Reading Assignments

Please Note: Participants are responsible for reviewing this page periodically. (If you remember when you last checked it, the dates at the bottom of this Note will indicate whether it has been revised since then.)

The casebook is the work of a former student in this seminar, David Loundy, Computer Crime, Information Warfare, and Economic Espionage (Carolina Academic Press, 2003). It should offer something for the interests of almost any law student: business and corporations, international law and trade, privacy and civil liberties, criminal law, hacking and computer technology, and the current news focus on terrorism.

Any reading assignment may become the subject matter of a quiz without further advance notice. All quiz grades combined may constitute up to 10 percent of the seminar grade.

Occasionally you will find an Internet readings link that does not respond. This may be a temporary condition, or the link may no longer be available or active. Should that occur use it as a challenge to your Web searching skills to find alternative sources rather than a reason to skip it entirely. -- N.J., December 21, 2003, January 2, 3; February 12, 2004; March 2, 2004; March 7, 2004, March 13, 2004, March 28, 2004, March 30, 2004, March 31, 2004, April 3, 2004.

You will be held to the professional standards outlined in "So You Want to be a Lawyer: A Play in Four Acts." If you have not yet read it, do so. If you have, review it.

Read, from "Law of Electronic Media: Concepts, Perspectives and Goals" (1997), the following sub-sections: "Information Age, Information Economy," "First Amendment: The Reasons For, and Purposes and Effects Of," "New Paradigms and 'Thinking Outside the Box,'" "Down-sizing, Out-sourcing, Entrepreneurship, Flat Organizations and the Virtual Corporation," "The Billion-Dollar Bonanza," "You Want It, You Got It," "Orders of Magnitude and the '99.9%-Off Sale," "Technological Displacement and Broadside Blows," "Globalization," and "Information Rich, Information Poor."

Supplement this with "Convergence and Cyberspace" from Johnson, "Regulating the Cyber-Journalist" (1997).

Although not a "requirement," as such, it is strongly recommended that you obtain a (free) subscription to the "e-zine" called EDUPAGE. It is a source of potential topics, cool insights into what's going on in cyberspace, and a summary of current news that can save you hours of reading -- not to mention provide you a source of conversational tidbits with which to impress your friends, family, and potential employers. (It's a relatively short e-mail that has a summary at the top and comes to you two or three times a week.) Don't take my word for it? Want to see what some of the old issues look like? Check out the "Educause Listserv Archives" at http://listserv.educause.edu/archives/edupage.html. Willing to take the plunge and subscribe right now? Click on "Join or leave the list" at the top of that page and just follow EDUPAGE's instructions (obviously when using the e-mail account to which you want the publication to be delivered):

You can subscribe or unsubscribe by sending e-mail to
LISTSERV@LISTSERV.EDUCAUSE.EDU
To SUBSCRIBE, in the body of the message type:
SUBSCRIBE Edupage YourFirstName YourLastName
To UNSUBSCRIBE, in the body of the message type:
SIGNOFF Edupage

We will introduce ourselves and review the seminar expectations and assignments. Make sure you have read each of the documents linked from the seminar's main Web page, http://www.uiowa.edu/~cyberlaw/cls04. Because it is important you be familiar with this material, there will be a brief quiz about it.

We will exchange some of our background and experiences with the Internet. [When did you first start using computers? What do you use them for? Have you held a job that required computer skills? Have you designed your own, or others,' Web pages? How do you use the Web/Internet? Have you participated in any social change organization's, or political campaign's, use of the Internet? Did that work well; what kind of difference did it make? Whether or not you personally download and share music mpg files, what do you think the law/policy ought to be?]

We will discuss the "preliminary reading assignments," above, and . . .

What is "The Internet"? (a) To make sure we're all on the same page, (b) as introductory information for those who are new to the Internet/Web, and (c) as a review for all of us, one of the best statements is found in the Findings of Fact from a three-judge federal district court panel. The case, ACLU v. Reno (E.D. Pa. 1996), is one we may look at for its holding and legal analysis later on in the semester. (It deals with a Congressional effort to restrict obscenity and indecency on the Internet: the "Communications Decency Act.") For now, we just want to read a small portion of the opinion, Findings of Fact 1-48. (It printed out to about 7-1/2 pages for me.) [If you were to print the entire opinion (which you need not do for this evening) it (for me) takes about 60 pages.] The opinion is available from either this direct link to the eff site (electronic frontier foundation) or if that doesn't work, the ACLU site. [If you're interested in seeing more of the opinions and documents in this case go to http://www.aclu.org/FreeSpeech/FreeSpeechmain.cfm, scroll to the bottom of that page, put "ACLU v. Reno" in the "Search" box and click "Go."]

The College of Law offers, in addition to this "Cyberspace Law Seminar," a regular course that surveys all of "Cyberspace Law." It is not a prerequisite to the seminar; you should be able to handle the seminar reading assignments with no problem. The regular course does, however, preclude our repeating its coverage in a second course. So, as is usually the case with seminars, we have selected a subset of cyberlaw issues as the focus of our readings. As the title of our book suggests, it is "computer crime, information warfare, and economic espionage."

At the same time, I thought it would be useful to devote one evening to at least a sampling of some of the range of issues that come up when we consider the impact of the law on the Internet -- and the impact of the Internet on the law.

Besides, you are in no sense limited to the subject of our readings in selecting your research paper topics. You should look for topics that really interest you. So the material for this evening may also have some impact on your thinking about your paper.

While the selection of what follows for this evening has not been totally random, neither does it pretend to be thorough overview. (References to page length are, of course, approximations that vary with font and format.)

Copyright

Copyright law as a separate course and area of study. As you well know, but I will remind you anyway, there are entire courses devoted to copyright law -- including those at our law school taught by outstanding professors. Thick casebooks, numerous statutory provisions, regulations and court opinions contribute to this body of law. There is also an interesting history of the evolution of copyright over centuries, and its role as a part of international/global law and regulation.

If a part of the reason you are taking this seminar is because you are thinking about the possibility of specializing in intellectual property law I would definitely recommend that you include a copyright law class while you're in law school.

This evening we're not only not going to master copyright law, we're not even going to survey all of the basics. But you will get at least a superficial overview, and an opportunity to think about the impact of the technology that is the Internet on the underlying law and policy that is copyright -- and about all that music you downloaded for free.

Copyright law. For a superficial overview, read Section One of Professor Stacey L. Dogan's Learning Cyberlaw in Cyberspace: Copyright in Cyberspace. (2 pages)

Copyright policy. Read John Perry Barlow, "The Economy of Ideas," Wired 2.03, March 1994. (Barlow is the Pinedale, Wyoming, cattle rancher who wrote lyrics for the Grateful Dead and helped found the eff (electronic frontier foundation) with Lotus developer Mitch Kapor. A mind-stretching piece with which to begin our discussion.) (16 pages)

Then apply your law and policy insights to a very limited selection from Los Angeles Times v. Free Republic (C.D. Calif. 1999). Read the first 5 full paragraphs of the opinion; then read, from Part II. C. 3. ("Discussion"/"The Fair Use Doctrine"/"The Amount and Substantiality . . ."), only the last four paragraphs of that sub-section (a total of 2 pages). Do you agree with the court's conclusions? Should it make a difference, today, that both the Washington Post and Los Angeles Times make available, on the same page with every story, an option for readers to send it to a friend, or print it out? From an administrative/enforcement perspective which option creates the more difficulty for the copyright owner?

Now consider only the first four paragraphs from Playboy Enterprises v. Frena (M.D. Fla. 1993). Based on what you now know about "fair use," do you think Frena had a stronger, or a weaker, case than the Free Republic? (1 page)

Some questions to think about ahead of time involving my Web-posting of this material: (1) Have I violated the copyright law? How and why, or why not? How many, and which, of my steps along the way constituted potential violations? (2) Are there analytically significant distinctions between my linking to Dogan's site and to Wired's? Sometimes, if you're concerned that an item you're linking to may be removed in the future, you might just click on "Save As" and then upload it to your Web site, rather than link to another's site. Should that make a difference for copyright purposes? Is it relevant that I did, or did not, buy that issue of Wired, or that a friend gave it to me? (3) Assume this would have been a violation for any one of a number of reasons, but is not because of some exceptions, or defenses, that I could raise. What might they be?

"A difference to be a difference has to make a difference" or, "At what point does a difference in degree become a difference in kind?"

Read only the first seven paragraphs from Reno v. Condon, 528 U.S. 141 (2000). (1 page) What was it about the kind of records in question in this case that caused congressional concern? There are a great variety of records of various kinds about all of us on file here and there, such as school, military, medical, criminal, court, bank and phone. Do we care, and should we, whether these records are in "hard copy" or "electronic" form, and if the latter, whether they are available only on stand-alone computers or on password-protected Internet sites?

A rather fundamental, but usually unspoken, couple of assumptions about virtually everything else we study in law school are that (a) there is such a thing as geography, and that (b) that is relevant. Legislation is binding within a state, or nation. A higher court's decision is binding on the lower courts in that "jurisdiction" (i.e., geographical place). In order for a country, or court, to "have jurisdiction" over you requires that you be present -- if not physically, at least in some sense -- in a geographical place.

Cyberlaw cuts the rope that tethers our law balloon to some fixed spot on Planet Earth. When you are in cyberspace you are both everywhere and nowhere. What are we to make of that? Does the Internet require a "re-do" of the entire law school curriculum?

Read the entirety of Quill Corp. v. North Dakota, 504 U.S. 298 (1992). Note that although this link takes you to Justice Stevens' majority opinion, there are also two additional opinions by Justices White and Scalia that you get by clicking on these links (or those on the majority opinion main page). (The majority's opinion is 7 pages plus some endnotes, Scalia's is one page, White's is four plus notes.)

Quill will give you a sense of what the Supreme Court -- and the rest of the legal profession -- is struggling with on these issues.

A related problem (geography) arises in the context of defamation law. Defamation requires an injury to one's reputation. Normally, that means a reputation in a given community. Moreover, language considered defamatory in one context/community might be unexceptional, or even flattering, in another.

Read paragraphs 9-20 of Rindos v. Hardwick (Sup.Ct. W. Aust. 1994) (1 page). Where is Rindos' community for purposes of defamation law?

Could a "community" exist only in cyberspace? Suppose a "chat room" is occupied by strangers all using anonymous pen names. One pen named participant defames another pen name in the chat room. On the assumption the identity of the defamer can be ascertained, can s/he be sued for defamation? Would the allegedly defamatory comment have to relate to the online community (say, socially agreed upon standards regarding "flaming")?

Loundy, Preface, p. xiii

Chapter 1: Introduction, pp. 3-8

Chapter 2: Computer Intrusions and Attacks, pp. 9-36 (i.e., to (not through) the Ebay v. Bidders Edge case)

Chapter 2: Computer Intrusions and Attacks, pp. 36-53 (Ebay v. Bidders Edge, plus notes)

Chapter 3: Computer Viruses, Time Bombs, Trojans, and Malicious Code, pp. 55-83 (i.e., to Shaw v. Toshiba America Information Systems)

Chapter 16. National Security, pp. 591-650 (i.e., to In re All Matters Submitted to . . .)

Chapter 16. National Security, pp. 664-70 (only; i.e., read "Answers to FAQ About Echelon," to "Commercial Satellites: Future Threats or Allies?")

Chapter 7. Online Fraud, pp. 231-281.

Chapter 8. Online Stalking and Criminal Threats, pp. 283-234.

Chapter 9. Identity Theft, pp. 335-43; Chapter 6. Search & Seizure, pp. 159-198.

Chapter 6. Search & Seizure, pp. 200-230; Chapter 11. Infrastructure Security, pp. 371-399.

Chapter 11. Infrastructure Security, pp. 371-399

Chapter 12. Technical Means of Protecting Information, pp. 401-423, 440-448, 421-440.

FOR FINAL DRAFTS OF SEMINAR PARTICIPANTS' PAPERS GO TO CLS04 MAIN WEB PAGE AT HTTP://WWW.UIOWA.EDU/~CYBERLAW/CLS04

PRESENTATIONS

PRESENTATIONS