Legal and Ethical Issues Internet Taxation. Introduction Real space –Our physical environment...
Transcript of Legal and Ethical Issues Internet Taxation. Introduction Real space –Our physical environment...
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Legal and Ethical Issues Internet Taxation
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Introduction
• Real space– Our physical environment consisting of temporal and
geographic boundaries
• Cyberspace– The realm of digital transmission not limited by geography
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Legal Issues: Privacy on the Internet
• Difficulty of applying traditional law to the Internet
• Technology and the issue of privacy
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Right to Privacy
• Implicit in the First, Fourth, Ninth and Fourteenth Amendments
• Olmstead vs. United States– Telecommunication of alcohol sales over the phone during
Prohibition era
– New application of the Fourth Amendment
• Translation– Interpreting the Constitution to protect the greater good
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Internet and the Right to Privacy
• Self-regulated medium– The Internet industry governs itself
• Many Internet companies collect users’ personal information– Privacy advocates argue that these efforts violate
individuals’ privacy rights
– Online marketers and advertisers suggest that online companies can better serve their users by recording the likes and dislikes of online consumers
• Financial Services Modernization Act of 1999 – Establishes a set of regulations concerning the management
of consumer information
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Internet and the Right to Privacy
• FTC (Federal Trade Commission) found that – 97% of web sites studied collected personal information– Only 62% of those sites gave any indication to the consumer
that information was being collected.– 57% of studied sites contained third-party tracking devices.
• 90% of customers say that online security is a major concern.
• 50% are hesitant to use credit-card numbers for online transactions.
• Only 3.5% of 30,000 web sites studied earned a four-star rating (out of four stars) on their privacy polocies.
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Network Advertising Initiative
• Network Advertising Initiative (NAI) – Approved by the FTC in July 1999 to support self regulation
• NAI currently represents 90 percent of Web advertisers
• Determines the proper protocols for managing a Web user’s personal information on the Internet
• Prohibits the collection of consumer data from medical and financial sites
• Allows the combination of Web-collected data and personal information
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Employer and Employee
• Keystroke cop– Monitor employee activities– Registers each keystroke before it appears on the screen
• Company time and company equipment vs. the rights of employees
• Determining factors– Did the employee have a reasonable expectation of privacy?– Does the business have the legitimate business interests that
would reasonably justify the intrusion of an employee privacy?
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Employer and Employee
• Reasons for surveillance– Slower transmission times– Harassment suits– Low productivity
• Notice of Electronic Monitoring Act– Proposed in 2000
– Would require employers to notify employees of telephone, e-mail and Internet surveillance
– Annual updates or when policy changes are made
– The frequency of surveillance, the type of information collected and the method of collection would also be disclosed
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11.2.4 Michael A. Smyth vs. The Pillsbury Company Feature
• Dismissed as regional operations manager because of unprofessional email messages transmitted to his supervisor.
• Questionable material in e-mail
• Pennsylvania law – “An employer may discharge an employee with or without cause,
at pleasure, unless restrained by some contract"
• Public policy– Reprimanding an employee called for jury duty
– Denial of employment as a result of previous convictions
• Verdict awarded to Pillsbury– No reasonable expectation of privacy
– Legitimate business interests
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11.2.5 Protecting Yourself as a User
• Anonymity and pseudonymity– PrivacyX.com – digital certificate for new users when they
register
• Platform for Privacy Preferences Project (P3P)– Browser complies in accordance with users’ privacy preferences
by allowing them to interact in specific ways– XML-based applications
• Privacy services and software– Junkbusters.com– PrivacyChoices.org– Center for Democracy and Technology– Electronic Frontier Foundation– Electronic Privacy Information Center– PrivacyRights. org
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11.2.6 Protecting Your Business: Privacy Issues
• Privacy policy– The stated policy regarding the collection and use of
visitor’s personal information
• It is important to include a privacy policy on your web site.
• Privacy policy services and software– PrivacyBot.com– TRUSTe
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11.2.6 Protecting Your Business: Privacy Issues
• Core Fair Information Practices – Consumers should be made aware that personal information
will be collected
– The consumer should have a say in how this information will be used
– The consumer should have the ability to check the information collected to ensure that it is complete and accurate
– The information collected should be secured– The Web site should be responsible for seeing that these
practices are followed
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11.2.6 Protecting Your Business: Privacy Issues
PrivacyBot.com. (Courtesy of Invisible Hand Software, LLC.)
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11.3 Legal Issues: Other Areas of Concern
• Defamation• Sexually explicit speech• Copyright and patents• Trademarks• Unsolicited e-mail• First Amendment
– "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances"
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11.3.1 Defamation
• Defamation– The act of injuring another’s reputation, honor or good name
through false written or oral communication
– Contain libel and slander
• Libel – Defamatory statements written or spoken in a context in
which they have longevity and pervasiveness that exceed slander
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Defamation
• Slander– Spoken defamation
• Proving defamation, need to meet 5 requirements– The statement must have been published, spoken or
broadcast
– There must be identification of the individual(s) through name or reasonable association
– The statement must be defamatory
– There must be fault • Public reason – statement is actual malice
• Private reason – statement need only negligent (or published, spoken, broadcast) when known to be false
– There must be evidence of injury
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Defamation
• Good Samaritan provision, Section 230 of the Telecommunications Act– Protects ISPs from defamation lawsuits when the ISPs’
attempt to control potentially damaging postings
– “Obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable"
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Sexually Explicit Speech
• Miller vs. California (1973)– The Miller Test identifies the criteria used to distinguish
between obscenity and pornography
– Prove to be obscene• Must appeal to the prurient interest, according to
contemporary community standards
• When taken as a whole, lacks serious literary, artistic, political or scientific value
• Challenge of community standards in cyberspace– For example, different states have different views and
tolerance for pornography
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United States vs. Thomas Feature
• Thomas– Internet business owner in California, owner of
pornographic Web site from which merchandise could be ordered
– Accessible by password
– Acceptable by California community standards
– Sold pornographic material to Tennessee resident (opposing community standards)
• Thomas found guilty• Non-content related means
– Effort to control the audience rather than controlling the material
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Children and the Internet
• Accessibility of information• Decency Act of 1996 (CDA) and Children’s
Online Protection Act of 1998 (COPA) – Designed to restrict pornography on the Internet, particularly
in the interest of children– Accused of being “Overbroad”
• Reach beyond the group they intended to protect– “Patently offensive,” “indecent” and “harmful to minors”
• Chilling effect– Limiting speech to avoid a lawsuit
• Children’s Online Privacy Protection Act of 2000 (COPPA)– Prohibits Web sites from collecting personal information
from children under the age of 13
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Alternatives Methods of Regulation
• Blocking and filtering– Allows users to select what kinds of information can and
cannot be received through their browsers
• Blocking and filtering software and services– Surfwatch.com– Cybersitter.com– NetNanny.com
• Infringement of First Amendment rights• Parent’s counsel
– CyberAngels.com– GetNetWise.com– Parentsoup.com
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Alternatives Methods of Regulation
Net Nanny home page. (Courtesy of Net Nanny SoftwareInternational, Inc.)
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Intellectual Property: Patents and Copyright
• Copyright– The protection given to the author of an original piece,
including “literary, dramatic, musical, artistic and certain other intellectual works”
– Whether the work has been published or not
– Protects only the expression or form of an idea and not the idea itself
– Provides incentive to the creators of original material
– Guaranteed for the life of the author plus seventy years
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Intellectual Property: Patents and Copyrights
• Digital Millennium Copyright Act of 1998 (DMCA) – Represents the rights of creative bodies to protect their
work as well as the rights of educators and resource providers to receive access to this work
– Makes it illegal to delete or otherwise alter the identifying information of the copyright owner
– Prevents the circumvention of protection mechanisms and/or the sale of such circumvention mechanisms
– Protects the fair use of copyrighted material
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Intellectual Property: Patents and Copyright
• Fair use– The use of a copyrighted work for education, research,
criticism– The purpose of the copyrighted work is examined
• Not for commercial use
– The nature of the copyrighted work is taken into account• Make sure it is the expression of ideas, not the ideas
themselves
– The amount of the material that has been reproduced is reviewed
• How crucial was the piece of information to the whole work?
– The effect is taken into consideration• How does the reproduction of the copyrighted material affect
the potential market?
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Intellectual Property: Patents and Copyright
• Patent– Grants the creator sole rights to the use of a new discovery
– Protection for 20 years
• Opposing the length of a patent– Does not foster the creation of new material
• Includes “methods of doing business” since 1998– Idea must be new and not obvious to a skilled person
• Amazon’s 1-Click patent– September, 1999
– Huge advantage over competitors, as 65% of shopping carts are abandoned before purchase is complete
– Barnesandnoble.com Express Lane violated patent
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File Sharing and the Copyright Debate Feature
• Present significant challenges to the traditional treatment of copyright protection
• MP3– A compression method used to substantially reduce the size
of audio files, with no significant reduction in sound quality
• Napster– Operates as a centralized service– Offers software that allows users to download MP3 files
from the hard drives of other members
• Gnutella– Operates as a decentralized service– Individuals with Gnutella software installed on their
computers operate as both a client and a server
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File Sharing and the Copyright Debate Feature
• Legal issues– Freedom of exchange (enabled by technological
advancements) vs. copyright infringement
– Ability to voice one’s opinion and circumvent efforts of censorship
– If copyrighted works are distributed over the system, creators will have less incentive to continue generating original works
• Sony Betamax (1984) – Courts awarded the victory to Sony, suggesting that the
Betamax provided other uses (recording for personal viewing) that justified its existence
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Trademark and Domain Name Registration
• Parasite– Selects a domain name based on common typos made when
entering a popular domain name
– e.g., www.whitehouse.com instead of www.whitehouse.org
• Cybersquatter– Buys an assortment of domain names that are obvious
representations of a brick-and-mortar company
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Trademark and Domain Name Registration
• Anticybersquatting Consumer Protection Act of 1999 (ACPA) – Protects traditional trademarking in cyberspace
– Protects trademarks belonging to a person or entity other than the person or entity registering or using the domain name
– Persons registering domain names are protected from prosecution if they have a legitimate claim to the domain name
– Domain names cannot be registered with the intention of resale to the rightful trademark owner
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Unsolicited Commercial E-mail (Spam)
• Cost is primarily incurred by the receiver and the ISP
• Organizations distributing spam– Maintain anonymity and receivers cannot request to be taken
off the organization’s mailing list
– Present themselves as a legitimate company and damage the legitimate company’s reputation
• Unsolicited Electronic Mail Act – Mandates that the nature of the e-mail be made clear
– Would require online marketers to know the policy of every ISP they encounter on the Web
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Unsolicited Commercial E-mail (Spam)
• Mail Abuse Prevention System (MAPS)– Protect uses against spam
– It receives consumer complains regarding the distribution of unsolicited e-mail.
– After as few as three complains about an address, MAPS places the address on its list of offenders.
– MAPS then provides a blocking services based on this list.
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Online Contracts
• Electronic Signatures in Global and National Commerce Act of 2000 (E-Sign Bill)– Designed to promote online commerce by legitimizing
online contractual agreements
– Digital agreements will receive the same level of validity as hard-copy counterparts
– Allows cooperating parties to establish their own contracts
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User Agreements
• Requires users to agree to certain terms regarding the service or product provided by the site before entering
• Shrink-wrap agreement – An agreement printed on the outside of the package holding
the product that becomes binding when the consumer opens the package
• Click-through agreement– A pop-up screen to which users must agree before they can
continue
• Depending on their presentation, these types of agreements can be considered valid by the U. S. courts
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Cybercrime
• Auctions, chat rooms and bulletin boards are among the most popular forums for illegal activities
• Viruses, which often lead to denial of service or a loss of stored information, are among the most common cybercrimes
• Stock scams– Crimes in which individuals purchase stocks, then present
false claims about the value of that stock in chat rooms or on bulletin boards to sell them back at a higher price
• Web page hijacking– Web page is used as a gateway (the intermediary between
one site and another) to another site
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Cybercrime
FTC “dummy” site for NordiCaLite. (Courtesy of FederalTrade Commission.)
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Cybercrime
FTC warning page. (Courtesy of Federal Trade Commission.)
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Internet Taxation
• The opposing arguments– Permanent ban on Internet taxation
– Fair taxation of Internet sales
• Taxation methods– If both a vendor and a consumer are located in the same state
sales tax is applied
– If the vendor and the consumer are not located in the same state, then the sale is subject to a use tax
– If the vendor has a physical presence, or nexus, then it is required to collect the tax; otherwise the vendor must assess the tax and pay it directly to the state
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Internet Taxation
• Problems with Internet taxation– The definition of physical presence (location of the ISP, the
location of the server or the location of the home page)
– States vary according to what transactions are subject to taxation
– Sales tax revenues are the largest single source of a state’s revenue and are used to fund government-subsidized programs, including the fire department, the police and the public education systems
– State and local governments further argue that removing taxation methods from their jurisdiction infringes upon state sovereignty
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Internet Taxation
• Problems with Internet taxation– To meet the taxation requirements of all parties in online
transactions, e-businesses would be required to know and understand all these methods
• Internet Tax Commission– Reviewed the issue of Internet taxation
– Revision of state and local taxes to make taxing a feasible process for Internet businesses
– Define universal taxation exemptions