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Technology & the Law

How does the Constitution—written 200 years before Facebook and texting—apply to the digital world?

By Stefanie Olsen

When the Founding Fathers sat down to write the Constitution and the Bill of Rights, they could never have imagined anything like cyberspace.

Now that technology has become such an integral part of everyday life—with teens often leading the way—the courts are struggling with how to translate constitutional principles and protections for the digital world.

Among the issues the courts are grappling with are how the First Amendment right to free speech, the Fourth Amendment's protection against "unreasonable search and seizures," and laws against harassment apply online.

Here's a look at five areas in which the courts are trying to answer these types of questions.

Free Speech
The Issue: Do you have the right to express yourself online without fear of legal action?
The Background: The courts have said First Amendment rights do apply online. But those free-speech rights are subject to the same limits as in person and in print: You can't defame, libel, or slander another person.*
What makes online speech trickier is the instant access to an enormous audience that the Web provides. Casual comments that were once made to friends in person or on the phone are now permanently "published" on websites and social networks, making them easier targets for legal action.
What the Courts Have Said: After Justin Kurtz, a 21-year-old college student in Kalamazoo, Michigan, had his car towed earlier this year, he turned to Facebook to vent about his experience. But the Facebook group he created, "Kalamazoo Residents against T&J Towing," prompted a defamation lawsuit by the towing company, which is seeking $750,000 in damages. Kurtz says he did nothing but tell the truth of his experience. The legal battle is ongoing.
Courts are also grappling with how much control schools can exert over their students' online speech.
In 2006, Pennsylvania high school senior Justin Layshock was suspended for creating an online parody of his principal, writing on a fake MySpace profile that the principal was "too drunk to remember" his birthday. The resulting lawsuit against the school, Layshock v. Hermitage School District, argued that the school, in punishing Layshock, had violated his right to freely express himself online. A judge sided with Layshock, but the school has appealed. In other similar cases, including a separate case in Pennsylvania, the courts have ruled that the schools were justified in punishing students for things they'd written online.
"Schools argue that the Internet changes everything, because it's available everywhere and they should be able to punish [students] as if they were in school," says Vik Malchak, legal director of the A.C.L.U. in Pennsylvania. "But that would make principals censors of the Web."
What to Watch For: Free-speech lawyers say that the Layshock case could be among the first online free-speech cases to reach the Supreme Court.
"The question is," says Malchak, "to what extent can school officials punish students for what they say off campus, especially what they say on the Internet, typically from their home computers."


The Issue: Can you go to jail for harassing someone via text message or on a social networking site?
The Background: Bullying is as old as the schoolyard. But the Internet, social networks, and text messaging have brought vast new opportunities for abuse. (See Voices) Online bullying can be particularly harsh because the taunts can go viral, spreading quickly and broadly.
"No place is safe, because technology can reach you anywhere, 24/7," says Parry Aftab, an Internet lawyer and executive director of stopcyberbullying.org.
In January, Phoebe Prince, a 15-year-old high school student who had recently moved from Ireland to South Hadley, Massachusetts, took her own life after three months of in-person harassment and bullying through text messages and Facebook.
What the Courts Have Said: In March, six high school students were charged with criminal harassment and other offenses in connection with Prince's death. They have all pleaded not guilty. The Prince case is one of the first in which criminal charges involving cyberbullying have been brought against students.
The courts are struggling to interpret how harassment laws apply online. It's only in recent years that states have started to address the issue legislatively by adding cyberbullying to existing laws.
What to Watch For: Prince's suicide has already prompted new laws. In the last year, several states—including New Hampshire and Massachusetts, where Prince was bullied—have specifically made cyberbullying a crime.
Congress is also considering the Megan Meier Cyberbullying Prevention Act, named after a 13-year-old California girl who committed suicide in 2006 after extensive bullying online. The proposed federal law would impose criminal penalties for sending electronic communication "intended to coerce, intimidate, harass, or cause substantial emotional distress."
"It's so easy to use any digital technology to harass someone," Aftab says. "We're going to see many more [legal] cases because everyone's sick of it."

Violent Video Games
The Issue: Do video-game makers have the right to sell violent video games to minors?
The Background: In the best-selling video game Grand Theft Auto: San Andreas, the player runs around with gangs, stealing cars and murdering people. Many parents and lawmakers fear that this kind of video-game violence can cause psychological harm to young people or incite aggressive behavior. As a result, several states, including California, have passed laws restricting the sale of violent video games to minors.
Free-speech advocates and the Entertain-ment Merchants Association, a trade group for the video-game industry, argue that the First Amendment protects all forms of artistic expression, even if it includes violence.
What the Courts Have Said: So far, the courts have blocked the implementation of the California law, which was signed by Governor Arnold Schwarzenegger, and similar laws in other states on the grounds that there is no evidence that violence in video games harms young people and that expressions of violence are protected under the First Amendment.
In April, the U.S. Supreme Court agreed to consider this topic for the first time by reviewing the California law. The case, Schwarzenegger v. Entertainment Merchants Association, will be heard during the upcoming Supreme Court term.
What to Watch For: Several legal experts say they expect the Supreme Court to agree with the lower courts and strike down the California law. But if the Court decides that the law is constitutional, we can expect to see many new laws along these lines.
"It potentially opens up a major Pandora's box of free-speech problems by classifying depictions of violence as forbidden speech," says Adam Thierer of the Progress and Freedom Foundation, a technology think tank. "That would be a sea change, constitutionally speaking, in American First Amendment law."

The Issue: Do you have the right to download a song or movie online from free file-sharing sites?
The Background: The entertainment industry has been trying to take down Web services that let people swap music and movies for free ever since the creation of Napster in 1999. In 2003, major film and music studios started suing individuals, including many teens, in an effort to deter the practice.
To the industry, free downloading is no different from stealing a CD or sneaking into a movie theater without a ticket. They say it violates federal copyright law, which prohibits the copying and redistribution of artistic works without permission.
What the Courts Have Said: In 2007, the first file-sharing lawsuit to go before a jury pitted all of the major record labels against Jammie Thomas, a 30-year-old Minnesota woman accused of downloading 24 songs on the file-sharing service Kazaa. (The music industry had filed copyright-infringement lawsuits against 30,000 people; Thomas was the first to go to trial instead of settling out of court.)
In Capitol v. Thomas (named after the lead plaintiff, Capitol Records), the jury found Thomas guilty of willful copyright infringement.
Thomas was initially ordered to pay $1.9 million in damages, later reduced on appeal to $54,000, or $2,250 per song. But the case is scheduled to go back to court yet again this fall to revisit the damages award.
What to Watch For: Legal experts don't expect a downloading case to reach the Supreme Court anytime soon, largely because most major film and music studios have dropped individual lawsuits after a rash of bad publicity.
While sites like Apple's iTunes have convinced many people to pay for their downloads, some experts say the copyright laws should be revised to make distinctions between professional pirates who can make millions selling stolen digital files and those downloading for their own use.
"The law needs to recognize the difference between commercial pirates and a high school student in her basement with a single movie," says Jason Schultz, a law professor at the University of California, Berkeley.

Online Privacy
The Issue: What level of privacy can you expect on a cellphone, computer, or social network?
The Background: Years ago, when people wanted to keep personal information private, they'd put it in a locked desk drawer or a safety deposit box. Now, people keep untold amounts of private information online—everything from credit card and Social Security numbers to medical records and e-mail.
Courts have already begun allowing police to obtain warrants to search computer and cellphone records when they're investigating crimes.
But what about businesses that have access to your personal information? Are there limits to how they can use that information?
Last spring, there was an uproar when Facebook changed its privacy settings in a way that forced people, at least temporarily, to make more of their personal information public. With nearly 500 million users worldwide, Facebook has become a force in defining new standards for privacy in the Internet age.
What the Courts Have Said: In June, David Gould of South Lake Tahoe, California, filed a class-action lawsuit, Gould v. Facebook, seeking $5 million in damages. He claims that Facebook shared his personal information with advertisers without his consent, in violation of its privacy policy.
As is the case with free-speech issues, the courts are grappling with how the law applies when schools are involved. The Supreme Court has already established that schools can search a student's locker if they have reason to suspect illegal activity. Now, some schools are using that same logic to say they have the right to search electronic devices brought to school.
A 2006 case in Pennsylvania, Klump v. Nazareth Area School District, involved a teacher who had confiscated a student's cellphone because it was visible in class, in violation of school policy. An administrator searched through the student's stored text messages, voicemail, and contact list to find out if other students were also violating the school's cellphone policy.
The court ruled that the confiscation of the cellphone was justified, but the search of the phone records violated the student's Fourth Amendment rights.
What to Watch For: In May, Congress began considering a new Internet privacy law that would beef up online privacy protections. Meanwhile, the Digital Due Process Initiative—a group of Internet companies, academics, and civil liberties groups—is working on updating the 1986 Electronic Communications and Privacy Act (ECPA). One goal is to protect the privacy of search records and files held in the "cloud" on servers operated by Google and Facebook.
"ECPA is based on assumptions that are very dated, such as if you leave your opened e-mail on a third-party server (like Gmail) you have 'abandoned' it, and so the government can get it without a warrant," says Cindy Cohn of the Electronic Frontier Foundation. "In these days of cloud computing, such assumptions are ridiculous, but the law hasn't kept up."

* To defame someone is to make a statement, often false, that damages their reputation; libel is the written form of defamation and slander is the spoken form.

(The New York Times Upfront, Vol. 143, September 6, 2010)