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August 20, 1996
A time to kill?
Enforcing Internet usage guidelines now can reduce liability.
By Lauren Gibbons Paul
With the ruling by a New York court late last month that the dreaded Communications Decency Act is unconstitutional, it's looking more and more unlikely that IT executives--or anyone else for that matter--will have anything to fear from the bill, which makes it illegal to transmit "obscene or indecent" material over the Internet.
In June, a Philadelphia court was the first to deem the bill unconstitutional. The recent ruling by the New York court heartened free-speech advocates everywhere. The next (and final) step for breaking major legal ground in the area of cyberliberty will happen when the U.S. Supreme Court reviews the government's appeal of the Philadelphia court's ruling that the bill is unconstitutional. The appeal is expected by the end of the year.
But even if the highest court in the land decides the bill is constitutional--which seems unlikely--executives have little to fear because of a specific provision that limits liability unless the employer knew employees were accessing prohibited materials on company time.
"There isn't much serious risk for an employer unless it instructed an employee to pull [obscene] material off the Internet," says Mike Godwin, staff counsel for the Electronic Frontier Foundation, a civil liberties group in San Francisco.
So, does this mean IT execs can cross the problem of Internet smut off their to-do lists and get on to the next pressing technology issue? Not necessarily, say legal and industry experts, who caution of potential liability in such areas as sexual harassment of one employee by another, not to mention the waste of company time and resources.
The first item on the agenda--if companies haven't already done it--is to set and disseminate a formal Internet information policy, says Ed Cavazos, an attorney for Houston law firm Andrews & Kurth. A specialist in Internet law, Cavazos advises clients on how to set up Internet usage policies to reduce liability. "They need a sound IT policy that makes it clear what employees are not to do," he says.
The next step is employee education, which is vital to flesh out the formal policy. Cavazos also recommends installing filtering software products such as Webster Network Strategies' WebTrack, but only to make sure employees are not accessing obscene material.
Connie Deletis, vice president of IS for National Semiconductor Corp., in Sunnyvale, Calif., got a wake-up call recently. As part of the process of setting an information policy, he analyzed all URLs employees were visiting on an arbitrary day and got a rather ugly surprise: 55 percent of the World Wide Web sites visited that day were for business use, 35 percent were for nonbusiness use and a startling 10 percent were related to pornography or adult content. "That was an eye-opener," says Deletis.
Just to make sure these numbers were not a one-time fluke, Deletis picked another random day and analyzed URLs. Same results.
Working with human resources, Deletis published guidelines for appropriate content to be accessed during business hours. "We said occasional personal use is OK, but we would reserve the right to monitor activity under a specific suspicion. It's not constant surveillance," says Deletis. He is about to pilot NewView Inc.'s filtering product called NewView, which takes a blacklist approach to filtering.
Profitable downtimeCavazos says 35 percent non-business-related URLs is about the average at the companies he sees, although 10 percent adult material is clearly out of line. But companies that try to restrict employees from receiving all nonbusiness content on the Internet are losing the benefit of the cyberhighway, he says. "You are giving access to a lot of non-work-related material, but there is enough upside to balance out the downside. People do non-work-related stuff at work all the time."
Cavazos says management is often very realistic about non-work-related content. "I've heard some managers say if someone has some downtime, I'd rather them stay at their workstation [and surf the Internet] than walk around and talk at the water cooler."
Buckle downJust because it appears that the CDA is now a nonevent, that doesn't mean the indecency on the Internet issue is settled once and for all. Barry Steinhardt, associate director for the American Civil Liberties Union, in New York, says there will be more attempts at content regulation in the future. "Corporations are also content providers" when they put up Internet sites, Steinhardt says, and "corporations have the same thing to fear as everyone else--that they will get caught up in a prosecution by an overzealous prosecutor on a vague and overbroad law."
The desire to protect children from pornography is motivating legislators to draft laws such as the CDA, says Bill Murphy, professor of law at Franklin Pierce Law Center, in Concord, N.H. But the Internet represents a new frontier, and one that may be worthy of more First Amendment protection than other media, such as television. "The government is struggling to get the right regulatory posture for this new frontier. [Unlike TV], it's virtually impossible to regulate speech on the Net," he says.
Murphy says the danger of strict laws regulating Internet content will be the creation of "information havens"--geographical places people will house information where the restrictions are looser. "We'll end up with info havens, like we have banking havens. If I don't like the law, I'll go somewhere else. And information flows much more freely than money," he says.
Deputy Editor Lauren Gibbons Paul can be reached at email@example.com.
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