The internet has created a whole new area of the law because of the unique way it is structured. There are many judicial concerns when it comes to use of the internet. The internet is not bound by geography and for this reason national laws cannot be applied. This area of the law is still being researched and more fully developed.
Internet law refers to how legal principles and legislation govern the use of the internet in all its forms. Another term for internet law is cyberlaw. Unlike other areas of the law, internet law cannot be identified as one solid, stable, and specific field of practice. Rather, it incorporates and applies principles from several traditional fields, such as privacy law or contract law, that predate the internet.
Internet law can include the following:
- Laws related to the creation of websites
- Laws governing Internet Service Providers
- Laws related to how trademarks are used online
- Laws regarding how to resolve conflicts over domain names
- Laws related to how to link web pages
Since the internet is relatively new and constantly evolving, laws surrounding its use cannot be informed solely by precedent or common law. there is a great amount of uncertainty regarding what is permitted according to internet law, and there is still a great deal to discover and to decide. Often, judges must apply other systems of law as best as they can in order to resolve cases.
Why Is Internet Law a Special Case?
Given the breadth and complexity of the internet and all of its potential liabilities, internet laws must be flexible enough to cover countless real and theoretical possibilities. Additionally, because the internet is a global interface, it cannot be entirely bound by the laws of any one geographical authority, such as a single country’s government. While there certainly are some regulations that communities abide by internationally, some believe that the internet should be operated as if it were a land all its own, independent of national policy.
Types of Internet Regulation
In countries such as China, Saudi Arabia, and Iran, the internet is greatly censored. This censorship aside, there are generally four ways the internet is overseen. The four methods include:
- Laws: In ther attempts to handle issues related to the internet, comost countries rely on legislation to mold behavior and manage policy. Internet law is especially relevant within arenas such as gambling, child pornography, and fraud. The problem is determining how offenses can or should be prosecuted. How can an internet site developed on the other side of the world be expected to abide by the fluctuating and oftentimes confusing regulations of another country?
- Architecture: Where laws are government-imposed rules, the term “architecture” refers to the actual technological limitations of the internet. It encompasses everything that affects how information can be transmitted on the internet, from search enchines and filters to encryption and coding.
- Norms: On the internet, as in all areas of life, human behavior is governed by cultural norms. These can help fills in the gaps left by formal regulations. For instance, in deleting inappropriate comments from an online forum, moderators go above and beyond legal requirements and rely on social norms.
- Markets: The highs and lows of the online marketplace also affect what happens online. Unpopular concepts or behaviors will not be in demand and will eventually disappear. Likewise, if there is demand but far too much supply, sellers will need to offer more distinct or unique options. This can incentivize ethical behavior, creativity, and self-regulation.
Policies Regarding Online Marketing
When online businesses first opened, the government was not yet equipped to resolve legal issues. Nowadays, most businesses represent themselves online, and law has begun to catch up.
The nation’s official consumer watchdog, the Federal Trade Commission, investigates and fines parties for using “unfair and deceptive marketing” tactics. The agency also deals with “unfair competition.”
Unfair and deceptive marketing can vary based on context, but it generally applies to the following:
- Lying, making untrue statements about items or services.
- Describing unusual results as typical.
- Falsely labeling an item “all natural.”
- Making general health-related assertions that are not backed by medical or scientific proof.
- Making phony news websites, or purchasing website reviews.
- Attempting to stop negative reviews via contractual gag clauses, which restrain freedom of speech.
- Fooling web searchers into registering for phony, repeat-billing situations via negative option tactics (playing with words to trick them into agreeing)
- Disguising ads to seem like regular web page material.
- Releasing customers’ information without their consent.
- Not labeling tags when promotions are paid for (#paid, #ad, or #spon)
- Using people’s credit cards or billing addresses without authorization.
- Using tricky pop-ups to solicit people’s information.
- Sending off promotional texts without authorization.
- Tagging a higher “original price” on a product to make the current price seem like a bargain.
What Websites Should Do
- Be transparent about partnerships, sponsors, and endorsements.
- Be clear about disclosures.
- Accept liability for freelance marketers.
- See crowdsourced projects through to the end. If you abandon a project, refund any money collected.
- Avoid starting a new enterprise with a different name after an FTC investigation.
Official Policies Governing Online Marketing
- Section 5 of The FTC Act
- Can-SPAM Act
- Dot Com Disclosures
- Native Advertising Guidelines
- FTC Bizopp Rules
Intellectual Property in Internet Law
Copyright protects authors’ rights to their own material so that other people cannot manipulate, steal, or earn profit from it. Naturally, copyright applies to online content just as it does to more tangible work. It is helpful for organizations and individuals to place copyright and trademark signs on their websites and other materials to express their ownership and warn people not to steal or misuse their work.
Likewise, businesses should formally register their domain names to prevent cybersquatting (buying domain names with company slogans). This has become harder, though, since many endings besides “.com” are now possible.
- You cannot steal a copyright, trademark, or patent, and you certainly cannot profit from doing so.
- You should check for a creative commons or fair use agreement before using another party’s photograph or other visual.
- You are unlikely to be able to copyright website code.
- If you wish to hire a ghostwriter, receive formal acceptance from them that you will use their work exclusively for your means when they have finished its writing. Otherwise, they may still own the rights to their work.
- Plagiarism must still be avoided, even when “article spinning.”
- You can register your work formally via copyright through the U.S. Patent and Trademark Office, as well as equivalent state services.
- Although using a competitor’s name an AdWord marketing ploy is fine, it’s best to consult with a lawyer on the wording of the post.
- Online piracy is not permitted.
Legislation and Developments
- Lanham Act, or the Trademark Act of 1946, which allows exclusive claim to registered trademarks.
- Digital Millenium Copyright Act, which is a U.S. copyright law that uses two of the 1996 treatises from the World Intellectual Property Organization.
- Anti-Cybersquatting Consumer Protection Act (ACPA), which prevents you from claiming domain names representative of other legal entities.
- Trans-Pacific Partnership Agreement, which seeks to expand copyright laws globally.
- Fair Use Doctrine, which allows you to represent other works for the purpose of reflection or criticism.
- Uniform Domain Dispute Resolution Process, which can prevent or resolve domain name disputes.
- No Electronic Theft Act, which compels you to respect copyright whether or not you have profit in mind.
Other relevant acts include the Computer Fraud and Abuse Act, the Right of Publicity Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act, and the Telephone Consumer Protection Act (TCPA).
Internet Laws Regarding Online Defamation
Both state and federal defamation laws govern libel (written defamation) and slander (spoken defamation) online. Keep in mind the following principles:
- To win a libel case, you must prove that a claim was false, harmful, and negligent.
- Opinion is not necessarily slander or libel under U.S. law, but if the opinion is mixed with untruths or manipulations of the truth, it can be considered defamation.
- In some cases, the identity of an anonymous author can be uncovered for a libel lawsuit.
- Often, online libel cases are resolved without a full court case.
- Truth can be used as a defense in slander and libel cases, with exceptions.
- Sometimes, libel can be removed or redacted from online forums.
- For famous people, the rules are different. Public figures need to meet a higher standard of evidence when charging someone with slander or libel.
Internet Laws Regarding Online Privacy
Privacy and free speech are often at odds with one another, and while the U.S. constitution does not address privacy, the First Amendment does grant the right to free speech. Privacy might get in the way of that, creating a sense of unwanted censorship.
However, your privacy is protected to an extent through other legislation. For instance, revenge porn laws provide a legal recourse for those whose ex-partners post iliicit pictures of them online without their consent. There are also policies that prohibit the publication of private data and protect information in particular areas, such as the Children’s Online Privacy Protection Act, HIPPA, and the Financial Modernization Act. The FTC can even hold businesses liable for damages if they don’t take steps to prevent hacking.
Further online privacy laws are mandated by the state of California, and commercial sites in the state must abide by their requirements.
Data Use Notices
A data use notice should be included on any site that collects personal data. The notice should define the reasons and uses for the data collected, including any data gleaned through cookies or hidden programs. In the case that information is admittedly used for promotional or business purposes, or any other reason that is a non-service to the consumer, the user must agree to this, usually via opt-in selections.
Laws Governing Online Privacy
- The Children’s Online Privacy Protection Act
- The Computer Fraud and Abuse Act
- The Health Insurance Portability and Accountability Act (HIPPA)
- The Gramm-Leach-Bliley Act
Creating Website Agreements
Recent U.S. Internet Law Developments
Lawyers, policymakers, and governments often look to recent cases that occurred in their region in order to decide how to resolve new conflicts. The following are some recent developments that affect internet law.
Freedom of Speech
In the United States, the public is granted freedom of speech by the First Amendment of the U.S. Constitution. Freedom of speech on the internet can, in many cases, be a healthy and positive attribute, and the U.S. Supreme Court has recognized it as such. On February 27, 2017, the Supreme Court recognized the internet as “a crucially important channel of political communication.”
Given that this freedom is not granted to people in all nations of the world, the internet has done a great justice in providing the global community a place to express their thoughts. For this reason, the internet has been viewed as a springboard for political movements, such as the Arab Spring.
However, the same countries that restrict freedom of speech often attempt to increase censorship of the internet. For example, China attempts to block internet sites from its civilians, and other countries, such as Singapore, Iran, Saudi Arabia, and Tunisia, have done the same.
As a legal concept, freedom of speech often affects the following issues and themes:
- Data collection
Net neutrality is the set of policies that regulate behaviors of internet telecommunications — the pathways and networks through which information is passed, set up, and managed by large companies. Information is communicated in small “packets” of data that are transmitted through infrastructures run by telecommunication companies, governments, and institutions. Net neutrality policies that regulate how information is sent or received in one state can affect others via a ripple effect, making this a particulalrly tricky area of internet law.
Photo Sharing Law
It is common nowadays to share photos of yourself and your friends via social media. However, sometimes people steal photos, post them, and then request funds for their removal. This is an example of how behavior on social media can have major real-world consequences. Such situations can be difficult to resolve, especially given that the perpetrator may be in a different country.
Cell Phone Tracking Dismissed
When a court case hinged on evidence that came from a cell phone tracking device, a New York state judge declined to consider such data in the evaluation of a case. It was decided that such intimate technology should not be used to gather information, and this ruling may be used as an example in upcoming cases.
Internet Sex Crimes
Offenders of sex crimes via the internet can be convicted. This includes those who create and distribute child pornography, as well as those who create profiles to get people’s attention.
Cybersquatting is when someone purchases a domain name that signifies an already established entity or company. Cybersquatting is done with the intention of earning money from selling the domain name at a future date. It is illegal in the United States.
When data relating to the San Bernardino shooting could be traced via an iPhone 5, a California federal magistrate judge ordered Apple to turn over the data. Many people were opposed to this anti-privacy ruling, including the FBI.
There is a significant legal risk to naming people online, whether in websites or in blogs. If you do so, you could be liable for what you write.
Photograph Copyright Demands
Recently, organizations that authored shared photos have claimed copyright and attempted to hold others accountable for using their work. To make sure you are completely aware of your rights, connect with a cyberlaw attorney before paying any dues demanded.
Privacy on Social Media
It is true that social media welcomes the sharing of lives. However, at the same time, it is the responsibility of both the public and the social media entity to preserve a person’s privacy and security. Therefore, boundaries have been created to protect privacy. For example, while countries of residence might be shared, exact addresses are often not.
Computer Hackers and Crime
If someone enters your computer system, virtually or physically, and uses it to do illegal things, you may or may not be liable. It depends on the specifics of the case.
Police Officer Footage
The question of whether it is legal to film or capture police officers came up when people in the Ferguson, Missouri, riots took such footage.
Ethics Surrounding Science and Technology Law Articles
It is questionable whether attorneys and experts who discuss legal questions relating to science and technology are accountable for the implications of their writings. This includes articles about biotechnology, chemical law, computer software, data, and more.
The Electronic Communications Privacy Act
The Electronic Communications Privacy Act was developed in 1986. According to this law, government restrictions on certain activities were expanded, from the recording of phone calls to the monitoring of communications sent via computer. The change affected Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which was originally intended to end such witnesses to personal communication.
Liability With Regards to Online Material
Telecommunications companies are generally not liable for damages caused by information being stolen and shared through their services.
Unlawful Access to Data
It is an offense, with some exceptions noted in various subsections, to purposefully access communications information without permission, or to go beyond the authorization one is given. Receiving, changing, or stopping permitted access to information is also be illegal.
Winnings of Copyright Defenders
In a development may inspire future defenses, copyright defendants have won several victories lately. The winners include Google for Google Books, Aereo for their 2009 Cablevision ruling, and the Supreme Court Kirtsaeng ruling to stop international price discrimination for copyright holders.
Gmail’s Decision Regarding ECPA
Judge Lucy Koh’s ruled that Google’s ads featured within Gmail accounts may violate privacy law within the Electronic Communications Privacy Act (ECPA).
The Federal Trade Commission’s Internet Crackdown
The U.S. Federal Trade Commission has been making consent agreements with major internet and social media companies such as Google and Facebook. They began working with native ads, which are online ads that look like plain text, as well as other disingenuous material, such as online advertisements targeted towards children. They held an important case against Wyndham Hotels and are continuing to work at regulating online behavior.
Lessening of Keyword Advertising Trademark Lawsuits
Keyword advertising lawsuits rarely win court cases and do not generally pan out financially. Even Google has nearly resolved its trademarks challenges to AdWords. In Wisconsin, a court rejected a publicity rights concern, and the Tenth Circuit killed off a trademark query. The Florida State Bar even closed the possibility of banning lawyers from using keyword advertising. Keyword advertising lawsuits should not be much a concern in the future.
17 USC 512 is the law that indicates that websites are not responsible for user-created copyright infringement, yet Section 512(c) indicates that they should be — especially if the copyright owners request the content to be taken down and such requests are ignored. Recent problems for discussion include the dating of material, such as in the Grooveshark case, when pre-1972 recordings were not relevant to Section 512.
Also, courts have made it more likely for sites to be held responsible for users breaking copyright law, even when the copyright holder did not give notice.
Finally, investors may still be liable for infringement, even if the websites are not. Therefore, Section 512 is not necessarily a safe harbor for us all, and there is much yet to be decided.
Government Employees and Social Media
Government employees have gotten into trouble with social media due to over-sharing or lack of professionalism. There was also a question regarding whether government employees should be fired for speaking out against their employers on social media. Such posts have dire consequences because we rely on government officials to apply policies without bias.
Patent reform occurred when Congress created the America Invents Act (AIA) in 2011. Since then, Congress has been considering what else can be done to shut down abusive patent enforcement. Outside of Congress, the state of Vermont created a law to stop patent trolling, and lawyers have brought cases against senders of patent enforcement letters. The Supreme Court has also reviewed several cases regarding patent-related topics, keeping the issue in flux.
Revisiting the 47 USC 230
The 47 USC 230 was created by Congress in 1996. Section 230 states that websites are not responsible for third party content. Clearly, this is a defining law with wide-reaching implications. User-generated content sites benefit from it, but plaintiffs with complaints have suffered losses. In 2010, Section 230 expanded via the Speech Act.
In 2013, some content became exceptionally harmful, and for this reason, Section 230 is beginning to receive more criticism. Online prostitution advertisements that are possibly connected to sex trafficking are a prominent example. State legislatures have passed new laws to challenge these problems.
Sometimes, judges simply ignore Section 230. In 2013, state attorneys general asked Congress to reform it, and revenge porn advocates are fighting it as well. This advocacy has already made some headway.
The Computer Fraud and Abuse Act
Since any sort of hacking or lying to enter into a system is illegal according to this law, a normal internet user could technically be prosecuted for what is now considered normative online behavior. For example, it’s forbidden to access a protected computer — but many people do this all the time, using their friends’ or relatives’ devices. Users who fail to follow a site’s terms of service could also be charged under federal and state laws. The offense could be as simple a lying about your martial status on an eHarmony profile.
Aaron Swartz was threatened with 35 years in prison for apparently stealing academic articles with the plan to release them and later committed suicide. After his death, Aaron’s Law was passed to amend the CFAA by addressing the terms of service issue, so that violating this would no longer be a crime. Now, a hacker must break a significant barrier in order to be charged.
The Digital Millennium Copyright Act
The Digital Millennium Copyright Act incorporated two copyright treatises in the hopes of controlling and manifesting rules of copyright online. Although some major movie studios feel the 1998 law doesn’t do enough, many people dislike the restriveness of the law. They feel the internet is a place for freedom and that this might sometimes include infringing upon copyright.
The DMCA permits companies to send notices when someone breaks policy, urging them to remove the copyrighted material. Often, companies will agree, in order to avoid the hassle of a court case, but that doesn’t mean the act isn’t impeding freedom of speech. It can be used against the following people:
- Teachers who use copyright materials for educational purposed
- Researchers like Niels Ferguson, who discovered a security problem on Intel but cannot release his findings
- Music creators who do experimental mix music with pre-recorded titles or those who post via Youtube
- YouTube users whose videos include copyrighted music playing the background
- Visually impaired people who use special programs, such as screen readers, to “read” e-books
The law also affects cell phones. You cannot unlock a cell phone because providers place within them their own software. Changing the phone would mean affecting the company software, thus violating their copyright.
Rep. Zoe Lofgren introduced a bill to protect people who modify devices for this purpose, but it has yet to be acted upon.
The Electronic Communications Privacy Act
The Electronic Communications Privacy Act of 1986 restricts government taps in telecommunications. Service providers cannot release data without consent, or to the police or FBI without a warrant, if the material has been stored for less than six months.
At the time of this law was passed, however, most telecommunications data was not maintained for longer than thirty or ninety days, and nowadays, some people keep messages or emails forever. Thanks to the six-month clause that is still in effect, police can easily retrieve information with only a subpeona.
Further, the ECPA permitted National Security Letters (NSLs), which are documents from the FBI that force the revelation of online records. Again, technology has changed since the law was passed. In 1986, phone companies could offer up records of calls with basic info such as a phone number and date or time of call. Now phone bills typically list only a few details, such as the monthly charge and amount of data used, but providers have access to much more information, and much of it is deeply personal in nature.
The National Security Letters could now be used to summon data such as which web addresses a user visited, how big an email was, and what time they logged into a chat session. The FBI is not allowed to retrieve email content via an NSL, but metadata can be manipulated to construct or understand content. Naturally, the FBI will attempt what they can within the limitations of this law.
Further, the Justice Department can apply an aspect of the law to receive the location data of cell phones without a warrant. This remains true despite the fact that the Supreme ruled in 2012 that a warrant is needed to place a GPS device on a car.
Of course, when the ECPA was initiated, none of what we now have was conceivable. Bills introduced in March of 2013 to mandate that police to get a warrant before retrieving location data from telecommunication personnel, but these bills have not yet moved forward.
Why Is There So Much Online Crime?
Despite the policies, regulations, and security screenings, many people commit crimes online. So many business and financial transactions take place online that it is still a prime territory for criminal activity, despite its many defenses.
Additionally, as stated previously, with regulations differing from nation to nation, it can be difficult to prosecute those who are guilty of offenses. Criminals can set up many disguises via the net and across the globe. Police continuously improve their methods, however, and do their best to enforce the regulations we presently have.
Pop Internet Laws
Through the use and abuse of the internet, the public has come up with its own rules. These “laws” should not be mistaken for actual legislation. A few examples follow:
- Godwin’s Law
- Rule 34 and 35
- Skitt’s Law
- Scopie’s Law
- Danth’s Law (also known as Parker’s Law)
- Pommer’s Law
- DeMyer’s Laws
- Cohen’s Law
- The Law of Exclamation
Perhaps the most famous example is is Poe’s Law, which requests that all mocking of fundamentalist thought must include a winking smiley — otherwise, people will believe the poster to be serious. Nathan Poe came up with this idea in 2005. He attests that people who are non-fundamentalists will often mistake sincere fundamentalist thought for jokes and vice versa.
The fake news phenomenon of the 2016 election cycle demonstrates how easily lies and satire can be mistaken for truth and sincerity. Several “news” stories were widely circulated on social media platforms that turned out to be pure fiction, causing confusion and real-world consequences.
Cyberlaw Policy Organizations
As global companies, lawyers, and policy makers attempt to decipher and implement new practices in regards to cyberlaw, numerous organizations have developed in order to relate to the relevant fields of practice.
- Adult Internet Law: AdultInternetLaw.com gives legal advice to adult businesses and aims to protect them from risk.
- Electronic Frontier Foundation (EFF): Since its development in 1990, EFF has prevented the loss of freedom from the development of new devices. The EFF defends free speech, privacy, innovation, and consumer rights as well as digital rights.
- Internet Society (ISOC): The Internet Society, created in 1992, offers leadership training for internet-related standards, education, and policy. It inspires development and growth and helps people use the internet to their benefit.
Publications About Internet Law
Also helpful are the numerous publications related to internet policy, which can be used for furthering one’s own knowledge, or for professionals who administer and regulate the law.
- ACLU Internet Censorship: ACLU’s publication makes an appeal for uncensored internet use. This desire was upheld by the Supreme Court in light of the First Amendment. Just as people can speak freely in person, they can do so online.
- BitLaw-Internet Law and Intellectual Property Rights: This resource acknowledges that internet law and intellectual property rights are still in a state of flux. It provides information to enable their ongoing development.
- Internet Governance Forum: The Internet Governance Forum (IGF) is run by the IGF Secretariat. It backs up the United Nations Secretary-General, helping to express the goals of the World Summit on Information Society (WSIS) and create a dialogue for multiple stakeholders.