By Bruce E. Boyden, Assistant Professor of Law, Marquette Law School
President Obama's first 100 days in office are drawing to a close; that means that there are only 1,361 policy-shopping days left until the next Inauguration. What should President Obama, the first Blackberry-using president, set as his technology agenda during that time?
One area ripe for change we can believe in is the laws that govern individual behavior on the Internet. The country is in the midst of a revolution in communications technology. The networked personal computer has given almost every individual the power of their own printing press, record press, film studio and radio tower, all with worldwide instantaneous distribution. And it's given those individuals the power not only to speak, but to listen - to anything, from any source, from anywhere in the world.
The laws that govern all this are struggling to keep up. Our copyright laws, electronic privacy laws and computer security laws were mostly passed in the technological Dark Ages -- twenty or thirty years ago. Those laws need to be brought up to date so that culture can be shared, copyright owners can get paid, reputations can be protected, and emails can be safe from snoops.
Legislators are busy people, and so far the response to the information revolution has been a series of quick fixes. But patchwork amendments are not enough; the hard work of revisiting the foundational assumptions underlying these laws cannot be postponed forever. Obviously an Administration with a major recession, two wars, health care reform and global warming on its plate can only accomplish so much. But President Obama has already shown that he is not deterred by the difficulty of a necessary task. He's also shown that he can shun easy fixes in favor of a careful, balanced approach, which is what's needed here.
Copyright law presents the most knotty problem. Copyright attempts to achieve two seemingly inconsistent goals: encouraging the broad dissemination of knowledge and art and giving the author exclusive control over his or her works. The idea is that copyright law allows authors to sell their works, which in turn gives them the incentive to create them in the first place.
This system worked relatively well when the technologies for distributing creative works were primitive and expensive. Copyright owners relied on the law to some extent, but mostly they relied on their ability to prevent access. Copyright guarded the door, so to speak, but the walls did most of the work.
Now the walls have come tumbling down, and copyright can't guard the whole perimeter. Congress's response so far has been to increase the enforcement of copyright law, most notably by jacking up the penalties. But the problem with the law isn't that the fines are too small; it's that it's nearly impossible for non-lawyers to comprehend. (Don't believe me? Take a look!) Making violations more expensive is like making earthquakes bigger; it doesn't tell us when or why. The last copyright revision took more than 20 years. The Obama administration needs to begin the process of reform now.
Privacy law is next. Copyright law may be written for lawyers, but the Electronic Communications Privacy Act (the EPCA) is written for no one. It's infamously difficult to decipher, and yet this is the law that protects emails, internet surfing habits, text messages and other electronic communications from private and government snooping. The problem is that it was written primarily with telephones and dial-up modems in mind. The EPCA needs to be replaced with a statute that clearly protects private communications such as email when those communications are stored on a person's computer or held in trust for that person by a third party. Snooping on people's private communications should also be illegal, but machine processing of those communications shouldn't cause fears of liability.
People who suffer from privacy harms at the hands of online miscreants should be able to seek some remedy in court. Imagine some anonymous sneak manages to take photos of you while changing in a department store changing room and posts them on a website. Right now, another somewhat misguided statute would, according to most courts, prevent you from getting those photos taken down, even if the website solicits and promotes such photos. The original idea was to prevent ISPs from getting a flood of defamation lawsuits from every person insulted in a flame war. Congress feared that even a whiff of liability would wipe out fledgling Internet businesses. But the Internet is clearly here to stay, and the level of immunity Congress granted ISPs now appears ridiculously broad.
Computer security law also needs an overhaul. Congress has tinkered with the main federal law prohibiting computer break-ins since it was first passed in 1984, but that's only made it a tangled mess. As an example, in the notorious Lori Drew case in California, a federal prosecutor got a conviction on the basis that Drew knowingly violated MySpace's terms and conditions. That's right -- that fine print on the bottom of every website? Violate it and you're guilty of a federal misdemeanor. That's an indication that the law has no idea what it's talking about. And that statute just deals with the intruders; there is still no federal law requiring businesses to secure sensitive customer information. The continual news of computer break-ins argues for a minimum level of protection.
So that's all I'm asking for during your first term, Mr. President: the complete overhaul of four major statutes. Oh, and getting the economy back on track, and health care reform, and wrapping up in Iraq and Afghanistan. Piece of cake.