Unlike litigation over student locker searches or special education programs, courtroom maneuvering and wrangling over legal issues in cyberspace don’t always have an immediate impact on the classroom. Nevertheless, the omnipresence of computers and the internet in 21st-century education means we cannot overlook major legal developments in any area of cyberlaw, because they are bound to affect the schools sooner or later, at least indirectly.
For example, one of the most notable and important non-school cases this past year was the antitrust case against Microsoft. Even though Bill Gates’ empire has emerged seemingly unscathed, the lawsuit leaves no doubt in corporate America that antitrust law is alive and well in the Internet Age. The effects on education may be subtle, but there is no doubt that keeping the balance between monopoly power and competition is important in promoting innovation in technology.
Another area that raised many eyebrows and some voices of protest in the past year was the increased cyber-security and cyber-scrutiny of the internet. Under the “USA Patriot Act,” which was passed in response to the Sept. 11 terrorist assaults, government eyes and ears and computers will have more authority to gather evidence of wrongdoing on the web.
Ratification of the Council of Europe’s “Cybercrime Convention” by the U.S. Senate will require even more federal government attention to internet traffic. Heightened surveillance of electronic communication on the web has the American Civil Liberties Union frothing and has created more than a little outcry in the academic community, which sees freedom of speech and privacy as sacred issues of cyberlaw.
Professional educators who are charged with protecting students from the nastier abuses of freedom that lurk in cyberspace may see the added pressure on web criminals as beneficial, but there is really little chance that either the law or the treaty will have any direct impact on schools. On the other hand, you might want to mention to your staff and students that internet use is being monitored by more than just the school district systems operator.
In what was probably the most interesting case decided last year, a California federal district judge refused to enforce a French court order requiring Yahoo! to block Nazi souvenirs being sold on its auction web page from viewing by French residents. Seems like the French are less sensitive to free speech and free choice issues, although they can surely enforce their laws at the French border by refusing to import any items from Yahoo! or eBay that they don’t approve of.
In another slam-dunk decision, the U.S. Court of Appeals for the Ninth Circuit issued an injunction halting Napster’s online music-swapping. Similarly, the courts seem likely to refuse to protect process patents that are issued for hardly unique or imaginative methods. A good example was BarnesandNoble.com’s successful defense of Amazon.com’s lawsuit for infringement of its single-click shopping cart patent.
Finally, looking forward to 2002, the lawsuits have only just begun in the battle between copyrights and free speech on the internet. The Digital Millennium Copyright Act has survived some of the early assaults by the Electronic Frontier Foundation and others who prefer the “free-range” approach to intellectual property rights in cyberspace, as when the Second Circuit U.S. Court of Appeals upheld the law to protect digital video discs from posting of software on the web that allowed users to break their copy-protection codes.
But my vote for up-and-coming lawsuits that will have an immediate and direct impact on schools is the increasing number of lawsuits involving privacy rights in the workplace where the internet is concerned. Workers are becoming more vocal and litigious in challenging the monitoring of eMail and other uses of computers that have become workplace fixtures.
If you haven’t already run into challenges from teachers’ unions and others who want less scrutiny under your acceptable-use policies, be prepared for more pressure to reduce restrictions on computer and internet use in your schools.