Discussion(CL)

I. What is the Internet? Who Regulates It? This book is about Internet . But is it possible to distinguish between “the Internet” and “not the Internet”? What defines this boundary? From a policy and regulatory standpoint, why does this boundary matter? Defining the Internet The Internet is an electronic communication network. There are many other electronic networks, including wired and wireless telephony and radio and television broadcast, all of which have historical roots that differ greatly from the Internet. We generally consider those networks as distinct from the Internet, even though those networks can carry Internet traffic, and even though the Internet makes it possible to replicate telephony, radio, and television functions. So what distinguishes the Internet from other electronic communications networks? There is no single well-accepted answer to this question. Perhaps most distinctively, the Internet uses “packet switching.” To understand packet switching, it helps to understand a bit about Internet history. The following explanation comes from American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996): 5. The Internet had its origins in 1969 as an experimental project of the Advanced Research Project Agency (“ARPA”), and was called ARPANET. This network linked computers and computer networks owned by the military, defense contractors, and university laboratories conducting defenserelated research. The network later allowed researchers across the country to access directly and to use extremely powerful supercomputers located at a few key universities and laboratories. As it evolved far beyond its research origins in the United States to encompass universities, corporations, and people around the world, the ARPANET came to be called the “DARPA Internet,” and finally just the “Internet.” 6. From its inception, the network was designed to be a decentralized, selfmaintaining series of redundant links between computers and computer networks, capable of rapidly transmitting communications without direct human involvement or control, and with the automatic ability to re-route communications if one or more individual links were damaged or otherwise unavailable. Among other goals, this redundant system of linked computers was designed to allow vital research and communications to continue even if portions of the network were damaged, say, in a war. 7. To achieve this resilient nationwide (and ultimately global) communications medium, the ARPANET encouraged the creation of multiple links to and from each computer (or computer network) on the network. Thus, a computer located in Washington, D.C., might be linked (usually using dedicated telephone lines) to other computers in neighboring states or on the Eastern seaboard. Each of those computers could in turn be linked to other computers, which themselves would be linked to other computers. 2. 8. A communication sent over this redundant series of linked computers could travel any of a number of routes to its destination. Thus, a message sent from a computer in Washington, D.C., to a computer in Palo Alto, California, might first be sent to a computer in Philadelphia, and then be forwarded to a computer in Pittsburgh, and then to Chicago, Denver, and Salt Lake City, before finally reaching Palo Alto. If the message could not travel along that path (because of military attack, simple technical malfunction, or other reason), the message would automatically (without human intervention or even knowledge) be re-routed, perhaps, from Washington, D.C. to Richmond, and then to Atlanta, New Orleans, Dallas, Albuquerque, Los Angeles, and finally to Palo Alto. This type of transmission, and re-routing, would likely occur in a matter of seconds. 9. Messages between computers on the Internet do not necessarily travel entirely along the same path. The Internet uses “packet switching” communication protocols that allow individual messages to be subdivided into smaller “packets” that are then sent independently to the destination, and are then automatically reassembled by the receiving computer. While all packets of a given message often travel along the same path to the destination, if computers along the route become overloaded, then packets can be re-routed to less loaded computers. Statutory definitions of the “Internet” often reference packet switching or its enabling protocol called Transmission Control Protocol/Internet Protocol (TCP/IP). For example, in the United States Code, you’ll find two alternative definitions of “Internet”: “the international computer network of interoperable packet switched data networks” (e.g., 31 U.SC. § 5362; 47 U.S.C. § 230). “collectively the myriad of computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected world-wide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor [or] successor protocols to such protocol, to communicate information of all kinds by wire or radio” (e.g., the Children’s Online Privacy Protection Act, 15 U.S.C. § 6555; the now-defunct Internet Tax Freedom Act, 47 U.S.C. § 151 note). Historically, the Internet has been perceived as a virtual space. However, the emergence of the “Internet-of-Things” has further blurred the boundaries between “the Internet” and “not the Internet.” Physical items are now routinely Internet-enabled, including cars, thermostats, juicers (the Juicero), and adult toys (the “We-Vibe”). As the Internet pervades physical items in the “offline” world, is there a coherent border between “the Internet” and “not the Internet”? Accessing the Internet Internet access providers (IAP) are the service providers that get users and services online. IAPs are sometimes called “Internet Service Providers” or “ISPs,” but that term is also 3. sometimes confusingly used to describe websites as well. To reduce semantic ambiguity, never use the term “ISP;” use the term “IAP” when referring to Internet access. Some of the primary ways that we access the Internet: At home, most people obtain Internet access from their telephony or cable provider, such as AT&T or Comcast. Most people also access the Internet on their smartphones through their cellular service provider or third-party wi-fi services. Employers and schools routinely provide Internet access to their employees/students. es routinely provide wi-fi Internet access to their customers. What Can We Do on the Internet? There are many communication modalities on the Internet, including email, chat, message boards, social media, web publishing and more. The Internet enables individuals to create their own personal website or blog. More typically, people use third-party publishing tools, such as social media, which expedite the content distribution process and provide exposure to an existing audience. Many of these content publication options are free; others are relatively low cost. The ACLU v. Reno court said in 1996, “the Internet provides an easy and inexpensive way for a speaker to reach a large audience, potentially of millions. The start-up and operating costs entailed by communication on the Internet are significantly lower than those associated with use of other forms of mass communication, such as television, radio, newspapers, and magazines.” This low cost has led to an explosion of content unprecedented in human history, with a virtually infinite diversity of content (for better and for worse). As the ACLU v. Reno court wrote in 1996, “It is no exaggeration to conclude that the content on the Internet is as diverse as human thought.” There are two other distinctive aspects of the Internet as a content publication platform. First, the Internet makes it seamless to browse content from diverse sources due to abundant and easy-to-use links. As the ACLU v. Reno court wrote in 1996, “[Hyper]links from one computer to another, from one document to another across the Internet, are what unify the Web into a single body of knowledge, and what makes the Web unique…The power of the Web stems from the ability of a link to point to any document, regardless of its status or physical location.” Second, we routinely flip between being consumers and producers of online content, often without thinking about that transition. As the ACLU v. Reno court wrote in 1996: 79. Because of the different forms of Internet communication, a user of the Internet may speak or listen interchangeably, blurring the distinction between “speakers” and “listeners” on the Internet. Chat rooms, e-mail, and newsgroups are interactive forms of communication, providing the user with the opportunity both to speak and to listen. 4. 80. It follows that unlike traditional media, the barriers to entry as a speaker on the Internet do not differ significantly from the barriers to entry as a listener. Once one has entered cyberspace, one may engage in the dialogue that occurs there. In the argot of the medium, the receiver can and does become the content provider, and vice-versa. 81. The Internet is therefore a unique and wholly new medium of worldwide human communication. Mobile Devices as Computers. As further evidence of the degradation of the boundaries between the Internet and not-the-Internet, most people carry a mobile computer—with Internet access—around with them at virtually all times. From Riley v. California, 573 U.S. 373 (2014): The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick rather than a container the size of the cigarette package in Robinson. But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on. We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future. The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video— that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved 5. ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone. Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary. But those discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case. Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life. In 1926, Learned Hand observed that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” If his pockets contain a 6. cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is. Who Controls the Internet? In the 1990s, many people referred to the Internet as the ultimate disintermediator; some technologists even thought it would make centralized control of the communication network impossible. From the 1996 ACLU v. Reno opinion: 11. No single entity—academic, corporate, governmental, or non-profit— administers the Internet. It exists and functions as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocols to exchange communications and information with other computers (which in turn exchange communications and information with still other computers). There is no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet…. 46. A distributed system with no centralized control. Running on tens of thousands of individual computers on the Internet, the Web is what is known as a distributed system. The Web was designed so that organizations with computers containing information can become part of the Web simply by attaching their computers to the Internet and running appropriate World Wide Web software. No single organization controls any membership in the Web, nor is there any single centralized point from which individual Web sites or services can be blocked from the Web. From a user’s perspective, it may appear to be a single, integrated system, but in reality it has no centralized control point. This might still be true in a literal sense. However, as technology has developed new communication innovations, governments have counter-innovated ways of controlling those communications. Some “chokepoints” that governments have targeted: Internet access providers determine what their users can do on the Internet. In many countries, there are a small number of IAPs; and the government licenses IAPs or otherwise exercises substantial control over their businesses. In extreme cases, a government can require all of a country’s IAPs to shut down and take the country off the Internet entirely. The domain name system and IP address systems are targetable chokepoints. For example, turning off a domain name makes the associated service functionally invisible. Website blocking orders, which block domain names of illegal activity, have become increasingly routine in Europe. Alternatively, blocking an IP address makes the associated computer(s) invisible to other parts of the Internet. In extreme cases, a government can force all of the country’s IAPs to block a domain name or IP address. For example, Turkey regularly blocks YouTube. To get around these blocks, people in the country might use “VPNs.” VPN services allow users to “rent” an IP 7. address from them. Using such services can allow a user to appear to third party websites as if they are coming from a different country than the user’s actual country. For example, if the BBC tries to restrict its online content only to viewers in the United Kingdom, people in other countries can rent an IP address from a UKbased VPN service and gain access BBC’s content by appearing to be located in the UK. This creates a cat-and-mouse game, as governments then seek to block or restrict access to VPNs. Search engines are often a key chokepoint because they affect what people see. For example, governments can mandate that search engines do not “auto-complete” certain queries, implicitly obscuring the search results associated with those queries. Browser software manufacturers are a chokepoint because their settings and functionality often dictate what users can do online. The major social media services can become a chokepoint when they control a large portion of the desired audience. Governments have other techniques to assert control over Internet actors. First, they can require that any service available in their country have a physical presence there. Some geographic-specific domain names, such as “.eu,” require a local physical presence. That physical presence makes it easier for governments to target any associated physical assets or employees, including the threat of jailing the personnel. Second, many countries have gone further and required that Internet services must store all personal information from the country’s residents in the country (called “data localization” requirements). In addition to giving the government more assets to target, the requirement facilitates the government’s censorship of that data because it can forcibly suppress the data stored in its territory. At its most extreme, Russia has developed its own country-specific Internet (the “Runet”) that can be disconnected from the rest of the Internet for purposes of “Internet sovereignty” or “national security.” Jane Wakefield, Russia ‘Successfully Tests’ Its Unplugged Internet, BBC, Dec. 24, 2019, https://www.bbc.com/news/technology-50902496. Such a system has unlimited potential for censorship by ensuring that the only content available to Russian citizens on the “Internet” comes from publishers and services that the Russian government can control. We will revisit ways that governments can subject Internet actors to legal consequences in the jurisdiction module. Authenticating User Attributes on the Internet You may be familiar with this iconic 1993 New Yorker cartoon: 8. In the optimistic period of the 1990s, this cartoon stood for the proposition that people could be someone different on the Internet. In particular, on the Internet, people could interact with other people without displaying—and, in theory, without being judged based on—their visible physical characteristics such as age, gender, or race. It also meant people could engage in role-playing and experience what life is like for people with different attributes. Later, the New Yorker cartoon took on an unexpectedly ironic meaning. Extensive data gathering by Internet companies that they knew virtually everything about Internet users—perhaps more than the users know about themselves. Some folks on the Internet may not know you’re a dog, but Google and Facebook do. Authenticating users’ ages has been a perennial authentication challenge. In 1995, a cyberpanic swept through Congress because minors could find pornography online. However, the First Amendment protects the availability of pornography to adults, so Congress could not categorically ban pornography online. Nevertheless, Congress passed the Communications Decency Act, which led to a legal battle covered in the Reno v. ACLU opinion later in this book. In the mid-1990s, it was not feasible to distinguish minors from adults online. To work around that technological limitation, the Communications Decency Act created a safe harbor for treating users as adults if they presented a valid credit card number. There are a number of problems with this approach, including the now-dubious assumption that minors don’t have access to a valid credit card number. Remarkably, age authentication technologies have not materially improved in the past quarter-century. Some social media services “age-gate” by blocking minors’ access to some material on their services, but the efficacy of such age-gating depends on whether the user self-reported his/her age accurately in the first place. Otherwise, most forms of online communication—ranging from web publishers to email correspondents—still lack an effective way of reliably and accurately distinguishing minors from adults. Nowadays, the privacy-invasive implications of age authentication seemingly conflict with consumers’ increasing desire for privacy online. Have We Fallen Out of Love With the Internet? The Internet is a major advance in human technology, and it enables functionality that truly would have seemed like science fiction to people before the Internet. That’s why most people still love the Internet. Yet, over time, the Internet’s brand has been degrading: 9. Americans have grown somewhat more ambivalent about the impact of digital connectivity on society as a whole. A sizable majority of online adults (70%) continue to believe the internet has been a good thing for society. Yet the share of online adults saying this has declined by a modest but still significant 6 percentage points since early 2014, when the Center first asked the question…. Those who think the internet has had a good impact on society tended to focus on two key issues, according to follow-up items which allowed respondents to explain their views in their own words. Most (62% of those with a positive view) mentioned how the internet makes information much easier and faster to access. Meanwhile, 23% of this group mentioned the ability to connect with other people, or the ways in which the internet helps them keep more closely in touch with friends and family. By contrast, those who think the internet is a bad thing for society gave a wider range of reasons for their opinions, with no single issue standing out. The most common theme (mentioned by 25% of these respondents) was that the internet isolates people from each other or encourages them to spend too much time with their devices. These responses also included references to the spread and prevalence of fake news or other types of false information: 16% mentioned this issue. Some 14% of those who think the internet’s impact is negative cited specific concerns about its effect on children, while 13% argued that it encourages illegal activity. A small share (5%) expressed privacy concerns or worries about sensitive personal information being available online. Declining Majority of Online Adults Say the Internet Has Been Good for Society, Pew Research Center, Apr. 30, 2018, http://www.pewinternet.org/2018/04/30/decliningmajority-of-online-adults-say-the-internet-has-been-good-for-society/. Government regulators routinely take a much dimmer view of the Internet than the average consumer. 10. In the next case, the court legally distinguishes an online chatroom from an offline restaurant. Do you agree? Noah v. AOL Time Warner Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003) Plaintiff, on behalf of himself and a class of those similarly situated, sues his Internet service provider (ISP)* for damages and injunctive relief, claiming that the ISP wrongfully refused to prevent participants in an online chat room from posting or submitting harassing comments that blasphemed and defamed plaintiff’s Islamic religion and his co-religionists. Specifically, plaintiff claims his ISP’s failure to prevent chat room participants from using the ISP’s chat room to publish the harassing and defamatory comments constitutes a breach of the ISP’s customer agreement with plaintiff and a violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. At issue on a threshold dismissal motion are (i) the now familiar and well-litigated question whether a claim, like plaintiff’s, which seeks to hold an ISP civilly liable as a publisher of third party statements is barred by the immunity granted ISP’s by the Communications Decency Act of 1996, 47 U.S.C. § 230, (ii) the less familiar, indeed novel question whether an online chat room is a “place of public accommodation” under Title II, and (iii) the rather prosaic question whether plaintiff’s breach of contract claim is barred by the very contract on which he relies, namely the Member Agreement contract. For the reasons that follow, plaintiff’s claims do not survive threshold inspection and must therefore be dismissed. I. Plaintiff Saad Noah, a Muslim, is a resident of Illinois and was a subscriber of defendant America Online, Inc. (“AOL”)’s Internet service until he cancelled the service in July of 2000. AOL, which is located in the Eastern District of Virginia, is, according to the complaint, the world’s largest Internet service provider, with more than 30 million subscribers, or “members,” worldwide. Defendant AOL Time Warner Inc. is the parent company of AOL. Among the many services AOL provides its members are what are popularly known as “chat rooms.” These occur where, as AOL does here, an ISP allows its participants to use its facilities to engage in real-time electronic conversations. Chat room participants type in their comments or observations, which are then read by other chat room participants, who may then type in their responses. Conversations in a chat room unfold in real time; the submitted comments appear transiently on participants’ screens and then scroll off the screen as the conversation progresses. AOL chat rooms are typically set up for the * [Editor’s note: even though this court did, please don’t use the term ISP.] 11. discussion of a particular topic or area of interest, and any AOL member who wishes to join a conversation in a public chat room may do so. Two AOL chat rooms are the focus of plaintiff’s claims: the “Beliefs Islam” chat room and the “Koran” chat room. It is in these chat rooms that plaintiff alleges that he and other Muslims have been harassed, insulted, threatened, ridiculed and slandered by other AOL members due to their religious beliefs. The complaint lists dozens of harassing statements made by other AOL members in these chat rooms on specified dates, all of which plaintiff alleges he brought to AOL’s attention together with requests that AOL take action …