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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: 

  • copyrighted material
  • threatening or obscene material
  • material protected by trade secret.
  • Use for product advertisement or political lobbying is also prohibited.
As we can see from this section defining acceptable use certain types of use are expressly limited or prohibited. Two broader prohibitions are also in place in this section requiring the user to work within the educational objectives of their school district and, when working on or with a different network to stay within their use guidelines as well. 

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: 

  • Be polite.
  • Do not get abusive in your messages to others.
  • Use appropriate language.
  • Do not swear, use vulgarities or any other inappropriate language.
  • Illegal activities are strictly forbidden.
  • Do not reveal your personal address or phone numbers of students or colleagues.
  • Do not use the network in such a way that you would disrupt the use of the network by other users.
  • All communications and information accessible via the network should be assumed to be private property.
  • Note that electronic mail (e-mail) is not guaranteed to be private.
  • People who operate the system do have access to all mail. Messages relating to or in support of illegal activities may be reported to the authorities.
This section on Netiquette, while not always as explicit as show here, defines a set of acceptable and unacceptable behaviors for on-line use. In several cases (bolded) these activities are in fact illegal by national or state laws. Others (in italics) are generally covered in school behavior policies. In addition some special policies are added that deal with issues of personal privacy, and copyright. One major concern here is the notice on electronic mail and privacy. Unlike the federal mail it is not, per se, illegal to intercept electronic mails. However, as these are carried over phone and electronic communications lines Federal (and state) wiretapping statutes do apply in many cases. In general because of their responsibility to maintain the security and legal functioning of the network, administrations have a right to monitor messages (including email) passing through their systems if an outside reason to suspect that an individual's messages or email is being used for an illegal purpose. 

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. 

Content Screening 

Screening programs attempt to block access or repeat access to specific sites or to sites that have specific topics or names. These are used primarily to block (student) access, purposeful or accidental to sites deemed dangerous of objectionable by the teacher or system administrators.One point to remember about all these programs is taht they are written for parental use and not educational systems.  In effect through these programs the school system acts or attempts to act as an editor of the material accessed by the students and that makes them liable as an editor. Two cases help to define this area. 

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: 

  1. Prodigy required its users to adhere to content guidelines that prohibited the posting of messages that were insulting, harassing, repugnant to community standards or otherwise harmful to maintaining a harmonious on-line community.
  2. Prodigy employed Board Leaders to enforce guidelines and provided Board leaders with an "emergency delete function" that enabled them to remove offensive messages.
  3. Prodigy used a software screening program that prescreened bulletin board messages for offensive language.
  4. Prodigy held itself out to the public as a family oriented computer network, a claim made possible by the use of the above controls."
The Court further held that Prodigy's claim that manual review was not feasible was not adequate to provide protection from legal action for failure to completely screen postings. 

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. 

Copyright Issues

One of the largest concerns today is dealing with copyright issues in the classroom and with student web publications. The sudden growth of the internet as a publishing medium has created a general confusion in understanding of copyright law and such issues as "fair use" , licensing of software, and acquisitions of materials from the internet and subsequent use in new web documents. Copyright concerns can be broken down into 4 main areas: 
  • Software Licenses and "Warez"
  • Permissions for use and "Fair Use"
  • Use of public domain materials
  • Recent changes to Copyright law dealing with the internet
Perhaps the most frequent misconceptions in education deal with copyright law both with the internet in and regular life. The first misconception is that we are buying a program when we purchase software. If we actually read the documentation that comes with each program we find that what we have actually purchased is a limited right to use the software - the actual program is still owned by the company that created it. This is the reason for purchasing site licenses or multiple CDs/Disk packs. In general each copy of the software provides the right to use it on one computer. The use of a single CD to put a program on all the computers in a lab is actually illegal. It is permissible to buy multiple copies but use only one to load all the legal computers however. When we copy a single CD onto multiple machines or trade copies of programs with others we are engaging in the illegal practice known as Warez. Many people claim to do this because the price of the commercial software is so expensive that we can't afford it in any other way. Actually this is nonsense, It is possible to find good programs on-line that duplicate the expensive programs - these are collectively known as shareware. Like commercial ware these are copyrighted programs but at significantly lower prices - and generally with a legal trial period included in their licenses. There are 3 different types of "shareware": 
  • Shareware - programs that you can try and share with others as long as they are not changed and the full documentation is also shared. These programs do have a cost that must be paid to the programmer within the test period if they are to be used beyond it.
  • Donationware - like shareware but you are allowed to continue using the program indefinitely. However the author requests donations to help support his upgrading efforts if you like the program.
  • Freeware - these programs are distributed free of charge. They are still copyrighted however and may not be changed legally without the author's permission.
The second most common misconceptions are that educational use of copyrighted material is legal in any amount. While the "fair use" clauses of the copyright law does include educational use this use is strictly limited in terms of amount and types of use. 

The Copyright Act of 1976 sets four (4) factors to be considered when establishing fair use: 

  1. the purpose and character of the use ( non-profit educational use is included)
  2. the nature of the copyrighted material
  3. the portion of the material being used
  4. the effect of fair use on the potential market value of the work.
No one of these is sufficient alone to establish fair use. While the first factor is met in public educational settings the other factors also have to be considered. The copyright act covers all materials created or "published" including documents and pictures as well as software and "intellectual properties". These are covered whether a formal copyright request is filed or not. This formal documentation simply allows the owner of a document to collect monetary damages from the use of the item without permission. The creator of the document can always legally act to block the use of his materials under the copyright act. 

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 

Another major area of confusion involves the ownership of materials created for the web and Internet use. As in most copyright situations the existing laws actually do apply and easily define the broad areas of concern. As in many such situations  these rules apply unless there is a contractual agreement on a different set rules. The basic starting point for intellectual property ownership is that you own anything you have created for your own or public use using your own time, materials and financing.  Materials created in the line of duty for an employer are the property of the employer. Materials created as an outside contractor are generally the property of the contractor if they were wholly created for the project, modifications of a previously existing and privately owned material to fit the needs of the contractor are generally the property of the contractee and the contract includes the right of the contractor to use and make necessary copies of the materials for use, but doesn't allow the contractor to sell the product. In both cases these conditions can be changed by the wording of the contract.  One further area of confusion is  the copyright of materials made under government grant or employment since the government doesn't retain copyright.  In general (subject to the grant/contract language) materials made for the government  by employees of the government in the line of duty are considered to be in the public domain. In many cases however grants of federal money return the copyrights of the materials produced to either the author or the institution employing the author or some combination of both. Again a close reading of the language of the grant contract is required to establish the particular ownership in any given situation. 

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: 

  1. Spam
  2. Hacking
  3. Cracking
  4. Computer Harassment and Denial of Service Attacks
Spam is the sending of unsolicited e-mails or postings advertising services or web sites. The electronic equivalent of junk mail. At present there are no specific federal laws against spam but services providers generally act to prevent or remove spammers from their systems. In addition are a series of federal and state anti-spam regulations under considerationor have been recently established. These regulations are generally along the same lines as extant statutes dealing with telemarketing and unsolicited faxing. Unfortunately none of them have yet hade any cases completed.

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 law suit. 


Arizona Constitution Study Guide. (1996) Gilbert, AZ. Academic Solutions, Inc. 

Florida Bar Assoc. (4/26/98). Online Service Provider Liability for Defamation.

Harris, L. (5/98). House Committee Approves Copyright Bill over Objections of Schools, Libraries,
and Consumers. ISTE Update.

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.

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