Laurence Canter and Martha Siegel, two attorneys practicing law in Phoenix, are conceivably among the two most reviled dwellers of cyberspace. A few months ago, the husband and wife law firm of Canter & Siegel brought upon themselves a virtual firestorm of “flames” — the network term for angrily scornful messages — for engaging in constitutionally protected free speech on the Internet.
The “crime”: They posted an advertisement for their legal services throughout the Usenet, a major portion of the Internet linking some 10 million people around the world encompassing government agencies, large universities, high schools, businesses of all sizes and home computers. The ad had nothing to do with computers and was not targeted toward any particular forum within the Usenet. It simply offered to help any individual enter the Government’s Green Card Lottery, which makes available a specified number of work visas to foreign citizens who would not otherwise qualify for them.
The Usenet is considered by some to be the closest thing the world has yet had to an electronic “global village.” To some, Canter & Siegel’s ad was the equivalent of the Goodyear blimp hovering at low altitude. Their ad appeared unsolicited in some 6000 of the 9000 “news groups” comprising the Usenet. A news group is an electronic bulletin board in which people interested in a particular topic share information.
The response from many in the enraged net community was vitriolic and, in some cases, sociopathic, including anti-Semitic hate mail, death threats, electronic harassment including listing Canter’s and Siegel’s home address and advocating arson, threats to post their credit report and credit card numbers, preparing electronic “bombs” to knock out their computers, and even the suggestion that forged messages calling for the assassination of President Clinton be sent in their names.
Did Canter and Siegel do anything illegal? No. The government does not regulate the content of Usenet communications. Moreover, the First Amendment to the Constitution protects, among other things, freedom of speech, whether of a commercial or non-commercial nature. Any laws or regulations prohibiting speech on the Internet based on content, e.g., purely commercial advertisements such as those placed by Canter & Siegel, would likely be struck down as unconstitutional if challenged in the courts. But as the Usenet and the larger Internet are global communities, issues as to what constitutes permissible conduct on the “net” transcend U.S. law.
Canter’s and Siegel’s ad violated a fundamental rule of “netiquette” — the informal Usenet code of conduct that has developed over time — that users not abuse a communal resource intended for intellectual pursuits by hawking their products or services. News groups also typically have rules discouraging the posting of messages not related to their topics. Canter’s and Siegel’s method of disseminating their ad was considered particularly obnoxious because they indiscriminately “spammed” their message across innumerable news groups (“spamming” is net jargon for repeating the same information numerous times, derived from a Monty Python episode featuring a restaurant serving a tasty dish of Spam, Spam, sausage, eggs and Spam). The ad cost the lawyers almost nothing to send. They took advantage of the Internet’s enormous transmission and replication capabilities. The ad’s recipients, however, paid for the ad in connection and data storage charges, as well as lost time spent removing the ad from their news group mailboxes.
To many, Canter’s and Siegel’s ad is merely the latest example of the decline in net civilization. What was once the exclusive province of academic institutions and government agencies has become a global soapbox for anyone with a PC and a modem. The easy access to the Internet afforded by on-line services such as UUNET, Delphi, CompuServe and America Online has increased the diversity of the net’s population. Many longtime users view this as a threat to the net’s decade-old tradition of rational self-governance, and ultimately, free expression.
Indeed, the global net has begun to reflect the world itself. The New York Times has reported that Armenians and Turks have brought their long-standing ethnic hatreds into the net community by accusing each other of using electronic forgeries and software that seeks and destroys the other’s messages. Pornographic pictures are traded, uploaded and downloaded in heavy volume, and pedophiles have been caught prowling for young boys on local bulletin board systems and national on-line services, again according to the Times.
Is regulation needed? As of this writing, the international board of directors of the Internet Society was scheduled to meet in June, 1994, to consider rules of appropriate network behavior. The Society does not have enforcement authority, but is in a position to recommend to Internet access providers that they contractually require subscribers to adhere to rules governing system use.
Some Internet access providers already limit in their services contracts what subscribers can say and do using their systems. First Amendment issues do not come into play because the limitations are not imposed by any governmental act, but by written agreement between private parties.
In its Terms of Membership agreement, Delphi Internet Services prohibits its users from advertising or promoting any commercial product or services without Delphi’s consent. Delphi also prohibits users from submitting for publication on the system any libelous or obscene material and requires users to get Delphi’s permission before engaging in any mass electronic mailings.
America Online, which provides e-mail access to the Internet, goes further. Billing itself as a “community oriented service” with “children aboard,” its Terms of Service prohibit a variety of speech described as sexually oriented, threatening, racially offensive, obscene, profane or abusive. Subscribers are further prohibited from using the system to encourage others to use controlled substances. Harassment of others — defined as a personal attack against another member intended to cause distress, embarrassment or other discomfort, i.e. “flaming” — is also a violation of America Online’s service terms. Users violating any term of service can be cut off.
CompuServe, another consumer-oriented on-line service provider competing with America Online and offering e-mail access to the Internet, has similar restrictions. For example, CompuServe members are prohibited from disseminating on the service any abusive, profane or sexually offensive information or material. They are additionally prohibited from advertising to other members, except through the “Classifieds” section, which will not publish ads of a personal or sexual nature.
The on-line services mentioned above are but three gateways to the Internet. Will other users accessing the Internet through gateways imposing no such restrictions agree to the establishment of a regulatory body having broad policing and enforcement powers over the net? As spamming and other more socially unacceptable activities become widespread, can the net do without one?
Attorney Eric Freibrun specializes in Computer law and Intellectual Property protection, providing legal services to information technology vendors and users. Tel.: 847-562-0099; Fax: 847-562-0033; E-mail: eric@freibrunlaw.com.