Introduction by Anne Branscomb:

Cyberspaces - Familiar Territory or Lawless Frontiers

     This article is a general overview of the present state of the law with respect to new online communication services, comparing the views of pioneer users that there is something new and distinctly different about communication via computer and modem from other forms of communication with those of lawyers and law enforcement officials who are attempting to apply existing statutes and case law to abusive behavior and controversies that arise online.

     The differences between the two approaches will be compared with the successes and failures concluding with some suggestions of what approaches might be taken in the future.

     Branscomb is a legal scholar in the Harvard University Program on Information Resources Policy analyzing the impact of information technology on developments in the law. A specialist in computer and communications law, she is the author of Who Owns Information?, editor of Toward a Law of Global Communications Networks and numerous articles in both popular and professional journals regarding broadcasting, cable television, telecommunications policy, and online communications.

Gambling on the Internet

Cynthia R. Janower
Boston Consulting Group

     This paper explores the political and social implications of the emerging online gambling industry and the ability of the existing legal framework to halt the industry's development. Making gambling more broadly available via the networks threatens heightened crime, an increased incidence of compulsive gambling, and cannibalized spending in other areas of the economy, yet U.S. state and federal laws are inadequate to deal with the onslaught of virtual gaming. States are unlikely to be able to prosecute out-of-state casino operators operating in cyberspace. Although they may be able to prosecute their own citizens for gambling online, enforcement will be difficult. Federal statutes may criminalize cyberspace casinos, but the U.S. government's ability to prosecute foreign operators is questionable. As existing legal frameworks prove inadequate to deal with a global, intangible entity, new legal, technological, and political solutions will have to be crafted in order to protect Americans from the substantial externalities posed by on-line gambling.

     Cynthia Janower, Harvard Law School, June 1996, received her undergraduate education from the University of Pennsylvania where she graduated Phi Beta Kappa and magna cum laude with a B.A.in English and a B.S.E. from the Wharton School. Prior to law school, Ms. Janower spent two years in management consulting with Corporate Decisions, Inc. Over the past two years, she has interned with the Corporate Development department of MCI Communications, Inc. as well as the law firm of Testa, Hurwitz and Thibeault. She is currently with Boston Consulting Group

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Lawyers in the Networld

Ethan Katsh
Department of Legal Studies
University of Massachusetts

     Lawyers in the Networld focuses on the impact of the new technologies on the legal profession and legal practice. A lawyer wrote recently that "from the moment we lawyers enter our offices, until we turn off the lights at night, we deal with information." Perhaps even more important than how lawyers work with information is the fact that lawyers are defined by their relationship with information, since the law is a profession and professions have an assumed expertise in a body of knowledge. The article will first examine the nature of the lawyer's relationship with information and several ways in which the new technologies pose a challenge to the traditional relationship. It will then look at the law as a profession and the nature of professional control over information. Changes that are likely to occur in both the nature of legal practice and in the organization of the profession will be addressed.

     Ethan Katsh is Professor of Legal Studies at the University of Massachusetts, Amherst, where he has served as the Chair of the Department of Legal Studies. He is a graduate of the Yale Law School and the author of books and articles about law and the new technologies. These include: Law in a Digital World (Oxford University Press, 1995) and The Electronic Media and the Transformation of Law (Oxford University Press, 1989). He is the moderator of Internet listservs concerning legal studies and alternative dispute resolution. He has also created the World Wide Web based University of Massachusetts Internet Law Hypercourse and, in October, 1995, moderated CourtTV's first online law course.

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A Guide to safe SYSOPING: The Church of Scientology Case
and Sysop Liability

Amy E. Weaver
Luce Scholar, Hong Kong Legislative Council

     In the past two years, computer bulletin board (BBS) system operators ("sysops") have been repeatedly held liable for the civil and criminal violations of their BBS users. The emerging cases have created three different standards of liability depending on the underlying complaint -- copyright or defamation -- and the court's jurisdiction. One of the more interesting cases involved the Church of Scientology suing an alleged copyright infringer, the sysop of the BBS where the message was posted, and the Internet provider. The article argues that this case blurs the distinction between copyright and defamation and does not fit easily within any of the current modes of analysis.

      Amy E. Weaver is Luce Scholar, Hong Kong Legislative Council. She is a 1989 graduate of Wellesley College and a 1995 graduate of the Harvard Law School. In 1995-96 she was a law clerk for the Honorable Eugene A. Wright of the Ninth Circuit Court of Appeals in Seattle. Before attending law school, she worked as a research associate at the Harvard Business School. She is the co-author of several articles, published in the Annals of the History of Computing, about the emergence of the first business computers.

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The Future of Public/Private Boundaries for Copyright in Cyberspace

Niva Elkin-Koren
Law School, Haifa University
Mt. Carmel, Haifa, Israel

     A report recently released by the Information Insfrastructure Task Force, a Committee formed by the Clinton administration to articulate and implement its vision for the National Information Infrastructure (NII), recommended several amendments in copyright law. Among other things, the Report recommended expansion of the exclusive right of public distribution to cover not only physical distribution of copyrighted works to the public, but also online transmission. Cyberspace, however, transforms the notion of private and public, and blurs their boundaries. Therefore, this paper argues that the notion of "public" may no longer serve to define the scope of copyright monopoly. The continuous use of the public/private dichotomy as a basis for defining the scope of copyright expands the power of copyright owners to exclude their works and fails to serve the purpose of copyright law. Proposals for copyright reform should take account of the transformation of the public/private distinction in Cyberspace.

     Niva Elkin-Koren is a faculty member at Haifa University School of Law. She received her LL.B in 1989 from Tel-Aviv University, her LL.M in 1991 from Harvard Law School, and her SJD in 1995 from Stanford Law School. Her research focuses on Law and Technology and Copyright Law. Among her publications: Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators, 13 Cardozo Arts & Entertainment Law Journal, 1995; Copyright Reform and Social Change in a Digital Era, Science Communication, Dec. 1995.

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Recommendations for the Evolution of Netlaw:
Protecting Privacy in a Digital Age

Ellen Kirsh, Vice President, General Counsel and Secretary
David Phillips, Associate General Counsel
Donna McIntyre, Law Clerk
America Online

     This article focuses on the privacy implications arising from our increasing reliance on digital networks for communication, commerce, education and entertainment. Greater access to the maze of information and services will create needs for customized services and tools to guide users through the information anarchy and channel products of interest to consumers. Yet these trends raise concerns about what data will be collected and how such data will be stored, used and disclosed to others.

     While there have been calls from privacy advocates in the U.S. to adopt the European model and create new privacy laws and federal agencies to govern data use practices, this approach conflicts with not only traditional U.S. legal privacy paradigms, but also with current U.S. public opinion. The global market for interactive services, the U.S. public's growing concern for their privacy in cyberspace and reluctance to rely on government intervention with respect to personal privacy matters all support initial reliance on market forces and the industry-regulatory model. For U.S. providers of interactive services to remain competitive in the United States and operate in global markets, they must establish and maintain their subscribers' trust with respect to individual privacy. Consumers will penalize providers who fail to disclose proactively their data collection practices and privacy safeguards.

     Ellen Kirsh is Vice President, General Counsel and Secretary of America Online, Inc. She joined AOL in October 1993, and founded the Company's legal department. She is responsible for management of the legal affairs and public policy for AOL and its subsidiaries. Kirsh is Director of the Washington Metropolitan Area Corporate Counsel Association, Director of the District of Columbia Computer Law Forum and Director of the Computer Law Association. She is co-chair of the American Bar Association's Subcommittee on Software Contracting and Technology Licensing and recently became Vice Chair of the ABA's Committee on Domestic Telecommunications and Information Services. Ms. Kirsh also serves on the Sidwell Friends School's Development Council. She earned a J.D. (with Honors) from Rutgers University (1975), an M.A. from the University of Pennsylvania (1972); and a B.A. from Boston University (1970). She is a member of the New Jersey and Maryland Bars.

     David W. Phillips is Associate General Counsel of America Online, Inc. Phillips joined AOL's legal department in July of 1994 as AOL's second lawyer. He has a background in technology law and international trade and is principally responsible at AOL for content licensing, online conduct, and electronic privacy matters. Previously, he practiced with the Washington, D.C. law firms of Hogan and Hartson and Cameron & Hornbostel, and served as Vice President and General Counsel of ComTech World Trading Corporation in Reston Virginia. He is Co-Chair of the American Bar Association's new Subcommittee on Interactive Services (Committee on the Law of Commerce on Cyberspace, Business Law Section). He has lectured frequently on the rights and responsibilities of online providers and electronic communities. Phillips earned a J.D. from University of Chicago Law School (1988), and a B.A. from Pomona College in California. He is a member of the District of Columbia and Maryland bars.

     Donna McIntyre is a law clerk at America Online, Inc. She is a J.D. candidate for the Class of 1997 at the Washington College of Law of the American University in Washington, D.C. She is the recipient of a New England Scholar Award for academic achievement and an American Jurisprudence Award for legal research. She is a member of the American Bar Association, Student Divsion.

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Obscenity and Indecency on the USENET:
The Legal and Political Future of Alt.Sex.Stories

Blake T. Bilstad
Cooley Godward LLP

     This paper discusses the emerging prevalence of erotica and pornography on the Internet (in particular on the Usenet) and addresses legal and political questions raised in light of news events such as: the prosecution of University of Michigan cyber-stalker Jake Baker; the conviction of BBS-porn operators Robert and Carleen Thomas; and the passage of the Communications Decency Act of 1996 (the "CDA"). In particular, one of the most popular Usenet discussion groups, "alt.sex.stories," has come under recent fire. However, the Usenet is not an easily regulatable zone and defies many contemporary legal notions of jurisdiction and agency. In turn, this paper discusses: (1) legal standards under the First Amendment, (2) the regulation of BBSs, (3) the regulation of the Usenet, (4) specific activities on alt.sex.stories, (5) the CDA, and (6) market-based alternatives to legislation. Ultimately, the author concludes that software products such as "SurfWatch" present better alternatives to federal legislation that infringes upon the First Amendment.

     Blake T. Bilstad is a 1996 graduate of Harvard Law School, where he was the Executive Editor of the Harvard Journal of Law & Technology. He received a B.A. in History from Duke University in 1991, graduating Phi Beta Kappa and magna cum laude. He won the Irving Oberman Memorial Award for the best paper on "Law, Information, and Technology." Bilstad specializes in the fields of multimedia and high-tech business law and is an attorney with the San Diego office of Cooley Godward LLP.

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Consumer Protection, the Nation-State, Law, Globalization, and Democracy

John Goldring
University of Wollongong, Australia

     Consumers are now participants in a global market, and possibly in a cybermarket. Law can only protect them (or us, for we are all consumers) through rules which are essentially national, and which can only be enforced within national frameworks. Most of those rules have been enacted through a democratic political process. If the rules are useless in practice, people may question the usefulness of democracy and nation states. Consumer protection laws enable the correction of market failures and the redress of inequalities of information and power. Recent cases indicate that consumer protection laws, for a number of reasons, will be of little practical use to protect consumers in the global economy and in cyberspace. That raises the question of whether democratic politics can ever be used to bring countervailing force against those who abuse their position in the global market or the cybermarket. If so, what other national laws will be rendered useless: labor laws, environmental laws, other laws that result from an often vigorous political process? What functions remain for democratic politics?

     John Goldring was Dean of the Faculty of Law at the University of Wollongong (near Sydney, Australia) from its establishment in 1990 until July 1995. He remains a Professor at that University. He was educated at the University of Sydney and Columbia University. After practicing as a lawyer in Sydney and New York, he took a teaching position at the University of Papua New Guinea, and has since held teaching and research posts in Australia, Italy, Norway, Canada, the United States and the United Kingdom. He has written books and articles in the areas of commercial, consumer protection, constitutional and administrative law and on legal education. He has served on a number of government inquiries and public bodies and was a member of the Australian Law Reform Commission from 1987 until 1992. At the Commission he was involved with references on Product Liability, Standing and Access to the Courts, Federal Choice of Law Rules, Personal Property Securities and Multiculturalism and the Law. In 1993 he was appointed a member of the Australian Consumers' Council by the Commonwealth Minister for Consumer Affairs. Much of the work represented here was made possible through a research grant from the Law Foundation of NSW, and visiting appointments at the Law Centre, University of Alberta, Canada and the Benjamin N. Cardozo Law School of Yeshiva University, New York City. An article expanding on many ideas raised here will appear in the Cardozo Journal of International and Comparative Law.

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Differences Between American and Japanese Approaches Towards Controlling Obscenity in Computer Mediated Communications

Rieko Mashima
Finnegan, Henderson, Garabow, Garrett, & Dunner, Washington, DC

Katsuya Hirose
Department of Political Science
Hosei University, Japan

     While the Internet and the other online services have become powerful intellectual tools and forums of personal and group interaction, they have also turned out to be providers of pornography. Thus, protecting children from the latter aspect has become a great concern in many parts of the world In the U.S., the Senate recently passed the Exon Bill. The Bill aims at ensuring that the laws which already apply to obscene, indecent, and harassing use of telephones and mail should also apply to computer communications. On the other hand, in Japan, a similar problem regarding telephone use has been solved effectively by the private sector's voluntary self-control. NTT (a counterpart of ATT before its split) refuses to contract with telephone service providers intending to supply services of what might be considered obscene content. For NTT, which is a common carrier(enjoying a monopoly in local telephone service), to refuse to contract with such information providers required administrative guidance (so-called gyoseishidoh) from the Ministry of Telecommunication. This typical Japanese approach involving gyoseishidoh is effective. It, however, lacks a democratic decision-making process or a judicial procedure to solve disputes concerning this system of self-control.

     This article examines the difference between American and Japanese approaches towards controlling obscenity and indecency online: legalism vs. substantialism (voluntary self-control). Then, it explores what might be a suitable (or acceptable) way to exert control over computer-mediated communications, taking into consideration its new democratic value, the importance of the right to freedom of speech, and the (legal) culture of each nation.

     Rieko Mashima is an attorney with the firm of Finnegan, Henderson, Farabow, Garrett & Dunner in Washington, D.C., specializing in intellectual property law. She received her LL.M. (Master of Laws) degree from Harvard Law School in 1992, and was a Visiting Researcher there from 1994 to 1995. The High Technology Law Journal published her article, "The Turning Point of Japanese Software Companies -- Can They Proceed to Prepackaged Software Business in an Era of Hardware Downsizing and Open Systems?" in April 1996. She holds an LL.B. degree from the University of Tokyo. Before coming to the United States she worked as an in-house counsel of a large software company and served on the drafting committee of the Japanese Agency of Patents as the representative of the Japanese software companies.

     Katsuya Hirose is Professor of Public Policy and Public Administration in the Political Science Department of Hosei University, Tokyo. He received both his M.A. and Ph. D. from the University of Tokyo, in Political Science. Currently he is a researcher at the Institute for Public Management at Hosei University and also a Research Scholar at the London School of Economics and Political Science. Two recent publications are Information Technology and Public Administration (1994) and How Internet Changes the World (1996).