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US Law Aims to Catch Up With Tech - and Misses

US Law Aims to Catch Up With Tech - and Misses

Though the Internet has become pervasive, its Wild West days are not yet over -- particularly when it comes to the application of legal principles. Actions that seem clearly wrong using the yardstick of common sense may be technically legal -- primarily because the tools to carry them out are so new, and lawmakers have not anticipated the need to prevent them.

By Erika Morphy TechNewsWorld ECT News Network
06/23/08 6:00 AM PT

The infamous Internet bully implicated in the suicide of a 13-year-old girl may get some comeuppance in a California courtroom, but it will probably not be enough to quell the fury of her many detractors.

Lori Drew, the Missouri woman accused of setting up a MySpace page to lure Megan Meier into revealing what she thought of Drew's daughter, has pleaded not guilty to one count of conspiracy to cause emotional distress and three charges of accessing protected computers without authorization.

It is unlikely that she will serve any jail time. Indeed, there's a fair chance the charges will be dismissed -- and that will enrage even further the hordes of bloggers and netizens who have come to despise her. Drew's alleged online mischief is believed to have led to Meier's death by hanging.

Legal Malice

Drew reportedly enlisted the services of another teenage girl in the neighborhood to invent a boy to befriend Meier, and at that she was successful. After the fictional young man spurned Meier with a message that "the world would be a better place without you," she killed herself.

Local prosecutors declined to charge Drew with anything, stating that she didn't violate any laws on the books. Then federal charges were filed in California, where MySpace's servers are based.

The laws she has been charged with breaking were not crafted to fit the circumstances of the case, however, leading to the widespread expectation that the charges will either be dropped or Drew will be acquitted.

Gap-Ridden and Imperfect

The Drew case shines a light on how gap-ridden the U.S. legal system remains with respect to behavior on the Internet.

This will come as little surprise to the business community, which has been grappling with limitations in regulating e-commerce and, more lately, Web 2.0 technologies. Patent law, for example, was once viewed as a staid -- even boring -- legal enclave. A handful of controversial and groundbreaking decisions over the last two years have changed that perception.

Although businesses may chafe at the legal system's inadequacies, the public at large becomes furious when it fails to regulate online what common sense dictates should be regulated -- or forbidden all together.

Child Porn Touch Point

Consider the emotional touch point of child pornography on the Web. The fact that it even exists pains child protection advocates, because it had been largely eradicated until the Internet sprang up. The Web revived it and rolled it out to a new generation -- and much wider -- consumer audience.

Child porn is illegal -- decades ago, the U.S. Supreme Court found that it was not protected under the First Amendment because children were harmed during its production.

Then, along came computer-generated imagery. Child porn created through CGI is protected under the First Amendment, because real children are not used in its production. That right was established in 2003 in Ashcroft v. Free Speech Coalition.

A more recent Supreme Court ruling, though, gave law enforcement agents an end run around the 2003 decision. Earlier this year, the Court upheld the so-called pandering laws that make it illegal to ask for or offer child porn -- no matter how it is created.

The way the Court's interpretation of the law applies to life on the Internet is frustrating to just about everybody.

No one is totally happy with the Supreme Court's latest decision. Child protection advocates want to see all child porn, even computer generated images, made illegal. Their argument -- which admittedly has never been scientifically proven -- is that it is harmful to children too as it might provoke attacks.

First Amendment purists have some problems with the ruling as well.

"I am a First Amendment absolutist and have no problem with child porn falling outside its protection," Marc John Randazza, an attorney with Weston, Garrou, Walters & Mooney, tells TechNewsWorld. "I do care about people wrongly accused though -- it does happen -- and they will have a more difficult time defending themselves with this law."

He also bemoans the course of logic that this ruling reflects.

Something to Talk About

The law is very specific and only applies to child porn. However, Randazza points out, it gives Congress a road map to develop future laws that could circumvent First Amendment protections.

"What this law does is make talking about a crime a crime. By that logic, if I left a restaurant and said I wanted to burn that place down, it could be a crime," Randazza reasons. "How long will it take for Congress to say you can't talk about joining Al Qaeda or the Communist Party?"

Essentially, what the ruling does is allow prosecutors to go after individuals for seeking or selling certain types of material, even thought the material itself might be legal under the First Amendment, Terri Day, associate professor of law at Barry University, explained to TechNewsWorld.

"If the Supreme Court and Congress were to revisit the issue of having virtualized images fall outside the First Amendment, then fine -- let's have that discussion," he said. "But we shouldn't allow the government a free pass this way. The First Amendment is too important for that."

It is unlikely that the Supreme Court will revisit the virtual issue, Robert Corn-Revere, an attorney with Davis Wright Tremaine, told TechNewsWorld. "One thing remarkable about this ruling is the consensus view of the Court that child porn is restricted to actual children."

Corn-Revere, also a First Amendment attorney, said he believed the majority went to some lengths to describe how narrowly this decision should be applied.

"I think that any First Amendment ruling is significant in that it could have application in other areas -- there is always that risk. The question to ask is whether the court has been careful in its reasoning and applied the principals narrowly," he said.

New Reasoning?

The openness and transparency of the Internet contribute to the problem, at least when it comes to people's expectations of how the law should be applied to its operations, said Christine Williams, a professor of government and international studies at Bentley University.

Take, for example, the lawsuits pending against the Bush Administration seeking information about its 10 million missing internal e-mails.

A federal judge recently ruled that the Office of Administration, which is within the Executive Office of the President, is not subject to the Freedom of Information Act, because it has no substantial decision-making abilities. The decision doesn't make sense to a lot of people, and Williams says she understands why.

"The fact that this involves the Internet makes it appear to be an open-and-shut decision to the layperson, but that is not so," she told TechNewsWorld.

"There is a presumption that anything e-mail-related can be subpoenaed and should be made available to the public. But the law deals with e-mails the same way it deals with phone messages or hard files."

For better or for worse.


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