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I think it is appropriate to respond to Dan’s post not by my own response post but rather referring to an article that has been found by a Google search. I came across the article linked below weeks ago and thought it extremely interesting. The wonderful thing about the Internet is that knowledge (and opinion) is so accessible. One of the more important skills as a lawyer is to find information, not know it. It’s how to find things that is important. Similarly, today’s generation is expert in finding information. I can do a Google search and know about things in 45 minutes which would have taken other generations a lifetime to learn. It’s remarkable. The “public sphere” (do a little Google search for Habermas, it could be fun) is larger and more sophisticated than ever before.

So here’s my response: http://www.newsweek.com/id/138536/page/1

– Timothy DeHaut

Is Google making us stupid?

That’s the question Nicholas Carr poses to his readers in the Atlantic Monthly. Carr begins by noticing a frightening tendency among himself and his colleagues– the inability to digest the written word in substantial volumes. The internet makes it easier for readers to move seamlessly through different sources, skimming the information they want and discarding the rest.

Carr writes:

“When the Net absorbs a medium, that medium is re-created in the Net’s image. It injects the medium’s content with hyperlinks, blinking ads, and other digital gewgaws, and it surrounds the content with the content of all the other media it has absorbed. A new e-mail message, for instance, may announce its arrival as we’re glancing over the latest headlines at a newspaper’s site. The result is to scatter our attention and diffuse our concentration.”

Not only has the internet altered old media, but the inverse is true as well. In support of this claim, Carr cites the example of New York Times‘ recent editorial move to including in its print edition “article abstracts” which allow readers to get a quick “taste” of the day’s news.

There is, however, no good reason to assume that technology, namely the internet, is the sole impetus beyond the New York Times‘ decision. Indeed, the Wall Street Journal began giving its readers a quick “taste” of the news through its front page staple, the “What’s News” column back when the internet was still a twinkle in Tim Berners-Lee’s eye, during the tenure of Bernard Kilgore, which lasted from 1941 to 1967.

There are perhaps better ways of explaining the prevalence of “news snippets” such as these. First, human beings are curious by nature and have a desire to accumulate more knowledge, particularly knowledge of current events. Second, as the economy changes, people have more hectic schedules and are thus more inclined to prefer to get their news in the form of brief summaries.

I would be foolish to deny that Google and other internet companies have contributed to our collective short attention span. However, this is not where Carr’s critique ends. Rather, Carr goes on to paint Larry Page and Sergey Brin, Google’s founders, as being behind some sort of sinister plan to replace human minds with robots.

Yes, robots.

This is where Carr’s argument becomes stilted. Carr rattles off a variety of different quotations such as this one from Brin’s 2004 interview with Newsweek: “[c]ertainly if you had all the world’s information directly attached to your brain, or an artificial brain that was smarter than your brain, you’d be better off.”

Maybe it’s a matter of opinion, but I read Brin’s comment as indicating merely that it would be advantageous to have all of the word’s information readily accessible through one’s own mind (or at least to have a “smarter” artificial brain). To me, this is an uncontroversial assertion. (Of course it would be great to know everything there is to know!) Carr’s reading, however, is that Brin’s comment demonstrates some sort of ugly antihuman animus, waiting to play itself out when Google takes over the world.

At root, this difference in interpretation comes down to a difference in how one views intelligence. Those, myself included (at least in large part), in Google’s camp take a pragmatic view, favoring efficiency and greater access to information. Carr, for his part, rests on the notion that intelligence must contain something more than this.

Carr goes on to argue that, in a society increasingly connected to the internet, there is a risk that we will lose the ability to reflect and deliberate in the same way we have in an age dominated by print media. Carr writes:”If we lose those quiet spaces, or fill them up with “content,” we will sacrifice something important not only in our selves but in our culture.” Perhaps this debate comes down to a question of balancing the trade-offs.

Finally, it’s interesting to note that Carr at least recognizes the theoretical blind spot in his argument– namely that any argument against technological growth and for the status quo can easily be proved foolish in hindsight. Carr references Plato’s Phaedrus, in which Socrates bemoans the development of the written word. In his article, Carr more or less advances a line of argument which is actually quite similar to the one advanced by Socrates. Carr’s argument hangs on a notion of “true” intelligence and the value of tradition. The question, then, is whether Carr can convince his readers that this somehow a unique case.

I’m not convinced. Not when I can already see the enormous benefits of the internet’s rapid, voluminous nature. Intellectual pursuits are aided as researchers can collect information more efficiently than ever before, and people in all corners of the world are now able to access information and ideas that might would have certainly been unavailable 20 years ago.

Any thoughts? Anything I missed?

Daniel Corbett

Tim,

In general, I agree with you and Professor Kerr. There is no question that this case involves despicable conduct that should not go unpunished. It is an open question, however, as to how the law should punish this kind of conduct. I believe that the government in this case is wrong in looking to 18 U.S.C. § 1030 to ground its legal theory. As Professor Kerr notes in his post, this statutory section clearly deals with cyberfraud involving compromised information that leads to a loss of value and not the sort of harassment/cyberbulling we saw in this case. (Note the statute’s persistent reference to “information of value.”)

If § 1030 does not help the prosecution here, then where should it look? Tim, you have rightly mentioned a tort law theory known as “intentional infliction of emotional distress” (IIED). Generally, the legal standard in this area is difficult to meet; conduct that falls within the definition of IIED is that which may be characterized as “outrageous” or “beyond the bounds of human decency.” Here, the facts of the case are so damning (defendant used an online pseudonym to defraud and harass victim, telling victim at one point that the world would be better off without her) that I would think the IIED standard would be satisfied.

Given that the prosecution likely has a viable theory for IIED, how should we proceed as a policy matter? First, as the prosecution suggests, we could read into § 1030 a cause of action for cyberbullying, effectively linking up IIED claims (and likely cyberbullying that falls short of IIED) with § 1030 claims. As you and Professor Kerr have argued, this is probably the wrong path to pursue, as it would effectively re-write a statute well beyond its intended scope, potentially creating a criminal cause of action for breach of online terms of use in the context of harassment. Second, we could simply require prosecutors to rely on traditional tort law theories such as IIED. This is the simplest solution, but it may not go far enough in addressing the very real problem of cyberbullying. The Internet has facilitated the speed, geographic scope, and anonymity of all manners of transactions. The result has been both positive (commerce has expanded rapidly and knowledge has been disseminated more freely) and negative (cases such as this one are, sadly, becoming increasingly common).

Perhaps, then, new legislation is necessary to “beef up” the punishment for cyberbullying beyond what tort law already provides. This possibility is fraught with difficult questions. For instance, what, exactly should constitute cyberbullying? Would the statute contain is own definition (necessitating some very difficult line-drawing) or would it rely more heavily on common law, non-Internet-related tort concepts? What role would websites terms of service play? Finally, what are the risks and benefits with the legislative approaches taken in the United Kingdom and in Ireland?

Related question (to which Tim previously alluded): what about the integrity of the Internet in this context?

Daniel Corbett

Suspending judgment momentarily on what the law and scope should be in regard to unauthorized access to data, I would like the examine what the law can be in the Meier case. §1030 could be used to cover the case. Whether it is wise to do so – again – let me suspend for a moment.

Technically speaking, Drew was unauthorized to use the MySpace servers in the way she did. An analogy can be drawn with passwords and authorization. If someone was granted a password to use a particular system, they are authorized to use the system. However, that authorization is not boundless. For instance, in the Allison case (R v Bow Street Magistrates’ Court and Allison ex p USA [2000] 2 AC 216) a credit analyst employed by American Express used her access to steal credit card numbers which she passed on to defraud AmEx and customers of US$1million. Her password gave her access but she was unauthorized to do what she did. The House of Lords (UK) said she was authorized only for her work purposes, not illegal purposes. This case – like the Meier case – is a violation of a contract which lead to unauthorized access to data.

<< Judgment unsuspended >>

Kerr argues that authorization should be code-based not contract-based. See in his posts and his article ‘Cybercrime’s scope: Interpreting “access” and “authorization” in computer misuse statutes.’ (2003) 78 NYULR 1596.

The argument – again – is the unauthorized access to data statutes should not be used in this way. The better way to proceed on these types of cases would be, for example in the Allison case above, to proceed under some fraud statute. Similarly, as I stated before, the Meier case would proceed better under a harassment or intentional infliction of emotional distress sort of claim.

It seems too broad to use the statutes in this way. I would suspect that most of us are violating terms and conditions – many of which we never or rarely read – every day. Should that be criminalized by this type of statute? It just doesn’t sit right with me. Proceed under copyright infringement, harassment, defamation – whatever the relevant offense. Leave the unauthorized access to data statute for hacking and similar offenses.

Timothy DeHaut

There has been a lot of talk in the news and in the blogosphere on the Megan Meier case in the last couple of days since the indictment [available here http://i.cdn.turner.com/cnn/2008/images/05/15/my.space.drew.indictment.pdf or http://blog.wired.com/27bstroke6/files/my_space_lori_drew_indictment.pdf].

To show a bit of the discussion: [http://volokh.com/posts/1210889188.shtml], [http://www.concurringopinions.com/archives/2008/05/megan_meier_cas.html], [http://cyb3rcrim3.blogspot.com/2007/11/causing-suicide-again.html], [http://blog.wired.com/27bstroke6/2008/05/myspace-indictm.html].

The case is a sad/disturbing one but involves some very interesting legal issues. Many areas of the law are incorporated including Internet law, contract, tort, criminal, and even some reasonably significant constitutional issues. Some of the issues overlap in interesting ways.

In this initial post, I would like to limit my discussion to the area of cybercrime and personal safety on the Internet for a number of reasons. First, I have not had the time to really read up on the issues such as the autonomy on the Internet, etc. It is not that I don’t find these areas extremely interesting, but I am currently studying for exams and don’t have the time. I’ll stick to something I am more familiar with. That said, in the near future, I’d like to get a discussion going on the other issues. If you can’t wait for me, have a read about the issues from the links above. Some of it is very good. Finally, I have an Internet Law and Regulation Exam on Tuesday and one of the topics which will come up will be cybercrime and personal safety on the Internet in the US, Ireland, and the UK. The post may reflect my dual purpose of studying for that exam and discussing a very interesting case.

The facts of the case

A 49-year-old woman, Lori Drew, is alleged to have helped create a false-identity on a MySpace account to contact Megan Meier. Megan Meier was a 13-year-old girl who thought she was chatting with a 16-year-old boy named Josh Evans. Josh Evans was the false MySpace account holder. The Josh Evans account and Megan Meier engaged in flirtatious conversation for some period. The two had a falling out. Then after receiving cruel messages from the Josh Evans account, including one that stated the world would be better off without her, Megan Meier hung herself in October 2006.

Legal issues

“The indictment is not charging Drew with harassment. Nor are they charging her with homicide. Rather, the government’s theory in this case is that Drew criminally trespassed onto MySpace’s server by using MySpace in a way that violated MySpace’s Terms of Service (TOS). Here’s the idea. The TOS required Drew to provide accurate registration information, not to harass or harm other people, and not to promote conduct that was abusive. She didn’t comply with these terms, the theory goes, so she was criminally trespassing onto MySpace’s computer when she was logging into her account. The indictment turns this into a federal felony conspiracy charge by arguing that she did this in concert with others to obtain information and to further tortious conduct — intentional infliction of emotional distress — violating the felony provisions of 18 U.S.C. 1030(a)(2).” [Kerr at Volokh, see above link.]

Personal Safety on the Internet

The case falls under a category of cyberbullying. Harassment can happen quite easily on the Internet. It also might be less noticed by those not directly involved because of the nature of Internet use. The Internet has been quite an effective means of bullying.[1] So what are the legal remedies within the US, the UK, and Ireland for cyberbullying?

Within the US, there is no federal law on cyberbullying. Here are the options that have potential for this case on the criminal law side: Harassment, I believe, could have been charged under state law. There are also two US suicide-related crimes: causing someone to commit suicide and assisting someone with committing suicide. This would probably not have worked though, see http://cyb3rcrim3.blogspot.com/2007/05/suicide.html reasoning. On the tort side: intentional infliction of emotional distress seems the likely candidate. Indeed, that is what the indictment used to go via 18 U.S.C. §1030. Under §1030, something “to further tortious conduct” is needed. The family would most likely have a tort claim, as has been stated by others (somewhere) in the blogosphere. §1030 is an odd way to go about the prosecution, see below.

Within the UK and Ireland, harassment is a criminal activity.[2] While the legislation is not Internet specific, there is no reason why it could not be applied as such. The harassment legislation could prove to be quite powerful if used to its full extent. On indictment and conviction, unlimited fines and 7 years imprisonment could be imposed under the Irish legislation. Intentional infliction of emotional distress would again seem to be the likely civil law remedy.

The weird way they are prosecuting the case

It appears as though the prosecutors are prosecuting in an interesting way. The prosecutorial reading of §1030 does not seem to the intended purpose of the statute. The case, if prosecuted similarly in the UK and Ireland, would seem equally as odd. The relevant statues in those countries would be the §5 of the Criminal Damage Act 1991 (IR) and the §1 of the Computer Misuse Act 1990 (UK). Basically, unauthorized access to data – the content of all these statutes – seems to intend to cover hacking and related crimes. It seems as though the prosecution is using §1030 to get it under criminal because the case is – quite obviously – one that is morally deplorable. But the way to go about it would be to bring the cause under some type of harassment / cyberbullying law. Here the UK and Ireland have the statute and would be able to successfully prosecute. The US federal law lacks this. However, I am still unsure why the authorities did not proceed under the state law. There is a reason – and it’s out there. I read it; I just forgot what it said. If you find it, comment. Ultimately I this way of prosecuting it will probably prove unsuccessful because making the contractual violation into a criminal offense is an extension that seems unwise. I generally agree with Kerr at http://volokh.com/posts/1210889188.shtml.

Much more to talk on this case, but hopefully there will be more to come from me and others.

– Timothy DeHaut


[1] see Hedley, The Law of Electronic Commerce and the Internet in the UK and Ireland, Cavendish, 2006 pg 151; see also ‘Modern bullies are seeking victims through cyberspace’, Times, 25 September 2004.

[2] Protection from Harassment Act 1997 (UK); Non-Fatal Offences against the Person Act 1997 (IR); see also Hedley, pg 152.

First, a disclaimer: I do not know nearly enough about (1) economics, particularly as applied to telecommunications markets, or (2) how the Internet works, or, put more festively, “the architecture of the Internet.” Please take my comment with a healthy grain of salt.

On the one hand, this seems very problematic. The Internet functions essentially by sending discrete packets of information anonymously over a decentralized “web” of local networks. If I’m not mistaken, Time Warner’s suggestion would seem to disrupt this model. I’ll steal an analogy I heard when NPR covered this story the other day– this seems no different than a cable company trying to refigure your bill to reflect how much TV you watch. And this seems somewhat absurd to most people.

On the other hand, isn’t this just a free market in action? And aren’t we, in fact, gaining greater efficiency by allowing people to more accurately absorb the costs of their actions, rather than displacing them across a larger population? One way of looking at this might be through a “Tragedy of the Commons” lens. Isn’t privatization the best route for us?

OK, so there’s both poles, at least as I see them. I’d love to have someone help me tidy this up a bit. Any techies and/or economists who can set me straight?

Daniel Corbett

Take a look at this article from the AP via Wired Mag.  Any strong opinions one way or another on the next step away from net neutrality?

Here’s a business model for you: (1) you have a highly-technical specialty with very few competitors, and (2) better yet, federal law dictates that the materials you use will be provided to you at zero cost. That’s the business model that biotech firms such as LifeCell Corp. are using to make money hand over fist. (LifeCell brought in the tidy sum of $140.6 M last year.)

So how is it that these biotech firms are profiting from our bodies while we get no compensation? The answer is fairly simple. The National Organ Transplant Act (NOTA) of 1984 made it illegal for individuals to sell their body parts. This law might be comforting for ethical reasons. After all, we don’t like the idea of people hawking their organs like used cars. But, as with any law, we should be aware of its unintended consequences, one of which is the apparent windfall for ambitious biotech firms.

Those who support NOTA will argue two things. First, they’ll suggest that a donor-based system is the best way to meet the serious life and death health concerns of those who need organ transplants. This argument seems fairly naive when you look at the services these biotech companies, whose customers often rely on human tissue for ever-important procedures such as lip implants. The second tack NOTA proponents will take is the classic slippery-slope argument: creating a property right in one’s body parts will result in greed, exploitation, and unsafe practices. A look around the biotech field makes it pretty obvious that avarice is already afoot– it’s now just a question of who can share in the profits. And, as for the safety argument, we (and all those participating in overseas black markets) would all be a lot better off if we create an open, regulated market for human tissue.

Kerry Howley, writing for the LA Times puts it nicely:

“Saner rules would treat the human body as the increasingly valuable property it is, allowing potential donors to will the value of their bodies as they do the rest of their assets. At the very least, donors should know they’re giving to a system that will sell their parts, not a charity that funnels them to those in need.”

This misnomer– the idea that this is an area of charity, not of big business– is what keeps our system of mandatory donations alive. We think it crass to sell our body parts, especially to nonprofits who are trying to save lives. But when the veil is lifted, and we start to see the growing cadre of biotechs getting rich off our bodies, we shouldn’t hesitate to ask: where’s our cut?

I will admit that I’ve only skimmed the surface of this issue. I haven’t discussed the ethics, or for that matter the economics, of creating property rights in human tissue. Am I way off base in arguing what I’ve argued? Are there serious risks I’m overlooking?

Daniel Corbett

On the heels of Universal’s threat to sue YouTube for copyright infringement, Warner Music has taken up a different strategy in dealing with the burgeoning media outlet (and, notably, my current number one method of procrastination). Warner recently struck a deal with YouTube, opening its library in exchange for a share of advertising revenues.

Interestingly, the relationship between Warner and YouTube began with the creation of a “branded channel” on YouTube designed to promote Paris Hilton’s first musical endeavor. It pains me to say it, but something good has finally come (very indirectly) from Paris Hilton and her bulldozer press agentry.

Daniel Corbett 

On this, my first day of law school, I’ve decided to spare all of you a law-related post. And since I went to undergrad at Ohio, a school with quite a large population of indie kids, I thought I’d write about Pitchfork instead. Wired has an interesting article this month about the “Pitchfork Effect,” a phenomenon by which relatively obscure (OK, so the more obscure the better…) bands become big overnight due to exposure in Pitchfork. In short, when it comes to indie rock, street cred is worth more than any advertising budget could buy.

You may remember last summer’s economic experiment by the name of Clap Your Hands Say Yeah!. The 5-piece band did not rely on advertisements or large scale distribution. Instead, they burned a few CD’s (which quickly spread across the globe), played a few shows, and sat back, waiting for the self-generating hype machine to do its work. And it did; the band became the summer’s biggest band in virtually no time. The same logic has worked for other independent successes like the Arcade Fire and TV on the Radio.

This phenomenon, part social networking, part bloodthirsty marketing has even caught the eye of Rupert Murdoch, who recently acquired the website MySpace.com for its revenue generating potential.

Where’s the line between solicited marketing and “real” word-of-mouth? Is there a line to begin with?

In one of my PR classes, my professor told us about cell phone companies who would pay “undercover” sales reps to stand at public gathering places and loudly sing their praises for the product. Ever since, I’ve been at least slightly more skeptical of the ringing endorsements I hear. But at the same time, I want to have a “filter” like Pitchfork Media because it helps me sort through the best and worst of an area in which I’m interested but not an expert.

Daniel Corbett

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