Don't miss the follow-up article, Coalition Challenges State Law Guarding 'Net IP, the latest National Law Journal Article by Jeff Kuester and Matthew C. Kramer on the Georgia Internet Law.
The law's vagueness makes it hard to determine what types of data, when transmitted, constitute grounds for arresting the sender. Consequently, it is unclear how damaging this law, and similar legislation that may be considered by other states, will be to free speech on the Internet--and to the future of the 'Net itself. Allegedly intended only to protect intellectual property and prevent fraudlent deception on the Internet, the law's much broader wording demonstrates a widespread, fundamental misunderstanding--even among legislators--of the nature of the Internet and the delicate balance between intellectual property rights and free speech.
The new law amends Art. 6, Ch. 9, Tit. 16 of the Official Code of Georgia Annotated, known as the "Georgia Computer Systems Protection Act," by adding Sec. 16-9-93.1. The law is not limited to individuals; it extends to "any person, any organization, or any representative of any organization."[1] "Representatives" of the organization presumably include computer consultants and Web-page designers, etc.
The statute also attaches a "knowing" intent element to the crime. Therefore, the mens rea culpability is that of knowledge of the nature of the act.[2]
The statute is ambiguous, however, as to whether this intent level--knowledge--extends to the other elements of the crime. In other words, it is unclear whether one must know merely of the transmission of data that objectively satisfies the remaining elements of the statute, or also that the remaining elements are satisfied.[3]
The statute also broadly defines "motive," barring data transmissions "for the purpose of setting up, maintaining, operating, or exchanging data with an electronic mailbox, home page, or any other electronic information storage bank or point of access to electronic information." This appears to cover e-mail addresses, domain names, and web pages--including hyperlinks on Web pages-- as all represent "data" transmitted through a computer network for the purpose of operating an electronic mailbox, home page, or point of access to electronic information.
The two remaining sections of the statute further describe what cannot be transmitted: data that falsely identifies and data that falsely states or implies permission or authorization that has not been obtained. The first section designates data that "uses any individual name, trade name, registered trademark, logo, legal or official seal, or copyrighted symbol to falsely identify the person, organization, or representative transmitting such data."
According to Shari Steele, staff counsel for the Electronic Frontier Foundation, the law will make it illegal to use e-mail addresses the way "handles" are used on citizen's band radio--selected at will by each user.[4] The legal issue is likely to be whether such aliases are "individual names" that "falsely identify".
Because fraud and malicious intent are not elements of the statute, a prosecutor conceivably could interpret any name other than the user's actual name to be "false". Furthermore, it may be possible to convice a 'Net-naive judge that anonymity on the Internet is bad public policy and, as such, should be proscribed by the statute.
Not unexpectedly, this regulation of e-mail addresses has also raised free speech concerns.[5] State Rep. Mitchell Kaye, R-Marietta, criticizes this aspect of the new law on his Web page,[6] stating, "There are constitutional protections for those who write books under 'pen' names and for those who distribute political flyers anonymously or through the use of newly-created 'front' organizations."
In support of his position, Representative Kaye cites the recent U.S. Supreme Court ruling in McIntyre v. Ohio Elections Commission[7] that the freedom to publish anonymously is protected by the First Amendment. Besides its desirability for political speech, on-line anonymity can also help protect the privacy of children using the Internet. The new law raises the question of whether, and to what extent, these types of on-line activity should be legal.
Mere use of trademark on a web page may not imply permission, but that implication arguably is strengthened when the trademark is presented as a hyperlink to the trademark owner's Web page. If mere use of a trademark without a disclaimer in a commercial environment may be construed to create a likelihood of confusion as to sponsorship, the opportunity to "click" on the trademark and instantly view the trademark owner's Web page may very well do the same, or at the least, imply permission. This probably is even more so if "famous" trademarks are involved, given the new Federal Trademark Dilution Act of 1995[9], because the owners of such trademarks arguably would have otherwise stopped the use.
Oppontents of the statute argue that protection of intellectual property ought not be accomplished by denying Internet users the same free-speech rights guaranteed outside cyberspace, or by destroying the Internet itself. Hyperlinks are as vital to the information superhighway as are ramps and bridges to the nation's physical highway system. If they are weakened, the entire infrastructure is undermined.
The statute's opponents agree that intellectual property infringement on the Internet should not be tolerated. They assert, however, that laws purporting to stop it must be tailored specifically to the online environment and balanced against the interests of free speech and Internet viability. Failure to appreciate the delicacy of such a balance results in the enactment of this sort of legislation which, in addition to compromising the First Amendment and the viability of the National Information Infrastructure, can prove embarassing to its drafters and perhaps the entire state.
Although it might be better to address this issue at the national level[12], it cannot be assumed that this type of legislation will be limited to Georgia. State legislators may have had the best intentions in the passing the law,[13] and it is reasonable to presume that other states also may attempt to "clean up" the Internet. Although it has been suggested that this law "is probably overkill and [that it is] unduly complicating to make acts of trademark infringement, misrepresentation and passing off on the Internet a crime under state law,"[14] the perceived need for new laws will become more urgent as online transgressions become more frequent and the difficulty of applying existing laws to cyberspace becomes apparent.
There already is an abundance of articles documenting the recent increase in the number of domain-name trademark disputes. It can be argued that yet another legislative weapon in the intellectual property arsenal will provide no new protection and may exacerbate the congestion of court dockets.
For Web-site owners, a possible method of avoiding both the jailhouse and trademark infringement litigation, while permitting links to their web pages without fear, is the disclaimer. Typical wording would be: The owner of this Web page freely grants permission to anyone wishing to link to this Web page; the owner will gladly remove any link from this Web page upon request from the linked entity; this Web page is not sponsored or associated with any particular linked entity unless so stated by that entity; and the existence of any particular link is simply intended to imply potential interest to the reader.
The Internet has been likened to the Wild West in that the few laws purporting to govern it are unsettled. These laws will likely proliferate, and haste in their enactment and vagueness in their content would be intolerable to many users, given such laws' substantial impact on freedom of speech, intellectual property rights and the very viability of the Internet. There is an understandable desire to send the sheriff into cyberspace town to establish order. Enforcers must be careful, however, not to lock up the innocent townsfolk.
[2] According to § 2.02(2) of the Model Penal Code, the other basic areas of mens rea culpability for crimes that require fault are intention, recklessness, and negligence.[Return]
[3] See, Liparota v. United States, 471 U.S. 419 (1985), wherein the Court decided that "knowingly" extended down to include subsequent elements of the crime in 7 U.S.C.A. § 2024(b). Model Penal Code § 2.02(4) also suggests that the same culpability should be applied throughout the statute.[Return]
[4] Ms. Steele's comments are contained in an April 16 letter to Governor Zell Miller urging him to veto HB1630. He signed it into law on April 18, 1996. The letter is available at http://www.eff.org/pub/Censorship/Internet_censorship_bills/Foreign_and_local/GA/eff_hb1630_041696.letter.[Return]
[5] David Rothman, author of the book, Networld!, has developed a web site criticizing the new law at http://www.clark.net/pub/rothman/ga.htm.[Return]
[6] http://www.gahouse.com/docs/whatsnew/parsons.htm[Return]
[7] 115 S.Ct. 1511 (1995).[Return]
[8] In addition to First Amendment concerns, the statute raises the question of copyright pre-emption because, arguably, most forms of copyright infringement falsely imply permission when such permission has not been obtained.[Return]
[9] P.L. 104-98, 109 Stat. 985.[Return]
[10] The Associated Press, "Internet Bill Stirs Trouble in Cyberspace," Marietta Daily Journal, April 29, 1996, at 4B. Rep. Grindley's other views regarding this law are available at http://www.kuesterlaw.com/grind.htm.[Return]
[11] "Grass-roots Groups Slow in Responding to New Legal Curbs," Atlanta Constitution, May 6, 1996, at C6, Netw@tch column.[Return]
[12] One may wonder whether Georgia may have been inspired by the recent restrictions upon the CompuServe newsgroup, prompted by Germany's obscenity concerns, illustrating that technological restraints may make the "lowest-common-denominator" approach the only recourse to state-by-state regulation.[Return]
[13] http://www.kuesterlaw.com/parsons.htm (letter from the bill's sponsor evidencing intention merely to protect intellectual property and prevent fraud and misrepresentation).[Return]
[14] http://www.kuesterlaw.com/bell.htm (letter from an attorney at BellSouth interpreting the law as overkill and denying sponsorship of the legislation).[Return]