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Perspective: Internet law: The year in review

Despite some landmark developments in Internet law, legal expert Doug Isenberg says 2002 closed in much the same way it began. Here's his take on the year and what's on the horizon for cyberspace in 2003.

    Here's a look back on how some of the most important developments in Internet law weighed before the U.S Congress and the courts this year. While headway was made on some issues, not much has changed since the beginning of 2002.

    Microsoft antitrust case finally ends
    After nearly five years, the federal government's antitrust case against Microsoft mostly came to an end in November, when Judge Colleen Kollar-Kotelly largely accepted a settlement agreement offered by the company, the U.S. government and most of the states that had joined the litigation. The settlement is likely to have few significant effects for most Microsoft customers or competitors and comes much too late to have an impact on the infamous "browser wars" that helped give rise to the litigation.

    In addition, the judge's acceptance of the settlement does not end Microsoft's legal troubles, as two states are appealing. The software company also continues to face an antitrust investigation by Europe, as well as possible new charges there relating to the market for mobile phone software.

    Cyberterrorism, what cyberterrorism?
    A report by technology research company IDC in December predicted a significant act of cyberterrorism in the coming year, but this is the same news we heard a year ago. "While bin Laden may have his finger on the trigger, his grandson might have his finger on the mouse," was the dramatic congressional testimony--in October 2001--of Frank J. Cilluffo, an expert on terrorism at the Center for Strategic and International Studies in Washington, D.C.

    These warnings should not be ignored, but they're about as helpful as Attorney General John Ashcroft warning of "credible but nonspecific" threats of imminent physical terrorist attacks. Yes, there were Internet attacks in 2002, but whether yet another teenager or an international terrorist organization is to blame, who knows?

    Privacy, what privacy?
    Terrorism put the brakes on many calls for increased online privacy, as the world's attention quickly shifted to identifying rather than hiding wrongdoers in cyberspace. With passage of the USA Patriot Act, law enforcement officials have greater authority to identify alleged criminals online, and Internet service providers are being asked--voluntarily and via legal compulsion--to unmask their subscribers. Verizon Communications, for example, is fighting a subpoena from the Recording Industry Association of America in its effort to identify a subscriber who allegedly had illegally shared music files online.

    Not surprisingly, Congress again did not pass any Internet privacy legislation in 2002. In March, Federal Trade Commission Chairman Timothy J. Muris called such legislation "premature," leaving the seldom-enforced 1998 Children's Online Privacy Protection Act (COPA) as the only federal Internet privacy law. But Minnesota made headlines in May by becoming the first state to enact privacy laws for cyberspace.

    Napster is dead, long live Napster
    The world's most popular music file-sharing service finally pulled the plug in 2002 by declaring bankruptcy and selling its assets--although it had been offline since the previous year, thanks to a devastating series of court rulings. Despite Napster's promise to relaunch as a legal subscription service with licenses from the major players in the music industry, it never found a way out of the cyberhole it had dug for itself and forever will be branded as a copyright infringer.

    Still, name recognition is valuable, so Roxio, the new owner of the Napster trademark, may find a way to revive the name with a service of its own. In any event, although the original Napster is gone, file-sharing isn't, as the music industry continues to pursue lawsuits against Napster wannabes, including Kazaa, Grokster, Morpheus, Madster and others.

    Yes, there were Internet attacks in 2002, but whether yet another teenager or an international terrorist organization is to blame, who knows?

    Wham, bam, hello spam
    Yet again, Congress introduced but failed to pass antispam legislation, instead leaving legal attempts to fight spam to the states. About half the states have introduced a variety of laws--some proving successful. America Online, for example, just won a $7 million award against a spammer, thanks in part to the Virginia Computer Crimes Act.

    The hodgepodge of state laws, though, has had little practical effect on stemming the tide of unwanted e-mail; and it is not clear that a federal law such as the Can Spam Act would do much more or withstand a First Amendment challenge. As a result, 2002 saw the rise of technological rather than legal weapons in the fight against spam. These products, many of which let e-mail users create their own opt-in lists, likely will prove much more successful than the law in minimizing the amount of junk we receive in our in-boxes.

    Sanitizing the Net, strike two
    The U.S. Supreme Court in May issued its second opinion on COPA, refusing to lift an injunction against enforcement of the Internet law. COPA made it illegal to publish on the Web any material that is "harmful to minors," a standard that the law's challengers said violates the First Amendment's protection of free speech. To the surprise of many, the Supreme Court did not say it agreed--as it strongly did in response to provisions of the Communications Decency Act in 1997--instead writing that the standard could be constitutional but that it did not yet know enough about the law. As a result, although the law remains unenforceable, it's also still in the legal system and ultimately could be heard again by the high court.

    Sick, but so what?
    Though not a pure "Internet law" case, the U.S. Supreme Court in April wrote another opinion on an important issue involving technology and the law provisions of the Child Pornography Prevention Act of 1996. CPPA banned the production and distribution of images that appear to be (but are not) children engaging in sexually explicit conduct. Yes, that means sick creators of virtual child pornography can continue their works, but it also means that movies such as "Romeo and Juliet," "Traffic" and "American Beauty"--in which adult actors portray children--are protected by the First Amendment. Still, conservatives in Congress are not content.

    Filter, schmilter
    In yet another important Internet legal development involving sexual content, a three-judge panel in May struck down as unconstitutional the Children's Internet Protection Act (CIPA), a law that denied certain federal funding to public libraries that refused to implement filtering software on Internet-connected public computers. The judges said filtering technology is not sufficiently sophisticated to block only those sites that the law requires, confirming yet again that the best way to protect children online is parental supervision, not technology.

    Dot-kidding-who?
    Despite the courts' repeated rejections of legal attempts to protect children online, Congress passed--and in December, President George W. Bush signed--the Dot Kids Efficiency and Implementation Act. The Dot Kids Act is only the fifth Internet-specific law ever adopted at the federal level. It requires the creation of a child-friendly domain name in the .us top-level domain (such as kids.us), where all Web sites must offer content that is "suitable for minors."

    If the content standards to be created by Neustar--the current administrator of .us domains--are well-drafted and properly enforced and if operators of child-friendly sites see a business incentive to open shop in the kids.us space, then this law could be the first successful effort at providing a safe haven for children online. But those are big "ifs."

    In any event, although the original Napster is gone, file-sharing isn't, as the music industry continues to pursue lawsuits against Napster wannabes.

    Patently invisible
    The poster-child lawsuit of the antipatent movement in the e-commerce arena, Amazon.com v. BarnesandNoble.com, quietly disappeared as the parties settled the case in March. The lawsuit involved a patent owned by Amazon for its 1-Click method for Web-based checkouts with a single mouse click. Though criticized by many as obvious, the patent had brought the online retail giant some advantage in the marketplace as it prevented others from implementing similar technology. Whether the patent ultimately would remain valid under a legal challenge was a question that every high-tech patent holder and potential infringer was waiting to learn. Unfortunately, because the terms of the settlement were not publicly disclosed, the strength of this patent--as well as many other Internet-based patents--remains uncertain.

    Men at work sing the DMCA
    In the most highly watched tech law trial of 2002, Russian company ElcomSoft was found not guilty in December of violating the much-maligned Digital Millennium Copyright Act (DMCA). The company and one of its employees, hacker hero Dmitry Sklyarov, were the first defendants ever charged with criminal violations of the DMCA, thanks to their production of a software program that could convert copy-protected e-books in the Adobe format to a different format that could be opened in any PDF viewer without restriction.

    The charges against Sklyarov were dropped before trial, and a jury found the company not guilty apparently because it did not intend to violate the law. Though heralded by many as a victory for researchers and high-tech tinkerers, the outcome of this case is more interesting than important, because the criminal provisions of the DMCA remain on the books.

    Future shock
    Internet law is still maturing, and 2003 no doubt promises some important legal developments. Among them: The U.S. Supreme Court will tell us whether the Copyright Term Extension Act is constitutional, a decision that could have an important impact on the electronic dissemination of old books, music and movies. Courts worldwide will continue to evolve their interpretations of jurisdiction on the Internet; whether U.S. courts will follow Australia's recent decision that one country's courts can have jurisdiction over a defendant in another country based on Internet activity, will be an intriguing development--especially considering that many U.S. companies want U.S. courts to enforce their rights against foreign defendants here. Also, not content with the Supreme Court's ruling on COPA, CPPA and CIPA, Congress will no doubt continue to introduce new laws to eliminate some content from the Internet.