Environmental Engineering Chapter 23 Scott And His Lawyer Would Not Have

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Chapter 23

CYBERLAW

Suggested Additional Assignments

Field Work: Cookies and Internet Functionality

Have students block their web browsers from accepting cookies and record how it changes their online

experience. (Since people usually find that blocking cookies substantially diminishes the quality of their

Research: Online Safety

Ask students what steps they take to protect both their privacy online and the security of their computer.

Research: Electronic Privacy

Field Work: Spam

Ask students to count how many spam messages they receive in a week. If students have more than one

email account, ask them to track which account receives more spam. Are some ISPs better than others at

Field Work: Phishing

Phishing is a fast-growing crime that involves sending fraudulent emails directing the recipient to enter

Chapter Overview

Chapter Theme

Computers are one of the greatest technological advances of modern times. Computers and the Internet—

cyberspace—together comprise one of the great technological developments of modern times. They have

Quote of the Day

The moving finger writes; and, having writ

2 Unit 5 Government Regulation and Property

Privacy

Tracking Tools

Because our interactions with a computer often take place in isolation (sitting alone at home, at work or in

a café), the experience feels private. It is not, but consumers often are unaware of who has access to their

information.

Before there were cookies, the Internet had no memory. If a person visited an Internet site at 8:00 PM,

Research: Online Safety

Ask students who completed this assignment to list their responses. Prepare a chart to keep track of how

many students use each type of protection (informal, software-based, hardware-based, Internet-based, and

other), and how many students use nothing except what has been provided by default on their computer or

network. Have they had problems with invasions of privacy or damage to their computers?

Research: Electronic Privacy

Regulation of Online Privacy

Self-Regulation

In an effort to forestall government regulation, several marketing trade groups issued their own report

The First Amendment

The First Amendment to the Constitution protects free speech, including Internet postings.

You Be The Judge: Juzwiak v. John/Jane Doe

Facts: Juzwiak was a tenured teacher at Hightstown High School in New Jersey. He received three emails

Chapter 23 Cyberlaw 3

Text: “We are all praying for that. Josh”

Subject line: “I hear Friday is ‘D‘ day for you”

Text: “I certainly hope so. You don’t deserve to be allowed to teach anymore. Not just in Hightstown but

anywhere. If Hightstown bids you farewell I will make it my lifes (sic) work to ensure that wherever you

look for work they know what you have done.”

Subject line: “Mr. Juzwiak in the Hightstown/East Windsor School System.”

Text: It has been brought to my attention and I am sure many of you know that Mr. J is reapplying for his

Yahoo!, asking it to reveal “Josh’s” identity. When Yahoo! notified “Josh” of the lawsuit, he asked the

court to quash the subpoena.

In a court hearing, Juzwiak testified that the threatening emails had severely disrupted his life, causing

deep anger and depression as well as insomnia that had impaired his ability to concentrate and function

When the trial court refused to issue the subpoena against Yahoo!, Juzwiak appealed.

You Be the Judge: Should the trial court have issued the subpoena? Which interest is more important:

“Josh’s” first amendment right to free speech or Juzwiak’s protection from harassing emails?

Argument for “Josh”: Free speech is the first, and most important, right in the Bill of Rights. To ensure

a vibrant marketplace of ideas, the First Amendment protects not only open but also anonymous speech.

Sometimes speakers must be allowed to withhold their identities to protect themselves from harassment

and persecution.

Nothing in these messages was a realistic threat to the teacher’s safety. “Hopefully you will be gone

permanently” could easily mean “Hope you will move out of town.” Juzwiak reported these emails to the

These emails contained death threats: “Hopefully you will be gone permanently” and “I hear Friday is ‘D’

day for you.” Juzwiak was frightened enough to go to the police. He suffered serious physical and

emotional harm. These emails are not entitled to the protection of the First Amendment.

Furthermore, the emails constituted intentional infliction of emotional distress. They were extreme

and outrageous conduct designed to cause harm. They achieved their goal.

In balancing the rights in this case, why would the court protect “Josh”, who has set out to cause

harm, over the innocent teacher?

Holding: The New Jersey appellate court held that a plaintiff who fails to make out a claim of

sender’s Internet service provider to reveal his or her identity.

Question: Did Juzwiak prove his claim for intentional infliction of emotional distress?

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The Fourth Amendment

The Fourth Amendment to the Constitution prohibits unreasonable searches and seizures by the

government.

Case: United States of America v. Angevine

Facts: Oklahoma State University provided Professor Eric Angevine with a computer linked to the

university network, and through it to the Internet. Angevine used this computer to download over 3,000

pornographic images of young boys. After viewing the images and printing some of them, he deleted the

files. Tipped off by Professor Angevine’s wife, police officers seized the computer and turned it over to a

police computer expert who retrieved the pornographic files that the professor had deleted.

The Oklahoma State University computer policy states that:

• The contents of all storage media owned or stored on University computing facilities are the

The trial court held that federal agents did not need a warrant to search Professor Angevine’s office

computer because he had no expectation of privacy. The judge sentenced him to fifty-one months in

prison for “knowing possession of child pornography.” The professor appealed.

Issue: Did Professor Angevine have a reasonable expectation of privacy in his office computer?

Excerpts from Judge Brorby’s Decision: Oklahoma State University policies and procedures prevent

its employees from reasonably expecting privacy in data downloaded from the Internet onto University

While Professor Angevine did attempt to erase the child pornography, the University computer policy

warned system administrators kept file logs recording when and by whom files were deleted. Moreover,

given his transmission of the pornographic data through a monitored University network, deleting the

files alone was not sufficient to establish a reasonable expectation of privacy.

Holding: Professor Angevine did not have a reasonable expectation of privacy. Oklahoma State’s

policies clearly indicated that information flowing through the University network was not confidential

either in transit or in storage on a University computer.

Question: How did the police find this illegal material?

Question: Did the police obtain a search warrant before conducting this search?

281 F.3d 1130, 2002 U.S. App. LEXIS 2746 United States Court of Appeals for the Tenth Circuit, 2002

Chapter 23 Cyberlaw 5

Questions: Then why wasn’t this search illegal under the 4th Amendment? Why didn’t the court

hold this evidence to be inadmissible under the exclusionary rule?

Question: The court held that the police did not need a warrant to search Professor Angevine’s

computer because he did not have a reasonable expectation of privacy there.

Question: Was the court right? Was Professor Angevine unreasonable in assuming that his

university computer was private?

Answer: Yes, because the University policy had been very clear that:

through the network

The court said that Professor Angevine had made a “careless effort to maintain privacy.”

Question: But Professor Angevine erased the material. Couldn’t you argue that he has a reasonable

expectation in deleted material?

Answer: The university policy explicitly stated that network administrators audited transmissions

Question: Under what circumstances would Professor Angevine have had a reasonable expectation

of privacy?

Answer: Presumably, if he had conducted his search through a private ISP (not connected with the

Case: United States of America v. Warshak

Facts: Steven Warshak owned Berkeley Premium Nutraceuticals, Inc. a company that sold herbal

supplements. The company had only been modestly successful until it began to market Enzyte, a

supplement that promised to increase masculine endowment. At its peak, Berkeley had annual sales of

around $250 million.

As is the case with all such products, Enzyte was a fraud. Advertisements quoted surveys that had never

been conducted and doctors who did not exist. As a result, customers typically did not buy the product a

Excerpts from Justice Boggs’ Decision: Warshak plainly manifested an expectation that his emails

would be shielded from outside scrutiny. [H]is entire business and personal life was contained within the

emails seized. Given the often sensitive and sometimes damning substance of his emails, we think it

highly unlikely that Warshak expected them to be made public, for people seldom unfurl their dirty

laundry in plain view. Therefore, we conclude that Warshak had a subjective expectation of privacy in the

contents of his emails.

631 F.3d 266; 2010 U.S. App. LEXIS 25415 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, 2010

6 Unit 5 Government Regulation and Property

able to send sensitive and intimate information, instantaneously to friends, family, and colleagues half a

world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click

of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in

email accounts, and email is frequently used to remind patients and clients of imminent appointments.

Accordingly, we hold that a subscriber enjoys a reasonable expectation of privacy in the contents of

emails that are stored with, or sent or received through, a commercial ISP. The government may not

compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a

warrant based on probable cause.

Question: Why is this case notable?

Answer: It is the first court from a United States Circuit Court of Appeals to explicitly hold that there

The FTC

Section 5 of the FTC Act prohibits unfair and deceptive acts or practices. The Federal Trade Commission

(FTC) applies this statute to online privacy policies.

Electronic Communications Privacy Act of 1986 (ECPA)

The ECPA prohibits unauthorized interception or disclosure of wire and electronic communications or

unauthorized access to stored communications. These are the major provisions of the ECPA:

• Any intended recipient of an electronic communication has the right to disclose it.

Chapter 23 Cyberlaw 7

You Be The Judge: Scott v. Beth Israel Medical Center, Inc.

Facts: Beth Israel Medical Center (BI) email policy stated:

All information and documents created, received, saved or sent on the Medical Center’s computer of

Dr. Norman Scott was head of the orthopedics department at BI. His contract with the hospital

provided for $14 million in severance pay if he was fired without cause. BI did fire Scott and the

question was whether it was for cause or not. In preparation for a lawsuit against BI, Scott used the

hospital’s computer system to send emails to his lawyer. Each of these emails included the following

BI Obtained copies of all of Scott’s emails. It notified him that it had copies of the emails to his

lawyer. No one at BI had read the emails, but they intended to do so.

Communications between lawyers and their clients are generally protected, but a client waives that

privilege if he publicly discloses the information. When Scott requested that the emails be returned to

him unread, BI refused. Scott filed a motion seeking the return of the documents.

You Be The Judge: Did Scott have a right to privacy in emails he sent to his lawyer using the BI

system?

Holding: No, Scott’s motion was denied. BI’s email policy that stated employees had no privacy interest

in any material sent or received on its computer systems diminished any expectation of confidentiality in

Scott’s email, it retains the right to do so in the email policy.

Question: Which provision of the Electronic Communication Privacy Act applies to Scott’s emails?

Question: Scott was emailing his lawyer, so the content of the emails should be privileged by the

attorney-client privilege. Should that trump the employer’s right to monitor his email?

employee’s emails, regardless of the content of the emails.

Question: What then is the status of the emails Scott wrote to his lawyer?

2007 N.Y. Misc. LEXIS, Supreme Court of New York, 2007.

8 Unit 5 Government Regulation and Property

Answer: Those communications are no longer privileged. A client loses his privilege when he publicly

Question: What should Scott have done differently?

Children’s Online Privacy Protection Act of 1998

The Children’s Online Privacy Protection Act of 1998 (COPPA) prohibits Internet operators from

collecting information from children under 13 without parental permission. It also requires sites to

disclose how they will use any information they acquire.

Spam

Spam is officially known as unsolicited commercial email (UCE) or unsolicited bulk email (UBE).

The Controlling the Assault of Non-Solicited Pornography and Marketing Act (Can-Spam).

CAN-SPAM is a federal statute regulating spam.

Additional Case: You Be The Judge: United States of America v. Cyberheat, Inc.

Facts: Cyberheat, Inc., ran sexually explicit websites for consenting adults. It hired other companies,

called affiliates, to drive potential subscribers to its sites. The affiliates were paid a fee for each

The FTC alleged that ten Cyberheat affiliates violated CAN-SPAM by sending 642 unwelcome,

sexually explicit spam emails for which they were paid $209,120 in commissions. In some cases the

pornographic emails had fake subject lines, when in fact the email contained pornographic images.

You be the Judge: Did Cyberheat violate the CAN-SPAM Act?

Holding: Possibly, the case must go to trial. According to the court, the CAN-SPAM Act was not

enacted in a vacuum. The purpose of the Act is to protect those who do not want to view sexually explicit

material.

Anyone who supplies this pornographic material should be held to a high standard – they must be

Question: Did Cyberheat know its affiliates were sending sexually explicit emails?

2007 U.S. Dist. LEXIS 15448, United States District Court for the District of Arizona, 2007.

Chapter 23 Cyberlaw 9

clicked went directly to the sexually explicit material.

Question: But, Cyberheat told its affiliates specifically not to violate the Act and discouraged them

from using email. How can Cyberheat, then, be responsible for its affiliates violations?

Answer: According to the court, the purpose of the Act is to protect those who do not want to view

Field Work: Spam

Students who completed this assignment should report their findings now. Chart the answers to these

questions on the board:

• What is the average amount of spam students receive in one week?

• Who received the most spam in one week?

Internet Service Providers and Web Hosts:

Communications Decency Act of 1996

Case: Carafano v. Metrosplash.com, Inc.

Facts: Christianne Carafano is a film actor under the stage name Chase Masterson. Someone posted a

profile of her on the Matchmaker.com Internet dating service. This phony profile stated that Carafano

was “[l]ooking for a one-night stand” and for a “hard and dominant” man with “a strong sexual appetite,”

and that she “liked sort of being controlled by a man, in and out of bed.” The profile also provided her

home address and an email address, which, when contacted, produced an automatic email reply stating,

“You think you are the right one? Proof it!!” [sic], and providing Carafano’s home address and telephone

number.

Unaware of this posting, Carafano began receiving sexually explicit and harassing phone calls, faxes,

and email messages. Feeling unsafe, Carafano and her son moved out of their Los Angeles home. When

339 F.3d 1119; 2003 U.S. App. LEXIS 16548 United States Court of Appeals for the Ninth Circuit, 2003

10 Unit 5 Government Regulation and Property

provided by another party. As a result, Internet publishers are treated differently from corresponding

publishers in print, television, and radio. Congress enacted this provision for two basic policy reasons: to

promote the free exchange of information and ideas over the Internet and to encourage voluntary

monitoring for offensive or obscene material.

Interactive computer services have millions of users. It would be impossible for service providers to

The fact that some of the content [in Carafano’s fake profile] was formulated in response to

Matchmaker’s questionnaire does not [make Matchmaker liable]. Doubtless, the questionnaire facilitated

the expression of information by individual users. However, the selection of the content was left

exclusively to the user. Matchmaker cannot be considered an “information content provider” under the

statute because no profile has any content until a user actively creates it.

Further, even assuming Matchmaker could be considered an information content provider, the statute

. Question: What role did Matchmaker play in developing the content that was posted as a profile of

Carafano?

Question: Was Matchmaker a content provider?

Question: Is Matchmaker liable?

Question: Why did Congress make ISPs immune from liability for material posted online by others

under the Communications Decency Act?

Answer: To promote the free exchange of information and ideas over the Internet and because it

Question: Can Carafano recover damages from anyone?

Question: A great deal of harm can be done very quickly on the Internet. Did Congress make the

right policy decision when it passed the CDA?

Crime on the Internet

Hacking

Hacking is a crime under the federal Computer Fraud and Abuse Act of 1986 (CFAA). This statute

applies to any computer, cellphone, iPod or other gadget attached to the Internet.

The CFAA prohibits:

• Accessing a computer without authorization and obtaining information from it

• Computer espionage

Chapter 23 Cyberlaw 11

Fraud

Fraud is the deception of another person for the purpose of obtaining money or property from him.

Auctions

Internet auctions are the number one source of consumer complaints about online fraud.

Identity Theft

Identity theft is one of the scariest crimes against property. Thieves steal the victim’s social security

restitution in court.

Phishing

Phishing is a fast-growing crime that involves sending fraudulent emails directing the recipient to enter

personal information on a Website that is an illegal imitation of a legitimate site. If students completed

Multiple Choice Questions

1. Beth sent fraudulent emails through both her account at work and her personal account at home.

Although Beth had never read her employer’s handbook, it said the company had the right to

access work emails. The police ___________obtain a search warrant before reading her work

emails. They___________ obtain a search warrant before reading the emails from her personal

account.

(a) need to/need to

(b) need not/need not

(d) need not/need to

2. Because Blaine Blogger reviews movies on his blog, cinemas allow him in for free. Nellie

Newspaper Reporter also gets free admission to movies. Blaine ________ disclose on his blog

that he receives free tickets. Nellie _________ disclose in her articles that she receives free

tickets.

(a) must/must

(b) need not/need not

(d) need not/must

3. An employer has the right to monitor workers’ electronic communications if

(a) the employee consents.

(b) the monitoring occurs in the ordinary course of business.

(d) All of the above.

(e) None of the above.

4. Spiro Spammer sends millions of emails a day asking people to donate to his college tuition fund.

Oddly enough, many people do. Everything in the emails is accurate (including his 1.9 GPA).

Which of the following statements is true?

(a) Spiro has violated the Can-Spam Act because he has sent unsolicited commercial emails.

(b) Spiro has violated the Can-Spam Act if he has not offered recipients an opportunity to

unsubscribe.

(d) Spiro has violated the Can-Spam Act unless the recipients have granted permission to

him to send these emails.

5. Sushila suspects that her boyfriend is being unfaithful. While he is asleep, she takes his iPod out

from under his pillow and goes through all his playlists. Then she finds what she has been looking

for: Plum’s Playlist. It is full of romantic songs. Sushila sends Plum an email that says, “You are

the most evil person in the universe!” Which law has Sushila violated?

(a) The First Amendment

(b) The CDA

(d) The CFAA

(e) None

Essay Questions

1. ETHICS Chitika, Inc. provided online tracking tools on websites. When consumers clicked the “opt–

out” button, indicating that they did not want to be tracked, they were not – for ten days. After that,

the software would resume tracking. Is there a legal problem with Chitika’s system? An ethical

problem? What Life Principles were operating here?

2. You Be the Judge: WRITING PROBLEM Jerome Schneider wrote several books on how to

avoid taxes. These books were sold on Amazon.com. Amazon permits visitors to post comments

about items for sale. Amazon’s policy suggests that these comments should be civil (e.g., no profanity

or spiteful remarks). The comments about Schneider’s books were not so kind. One person alleged

Schneider was a felon. When Schneider complained, an Amazon representative agreed that some of

the postings violated its guidelines and promised that they would be removed within one to two

Chapter 23 Cyberlaw 13

business days. Two days later, the posting had not been removed. Schneider filed suit. Argument for

Schneider: Amazon has editorial discretion over the posted comments: It both establishes guidelines

and then monitors the comments to ensure that they comply with the guidelines. These activities

make Amazon an information content provider, not protected by the Communications Decency Act.

Also, Amazon violated its promise to take down the content. Argument for Amazon: The right to

edit material is not the same thing as creating the material in the first place.

Answer: The court held for Amazon. Editing material does not create liability under the CDA. The

3. Over the course of 10 months, Joseph Melle sent more than 60 million unsolicited email

advertisements to AOL members. What charges could be brought against him? Would you need more

information before deciding?

4. What can you do to protect your privacy online? Draw up a concrete list of steps that you might

reasonably consider. Are there some actions that you would not be willing to take because they are

not worth it to you?

5. Craig Hare offered computers and related equipment for sale on various Internet auction websites. He

accepted payment but not responsibility—he never shipped the goods. Which government agencies

might bring charges against him?

Discussion Questions

1. Marina Stengart used her company laptop to communicate with her lawyer via her personal,

password-protected, web-based e-mail account. The company’s policy stated:

E-mail and voice mail messages, internet use and communication and computer files are

considered part of the company’s business and client records. Such communications are not to be

considered private or personal to any individual employee. Occasional personal use is permitted;

however, the system should not be used to solicit for outside business ventures, charitable

organizations, or for any political or religious purpose, unless authorized by the Director of

Human Resources.

After she filed an employment lawsuit against her employer, the company hired an expert to access

her emails that had been automatically stored on the laptop. Are these emails protected by the

attorney client privilege? How does this case compare with Scott v. Beth Israel earlier in the chapter?

Answer: The court ruled the attorney client privilege protected these emails. Stengart had a

reasonable expectation of privacy because she had taken steps to protect the privacy of those emails

14 Unit 5 Government Regulation and Property

2. Roommates.com operated a website designed to match people renting out spare rooms with those

looking for a place to live. Before subscribers could search listings or post housing opportunities on

Roommate’s website, they had to create profiles, a process that required them to answer a series of

questions that included the subscriber’s sex, sexual orientation and whether he would bring children

to a household. The site also encouraged subscribers to provide “Additional Comments” describing

themselves and their desired roommate in an open-ended essay. Here are some typical ads:

• “I am not looking for Muslims”

• Not acceptable: freaks, geeks, prostitutes (male or female), druggies, pet cobras, drama queens, or

mortgage brokers,”

• “Must be a black gay male!”

• We are 3 Christian females who Love our Lord Jesus Christ . . . . We have weekly bible studies

and bi-weekly times of fellowship.

Many of the ads violated the Fair Housing Act. Is roommates.com liable?

Answer: The Ninth Circuit Court of Appeals ruled that the website was liable because it created the

3. ETHICS Matt Drudge published a report on his website (http://www.drudgereport.com) that White

House aide Sidney Blumenthal “has a spousal abuse past that has been effectively covered up….

There are court records of Blumenthal’s violence against his wife.” The Drudge Report is an

electronic publication focusing on Hollywood and Washington gossip. AOL paid Drudge $3,000 a

month to make the Drudge Report available to AOL subscribers. Drudge emailed his reports to AOL,

which then posted them. Before posting, however, AOL had the right to edit content. Drudge

ultimately retracted his allegations against Blumenthal, who sued AOL. He alleged that under the

Communications Decency Act of 1996, AOL was a “content provider” because it paid Drudge and

edited what he wrote. Do you agree? Putting liability aside, what moral obligation did AOL have to

its members? To Blumenthal? Should AOL be liable for content it bought and provided to its

members?

Answer: The court was sympathetic to Blumenthal, writing that, if it were starting with a “clean

4. Lori Drew created a fake MySpace profile, pretending to be a teenage boy. Through that boy’s

identity, she bullied 13 year old Megan Meier. The girl killed herself shortly after receiving a

message saying, “The world would be a better place without you.” MySpace requires all users to

agree to its terms of service which require “truthful and accurate” information. Has Drew violated the

CFAA?

Chapter 23 Cyberlaw 15

5. Tracking tools provide benefits to consumers but they also carry risks. Should Congress regulate

them? If so, what should the law provide?