Law, Policy, Ethics, and Behavior

EDHI297

March 27, 2002

Four Elements of Success

• Understand the law

• Understand the technology

• Effective policy-creation processOpen and inclusive

• Effective follow-upConsistentEvolutionary

The Legal Framework

• Legal and illegal content

• Harassment, defamation

• FERPA

• DMCA

• Common carrier versus content provider

• Don’t trust me; I am not a lawyer

Everything is in Flux

• Old laws applied to new situations

• Little case law/precedents to guide us

• USA PATRIOT Act

-----> Group Exercise <-----

• Usenet

• $$Easy Money

• Change the World

Legal or Illegal? You decide:

• Pornography

• Obscenity

• Indecency

• Child pornography

• Advocating revolution in Kurdistan

Legal or Illegal? You decide:

• Pornography … usually

• Obscenity

• Indecency

• Child pornography

• Advocating revolution in KurdistanBut Turkey may not think so!"The First Amendment is merely a local

ordinance on the Internet" -- Timothy May

Pornography, Revisited

• “Is there a computer cluster somewhere where someone can be safe from pornography and harassment? I'm sick of this.”Complainant is offended, embarrassed,

distracted from her work “Offender” asserts free speech rights and

legality of imagesHostile environment?

Defamation

• “Jim Gabostsky beats his children.”

• “Sylvia Anderson is from outer space.”

• “Britney Spears can’t sing.”

Defamation

• “Jim Gabostsky beats his children.”

• “Sylvia Anderson is from outer space.”

• “Britney Spears can’t sing.”

Defamation = Libel and Slander

• Libel: printed or written

• Slander: Spoken

• Is it publication or is it speech:Email?Web?

Proving Defamation

• Is it true?

• Would a reasonable person believe it?

• Tougher rules for public figures

• Slander tougher to prove than libel

• 50 laws; 50 perspectives

Harassment

• MIT definition: “Harassment is any conduct, verbal or

physical, on or off campus, which has the intent or effect of unreasonably interfering with an individual's or group's educational or work performance at MIT

“or which creates an intimidating, hostile or offensive educational, work or living environment.”

Harassment

• MIT criteria:Did the incident cause stress that affected

your ability, or the ability of others, to work or study?

Was it unwelcome behavior? Would a reasonable person of your

gender/race/religion subjected to this behavior find it unacceptable?

Harassment Example

From: "Xxxxxxx J. Xxxx" <xxxxxx@zoo.uvm.edu>

Hello, I opened my account to find 4,082 of these messages. I have an idea of who's responsible and would like to be advised as to further legal action

against this person. Thanks

Harassment Example

---------- Forwarded message ----------

Date: Sat, 4 Oct 2001 01:44:41

From: xxxxx@gnu.uvm.edu

To: xxxxx@gnu.uvm.edu

Subject: Kaboom!

you have been MAILBOMBED

Legal and Illegal Content Online

• Communications Decency Act (CDA) Ruled unconstitutional in 1997

• Child online protection act of 1998 (CDA II): Any communication for commercial purposes that

is "harmful to minors” Temporary restraining order (Feb. 1999) Supreme Court arguments (Nov. 28, 2001)

Decision by June 30, 2002 http://www.cdt.org/speech/copa/ http://www.aclu.org/issues/cyber/Ashcroft_v_ACL

U_feature.html

Legal and Illegal Content Online

• Children's Internet Protection Act (ChIPA or CIPA) (December, 2000)

Libraries must install software to censor material considered objectionable by the software vendors

for minors and adults or lose federal funds Multnomah County Library vs. United States of Am

erica trial started March 25

ALA, ACLU, EFF

Law

• Common carrier or content provider?

• "A University is just an ISP that charges tuition." If you're a publisher, you're liable for content If you know of illegal content (child pornography,

obscenity, threats, defamation, copyright) you must act.

• Distance education and fair use

Copyright and the Digital Millennium Copyright Act

• U.S. basis is economic; elsewhere moral basis

• Exclusive rights of author Copy Derivative work Distribution Public performance Public display Digital performance

Copyright and DMCA

• Contributory infringement -- University liable if have knowledge

• Educational fair use -- no legal basis; stay tuned

• Can't view an image without making a copy; DMCA helps

• Email forward is copyright violation

Copyright and DMCA

• Web ≠ public domain

• Assume everything on Web is copyrighted

• Assume infringement; protect by using ©, date, name, how to contact you

Digital Millennium Copyright Act

• DMCA offers protection for educational institutions and other ISPsOr does it?

• Action

• Appeal

• Resolution

Relevant Laws

• Privacy Act of 1974

• ECPA - Electronic Communications Privacy Act of 1986 (!!) applies to disclosure of contents only inadvertent discovery court order Can't intercept: communication in progress Ok to intercept: stored communication

Relevant Laws

• FERPA

• FOIAPermanence, public record

• USA Patriot Act of 2001

Still to be decided

• Cookies

• Click tracking

• Reverse phone # lookup

-----> Group Exercise <-----

• RIAA

• Revolution

• Scientology

Policy = Law + Values

Law Institutional Values

Policy

Policy Foundation

• Legal basis

• Institution's values

Policy Principles

• Better to say "yes" and deal with the challenges, than to say "no" and miss opportunities

• Does IT require new policies? Impact on others (system performance) Policy lags innovation Rely on existing policies and judicial

processes as much as possible

Policy Formation

• Transparent, inclusive process

• Generalize; don’t try to think of everything

• Be specific when necessary

• Evolve

Policy Enforcement

• Education

• Effective enforcement

• Appropriate sanctions

Creating an AUP*

• Who would you involve?

• What key institutional values reflected in policy?

• Process for handling violations?

• What sanctions?

* Acceptable Use Policy

Behavior

Behavior

Law Policy

EthicsEducation, Persuasion

Enforcement Culture

Ethics

• Gray area outside law and policy

• The values you forgot to put in the policy

• Does "I can" mean it's okay?

• Interpretation of policy and law; expectationsPrivacy and employer monitoring of

electronic communication

---> Ethics Exercise <---

• Dorm cam

• Napster

• Offensive images

Open Questions

• Educating students about law, policy, and ethics: what works?

• What's most likely to be effective in enforcing IT policies?

• Are IT sanctions appropriate for IT violations?

Education & Persuasion

• Get their attention – entertain

• Cornell Travelers of the Electronic Highway (TEH) required orientation http://www.cit.cornell.edu/training/materials/

facstaff/fsTEH/delivery_video.html

• University of Virginia http://www.itc.virginia.edu/pubs/docs/RespComp

/ videos/home.html • Collected by Marjorie Hodges Shaw, Cornell University. Presented at Educause

2001

Cornell’s TEH: Travelers of the Electronic Highway

• Netiquette

• Harassment

• Chain e-mail

• Sharing your password

• Intellectual property• http://www.cit.cornell.edu/training/materials/

facstaff/fsTEH/delivery_video.html

When I go to U. Va. …

QuickTime™ and aSorenson Video decompressorare needed to see this picture.

Taking Action

• It matters less what action you take, than letting those offended or upset know that you sympathize, and that you are taking action consistent with your policy. People satisfied even if the action taken was not the severe sanction they initially requested.

• But follow the law, if it applies!

Taking Action

• Don't panic!

• Act quickly! (But think first.)

• Straight-face test

• Don't need absolute proof; think evidenceGather evidence before acting!

Taking Action

• Prepared cut-and-paste responses

• Pre-set roles

• Students (and others) generally cooperative

• Bottom-line goal: appropriate behavior

Dear Hapless User

• Standard note to alleged perpetrators of harassment, improper use, or other uncivil behavior.

• "Someone using your account, did [whatever the offense is]."

• Explain why this behavior or action is offensive, or violates institutional harassment policy, or Rules of Use, or whatever.

Dear Hapless User

• "Account holders are responsible for the use of their accounts. If you were unaware that your account was being used in this way, it may have been compromised. Account Services can help you change your password and re-secure your account.”

Dear Hapless User

• "If you were aware that your account was being used to [whatever it was], then please make sure that this does not happen again."

Law, Policy, Ethics, and Behavior

EDHI297

March 27, 2002

Resources: Copyright and Fair Use

• Consortium of College and University Media Centers (CCUMA), Educational Fair Use Guideline, http://www.libraries.psu.edu/avs/fairuse/

• http://fairuse.stanford.edu

• http://www.law.cornell.edu/topics

• http://www.utsystem.edu/OGC/IntellectualProperty/

Resources: Copyright and Fair Use

• http://www.copyright.com

• http://www.cyberspacelaw.org/

• Ownership of Electronic Course Materials in Higher Education, by Dan L. Burk, http://www.cause.org/information-resources/ir-library/html/cem9734.html

Resources: Copyright and Fair Use

• International Federation of LibraryAssociations (IFLA)Copyright in digital environment

http://www.ifla.org/III/clm/p1/pos-dig.htmLicensing principles

http://www.ifla.org/Vebpb/copy.htm

Resources: Privacy

• http://www.epic.org/privacy/privacy_resources_faq.html

• http://www.cdt.org/privacy

• http://www.glr.com/stalk.html

• http://www.cause.org/ white paper on "Privacy and the Handling of Student Information in the Electronic Networked Environments of Colleges and Universities."

Resources: Defamation and Harassment

• http://www.lawguru.com/sexhara.html

• http://www.baclaw.com

• http://www.aclu.org/library/pbp11.html

Resources: Ethics

• http://www.inform.umd.edu/CampusInfo/Departments/JPO/ethics/