- Email: [email protected]
The virtual magistrate
Network Security
September
7996
LEGAL BRIEF The Virtual Magistrate Janet Osen If there ever was a glimmer of hope for the utopian paperless law office, it has long since vanished. Gone are the notions of unlimited online access to court dockets, filing of briefs over the Internet, and fully stocked cyber law libraries. In their place has come the Virtual Magtstrate Project, a joint venture of the Cyberspace Institute, the American Arbitration Association, the National Center for Automated Information Research, and the Villanova Center for Information Law and Policy. The Virtual Maoistrate is the first rapid-response, online dispute resolution system designed to arbitrate on issues 2 online messages-and p&tings.
The project began in the latter part of 1995. Magistrates are selected from a pool of ‘qualified and trained’ arbitrators with the objective of resolving complaints regarding messages, postings and files. Cases include everything from alleged copyright and/or trademark infringement to defamation, fraud and deceptive trade practices, to lewd or obscene content. A case in point is a complaint filed by James E.Tierney against EMail America. On 8 May 1996, Tierney petitioned the Virtual Magistrate to remove an advertisement posted on America Online by EMail America Corp. According to Tierney, not only did the ad promote bulk junk E-mailing which he maintained was “against public policy” and ‘not in the interest of Internet users”, it also violated his right to privacy in that he could not block the ad from being sent to his E-mail addresses. Additionally. he charged that the company was engaging in deceptive advertising.
Norton issued a final decision based on Tierney’s petition, and an affidavit submitted by David O’Donnell, Internet Services Manager at America Online. According to O’Donnell, EMail America has used the same ‘spam’ strategy for its own marketing campaign. In his affidavit, O’Donnell stated that the company had. “obtained the means to create many accounts on America Online for the purpose of sending unsolicited E-mail to its members”.Additionally, O’Donnell noted that unlike other companies who pay a fee to place advertisements on AOCs system, EMail America had paid nothing for theirs. The affidavit supported Tierney’s petition on several points: l
l
Tierney submitted the full text of the ad as an exhibit.The caption introduces the EMail America concept - inexpensive, easy to use, junk E-mail, known pejoratively as ‘spamming’.The ad proclaims its product’s ability to target “over 1GO000 people per hour” for only connect time charges. The product, a list of “over 20 million E-mail addresses” in “easy to use ASCII text format”, can be extracted to any E-mail address book and used for bulk mailing purposes. The ad further claims that the list has been used in a “variety of advertising projects” resulting in an ‘18%+ response rate”. It recommends sending messages during periods of low usage enabling the mailer to send “over 100 000 ads for the price of 10 first class letters by US mail”.The offer includes 5 million addresses for $99 and up to 20 million for only $359. EMail America did not participate in the arbitration, Attempts by the Virtual Magistrate to contact the California-based corporation proved unsuccessful. Instead, Magistrate N.M.
18
l
l
EMail America’s dissemination of commercial E-mail violated AOL’s Terms of Service Agreement. Such conduct constituted an invasion of privacy of AOL subscribers. Mass E-mail/ng is contrary to Internet protocols. The use and advocacy of ‘spamming’ has an adverse impact on AOCs ability to process legitimate subscriber E-mail.
O’Donnell further stated that AOL had received numerous complaints regarding the ad which had resulted in many customers threatening to terminate their accounts. He also emphasized that AOL and its Internet system E-mail servers have finite computing resources that are not designed to accommodate mass junk E-mail. In his decision, Magistrate N.M. Norton, Jr concluded that AOL’s Terms of Service (TOS) Agreement provided for the blockage or removal of such advertisements. In paragraph 4(a) of the Agreement, Norton noted that under the agreement AOL reserved the right to
remove content that it deems “harmful. offensive, or otherwise in violation of the TOS”. Additionally, AOL’s ‘Rules of the Road’which are incorporated in the Agreement, prohibited members from posting or transmitting “unsolicited advertising to other members, individuals or entities, except in those areas., that are designated for such a purpose”. Comment
The advent of the Virtual Magistrate illustrates a revived interest in alternative dispute resolution. also known as ADR. One such method, arbitration, though popular a decade ago as an effective alternative to litigation, is now viewed wirn far less enthusiasm. In arbitration, parties present their cases to a neutral party of their choice. Hearings are informal and are not subject to traditional rules of evidence or civil procedure. Since there is a great deal of statutory and common law on arbitration, attorneys can seize the opportunity to manipulate the system.Accordingly, ‘courts have upheld the use of such old litigation favourites as demurrers, motions in limine and summary judgement in arbitration” (ABA Journal, August 1996, p. 58). The result can lead to an escalation in cost and complexity which nearly rivals litigation. One such example is the arbitration between Advanced Micro Devices and Intel Corp. The arbitration proceeding involved a dispute over the 386 microprocessor which lasted seven years at a cost of $100 million (ABA Journal, August 1996, p, 58). The Virtual Magistrate Project’s attempt to simplify the arbitration process by offering an inexpensive, accessible resolution system is a unique response to this anti-arbitration backlash. In establishing its service and making it available worldwide, the Virtual Magistrate sponsors have elected to follow the formality of ADR while attempting to avoid the pitfalls of traditional arbitration. Another trend evinced by the advent of the project is the shift toward self-governance in cyberspace. One of the project’s stated goals is to “develop a formal governing structure for an ongoing Virtual Magistrate operation”.This objective extends well beond the development of an online arbitration system and a guideline for system operators.The Virtual Magistrate’s ultimate aim is to “lay the groundwork for a self-sustaining. online dispute resolution system”. The question remains as to whether the project can institute a legally binding “body of cyberlaw”.
01996
Elsevier Science Ltd
September
7996
LEGAL BRIEF The Virtual Magistrate Janet Osen If there ever was a glimmer of hope for the utopian paperless law office, it has long since vanished. Gone are the notions of unlimited online access to court dockets, filing of briefs over the Internet, and fully stocked cyber law libraries. In their place has come the Virtual Magtstrate Project, a joint venture of the Cyberspace Institute, the American Arbitration Association, the National Center for Automated Information Research, and the Villanova Center for Information Law and Policy. The Virtual Maoistrate is the first rapid-response, online dispute resolution system designed to arbitrate on issues 2 online messages-and p&tings.
The project began in the latter part of 1995. Magistrates are selected from a pool of ‘qualified and trained’ arbitrators with the objective of resolving complaints regarding messages, postings and files. Cases include everything from alleged copyright and/or trademark infringement to defamation, fraud and deceptive trade practices, to lewd or obscene content. A case in point is a complaint filed by James E.Tierney against EMail America. On 8 May 1996, Tierney petitioned the Virtual Magistrate to remove an advertisement posted on America Online by EMail America Corp. According to Tierney, not only did the ad promote bulk junk E-mailing which he maintained was “against public policy” and ‘not in the interest of Internet users”, it also violated his right to privacy in that he could not block the ad from being sent to his E-mail addresses. Additionally. he charged that the company was engaging in deceptive advertising.
Norton issued a final decision based on Tierney’s petition, and an affidavit submitted by David O’Donnell, Internet Services Manager at America Online. According to O’Donnell, EMail America has used the same ‘spam’ strategy for its own marketing campaign. In his affidavit, O’Donnell stated that the company had. “obtained the means to create many accounts on America Online for the purpose of sending unsolicited E-mail to its members”.Additionally, O’Donnell noted that unlike other companies who pay a fee to place advertisements on AOCs system, EMail America had paid nothing for theirs. The affidavit supported Tierney’s petition on several points: l
l
Tierney submitted the full text of the ad as an exhibit.The caption introduces the EMail America concept - inexpensive, easy to use, junk E-mail, known pejoratively as ‘spamming’.The ad proclaims its product’s ability to target “over 1GO000 people per hour” for only connect time charges. The product, a list of “over 20 million E-mail addresses” in “easy to use ASCII text format”, can be extracted to any E-mail address book and used for bulk mailing purposes. The ad further claims that the list has been used in a “variety of advertising projects” resulting in an ‘18%+ response rate”. It recommends sending messages during periods of low usage enabling the mailer to send “over 100 000 ads for the price of 10 first class letters by US mail”.The offer includes 5 million addresses for $99 and up to 20 million for only $359. EMail America did not participate in the arbitration, Attempts by the Virtual Magistrate to contact the California-based corporation proved unsuccessful. Instead, Magistrate N.M.
18
l
l
EMail America’s dissemination of commercial E-mail violated AOL’s Terms of Service Agreement. Such conduct constituted an invasion of privacy of AOL subscribers. Mass E-mail/ng is contrary to Internet protocols. The use and advocacy of ‘spamming’ has an adverse impact on AOCs ability to process legitimate subscriber E-mail.
O’Donnell further stated that AOL had received numerous complaints regarding the ad which had resulted in many customers threatening to terminate their accounts. He also emphasized that AOL and its Internet system E-mail servers have finite computing resources that are not designed to accommodate mass junk E-mail. In his decision, Magistrate N.M. Norton, Jr concluded that AOL’s Terms of Service (TOS) Agreement provided for the blockage or removal of such advertisements. In paragraph 4(a) of the Agreement, Norton noted that under the agreement AOL reserved the right to
remove content that it deems “harmful. offensive, or otherwise in violation of the TOS”. Additionally, AOL’s ‘Rules of the Road’which are incorporated in the Agreement, prohibited members from posting or transmitting “unsolicited advertising to other members, individuals or entities, except in those areas., that are designated for such a purpose”. Comment
The advent of the Virtual Magistrate illustrates a revived interest in alternative dispute resolution. also known as ADR. One such method, arbitration, though popular a decade ago as an effective alternative to litigation, is now viewed wirn far less enthusiasm. In arbitration, parties present their cases to a neutral party of their choice. Hearings are informal and are not subject to traditional rules of evidence or civil procedure. Since there is a great deal of statutory and common law on arbitration, attorneys can seize the opportunity to manipulate the system.Accordingly, ‘courts have upheld the use of such old litigation favourites as demurrers, motions in limine and summary judgement in arbitration” (ABA Journal, August 1996, p. 58). The result can lead to an escalation in cost and complexity which nearly rivals litigation. One such example is the arbitration between Advanced Micro Devices and Intel Corp. The arbitration proceeding involved a dispute over the 386 microprocessor which lasted seven years at a cost of $100 million (ABA Journal, August 1996, p, 58). The Virtual Magistrate Project’s attempt to simplify the arbitration process by offering an inexpensive, accessible resolution system is a unique response to this anti-arbitration backlash. In establishing its service and making it available worldwide, the Virtual Magistrate sponsors have elected to follow the formality of ADR while attempting to avoid the pitfalls of traditional arbitration. Another trend evinced by the advent of the project is the shift toward self-governance in cyberspace. One of the project’s stated goals is to “develop a formal governing structure for an ongoing Virtual Magistrate operation”.This objective extends well beond the development of an online arbitration system and a guideline for system operators.The Virtual Magistrate’s ultimate aim is to “lay the groundwork for a self-sustaining. online dispute resolution system”. The question remains as to whether the project can institute a legally binding “body of cyberlaw”.
01996
Elsevier Science Ltd