Subject: Legal Times article on Net legal issues (including spamming)
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Date: Tue, 31 Jan 1995 21:58:55 UTC
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LEGAL TIMES JANUARY 23, 1995

TECHNOLOGY REPORT

Law in Cyberspace

Witnessing the Birth of a Legal System on the Net

BY BENJAMIN WITTES

Suppose you wanted to witness the birth and development of a
legal system. You would need a large, complex social system that
lies outside of all other legal authorities. Moreover, you would
need that system somehow to accelerate the seemingly millennial
progress of legal development, so you could witness more than a
mere moment of the process.

This hypothetical system might seem
like a social scientist's fantasy, but it actually exists. It's
called the Internet.

The Net has acquired a reputation as the
electronic Wild West_a place where legal authorities are
hamstrung by outlaw hackers trading credit-card numbers, dealing
in child pornography and copyrighted software, all communicating
privately using military-grade encryption systems.

To be sure,
the Net as a whole is_quite literally_lawless. The worldwide
network has tens of millions of users, crosses national
boundaries, and lacks any sort of sovereign. Law in force on one
part of the Net is just so many words to the rest of its users,
and since everything is connected and communications take only
fractions of a second, the less regulated sections often trump
those where laws are enforced.

Yet this reputation misses a key
point. Like any community for which previous legal models are
obsolete, the Net appears to be generating its own. Only a few
years into its explosion in size and traffic, it has developed
the glimmer of an extra-legal legal system. A combination of
user-service contracts, customary practice, and technological
and administrative precedent has given the Net its own rules and
crude enforcement mechanisms.

"There is a significant amount of
self-governance already apparent on the Net, best analogous to a
combination of tribal and feudal governance," says Henry Perritt
Jr., a cyberlaw expert at Villanova University Law School in
Villanova, Pa. "The question is whether, as it evolves, its
institutionalization will cause it to become closer and closer
to conventional legal systems."

ANALOGY TO LAW MERCHANT The
favored analogy among cyberlaw experts for the Net's emerging
legal system is the medieval "law merchant." The law merchant,
widely seen as the ancestor of modern commercial law, began as a
set of enforceable customary practices honored by traders from
diverse parts of pre-state Europe.

"No statute or other
authoritative pronouncement of law gave rise to [the law
merchant's] existence," I. Trotter Hardy, a cyberlaw expert at
the Marshall-Wythe School of Law at the College of William and
Mary, wrote in the University of Pitts-burgh Law Review. "[It]
existed in some sense apart from and in addition to the ordinary
rules of law that applied to non-merchant transactions."

In much the same way, adds David Post, a computer law expert at
Georgetown Uni-versity Law Center, the Net community is
developing its own customary practices_and its own means of
enforcing them. It has also developed its tribal chieftains_the
system operators, or sysops, who administer online services.
"The sysops on the Net become like the law merchant's trade-fair
administrators," Post says. "If you abide by the sysops' rules,
you can continue to participate in the activities they allow. If
you don't, you will be subject to collective action by the
people who choose to subject themselves to these rules." (Post
moderates a discussion group on Lexis Counsel Connect, an online
service for lawyers that is affiliated with Legal Times.)

Almost all privately owned systems have user-services contracts,
and users are permitted to log on only after agreeing to the
system's operating rules. Some, like the Prodigy online service,
specifically encourage civility among users, allowing system
administrators to screen out offensive language. Others are less
restrictive, simply forbidding users from employing the system
to violate state or federal law.

Few, however, function
democratically. Vienna, Va.-based America Online Inc., for
example, recently terminated the accounts of an undisclosed
number of users after other users complained that they were
distributing child pornography over the system. AOL reported the
incidents to the FBI and unilaterally closed the
accounts_without notifying the terminated users.

Any use of the
system to violate the law, says AOL spokeswoman Pamela McGraw,
also violates AOL's terms of service. "If you feel that your
account was terminated unfairly, you can write a letter to the
terms-of-service office," says McGraw.

But not all of the Net
falls squarely inside these user-service arrangements, and in
the more public areas, rules are generated_and enforced_in an
almost tribal fashion.

SPAM ANTIDOTES
One such rule is the prohibition against "spamming," or posting
substantively identical messages to multiple Usenet newsgroups.
Usenet is a giant set of discussion groups, known as newsgroups,
transported around the world mainly over the Internet. On Usenet,
Net users post comments on a wide variety of political, cultural,
computer-related, and other issues.

Spamming, which is usually
done by advertisers, involves bombarding numerous newsgroups
with copies of the same message. Usenet denizens hate spam,
complaining that it lards newsgroups with irrelevant "noise."
Because newsgroups have such diverse topics, few messages are
relevant to very many of them, so custom forbids posting the
same message to more than a few groups and requires that the
same message placed on more than one newsgroup be placed using a
recognized procedure called "cross-posting," which saves disk
space.

Many users consider spamming the equivalent of littering
because it wastes disk space on the many computers around the
world that host Usenet. A fairly wide consensus has developed
over the past year that the Usenet community cannot tolerate
spamming, and users have organized to put a stop to it.

The most famous anti-spam action took place last summer when
Scottsdale, Ariz., lawyers Laurence Canter and Martha Siegel
posted an advertisement for legal services on thousands of
different newsgroups. Angry messages from all over the world
flooded their e-mail addresses, overloading and shutting down
their e-mail server. Moreover, their postings were systematically
"canceled"_removed from newsgroups around the world, using a
computer program called a "cancelbot."

While the Canter and Siegel case made national headlines, it is
hardly the only example of the Usenet community enforcing its
rules against spamming.

More interesting is the so-called "Cancelmoose[tm],"
an anonymous user who regularly issues cancels against spam
through a computer in Norway. If the Net is the Wild West,
Cancelmoose might be Wyatt Earp.

Cancelmoose's activities have
elicited cries of censorship from some critics, who feel that
canceling any message constitutes a violation of the free-speech
rights of the message's poster.

"This guy is a one-man crime
wave," says Patrick Clawson, president and chief executive of
the Huntington Beach, Calif. -based TeleGraphix Communications
Inc., a software-development firm. "How do you deal with
transnational civil-rights violations?"

But the criticism has
been surprisingly muted, largely because Cancelmoose is widely
seen not as a censor but as an enforcer of the accepted rules of
Usenet. There are no polls to measure Cancel-moose's popularity,
but the vast majority of messages posted to newsgroups are
supportive.

"Ninety-nine percent of the people who express any
opinion about it at all are happy that it's being done," Usenet
denizen Karen Lofstrom wrote in response to a Legal Times
posting. "The 1 percent or less who object . . . are not
well-regarded members of the Net community."

Cancelmoose is a
fascinating example of the Net's self-government because of the
care he takes to avoid going beyond the community's consensus on
which cancels are legitimate. He posts a justification for each
of his cancels on a newsgroup devoted to net abuse, including in
that justification a copy of the original message and a list of
the newsgroups from which the spam was removed. He also includes
information allowing sysops to override the cancels.

"Those who
choose not to honor [Cancelmoose's] cancellations can do so
trivially," writes a net-abuse reader whose user name is Lazlo
Nibble. "That they do choose to honor the cancellations strongly
implies that they agree with the action being taken."

Cancelmoose also takes pains to emphasize that the content of
messages does not influence his decision whether or not to
cancel them. "This is not being done because the message is an
ad. This is not being done to censor a critic. This is not being
done because I am offended by the words in his message. [The
spammer] has not been 'silenced'_any and all non-spam messages
from the same poster will remain untouched by me," Cancelmoose
writes in every cancel announcement. "To stop a man from
speaking his views in the public square is censorship. To stop a
man from speaking his views when he amplifies his voice 67 times
the normal volume is not."

The net-abuse newsgroup serves both
as the Net community's access to Cancelmoose and as a place
where incidents of spam are raised and debated_a sort of locus
for Usenet law. When spam is brought to the attention of the
newsgroup, users write to the sysop at the site from which the
spam originated, and the sysop frequently takes care of the
problem_and apologizes.

But there is, everyone acknowledges, a
dark side to cancels: Not everyone who issues them is as
popularly accepted_or as accountable_as Cancelmoose. In recent
weeks, messages posted to a newsgroup devoted to debating
Scientology were canceled by an unnamed user_jokingly dubbed
"Cancelpoodle" by appalled Usenet denizens. The cancel orders
claimed that the messages contained copyrighted material, and
shortly after the messages vanished, Church of Scientology
International attorney Helena Kobrin requested that the entire
newsgroup be removed from Usenet. The word "Scientology" itself,
she argued, is a registered trademark of a church affiliate, and
the newsgroup "serves no purpose other than condoning . . .
illegal practices" such as copyright and trademark infringement.

Kobrin says she does not know who issued the cancel messages_she
did not deny that it could have been a church member or even the
church itself. "Regardless of who is doing it, however," she
writes in an e-mail message. "the materials should never have
been posted on the Internet in the first place."

Usenet denizens
claim that the Scientologists are trying to shut down the
newsgroup because Scientology regularly takes a beating there
from ex-church members and cult investigators. And the net-abuse
crowd considers such content-based cancels deeply disturbing.

Cancelmoose, reached by Legal Times at an anonymous e-mail
address on a computer in Finland, strenuously denies any
involvement in the Scientology cancels. "Canceling messages
because you disagree with the opinions expressed therein is pure
censorship, and I condemn such actions," writes Cancelmoose.

But he does acknowledge that community-sanctioned actions like his
own could lead inexorably to renegade canceling. "That is one of
the valid objections to my actions," he writes. "This was
discussed [on Usenet] in depth a number of months ago, and the
conclusion seemed to be that the threat from spamming (and the
resultant attacks against spammers) were worse than the threat
of people writing cancelbots."

Since the Scientologists'
attempts to eliminate the Scientology newsgroup, the net-abuse
newsgroup has been abuzz with talk of how the community should
respond. Several messages have mentioned possible technical
fixes that may prevent renegade canceling.

INNOVATIVE SOLUTIONS
Such technical fixes are not uncommon in the emerging law of the
Internet. As befits its unique environment, the Internet's
emerging legal system is making use of technical innovation as
an adjudicatory mechanism. The Net's technical standards are the
province of the Internet Architecture Board, a volunteer
organization that meets periodically to discuss which
communications standards the Internet should use. When standards
problems arise, the IAB puts out a Request for Comments, or RFC,
which outlines possible solutions.

This might sound far removed
from law, except that technical problems often have a policy
dimension, and the growing RFC literature includes a body of
precedent on many key Internet questions.

"There's a spectrum of
things we're involved in, from clear technical standards all the
way to administrative policy," says John Postel, a research
scientist at the Infor-mation Sciences Institute at the
University of Southern California, who is an ex-officio member
of the IAB.

Adds Jack Hidary, chief executive of IdentiNet, a
Rockville, Md. -based Internet consulting company, "RFCs are a
powerful means for both technical and policy-oriented innovation
on the Internet."

One recent example of the nexus between rules
and standards is the IAB's response to an ongoing controversy
over Internet domain names. Each Internet e-mail address
includes a unique combination of characters that identifies the
addressee's computer system. Called the domain, this expression
has to be registered with an organization in Herndon, Va., known
as the InterNIC.

The InterNIC, however, refuses to arbitrate
trademark disputes over domain names, registering them instead
on a first-come, first-served basis. And Postel put out an RFC
embodying the InterNIC's current hands-off policy. Thus, such
domain names as "nasdaq.com," "hertz.com," and "esquire.com"
were all registered by people other than anyone affiliated with
the Nasdaq stock market, Hertz car rental, or Esquire magazine,
according to The Washington Post.

While no litigation has
clarified whether copyright law extends to domain names, the Net
community has begun looking for a technical solution. A
discussion has begun within the Internet community about whether
adjusting the domain standard might alleviate the trademark
problem_and what sort of adjustments the fix would require.

"It's a matter of controversy in the Internet community, and
there will no doubt be further RFCs on this issue," says Hidary.

And this apparently suits Postel just fine. Although he says he
wrote the RFC as policy guidance for the InterNIC "if somebody
reading this RFC has an idea for technical modifications that
would address the problem, we encourage that."

A more grass-roots example of this sort of government-by-popular
- -invention began with Columbus, Ohio-based Compuserve Inc.'s
recent announcement that its Graphics Interchange Format (GIF)
would no longer be available without licensing fees. GIF is a
widely used storage program that allows graphics files to be
transferred easily between online services and users' computers.
Developed by Compuserve in 1987, it is also widely used on the
World Wide Web.

The announcement came after Compuserve learned
that it had inadvertently used a technology patented by Unisys
Corp. at the heart of the GIF algorithm. While Compuserve had
always been willing to let GIF be used for free_and the program
had been incorporated into many third-party software
packages_Unisys suddenly wanted royalties for its part of the
technology.

Within two weeks of Compuserve's announcement of its
legal problem, the Net was bursting with possible solutions. At
least two modifications of GIF were developed within just a few
days. The so-called GEF program, say its creators at TeleGrafix
Communication, can read all GIF files and save in GIF format
without impinging on the Unisys patent. According to
TeleGrafix's Clawson, he is only waiting for the green light
from Compuserve to release his new program.

"We are prepared to put the GEF up on the Internet and up on
Compuserve as a gift to the public," says Clawson. But "if we do
not have Compuserve's consent, we are into a copyright
infringement suit."

Compuserve has not formally given Clawson permission, but
spokesman Pierce Reid insists that Compuserve will not try to
prevent developers from distributing altered versions of GIF.
"There are lots of technologies that will make GIF work," says
Reid. "We regard it as an open and universal standard, and we
would never restrict it in any way."

In fact, early last week, Compuserve announced that it would lead
the charge to make GIF obsolete. A statement by vice president Tim
Oren invited the software development community to work with
Compuserve on a more advanced GIF that does not depend on Unisys.
The new standard, promises Reid, "will be free and open . . . as
the original GIF was intended to be."

The harnessing of rapidly changing technology as a means of
avoiding legal problems isn't by any means unique to the Net.
But cyberlaw expert Perritt points out that the massive
communications infrastructure offered by the worldwide network
makes it unusually flexible in inventing its way out of the
legal problems that affect its citizens.

"Technology and entrepreneurship and relatively free markets can
almost always escape undesired legal implications, and if you
speed up the technology, then you increase the flexibility," says
Perritt. "The law's impact is limited by that phenomena."

But Perritt cautions that it's far too early to proclaim the Net's
sovereignty. Just how far Net self-governance will go depends,
he says, on how far real law lets it go.

"That's the $64 question," he says. "The final test of self
- -governance is whether an external court declines to interfere in
[a Net] dispute."

                        T H E   E N D
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