What are the major Internet law and policy issues that are likely to crop up in 2002?...
nytimes.com.
Larry Lessig Professor, Stanford Law School
Microsoft and Disney will become the most important allies in defending the core values of the Internet.
Cass Sunstein Professor, University of Chicago Law School
It's hard to predict the future. But let's look closely at (a) efforts to use to Internet to track terrorism and other crimes, (b) the possible diminution of privacy rights, and (c) efforts to censor apparently dangerous speech on the Internet.
Ivan Fong Senior Counsel, E-Commerce and Information Technology, General Electric
1. The USA Patriot Act [the anti-terrorism measure that, among other things, includes new rules about the government's access to information on the Internet] will largely survive constitutional challenges in the courts.
2. The Supreme Court will strike down, on First Amendment grounds, those portions of the Child Pornography Prevention Act that effectively criminalize the generation of digital images of fictitious children engaged in imaginary but explicit sexual conduct. The high court will urge Congress to draft a narrower prohibition.
3. Congress will pass legislation to encourage companies to share cyber-security data with the government, by exempting such data from disclosure under the Freedom of Information Act and by providing antitrust protection for companies that collaborate on cyber-security matters.
James Boyle Professor, Duke University Law School
The year 2002 will see the first real chance for the Supreme Court to signal, through its consideration of a number of cert petitions, what kind of constitutional restraints, if any, it will impose on the new expansions of intellectual property law: the range wars of the Internet.
While the most dangerous of these expansions -- the so-called database bill that gives property rights over unoriginal compilations of facts -- has not yet become law, there will be continued and intense pressure to pass it, with equally strong resistance from the science, research and civil liberties communities. If the Supreme Court signals some willingness to apply the First Amendment to intellectual property rules in a serious way, or to take seriously the restrictions of the Constitution's intellectual property clause, then the database bill will be in trouble. As a result it may be drafted in a less sweeping way. The converse is also true. Dismissive treatment from the Supreme Court will merely embolden the proponents of maximalist intellectual property protection. And in the long run, it is the property rules that will shape the Internet's future more thoroughly than the rules on censorship or filtering or taxation.
Dan L. Burk Professor, University of Minnesota Law School
First, I expect to see increasingly sophisticated attacks against the constitutionality of the Digital Millennium Copyright Act's anti-circumvention provisions [which prohibit the use of, or trafficking in, a computer code the circumvents the encryption scheme protecting certain digital content]. The courts in 2001 addressed some First Amendment issues, but ducked the really hard question: whether Congress in passing the DMCA exceeded the constitutional power given to it under the Intellectual Property clause. The Supreme Court has held that Congress' power under the IP clause is limited -- copyright cannot be extended to unoriginal or factual works, and patents cannot be extended to obvious inventions. But the DMCA's anti-circumvention rules make no differentiation between protectable and unprotectable material. This exceeds Congress' power under the IP clause.
I expect to see lawsuits filed during the next year that put that question front and center, and since it is the kind of question that the Supreme Court has shown an interest in, I would expect that the Court would like to take that kind of case.
Second, and perhaps ultimately more important to Internet law, will be the resolution to the negotiations on the Hague Convention on Jurisdiction and Foreign Judgments. This is a treaty negotiation that has been going on for several years; during 2000 and 2001 it became clear that it is likely to shape the future of international e-commerce. The treaty deals with transborder enforcement of legal judgments. U.S. businesses initially pushed for this treaty, hoping to get more of their judgments enforced abroad, but apparently forgetting that it would work both ways judgments obtained in other countries could be enforced here. This has broad implications for, among other things, intellectual property, defamation, and the kind of situation Yahoo! got into regarding Nazi memorabilia in France.
David Post Professor, Temple University Law School
Predictions are too difficult . . . though I think you can bet on the following headline: "Music Iindustry Fails in Attempts to Get Users to Patronize Sponsored Music Services."
Barry Steinhardt American Civil Liberties Union
1. The upcoming decision of the U.S. Supreme Court in ACLU v. Ashcroft, which challenges the constitutionality of the Children's Online Protection Act -- Congress's second attempt to restrict all speech on the Internet to only that which is suitable for minors. The decision may test whether Internet speech continues to enjoy the highest constitutional protection.
2. The inevitable abuses of the free speech and privacy rights of law-abiding Americans under the USA Patriot Act. These abuses will occur under a cloak of national security and it will be years before they come to light.
3. The trial before a special U.S. Court in Philadelphia, which will test the constitutionality of the Children's Internet Protection Act, which forces libraries to install crude Internet filtering programs that will block lawful and valuable speech from their patrons -- children and adults alike.
Marc Rotenberg Executive Director, Electronic Privacy Information Center
1. The Hague Convention on Jurisdiction and Foreign Judgments will grind to a halt. The already beleaguered effort to establish international rules for enforcement of private judgments still faces strong opposition from ISPs and consumer groups.
2. Consumer groups pressed the Federal Trade Commission in 2001 to look closely at the privacy and security implications of Microsoft's Passport -- a universal log-on service. Now that the Department of Justice's "Let-Us-Trust" Division has taken a pass on the long-running lawsuit and the private litigants seem ready to settle, the focus could quickly shift back to the FTC. Will the FTC act?
3. The copyright industry was on a roll in the past year, knocking out Napster and defending the Digital Millennium Copyright Act. Now the question is whether consumers are ready for digital products that track users, report to manufacturers and shut down when licenses expire.
Jack Balkin Professor, Yale Law School
Certainly one of the most important developments this year will be the continuing struggle between free speech and intellectual property in the courts. Civil libertarians will try to push for recognized First Amendment defenses against copyright and paracopyright. At the same time, businesses will continue to try to invoke the First Amendment as a defense against government regulation of the telecom industry.
Although these two trends both invoke the First Amendment, they actually represent very different philosophies and, indeed, mutually opposed visions of what free speech is all about.
Jessica Litman Professor, Wayne State University Law School
Some things I'll be watching in 2002: (1) What sorts of Internet privacy measures, those to enhance and those to diminish or prevent privacy and anonymity, will be acceptable in the wake of the September 11 terrorist attacks, and what will fly under the radar using prevention of terrorism as an excuse? (2) Whether a variety of government and business initiatives to respond to threats of cyber-terrorism will advance or undermine the adoption of open source software as an alternative to popular and currently vulnerable commercial computer programs. |
