Law 2002 Abstracts
Law Division
International Cyber Jurisdiction: Toward The Formulation Of Common Laws? • Dharma Adhikari, Missouri-Columbia • This paper briefly overviews the existing key debates on international Internet jurisdiction, discusses how the U.S., and the European Union — the dominant users of the World Wide Web — are treating this subject, analyses key international treaties legislating the web, and reviews some relevant jurisdictional cases. It is argued that despite cultural, political, historical and legal differences, countries are gradually coming together to formulate common laws to address the jurisdictional issues posed by the Internet. Greater representation of the global community in future cyber regulation efforts is called for.
“More Speech, Not Enforced Silence:” Online Hate Speech, Brandeisian Ideals and Social Marketing • Genelle Belmas, Cal State-Long Beach • Online hate speech is not a new nor small phenomenon, and it poses some of the most difficult and painful questions this medium faces today. This paper examines current case law and provides a social marketing alternative to hate speech legislation to address concerns about the impact of online hate. A new organization is proposed that would have as a mandate the goal of providing “more speech” to combat the potential effects of hateful communication.
Protecting a Delicate Balance: Facts, Ideas, and Expression in Compilation Copyright Cases • Matthew D. Bunker, Reese Phifer and Bethany White, Alabama • The fact/expression and idea/expression dichotomies are two of copyright law’s most important doctrines for preserving a vibrant public domain and protecting free expression interests. Recently, those doctrines have been interpreted narrowly in important federal court decisions dealing with the protection of compilations of information. This paper analyzes these cases and suggests changes in the interpretation of the law.
A Short-Sighted Victory: Why Declaring Richard Jewell a Public Figure is Wrong and Harms Journalism • Clay Calvert and Robert D. Richards, Penn State • A Georgia appellate court ruled in 2001 that Richard Jewell, the one-time suspect in the 1996 bombing in Atlanta’s Centennial Olympic Park, was a public figure for purposes of his libel suit against the Atlanta Journal-Constitution. While journalists celebrated the court’s classification, this paper argues that such jubilation is misguided because, in the long term, it may mean that sources will be unwilling to speak to the news media for fear of losing private-figure status.
Reporters’ Sources As Trade Secrets: Whose Source Is It Anyway? • Clay Calvery and Robert D. Richards, Penn State • Should a news organization be able to possess sources used by its reporters as exclusive trade secrets, thereby depriving other news organizations of the opportunity to contact them? This novel issue, carrying profound First Amendment affects for newsgathering and free flow of information, is raised in the case of Paperloop.com v. Gow now wending its way through the state court system in California. That case and the questions its raises are explored in this paper.
Public Access to GIS Information: Legal Issues Concerning the Technology • Rene Que Chen and Charles Davis, Missouri-Columbia • GIS technology is being widely applied by governments and governmental agencies in land use, urban planning, environmental protection, real estate, taxation, census and many other areas in government administration. A large amount of public information is stored and processed, or starts to be stored and processed in GIS. As a technology that has the ability to handle enormously large amount of information, compile information from different datasets and present the final results in graphics, GIS changes the balance among different social interests that the courts have been striking for in their decisions on journalistic and public access to public records.
Unmasking Jane and John Doe: Online Anonymity and the First Amendment • Victoria Smith Ekstrand, North Carolina • Online anonymity is not a new problem, but its introduction to the courts is still relatively recent. This paper examines seven recent court decisions in which plaintiffs have attempted to unmask online Jane and John Does. Although this study does not provide generalizable conclusions, it does reveal that the guidelines courts are establishing for revealing anonymous online users are loosely borrowed from the law on reporter’s privilege.
Shielding Private Lives From Prying Eyes: How the Supreme Court Has Crafted a Constitutional Right to Privacy That Can Trump Public Access to Government Information • Martin E. Halstuk, Penn State • The Supreme Court in Bartnicki v. Vopper held in 2001 that a Pennsylvania radio station was not liable for broadcasting a secretly taped cell-phone conversation between two public figures. Although the Court ruled in favor of the broadcaster, the Court also recognized that the First Amendment may protect nondisclosure of private facts. Although Bartnicki represents a free press victory, it also threatens public access to government information in the future because constitutional information privacy can be raised as a bar to block disclosure under state open-records laws and the Freedom of Information Act.
Personally-identifiable Information in Federal Agency Databases: The Derivative Use Analysis in FOIA Privacy Exemption Cases • Michael Hoefges, Tennessee, Martin E. Halstuk, Penn State, and Bill F. Chamberlin, Florida • The U.S. government maintains a tremendous amount of personally-identifiable information, much in electronic databases. Requestors like journalists and marketers seek this information for things like investigative reporting and targeted solicitations – called “derivative uses.” Derivative uses of personally-identifiable information implicate privacy concerns although limits on access to public records can have negative public policy implications. This paper explores the escalating conflict between personal privacy and derivative uses of personally-identifiable information under the Freedom of Information Act.
Virtual Children: Is the First Amendment Slip-Sliding Away? • Sharron M. Hope, Purdue • Two bedrock American values, the First Amendment and protecting children, directly conflict in Ashcroft v. Free Speech Coalition. This case challenges the Child Pornography Protection Act of 1996, in which images that appear to be minors engaged in sexual conduct, including those created exclusively by computer, are considered child porn and thus illegal. The author argues that this definition criminalizes thoughts that, though repugnant, should be protected by the First Amendment.
A Long Journey Toward Intellectual Property Protection: A Study of Taiwan’s Copyright Law Reform • Hsiao-Yin Josephine Hsueh, Missouri-Columbia • In the 1980s and 1990s, Taiwan went through a series of reform to improve its protection for copyright. The findings of this study show that although the modern copyright statute dates back to as early as the late Qing Dynasty (in 1910), the concept of copyright did not exist in the minds of the general public until recently. After more than a decade of efforts, Taiwan’s copyright protection has made improvements. Currently, the level of copyright protection in Taiwan almost meets the standard of such international copyright treaties as the Berne Convention.
Law Enforcement Records Custodians’ Decision-Making Behaviors in Response to Florida’s Public Records Law • Michele Bush Kimball, South Alabama • Access to government information is being thwarted in law enforcement agencies across the country. This study explores the decision-making behaviors of law enforcement records custodians in Florida using qualitative and legal research methodologies. The data was also used to develop a grounded theory that can be used to predict and explain records custodians’ use of subjective behaviors when responding to requests for information.
Redefining Internet Service Providers: Toward a New Legal Framework for Internet Regulation • Seung Eun Lee, Florida • This paper explores the legal status of ISPs with the question of whether we have one legal definition, agreed to by the FCC, the courts, and Congress, that is consistent with what ISPs do today. This study found out that the courts’ interpretation of section 230 of the Communication Decency Act are consistent. In reviewing the recent cases, the study found out that the section 230 immunity for liability in third party posting now expands, generally covering all civil liability claims originating from third-party content.
Exit Polls and Other Bad Habits: An Analysis of First Amendment Considerations Concerning Policy Recommendations to Control or Prohibit Media Election Forecasts • Niels Marslev, Arizona State • Following the media debacle on Election Night 2000, the National Commission on Federal Election Reform recommended that exit polling and early projections be discouraged or restricted. Existing jurisprudence, however, is rather unclear. This paper analyzes the cautious recommendations of the Commission primarily in light of First Amendment considerations. The author agrees with the recommendations, but also concludes that new restrictions, if challenged, would present the Supreme Court with a welcome opportunity to clarify ambiguous areas of media law.
Trademarks and the First Amendment: The Anatomy of a Conflict • Retha J. Martin, Tennessee • In our commercialized culture, trademarks have become a key element of public discourse and communications. They are also the lifeblood of the powerful corporations that own them. This paper asserts that developments in trademark protection (in particular, the enactment of the Trademark Dilution Act of 1995) have created a legal environment in which the rights of trademark owners are valued over First Amendment rights of free speech.
Localism Reconsidered: The Lessons of Docket 80-90 and the Future of Low Power FM • Gregory D. Newton, Ohio • Maximizing the diversity of available programming serves the public interest and the First Amendment interest in a robust marketplace of ideas. Although local content is only one aspect of diversity, it is of special concern because of its connection to the political structure and the public dialogue essential to democratic process. This paper compares the results of Docket 80-90 to the recent LPFM rulemaking, to assess the potential localism value of those stations.
Copyright Term Extensions, the Public Domain and Intertextuality Intertwined • Ashley Packard, Houston-Clear Lake • This fall, the Supreme Court will consider the constitutionality of the Copyright Term Extension Act’s twenty-year prospective and retrospective term extensions. This paper considers whether the petitioners have raised a legitimate First Amendment issue, and if so, what a First Amendment argument for protecting the public domain might be. It describes the CTEA, considers whether First Amendment analysis is warranted, sketches the public domain, and examines the public domain’s intertextual relationship to freedom of expression.
Operationalizing the Law of Jurisdiction: Where in the World Can I Be Sued for Operating a World Wide Web Page? • Amanda Reid, Florida • A court may decide the rights of a person, known as “personal jurisdiction,” when a defendant engages in deliberate activities thereby creating a substantial connection with another state. This notion is explained, examined, and discussed by looking at federal courts of appeals cases where the defendant had Internet- based contacts with another state. Suggestions are made for how the well-respected test of “purposeful availment” for personal jurisdiction could be operationalized for Web based contacts.
Theories Rejected: The Framing of the Freedom of Expression Section of the South African Constitution • Thomas A. Schwartz, Ohio State • This paper analyzes the political birth of the freedom of expression section of the South African Constitution by comparing the freedom of expression platforms of the seven political parties that participated in the 1994 Constitutional Assembly with each other and with the freedom of expression section of the ultimate Constitution. The paper finds that the section, as a compromise of the rivaling ideologies, reflects little about the special experience of South Africa.
Individual Privacy Versus Public Access: An Analysis of the Six Factors Courts Use to Balance These Two Competing Social Interests • Joey Senat, Oklahoma State University • This research identified and examined six factors that federal and state courts use to balance personal privacy against public access to government-held information. It also identified a number of problems with the way courts resolve this conflict and makes a number of recommendations that, if accepted by legislators and courts, would better protect informational privacy while emphasizing the fullest responsible disclosure of government information.
Online-Privacy: A Comparative Study of Privacy Practices on European and American Web Sites • Bastiaan Vanacker, Minnesota • This paper presents a background, comparison and discussion of the legal frameworks that have been adopted in the United States and in Europe regarding informational privacy in general and on line data protection in particular. The paper also contains a research component in which privacy policies of American and European Web sites are compared in order to answer the question whether or not different legal frameworks have given way to different on line privacy practices.
“An Evil Act”: The Battle to Define Communication in Texas v. Johnson • David J. Vergobbi, Utah • This essay analyzed U.S. Senate debate over the proposed Flag Protection Amendment to reveal how political opponents legally and morally defined “speech” based on the Texas v. Johnson case. It found that by altering our legal definition of communication to favor the community over the individual, the amendment would remove not only First Amendment protection for symbolic expression, but also remove the individual citizen’s legal ability to discern for him/herself whether communication even occurred.
Legal Considerations When Consumer Opinion Websites Parody Companies or Brands • Tae-Li Yoon, Missouri-Columbia • As the Internet has become a “modern symbol of the classical market of ideas,” consumer opinion sites that parody companies or brands become popular in the cyberspace. This article examines various legal issues and law cases that might be applicable to parody sites in the light of copyright laws, trademark laws, libel laws, and service provider liability. Looking at a possibility that parody sites can lie in the tension between free speech rights, intellectual property interests, and libel issues, this article discusses how parody sites can enjoy First Amendment freedoms by avoiding legal pitfalls.
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