From: elrose@well.sf.ca.us (Lance Rose)         Cyberspace and the Legal Matrix: Laws or Confusion?Cyberspace, the "digital world", is emerging as a global arena ofsocial, commercial and political relations.  By "Cyberspace", I meanthe sum total of all electronic messaging and information systems,including BBS's, commercial data services, research data networks,electronic publishing, networks and network nodes, e-mail systems,electronic data interchange systems, and electronic funds transfersystems.Many like to view life in the electronic networks as a "new frontier",and in certain ways that remains true.  Nonetheless, people remainpeople, even behind the high tech shimmer.  Not surprisingly, a vastmatrix of laws and regulations has trailed people right intocyberspace.Most of these laws are still under construction for the new electronicenvironment.  Nobody is quite sure of exactly how they actually applyto electronic network situations.  Nonetheless, the major subjects oflegal concern can now be mapped out fairly well, which we will do inthis section of the article.  In the second section, we will look atsome of the ways in which the old laws have trouble fitting togetherin cyberspace, and suggest general directions for improvement.LAWS ON PARADE-  Privacy laws.  These include the federal Electronic CommunicationsPrivacy Act ("ECPA"), originally enacted in response to Watergate, andwhich now prohibits many electronic variations on wiretapping by bothgovernment and private parties.  There are also many other federal andstate privacy laws and, of course, Constitutional protections againstunreasonable search and seizure.-  1st Amendment.  The Constitutional rights to freedom of speech andfreedom of the press apply fully to electronic messaging operations ofall kinds.-  Criminal laws.  There are two major kinds of criminal laws.  First,the "substantive" laws that define and outlaw certain activities.These include computer-specific laws, like the Computer Fraud andAbuse Act and Counterfeit Access Device Act on the federal level, andmany computer crime laws on the state level.  Many criminal laws notspecific to "computer crime" can also apply in a network context,including laws against stealing credit card codes, laws againstobscenity, wire fraud laws, RICO, drug laws, gambling laws, etc.The other major set of legal rules, "procedural" rules, puts limits onlaw enforcement activities.  These are found both in statutes, and inrulings of the Supreme Court and other high courts on the permissibleconduct of government agents.  Such rules include the ECPA, whichprohibits wiretapping without a proper warrant; and federal and staterules and laws spelling out warrant requirements, arrest requirements,and evidence seizure and retention requirements.-  Copyrights.  Much of the material found in on-line systems and innetworks is copyrightable, including text files, image files, audiofiles, and software.-  Moral Rights.  Closely related to copyrights, they include therights of paternity (choosing to have your name associated or notassociated with your "work") and integrity (the right not to have your"work" altered or mutilated).  These rights are brand new in U.S. law(they originated in Europe), and their shape in electronic networkswill not be settled for quite a while.-  Trademarks.  Anything used as a "brand name" in a network contextcan be a trademark.  This includes all BBS names, and names foron-line services of all kinds.  Materials other than names might alsobe protected under trademark law as "trade dress": distinctive sign-onscreen displays for BBS's, the recurring visual motifs used throughoutvideotext services, etc.-  Right of Publicity.  Similar to trademarks, it gives people theright to stop others from using their name to make money.  Someonewith a famous on-line name or handle has a property right in thatname.-  Confidential Information.  Information that is held in secrecy bythe owner, transferred only under non-disclosure agreements, andpreferably handled only in encrypted form, can be owned as a tradesecret or other confidential property.  This type of legal protectionis used as a means of asserting ownership in confidential databases,>from mailing lists to industrial research.-  Contracts.  Contracts account for as much of the regulation ofnetwork operations as all of the other laws put together.The contract between an on-line service user and the service provideris the basic source of rights between them.  You can use contracts tocreate new rights, and to alter or surrender your existing rightsunder state and federal laws.For example, if a bulletin board system operator "censors" a user byremoving a public posting, that user will have a hard time showing hisfreedom of speech was violated.  Private system operators are notsubject to the First Amendment (which is focused on government, notprivate, action).  However, the user may have rights to preventcensorship under his direct contract with the BBS or system operators.You can use contracts to create entire on-line legal regimes.  Forexample, banks use contracts to create private electronic fundstransfer networks, with sets of rules that apply only within thosenetworks.  These rules specify on a global level which activities arepermitted and which are not, the terms of access to nearby systems and(sometimes) to remote systems, and how to resolve problems betweennetwork members.Beyond the basic contract between system and user, there are manyother contracts made on-line.  These include the services you find ina CompuServe, GEnie or Prodigy, such as stock quote services, airlinereservation services, trademark search services, and on-line stores.They also include user-to-user contracts formed through e-mail.  Infact, there is a billion-dollar "industry" referred to as "EDI" (forElectronic Data Interchange), in which companies exchange purchaseorders for goods and services directly via computers and computernetworks.-  Peoples' Rights Not to be Injured.  People have the right not to beinjured when they venture into cyberspace.  These rights include theright not to be libelled or defamed by others on-line, rights againsthaving your on-line materials stolen or damaged, rights against havingyour computer damaged by intentionally harmful files that you havedownloaded (such as files containing computer "viruses"), and so on.There is no question these rights exist and can be enforced againstother users who cause such injuries.  Currently, it is uncertainwhether system operators who oversee the systems can also be heldresponsible for such user injuries.-  Financial Laws.  These include laws like Regulations E & Z of theFederal Reserve Board, which are consumer protection laws that applyto credit cards, cash cards, and all other forms of electronicbanking.-  Securities Laws.  The federal and state securities laws apply tovarious kinds of on-line investment related activities, such astrading in securities and other investment vehicles, investmentadvisory services, market information services and investmentmanagement services.-  Education Laws.  Some organizations are starting to offer on-linedegree programs.  State education laws and regulations come into playon all aspects of such services.The list goes on, but we have to end it somewhere.  As it stands, thislist should give the reader a good idea of just how regulatedcyberspace already is.LAWS OR CONFUSION?The legal picture in cyberspace is very confused, for several reasons.First, the sheer number of laws in cyberspace, in itself, can create agreat deal of confusion.  Second, there can be several different kindsof laws relating to a single activity, with each law pointing to adifferent result.Third, conflicts can arise in networks between different laws on thesame subject.  These include conflicts between federal and state laws,as in the areas of criminal laws and the right to privacy; conflictsbetween the laws of two or more states, which will inevitably arisefor networks whose user base crosses state lines; and even conflictsbetween laws from the same governmental authority where two or moredifferent laws overlap.  The last is very common, especially in lawsrelating to networks and computer law.Some examples of the interactions between conflicting laws areconsidered below, from the viewpoint of an on-line system operator.1.  System operators Liability for "Criminal" Activities.Many different activities can create criminal liabilities for serviceproviders, including:-  distributing viruses and other dangerous program code;-  publishing "obscene" materials;-  trafficking in stolen credit card numbers and other unauthorizedaccess data;-  trafficking in pirated software;-  and acting as an accomplice, accessory or conspirator in these andother activities.The acts comprising these different violations are separately definedin statutes and court cases on both the state and federal levels.For prosecutors and law enforcers, this is a vast array of options forpursuing wrongdoers.  For service providers, it's a roulette wheel ofrisk.Faced with such a huge diversity of criminal possibilities, fewservice providers will carefully analyze the exact laws that mayapply, nor the latest case law developments for each type of criminalactivity.  Who has the time?  For system operators who just want to"play it safe", there is a strong incentive to do something muchsimpler: Figure out ways to restrict user conduct on their systemsthat will minimize their risk under *any* criminal law.The system operator that chooses this highly restrictive route may notallow any e-mail, for fear that he might be liable for the activitiesof some secret drug ring, kiddie porn ring or stolen credit card codering.  The system operator may ban all sexually suggestive materials,for fear that the extreme anti-obscenity laws of some user's home townmight apply to his system.  The system operator may not permittransfer of program files through his system, except for files he