Materials in School Network Environments, 134 Ed. Law Rep. 1 (1999)
2) COPYRIGHT & PLAGIARISM
The Internet presents new variations on many old plagiarism and copyright issues. The ease and speed with which materials can be copied and distributed is phenomenal.
a) General Reading
There is a large selection of relevant copyright information at the United States Copyright Office's website, http://lcweb.loc.gov/copyright/ and extensive materials in Glen Secor's ELI presentation, "Digital Dilemmas: Academic Fair Use and Copyright in the Digital Age," Education Law Institute Materials, 1999.
For an overview of the copyright issues:
Richard Raysman and Peter Brown, "The Digital Millennium Copyright Act, New York Law Journal, December 8, 1998, available online at http://www.ljx.com/
Donald Sovie, "Downloading From the Net is Dangerous," The National Law Journal, December 14, 1998, available online at http://www.ljx.com
Kara Beal, The Potential Liability of Linking on the Internet: An Examination of Possible Legal Solutions, 1998 Brigham Young University Law Review 703 (1998)
Regarding plagiarism:
Lisa Guernsey, Seeking Plagiarists, Entrepreneurs' Site Will Check Papers Against Data Base "Web site will check papers against data base to detect plagiarism," 45 Chronicle of Higher Education 16 (Dec 11, 1998); see also, http://www.english.uiuc.edu/baron
Not surprisingly, none of the first U.S. cases dealing with Internet copyright issues involve schools, but the cases will likely shape the issues schools will encounter. These cases exemplify current litigation issues:
TicketMaster Corp. v. Microsoft Corp. involves deep linking without consent (filed in California in 1997, C.D. CA No. 97-3055-DPP).
A similar, more recent case, by photographer Gary Bernstein against J.C. Penney, Inc. (from whose site one could link to some of Bernstein's photographs being used without his permission) was withdrawn by Bernstein. For a newspaper account of the Bernstein case and its significance, see, e.g., http://www.nytimes.com/library/tech/98/09/cyber/cyberlaw/25law.html.
Marobie-FL v. National Association of Fire Equipment Distributors (NAFED), 983 F. Supp. 1167 (N.D. Ill. 1997) (copyright owner of clip art volumes alleges infringement by NAFED and host computer provided by Northwest)
American Civil Liberties Union of Georgia v. Miller, 977 F. Supp. 1228 N.D. GA 1998) (enjoining a Georgia statute that arguably would have limited ability to link without permission.)
c) Plagiarism
Plagiarism has always plagued professors and teachers and now it is easier than ever. Not only is there cut and paste with incredible ease and speed, but the web abounds in homework sites. For example:
"School Sucks," http://www.schoolsucks.com, which proudly bears the motto, "Download Your Workload" and on its "jungle page" offers pre-written essays, book reports, etc. etc.
Not surprisingly, there are also software programs and websites to help teachers catch plagiarizers. After all if they can search, cut and paste, teachers can cut, paste and search too. For examples of computer methods to detect plagiarism see:
For some other reading on plagiarism questions see:
Alison Schneider, "Doggedness cost him his job, professor says," 44 Chronicle of Higher Education 40 (June 12, 1998).
Alison Schneider, "Why professors don't do more to stop students who cheat," 45 Chronicle of Higher Education 20 (Jan 22, 1999).
Digital Millennium Copyright Act. Enacted in 1998 by the U.S. Congress as P.L. 105-304, this statute adopted the World Intellectual Property Organization's Copyright Treaty and Performances and Phonogram Treaty and also adopts implementing provisions including those intended to protect copyright holders against manufacture of devices to be used for and the actual circumvention of technological measures the holders have put in place to control access to their works. These provisions become effective in 2000, and in the interim the Librarian of Congress will institute rulemaking proceedings to determine if exceptions may be necessary. See DMCA to be codified as Title 17 U.S.C.A. § 1201(a)(b). The second part of the DMCA is the Online Copyright Infringement Liability Limitation Act, which provides a "safe harbor" for a Internet service providers from liability in copyright infringement in certain cases. See DMCA, to be codified as 17 U.S.C.A. § 512(k)(1). For the Copyright Office summary online see http://lcweb.loc.gov/copyright/legislation/dmca.pdf.
Distance Learning. Distance learning presents some interesting questions for traditional copyright law. Under the Digital Millennium Copyright Act, the U.S. Copyright Office is required to consult with copyright owners, educational institutions, and libraries as to methods to promote distance learning through digital technologies while maintaining an "appropriate balance between the rights of copyright owners and the interest of users." For information on the U.S. Copyright Office's public hearings and report regarding the "promotion of Distance Education through Digital Technologies, see http://lcweb.loc.gov /copyright/. See also generally, the U.S. Copyright code at 17 U.S.C.A. § 101 et seq., particularly § 110, which provides exemptions from the exclusive rights provisions for certain performances and displays. This latter section is the basis for the concerns about distance learning. This section can be found on line at http://www4.law.cornell.edu/uscode/17/110/text.html.
3. DISCIPLINE
The Internet and its misuse will obviously present schools with the need for discipline in this context. As Professor Harpaz points out in her paper, ("Digital Discipline," Education Law Institute Materials 1999) the difficulty of analysis here is that the contexts vary so tremendously. There are the students who started a spoof webpage against Chihuahuas, there are the violent and threatening sites, there are the defame-the-school sites, and on and on.
The only reported U.S. case so far suggests that courts will look at such cases along the lines of the standard leading cases on due process and discipline:
Goss v. Lopez, 419 U.S. 565 (1975) (enunciating due process right to notice and opportunity to hearing for 10 day suspension from public school.)
Beussink v. Woodland R-IV School District, 30 F. Supp. 2d 1175 (E.D. MO 1998) (enjoining a 10-day suspension of a student for publishing a homepage on the Internet critical of his high school in vulgar language.)
Boucher v. School Board of the School District of Greenfield, 134 F.3d 821 (7th Cir. 1998) (refusing to sustain an injunction against the one-year expulsion of student for publishing article in underground newspaper entitled "So You Want to BE a Hacker.")
The popular press gives some suggestion of the kind of case to expect, see Professor Harpaz' s paper at notes 120 et seq.
4) OTHER ISSUES
Obviously there are many other issues that arise around the Internet. A few further references follow:
Provider liability. The leading case on this in the U.S. is Zeran v. AOL, 129 F. 3d 327 (1997), cert. denied, 118 S. Ct. 2341(June 22, 1998) (CDA immunizes computer service providers like AOL from liability for defamatory information that originates with third parties). See also, Blumenthal v. Drudge, 992 F. Supp. 44 (1998) (finding service provider not liable in defamation suit re: electronically published "gossip column".) and Doe v. America Online, 718 So. 2d 385 (FL 1998) (immunizing the service provider in a suit by a mother alleging that her son was lured and offered obscene materials.)
There are not yet any school-specific cases, but the tenor of these cases seems determinative as to immunizing schools from liabilities when the school is a provider. (BUT this shouldn't be read as immunizing a school where it is not the conduit but the content provider, e.g. a school website that publishes a student directory.
And more generally, to continue legal research online, try
http://www.piercelaw.edu/ollie.htm - a good, well-organized starting point for legal research on line at the Franklin Pierce Law Center Pierce website