SCN: Predictions

[Steve]

x-no-archive: yes  

=========================  

(Carl S. Kaplan, NY Times)---Cyberlaw Journal recently asked a 
panel of legal experts to predict the most significant or interesting 
developments in Internet law and policy for the year 2001. These 
are excerpts from their forecasts.   


Eben Moglen Professor of Law & Legal History at Columbia Law 
School and general counsel for the Free Software Foundation.   

There will be the Bush Administration's unceremonious exit from 
U.S. v. Microsoft, as it gives up on the most important antitrust 
action of the last three decades.   

The music industry meltdown will continue: by the end of 2001 
Napster replacements that don't use a centralized distribution 
directory and that are distributed as free software without any owner 
will be taking over the market, leaving music companies no one to 
sue except their own listeners.   

The next year will also see the full ripening of the demand for legal 
protection for consumers' privacy on the Internet. The new Congress 
will face demands for legislation from all sides, which before the 
2002 election it will honor with a more-show-than-substance Internet 
Privacy Act. Amazon.com's bankruptcy will bring the privacy furor to 
white heat, as the public sees the richest and most intimate data set 
on the most desirable and influential customers in the world 
recycled.   


Ian C. Ballon Partner in the Palo Alto and Los Angeles law offices of 
Manatt, Phelps & Phillips, author and specialist in e-commerce and 
intellectual property litigation.   

This is a very tough question. To be honest, I have never been less 
certain about where things are going than I am at this time.   

An easy prediction is that we will have federal legislation governing 
Internet privacy that creates a national standard for consumer Web 
sites. The new law will be somewhat less restrictive than what some 
of the current staffers at the FTC would favor.   

There has been a significant uptick in Internet legislation in recent 
months . . . and I suspect this trend will continue. Several years ago 
companies were too uncertain about the technology and business 
models to file suit in most cases. Today, that hesitancy seems to 
have faded. The volume of new court opinions has become almost 
impossible to keep up with.   


Jack Balkin Knight Professor of Constitutional Law and the First 
Amendment and director of the Information Society Project at Yale 
Law School.   

What will be the big cyber law stories for the coming year? A lot will 
depend on the new Administration's technology policy. . . . The Bush 
Administration may have its greatest effect simply by doing nothing -
- in particular by letting control of cyberspace and the 
communications infrastructure become increasingly concentrated. 
We need a Teddy Roosevelt for the Second Gilded Age. As of right 
now it doesn't look like we elected one.   

A second effect of the 2000 election may be the fate of 
comprehensive privacy legislation from Congress. Privacy was on 
the agenda of politicians of both parties before the Florida free-for-
all. It will be interesting to see whether privacy protections will get 
stuck like a hanging chad or whether both parties see privacy 
legislation as something they can agree on.   

Finally, look for politicians to explore the Internet and high-tech 
solutions in the wake of the recent electoral debacle. . . . Without 
ironclad guarantees of security, electronic voting is an invitation to 
voter fraud on an unprecedented scale. But don't be surprised if the 
next election is a cyber election.   


Blake A. Bell Senior counsel at New York-based law firm Simpson 
Thacher & Bartlett, author and publisher of CyberSecuritiesLaw.com, 
a Web site devoted to securities regulation and the Internet.   

Online privacy issues will be at the forefront of the most interesting 
developments in the new year. In 1999, a half dozen or so 
regulatory agencies enacted extraordinarily complex online privacy 
regulations . . . that apply to banks, insurance companies, securities 
firms, investment banks, mortgage companies, financial services 
firms and some holding companies. When the July, 2001 deadline 
for mandatory compliance with many of these laws begins to loom 
large . . . I expect to hear increasing complaints from the financial 
services industry over the scope of the regulatory strictures. I also 
foresee increasing consumer awareness of the importance of 
protecting private personal data from misuse or negligent 
revelation.   


Pamela Samuelson Professor of Law and Information Management 
and director of the Center for Law and Technology at the University 
of California at Berkeley.   

The United States Supreme Court may well take an appeal from the 
ACLU v. Reno decision by the U.S. Court of Appeals for the Third 
Circuit. Frankly I'd be surprised if they did not do so. In its decision 
earlier this year, the Third Circuit essentially struck down the Child 
Online Protection Act of 1998, legislation aimed at protecting minors 
from harmful materials online. The court said that local community 
standards [of what constitutes obscene materials for minors] 
couldn't be applied because the Internet is global. If the Supreme 
Court affirms the ruling, even if on other grounds, I'd expect 
Congress to try again to legislate on these issues.   


Jessica Litman Professor of Law at Wayne State University and 
editor of "New Developments in Cyberspace Law," a free news Web 
site.   

Several cases in 2000 raised the problems posed when different 
countries have different rules about the content that may be posted 
on the Internet. The Motion Picture Association of America shut down 
the Canadian site iCraveTV.com because its site, allegedly legal 
under Canadian law, could be viewed by people outside Canada. A 
French court held that Yahoo violated French law when it permitted 
auctions of Nazi memorabilia on a site accessible to people in 
France. The remedies contemplated by the courts deciding these 
cases are the use of technology to simulate national borders -- 
requiring sites to come up with a way to deny access to browsers 
originating in complaining countries. If the trend continues, we may 
see the end of the borderless Internet, with virtual customs agents 
demanding virtual passports as electronic bits cross virtual borders. 
In my view, that would be a terrible loss.   


Barry Steinhardt Associate Director and chair of the ACLU's cyber-
liberties task force.   

1. Keep your eye on the First Amendment challenge the ACLU will 
shortly bring to the provision adopted by Congress a few weeks ago 
that would mandate the use of blocking software on computers in 
public libraries. More than 100 years of local control of libraries and 
the strong tradition of allowing adults to decide for themselves what 
they want to read is being casually set aside.   

2. Many civil liberties groups are awaiting the decision of the 
Counsel of Europe on whether to adopt the U.S.-backed Cyber Crime 
treaty. The treaty runs contrary to internationally accepted human 
rights norms and would infringe on the free speech and privacy 
rights of all Internet users. In the U.S., for example, it might become 
the basis for requiring Internet service providers to build 
surveillance capabilities directly into their networks -- a requirement 
the Congress previously rejected.   


Marc Rotenberg Director of the Electronic Privacy Information 
Center.   

1. I'm looking forward to reading U.S. Supreme Court decisions in 
two pending privacy cases. In Bartnicki v. Voppers, the Court will be 
asked to determine whether the First Amendment precludes liability 
under the federal wiretap statute for publication of information 
obtained by means of an illegal wiretap. In Kyllo v. U.S., the Court 
must determine whether the warrentless use of thermal imaging 
devices that are used to detect marijuana grow lamps inside a home 
violates the Fourth Amendment. Both cases could have a big impact 
on the development of privacy law for the Internet.   

2. The growth of electronic commerce and the global economy will 
increase the need for framework legislation to safeguard privacy 
and consumer protection.   


Jonathan Zittrain Assistant Professor of Law and faculty co-director 
of the Berkman Center for Internet & Society, Harvard Law School.   

Peering is the system by which different private pieces of the 
Internet backbone agree to carry the others' packets of information. 
Without a general practice or agreement of carrying others' packets, 
there'd be no Internet. So far packets are all treated roughly equally -
- and without regard to their content. That need not remain true 
forever, however. I think the peering arrangements are up for grabs. 
We may see the beginnings of specialized information toll roads 
running parallel to the familiar Net we have now.   

Also look out for the possible re-emergence of online service 
providers -- the OSP. Local Internet service providers will seek not 
just to be an on-ramp to the undifferentiated Internet, but rather a 
preferred source of information and commerce for its customers, a 
model we thought went out of style with the decline of "proprietary" 
information malls like CompuServe and AOL.   

Last, look for the first serious attempt to provide the music industry-
sanctioned alternative to Napster, Gnutella, et al., perhaps packaged 
as consumer electronics rather than information technology.   

Copyright 2000 The New York Times Company   




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