Legal considerations for Educational Use of the Internet
| Liability | Screening | Copyright | Access | References |
The introduction of the internet into schools at all levels has also
brought an introduction to the broader world in all its aspects. In many
cases significant parts of this world were previously screened out by the
home and educational systems and a debate about the extent to which educators
are, or should be, held liable for the results of this broader access are
still under intense debate. These concerns include questions about copyright
liability, use of school computers for harassment and illegal activities
by students, privacy concerns and access to students from the outside world
via the internet and concerns about the screening programs for "objectionable"
materials and sites presently being put into place in many schools and
school systems. Are these systems legal? Are they illegal limitations on
student free access rights? what liability issues does their use raise?
All of these questions are at present unresolved.
Liability Liability concerns for schools deal with the school's (and educator's) liability for their and the student's acts in using the computers or for the results of that use. The major areas of concern include student and teacher use and publication of copyrighted materials, the use (by members of the school community) of the computers and internet connections to harass others, invade and damage other systems, or use the connections for illicit activities of many sorts. While these problems will be examined in greater detail below the first line of defense is the school or school system's standard use agreement.
This agreement is a de facto contract between the user (or their parents/guardians) and the school system defining the rights, responsibilities and privileges of each in the use and access to the school's computers and internet connections. In the following sections we will examine some of the major clauses of this contract. A sample agreement is included as an appendix at the end.
Acceptable Use - The purpose of NSFNET, which is the backbone network to the Internet, is to support research and education in and among academic institutions in the US by providing access to unique resources and the opportunity for collaborative work. The use of your account must be in support of education and research and consistent with the educational objectives of the School District. Use of other organization's network or computing resources must comply with the rules appropriate for that network. Transmission of any material in violation of any US or state regulation is prohibited. This includes, but is not limited to:
Privileges - The use of Internet is a privilege, not a right, and inappropriate use will result in a cancellation of those privileges. (Each student who receives an account will be part of a discussion with a faculty member pertaining to the proper use of the network.) The system administrators will deem what is inappropriate use and their decision is final. Also, the system administrators may close an account at any time as required. The administration, faculty, and staff may request the system administrator to deny, revoke, or suspend specific user accounts.
In this section we see the fact of the use privilege spelled out and then the right of the administration to revoke and remove access if the contract is not followed. We also see that the administration reserves the right to final decisions on what is and is not acceptable use.
Netiquette - You are expected to abide by the generally accepted rules of network etiquette. These include (but are not limited to) the following:
Security - Security on any computer system is a high priority, especially when the system involves many users. If you feel you can identify a security problem on Internet, you must notify a system administrator. Do not demonstrate the problem to other users. Do not use another individual's account without written permission from that individual. Attempts to login to Internet as a system administrator will result in cancellation of user privileges. Any user identified as a security risk or having a history of problems with other computer systems may be denied access to Internet.
In the security section guidelines are established for what to do if you find a security problem. This area will be covered in more depth later in the section on Hackers and Crackers. In addition this section covers the use of other's accounts and the rights of the network's administration to deny access to known or identified security risks. While Internet use is still considered a privilege and not a right due process considerations should be included in the actual process of determining that an individual is a security risk before their access is eliminated, denied or revoked.
Vandalism - Vandalism will result in cancellation of privileges. Vandalism is defined as any malicious attempt to harm or destroy data of another user, Internet, or any of the above listed agencies or other networks that are connected to the NSFNET Internet backbone. This includes, but not limited to, the uploading or creation of computer viruses.
Vandalism via computer and internet is a growing problem. We will
look more closely at it and its legal involvements in the section on Denial
of Services. Here the contract simply establishes the right to legally
deny services for these types of actions on the part of a user.
In Cubby v. Compuserv, Cubby, Inc. sued Compuserv for defamation over a statement made in one of the Compuserv on-line newsletters. Compuserv had, and has, a policy of providing forums for discussion but not monitoring or censoring those forums themselves. Others who run these forums may but are not required to. In its finding the New York District Court found in Compuserv's favor. In its statement it said "Compuserv's relationship with Cameron was less like a publisher and more like a bookstore owner or book distributor, both of which are liable for defamatory statements of which they knew or should have known." The Court goes on to say "While Compuserv may decline to carry a given publication altogether, in reality, once it does decide to carry a given publication, it will have little or no editorial control over that publication's contents."
In a slightly different case the results were very different. In Stratton Oakmark v. Prodigy, Stratton sued Prodigy over an anonymous defamatory remark published in one of its bulletin boards and won. Here the New York Courts held that Prodigy had sufficient editorial control to be considered an editor since:
Further the court distinguished this case from the Compuserv case in the following manner: "Prodigy held itself out to the public and to its members as controlling the content of its bulletin boards.", "by actively utilizing technology and manpower to delete notes from its bulletin boards on the basis of offensiveness and bad taste, Prodigy made decisions as to content and thereby, exercised editorial control." In a statement on policy implications the court further stated that " computer bulletin boards generally are analogous to bookstores and libraries with respect to liability for defamation. But to the extent that on-line services market themselves as regulating the contents of its bulletin boards, it must also accept the concomitant legal consequences."
These two cases were settled in 1995 just before the explosion of the
internet and web-browsing so they do not deal directly with access through
present systems. In addition both of these cases dealt with defamation
charges rather than juvenile exposure to "objectionable materials". However,
the tone and standards of these cases are likely to be the basis for such
judgments in the future. In a school setting the use of an acceptable use
policy meets the first requirement of the Prodigy decision, the requirement
that teachers monitor the material and sites visited by students using
school internet connections meets the second requirement and the use of
screening programs meets the third requirement while any presentation or
admission to parents that such programs are being used meets the fourth
requirement. This places any school using such systems clearly within the
prodigy judgment. In the Prodigy judgment in Stratton's favor, Stratton
Oakmark was asking for a settlement of $200 million, so such cases against
a school or school system could be extremely destructive.
The Copyright Act of 1976 sets four (4) factors to be considered when establishing fair use:
In general material in student use from or in student publications onto the internet are copyrighted documents or graphics. This includes many of the graphics used in web pages and multimedia presentations as well as documents copied or quoted in such presentations.
Perhaps the two most important of the four factors are the portion of the material used and the effect of the use on the potential market value. In the case of the graphics especially the portion is commonly the entire thing and many of the graphics are created for sale so the use has a definite impact on the market value of the item. For copyrighted materials that do not meet the requirements of fair use students and teachers are required by copyright law to get signed permission of the author or his assignees for the use of the material.
One way around this problem is the use of "public domain" materials. These are materials that are either released to the general public use by their creators or are materials that are sufficiently old that the copyright provisions have expired, in either case no one has any rights to control the copying or use of such materials. A closely related group of materials are the graphics that come with commercial programs or that are sold in collections of graphics. With these materials the purchase of the software or collection includes the right to use the materials publicly.
Intellectual Property Ownership
Access and Privacy Issues While the right to privacy is not directly protected under the US Constitution a number of federal statutes and state constitutions provide a range of protections for personal privacy. The open atmosphere of the internet and the massive data collection, storage and processing capabilities of computers can be used to invade and abrogate these legal barriers very easily and so some considerations both of these and of equitable access for all students need to be examined.
The Arizona constitution (Article 1, Section 8) establishes that " No person shall be disturbed in their private affairs, or his home invaded, without authority of law." Many other states have similar statutes. Again due to the newness of the internet and computer access this and similar statutes applications to the educational system are not established but may have significant impacts. In the case of privacy one has to consider the parent's desires for the public distribution of student names and pictures in web pages and school networks.
At the same time the provisions of the Arizona, and other state, Constitutions establishing public education require equal access for all students. This requirement is generally met in most school systems. However federal civil rights and disability statutes apply to school and school system distribution of computers and their provision of access to students within the system. It is here that schools and systems need to be aware of the requirements and insure that the provisions are met.
A final area of consideration are the invasions of systems, or denial of service attacks by students (or staff) using school computer systems. There are 4 major types of activities here:
Hacking is the seeking for and testing of security leaks in computer systems. Where no malicious intent or action is present and the system administration is notified of the identified leak hacking is a respected activity that is not actually illegal. The illegal activity is actually "cracking", breaking into computer systems to steal information or do damage to the system. Where cracking involves the actual invasion of a system with malicious intent or action, it is also possible to do significant damage or block service without entering a system through the misuse of a variety of internet protocols. These Denial of Services attacks are covered under federal telecommunications laws and are federal offenses. Services providers are required to revoke access to individuals who conduct such activities. This includes schools revoking access to students or staff for such actions.
At present the primary legal issues facing school systems in their use
of computers and the internet are the issues of copyright infringement,
student abuse of systems, and considerations of screening access to and
censorship of material downloaded from the internet. Copyright questions
can be addressed fairly easily as can the abuse of systems by students
or staff. The questions of screening are presently awaiting thier first
Florida Bar Assoc. (4/26/98). Online Service Provider Liability for
Harris, L. (5/98).
Committee Approves Copyright Bill over Objections of Schools, Libraries,
Marquardt, M. D. ed. (1998). Books A to Z: Internet Legal Developments.
QUT, Teaching and Learning Support Services, Division of Information
Services. (7/12/97). Electronic Copyright and the Internet.
Santala, J. T. (2/4/98). HR.2265. Personal Communications (email).
Trotter, A. (13/5/98). Administrators Confounded by Internet Pranks. Education Week.
Zarinnia, A. (3/16/97). Highlights of the Fair Use Guidelines for Educational Multimedia. UENA. http://www.marshfield.k12.wi.us/wema/cpyrt1.html.
Website created: January 22, 1998
Website last updated: July 18, 2001
Copyright Dragon Logic Enterprises 1998-2001