Blurring Lines: Uncertainty in the Law and the Legal Profession

Vol. 30 No. 1

By

Steven D. Zansberg (szansberg@lskslaw.com), chair of the Forum on Communications Law, is a partner at Levine Sullivan Koch & Schulz, LLP, in Denver, CO.

We live in an age of convergence—not only with respect to the so-called channels of communication (e.g., broadcast, cable, print, the World Wide Web, and the mobile universe) and devices and functions (e.g., computer, phone, TV, watch, PDA, calendar, Task List, “Rolodex”/contacts, music, video games, and personal photo albums) but also, most recently, with respect to ownership and leadership of the media (e.g., the purchase of the Washington Post by Jeffrey Bezos, founder and chief executive officer of Amazon.com, and the purchase of the Boston Globe by John Henry, owner of the Boston Red Sox). Unquestionably, we are living in a fascinating period of time.

These multiple, simultaneous convergences continue to pose interesting questions for a variety of legal regimes that for centuries have provided relatively bright lines demarcating rights and responsibilities. Two years ago, I taught a course called Law of the Internet at Denver University’s Sturm College of Law and utilized the excellent casebook Cyberlaw: Problems of Policy and Jurisprudence in the Information Age by Professors Patricia L. Bella, Paul S. Berman, Brett M. Frischmann, and David G. Post. Both the course and the casebook challenged students to confront an overarching fundamental question: Is there any such thing as the law of the Internet, and, if not, should there be one?

The first chapter of the casebook includes an interesting dialogue, from law review articles,1 between Professor Lawrence Lessig and Seventh Circuit Judge Frank H. Easterbrook about whether law schools should offer courses entitled Law of the Internet or should instead teach how courts have applied various bodies of existing law (property, torts, contracts, evidence, jurisdiction, First Amendment, etc.) in the online context. Similarly, organizations such as the ABA Forum and the Media Law Resource Center have publicly discussed whether it continues to make sense, in 2013 and beyond, to maintain committees that purport to focus on legal developments in Internet law. (Full disclosure: I am presently a member of several such committees.) After all, a corollary to the famous statement near the dawn of the World Wide Web that “We are all publishers now” is, for those of us who represent media companies, “We are all Internet lawyers now.”

Two compelling questions run throughout the Cyberlaw textbook and course:

  1. How should existing legal regimes adapt, if at all, to regulate a variety of human interactions conducted in the virtual world?
  2. To what extent are analogies to the brick-and-mortar world applicable or transferrable to the virtual domain?

As we spend practically all of our waking hours staring at one screen or another, interacting with third parties in distant places via digital zeros and ones, the technology and communications platforms are fundamentally altering the cultural norms and mores that, in a variety of legal contexts, serve as the foundation for the rule of law.2 For example, in United States v. Jones,3 Justice Sotomayor questioned whether the “voluntary disclosure” doctrine of Smith v. Maryland4—that when one discloses transactional information to a private third party (there, telephone numbers dialed by a criminal defendant), there is no “reasonable expectation of privacy” in such information—applies to the stream of digital information we “voluntarily” transmit daily in the course of our online interactions.5 The recently disclosed National Security Agency dragnet of U.S. citizens’ phone records and e-mails has brought into sharp focus the question whether the assembling of such massive databanks by the government is qualitatively different from the single phone caller’s dialing history at issue in Smith. As Justice Kennedy, joined by five other justices, wrote in 2011, “[t]he capacity of technology to find and publish personal information, including records required by the government, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure.”6

When I first became the Forum Chair, I committed to encourage this organization to address these and other unresolved issues; for example, how the existing legal regimes for libel, invasion of privacy, right to reply, personal jurisdiction, “right” to be forgotten, etc., are to be applied in the online/virtual/mobile world in which we all increasingly, and unavoidably, live. One way in which we are contributing to that ongoing discussion is through the publication, later this fall, of our first Forum-generated book: Internet Publishing Perils and Practices: A Compass for Content in the Digital Domain, edited by John Borger of Faegre Baker Daniels (see ad on page 27 of this issue of Communications Lawyer). This handy desk-side guide to the legal issues facing all online publishers is intended especially for inside counsel and private practice lawyers who represent non-media companies. It provides a helpful road map for navigating through the myriad legal potholes on what was long ago referred to as “the information superhighway.” Please purchase this book for yourself and recommend or give it to friends, acquaintances, and clients. (It’s a great stocking stuffer or Hanukkah present!)

In addition, in February of last year, the Forum’s membership elected Stacey Wexler, a legal director at Google Inc., to serve on the Forum’s governing board (alongside Andy Mar, who is assistant general counsel at Microsoft/Bing). Stacey and Andy, as well as Forum member Josh King, vice president and general counsel at Avvo.com, have graciously agreed to co-chair a new committee—tentatively called the Digital Communications Committee—that will explore how best to provide our members with useful, practical information, materials, and programs devoted to online-only transactions and digital communications, including best practices for companies to adopt and follow.

When I originally envisioned this committee, I had in mind a group of lawyers who represent only “native” Internet companies—that is, companies that have never produced any traditional (print or broadcast) publications but have, from their founding, operated exclusively online. Such companies include Amazon, Facebook, Reddit, Instagram, Tumblr, Twitter, YouTube, Vine, Pandora, Yelp, Pinterest, HuffPo, LinkedIn, Wikipedia, IMDb, TripAdvisor, etc. However, as the “legacy” news media and the online-only community continue to converge, the boundaries are no longer simply blurring, they are disintegrating.

I especially encourage those of you who work in-house or as outside counsel for “native” Internet companies to contact Teresa Ucok (Teresa.Ucok@americanbar.org) to express your interest in joining this newly forming committee. I look forward to working with Stacey, Andy, and Josh, and to benefiting from the fruits of their committee in the months and years ahead, as our organization devotes more of its attention and energy to the “unresolved issues” in the online and mobile ecosystems.

As I said earlier, we are living in a truly fascinating time.

Endnotes

1. See Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chi. Legal F. 207 (1996); Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 Harv. L. Rev. 501 (1999).

2. See, e.g., Steven D. Zansberg & Janna K. Fischer, Privacy Expectations in Online Social Media—An Emerging Generational Divide?, 28 Comm. Law. 1 (Nov. 2011), available at http://www. lskslaw.com/documents/evolvingprivacy expectations%2800458267%29.pdf.

3. 132 S. Ct. 945 (2012).

4. 442 U.S. 735 (1979).

5. United States v. Jones,132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring) (“[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. . . . This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose . . . the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. . . . I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”).

6. Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2672 (2011) (emphasis added). Notably, in 1977, Justice William Brennan foresaw the privacy implications posed by increasing advances in information processing technology. Whalen v. Roe, 429 U.S. 589, 606 (1977) (Brennan, J., concurring) (“[T]he Constitution puts limits not only on the type of information the State may gather, but also on the means it may use to gather it. The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology.”).

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