THE LAW OF CYBERSPACE
Final Examination -- Spring 1996

This exam consists of three questions. You have two hours in which to outline and write your answers. The first question counts for 20% of your total grade for this exam; the second counts for 30%; and the third counts for 50%. I suggest that you allocate your time accordingly.

I strongly advise that before you begin writing your answers you 1) read the question carefully; 2) think about exactly which issues you need to address; and 3) outline your answer. Good organization and good analysis almost always go hand-in-hand.

Use as many exam booklets (or, if typing, sheets of paper) as you need. Start your answer to each question in a new booklet (or on a new sheet of paper), and number the booklets (or sheets) so that I can easily follow their intended sequence. Please write or type on one side only of each page.

For your benefit and my eyesight, please write as legibly as possible (or type).

This is an open book exam. You may use your casebooks, statutory supplements, any material that I handed out in class, and any notes that you or your study group prepared. For reasons we discussed in class, you may not use computers or other electronic devices that provide searchable files.

If you have any procedural questions, please direct them to Jennifer Patterson, in the registrar's office. She will know how to reach me.

I've got a very successful friend to whom people often say, "Gosh, you're lucky." She always replies, "The harder I work, the luckier I get." May you, too, achieve the success that your hard work merits.

Your client, Big Important Stuff, Inc. (BIS), contracts with the U.S. Department of Sausage (USDOS) to run simulations of turkey gizzard markets on BIS supercomputers. The security officer for BIS recently discovered that one George Curious had been monkeying around on BIS computers without the company's authorization. Curious logged onto his home computer, found a gap in the BIS firewall, and gained access to a BIS supercomputer running simulations for the USDOS and other, private parties. Curious neither harmed the computer nor interfered with the simulations, apparently being content to simply observe its processing. But BIS did lose over $100,000 in patching the gap in its firewall, a process that delayed all simulations for two days.

BIS asks you to answer the following questions:

1. Is Curious guilty of violating the Computer Fraud and Abuse Act? Why or why not?

2. Assume without analysis, for the purposes of this question only, that Curious violated some law (whether the CFAA, a state statute, or common law). How should BIS proceed -- by bringing the full weight of the law to bear against Curious, or by saying nothing and letting him off the hook? Describe the pros and cons of each of these strategies.

Several scholars, and now even a few courts, have discussed how to apply trademark law to Internet domain names. The domain name constitutes everything to the right of the "@" symbol in, say, an email address. But nobody seems to have noticed that the portion in front of the "@" -- the user name or "user id" -- might raise similar issues. For example, someone unrelated to the respective businesses might grab "kodak@aol.com" or "nike@ix.netcom.com". Note that NSI/InterNIC has nothing to do with user names. Rather, the parties responsible for providing user access -- such as AOL or Netcom -- typically assign them.

Please answer the following questions:

1. To what extent does the potential seizure of user names raise the same problems as the seizure of domain names?

2. To what extent does it raise different issues?

3. What would you advise ISPs and others responsible for assigning user names to do to avoid the sorts of problems that NSI/InterNIC has faced in its assignment of domain names?

4. What would you advise trademark attorneys to do about user names that might interfere with their clients' marks?

Due to time constraints, we did not get to study every interesting aspect of the Communications Decency Act (CDA). In particular, § 509 of the CDA raises questions about the continued liability of ISPs and other parties for various types of on-line speech. Carefully read the attached excerpts from § 509 and the accompanying Conference Report. Then, using your skills of statutory interpretation, answer the following questions:

1. Do you think that a court would interpret § 509 to overturn Prodigy and related cases? Why or why not?

2. Delineate the scope of the defense provided by § 509, taking care to note the full range of parties to whom it might apply.

3. Assuming that the Conference Report accurately states Congressional intent, how would you modify the cited provisions to convey that intent more accurately? (If you conclude that the statute already conveys congressional intent perfectly, defend your conclusion.)

STATUTORY MATERIALS:

SEC. 509. ONLINE FAMILY EMPOWERMENT.

Title II of the Communications Act of 1934 (47 U.S.C. 201et seq.) is amended by adding at the end the following newsection: `SEC. 230. PROTECTION FOR PRIVATE BLOCKING ANDSCREENING OF OFFENSIVE MATERIAL.

* * *

`(b) POLICY- It is the policy of the United States--

* * *

`(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;

`(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and

`(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

`(c) PROTECTION FOR `GOOD SAMARITAN' BLOCKING AND SCREENING OF OFFENSIVE MATERIAL-

`(1) TREATMENT OF PUBLISHER OR SPEAKER- No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

* * *

`(d) EFFECT ON OTHER LAWS-

`(1) NO EFFECT ON CRIMINAL LAW - . . . .

`(2) NO EFFECT ON INTELLECTUAL PROPERTY LAW - . . . .

`(3) STATE LAW - Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

`(4) NO EFFECT ON COMMUNICATIONS PRIVACY LAW - . . . .

`(e) DEFINITIONS- As used in this section:

* * *

`(2) INTERACTIVE COMPUTER SERVICE - The term `interactive computer service' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

`(3) INFORMATION CONTENT PROVIDER - The term `information content provider' means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

* * *

Joint Explanatory Statement of the Committee of Conference

* * *

Section 509 - Online Family Empowerment

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Conference agreement

This section provides "Good Samaritan" protections from civil liability for providers or users of an interactive computer service for actions to restrict or to enable restriction of access to objectionable online material. One of the specific purposes of this section is to overrule Stratton-Oakmont v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material. The conferees believe that such decisions create serious obstacles to the important federal policy of empowering parents to determine the content of communications their children receive through interactive computer services.

These protections apply to all interactive computer services, as defined in new subsection 230(e)(2), including non-subscriber systems such as those operated by many businesses for employee use. . . .

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