X. SUGGESTIONS FOR REGULATION

Now that the current regulatory environment of computer information systems has been discussed, we are left wondering how well the regulations function to control Cyberspace. Many people fear that the current law does not effectively protect the rights o f voyagers through Cyberspace. This has given rise to groups such as Computer Professionals for Social Responsibility [590] and the Electronic Frontier Foundation.[591] Groups such as these work to increase access to technology for the general masses; to help legislatures understand what it is they are regulating; to help aid in the passing of responsible, workable, laws; and, where necessary, to help defend people whose rights are being violated because of legislation which does not properly cover computer information systems. Constitutional law professor Laurence Tribe has even proposed a new amendment to the U. S. Constitution to protect individuals from such violations of their rights. His proposed amendment reads:

"This Constitution's protections for the freedoms of speech, press, petition, and assembly, and its protections against unreasonable searches and seizures and the deprivation of life, liberty, or property without due process of law, shall be construed as fully applicable without regard to the technological method or medium through which information content is generated, stored, altered, transmitted, or controlled."[592]

This amendment would serve to ensure that the speech and privacy right that we currently enjoy in other media would be applied to electronic communications as well. An amendment such as this would hopefully avoid incidents like the raid on Steve Jackson Games. This amendment would serve to guarantee that a computer bulletin board publishing the contemporary editor's message would enjoy the same constitutional protection as the print publisher's printing press. This is particularly important as electronic publishing and electronic document delivery become the norm, rather than the exception.[593]

Some authors focus more on how liability should be assessed and damages determined in a new medium which offers the opportunity for violation of rights on an instantaneous, global scale. For example, one author believes that SYSOPs should be at least jointly liable with the poster of the offending material.[594] He argues that the average subscriber to a BBS does not have the resources to compensate adequately for injuries caused by the potentially widespread reach of offending material.[595] Also, it may not even be able to discover the reach of offending material.[596] Copyrighted material could be spread from computer to computer all over the world after just one file transfer.[597]

Others want to simplify the issue of system operator liability by holding the SYSOP liable, in addition to the original poster, as a means of compensating victims and deterring computer crime.[598] These people argue that SYSOPs should be liable for content because they are easier to track down than the users who posted the offending material, and also, by holding them liable, SYSOPs are more likely to work at deterring others from the use of their service for inappropriate purposes.

What is necessary to regulate computer information system content and system operator liability is, first and foremost, an understanding of the technology. The law is a slow evolving, tradition-bound beast. Computers are an upstart technology pioneered by people who do things like create viruses to let loose on their friends in order to hone their programming skills.[599] If judges, juries, lawyers and legislators do not understand current technology, the technology will have changed before the law catches up to it. Many of our current laws will work well if adapted to computer information systems. The Electronic Communications Privacy Act of 1986[600] works well to regulate electronic mail because it is modeled after the statute that governs the U.S. mail.[601] For many people, these new communications fora are direct replacements for the ones that they represent; therefore they should be regulated like the ones they represent. This may entail using several different regulatory schemes, but this should not be too difficult to employ by people who understand the technology at issue - simply regulate E-mail like U.S. mail, regulate networks like common carriers, etc. It would not be difficult to employ the correct legal analogy if the computer information service at issue is looked at from the point of view of the user. Where novel legislation is needed is in defining terms to be used in the developing law, and in filling in any gaps. An example is trespassing. If someone hacks into a computer sys tem, is he or she breaking and entering, or is the situation more analogous to someone making a prank telephone call?

Tribe's proposed Constitutional amendment is similar to a modern day spelling out of a natural law concept. The law already exists, so it should be assumed that the Constitution covers all technologies equally, including Cyberspace. In theory an amendment to the Constitution is not necessary; however, a new amendment would leave no doubts and would make for streamlined judicial decisions. As computer information systems grow in popularity and scope, older media will pass away. New laws will have to be added, and old laws will have to evolve to conform with the specific demands of the new media. A growing imperative will also be international coordination of laws. "The point is that pretty soon you'll have no more idea of what computer you are using than you have of where your electricity is generated when you turn on the light."[602] For a dial-up accessible BBS or a networked computer information system, access can be had from anywhere there is a network connection or a telephone. Often, there is little or no easy way to determine in which state or country the computer you are using is located. In our interconnected society, there may not even be a clear way to establish which sovereign's laws will apply. International cooperation will become essential in resolving matters such as conflicts of laws if the legal environment is to be truly clear and understandable to guide the behavior of System Operators.

Copyright 1994 - 1995 by P-Law, Inc., and Kenneth M. Perry, Esq. All rights reserved. Reproduction is permitted so long as no charge is made for copies, no copies are placed on any electronic online service or database for which there is a fee other than a flat access charge, there is no alteration and this copyright notice is included.

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