Long: FYI -RE: CYBERLAW: No. 8, October 8, 1997

Elisabeth Roche eroche at sisna.com
Thu Oct 9 19:15:48 EDT 1997


 Subject:	CYBERLAW: No. 8, October 8, 1997
 
This is a one time forward post to web4lib of Cyberlaw, in case you hadn't
seen this before. I had to copy in its entirety as those are the
reproduction instructions. 

This issue has an article on free speech and cyberspace that I thought
might be pertinent to the filtering discussion.
 
 xxxADIOS
 Elisabeth Roche Roche Resources Tucson, AZ (520)320-5933
 eroche at sisna.com
 serendipity RULES!
 
 
 
 >Return-path: <owner-lsn2 at PUBLISHER.SSRN.COM>
 >Date: Tue, 07 Oct 1997 19:23:21 -0400
 >From: Larry Lessig <Lawrence_Lessig at SSRN.COM>
 >Subject: CYBERLAW: No. 8, October 8, 1997
 >Sender: Legal Scholarship Network <LSN2 at PUBLISHER.SSRN.COM>
 >To: LSN2 at PUBLISHER.SSRN.COM
 >Reply-to: admin at SSRN.COM
 >
 >     -----------------------------------------------------------
 >                      CYBERSPACE LAW ABSTRACTS
 >                              Number 8
 >                          October 8, 1997
 >     ------------------------------------------------------------
 >
 >                              Editor:
 >                          Lawrence Lessig
 >
 >           Published by the Legal Scholarship Network (LSN)
 >                           a division of
 >                Social Science Research Network (SSRN)
 >
 >                           Copyright by
 >        Social Science Electronic Publishing, Inc. (SSEP) 1997
 >                          All rights reserved.
 >
 >
 >                          Special Notice
 >                          --------------
 >
 >     This issue is being sent to you either on a trial basis or
 >     because you have subscribed to Cyberspace Law Abstracts
 >     (CYBERSPACE LAW).  Cyberspace Law is free during the
 >     start-up phase of publication.  When Cyberspace Law becomes
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 >
 >     ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 >     |||||||||||||||       TABLE OF CONTENTS      |||||||||||||||
 >     ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 >
 >     ------------------------------------------------------------
 >                            WORKING PAPER
 >                        (see abstract below)
 >     ------------------------------------------------------------
 >
 >      "What Things Regulate Speech"
 >
 >           LAWRENCE LESSIG       Harvard Law School
 >
 >
 >     ------------------------------------------------------------
 >                           ACCEPTED PAPERS
 >                        (see abstracts below)
 >     ------------------------------------------------------------
 >
 >     "Cryptography and Liberty:  `Can the Trusted Third Parties be
 >      Trusted?:  A Critique of the Recent UK Proposals'" (2 J. of
 >      Inf., L. and Tech., 1997)
 >
 >          YAMAN AKDENIZ          University of Leeds
 >          OLIVER CLARKE          CommUnity UK
 >          ALISTAIR KELMAN        London School of Economics
 >          ANDREW ORAM            O'Reilly & Associates
 >
 >
 >     "Legal Implications of Network Economic Effects," forthcoming
 >      in the California Law Review.
 >
 >          MARK A. LEMLEY         University of Texas School of Law
 >          DAVID MCGOWAN          Howard, Rice, Nemerovski, Canady,
 >                                 Falk & Rabkin
 >
 >
 >     "Governing Cyberspace" (48 Wayne L. Rev., 1997)
 >
 >          DAVID G. POST          Temple University Law School
 >
 >
 >     "Freedom of Speech, Shielding Children, and Transcending
 >      Balancing" (Sup. Ct. L. Rev., 1997)
>
 >          EUGENE VOLOKH          UCLA Law School
 >
 >
 >     ------------------------------------------------------------
 >                      PROFESSIONAL ANNOUNCEMENT
 >     ------------------------------------------------------------
 >
 >          CONFERENCE            "The Internet and the First
 >                                 Amendment"
 >                                 The Seton Hall Constitutional Law
 >                                 Journal
 >                                 March 11, 1998
 >
 >
 >     ------------------------------------------------------------
 >                      CYBERSPACE LAW INFORMATION
 >     ------------------------------------------------------------
 >
>> >     * Editor
>> >     * Advisory Board
>> >     * About Cyberspace Law
>> >     * Submitting Abstracts, Professional
>> >       Announcements, and Job Openings
>> >     * Missing Issues and Change of Address
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>> >
>> >
>> >                          Obtaining Papers
>> >                          ----------------
>> >
>> >     Unless otherwise noted, papers are available *electronically
>> >     only.*  You can download them from
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>> >             http://www.ssrn.com/CyberLaw/lawpaper.html
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>> >       Eudora:    http://www.eudora.com/
>> >
>> >     ------------------------------------------------------------
>> >                        WORKING PAPER ABSTRACT
>> >                     (published with permission)
>> >     ------------------------------------------------------------
>> >
>> >     "What Things Regulate Speech"
>> >
>> >      BY: LAWRENCE LESSIG
>> >            Harvard Law School
>> >
>> >          CONTACT:  Prof. Larry Lessig
>> >          E-MAIL:   MAILTO:lessig at pobox.com
>> >          POSTAL:   Harvard Law School, G502, 1525 Massachusetts
>> >                    Ave., Cambridge, MA 02138
>> >          PHONE:    (617) 495-8099
>> >          FAX:      (617) 495-1110
>> >
>> >          LSN-REF:  CYBERSPACE:WPS97-004
>> >
>> >     HARD COPY PAPER REQUESTS:  Copies of this paper are
>> >     obtainable from http://www.ssrn.com/CyberLaw/lawpaper.html
>> >
>> >     We come from a tradition of free speech law that thinks
>> >     primarily about how government regulates speech. We are
>> >     entering a time when the greatest threat to free speech is no
>> >     longer government. This essay sketches a more general model
>> >     for thinking about speech regulation, and applies it to the
>> >     problem of filtering speech on the net. Some ranting against
>> >     PICS, and the CDA also included.
>> >
>> >
>> >     ------------------------------------------------------------
>> >                      ACCEPTED PAPER ABSTRACTS
>> >                     (published with permission)
>> >     ------------------------------------------------------------
>> >
>> >     "Cryptography and Liberty:  `Can the Trusted Third Parties be
>> >      Trusted?:  A Critique of the Recent UK  Proposals'"
>> >
>> >          2 J. of Inf., L. and Tech. (1997)
>> >
>> >      BY: YAMAN AKDENIZ
>> >            University of Leeds
>> >          OLIVER CLARKE
>> >            CommUnity UK
>> >          ALISTAIR KELMAN
>> >            London School of Economics
>> >          ANDREW ORAM
>> >            O'Reilly & Associates
>> >
>> >          CONTACT:  Mr. Yaman Akdeniz
>> >          E-MAIL:   MAILTO:lawya at leeds.ac.uk
>> >          POSTAL:   Centre For Criminal Justice Studies,
>> >                    University of Leeds, Leeds LS2 9JT, UK
>> >          PHONE:    not available
>> >          FAX:      011-44-0-113-2335056
>> >
>> >          CO-AUTH:  Mr. Oliver Clarke
>> >          E-MAIL:   MAILTO:oliver at pigpen.demon.co.uk
>> >          POSTAL:   375 Rochdale Road, Bury, Lanc's, BL9 7DB, UK
>> >          PHONE:    011-44-161-959 2350
>> >          FAX:      011-44-161-856 3006
>> >
>> >          CO-AUTH:  Mr. Alistair Kelman
>> >          E-MAIL:   MAILTO:a.kelman at lse.ac.uk
>> >          POSTAL:   LSE Computer Security Research Centre,
>> >                    Houghton Street, London NW4  4PN
>> >          PHONE:    011-44 181 202 5675
>> >          FAX:      011-44 181 202 8045
>> >
>> >          CO-AUTH:  Mr. Andrew Oram
>> >          E-MAIL:   MAILTO:andyo at oreilly.com
>> >          POSTAL:   O'Reilly & Associates, Inc., 90 Sherman
>> >                    St., Cambridge, MA 02140-3233, USA
>> >          PHONE:    (617) 499-7479
>> >          FAX:      (617) 661-1116
>> >
>> >          LSN-REF:  CYBERSPACE:APS97-031
>> >
>> >     HARD COPY PAPER REQUESTS:  Copies of this paper are
>> >     obtainable from http://www.ssrn.com/CyberLaw/lawpaper.html
>> >
>> >     Computer encryption is part of the basic infrastructure for
>> >     modern digital commerce and communications.  Recently it has
>> >     been the subject of various proposals from the U.K.
>> >     government, as well as governments in several other countries
>> >     and the European Union as a whole.  Whilst these proposals
>> >     claim to address both the goal of improving commerce through
>> >     better encryption and that of facilitating access to
>> >     encrypted communications by law enforcement, the impact of
>> >     the proposals is in fact to impair the former goal in order
>> >     to favor the latter.  They tend to call for `key escrow' or
>> >     `key recovery' systems that centralize sensitive keys in
>> >     databases (at `Trusted Third Parties') and permit government
>> >     access in a manner similar to that in which phone wiretaps
>> >     are currently conducted.  This paper examines several
>> >     proposals, especially the March 1997 Consultation Paper from
>> >     the Department of Trade & Industry entitled `Licensing of
>> >     Trusted Third Parties for the Provision of Encryption
>> >     Services', and assesses their implications.  We argue that
>> >     key escrow represents an unprecedented intrusion on
>> >     individual privacy, holds back the development of digital
>> >     communications and commerce, and does not achieve the
>> >     government's stated goals of helping to prevent crime.  As an
>> >     alternative, to address problems of law enforcement in
>> >     electronic commerce and to facilitate the prosecution of
>> >     crimes, we suggest a compromise proposal which we call `key
>> >     archiving.'
>> >
>> >
>> >     ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
>> >
>> >     "Legal Implications of Network Economic Effects"
>> >
>> >          Forthcoming, 86 California Law Review (1998)
>> >
>> >     BY:  MARK A. LEMLEY
>> >            University of Texas School of Law
>> >          DAVID MCGOWAN
>> >            Howard, Rice, Nemerovski, Canady, Falk & Rabkin
>> >
>> >          DATE:     June 1997
>> >
>> >          CONTACT:  Prof. Mark A. Lemley
>> >          E-MAIL:   MAILTO:mlemley at mail.law.utexas.edu
>> >          POSTAL:   727 E. Dean Keeton St., Austin, TX 78705
>> >          PHONE:    (512) 471-7405
>> >          FAX:      (512) 471-6988
>> >
>> >          CO-AUTH:  Prof. David McGowan
>> >          E-MAIL:   MAILTO:dmcgowan at hrice.com
>> >          POSTAL:   Howard, Rice, Nemerovski, Canady, Falk &
>> >                    Rabkin, 3 Embarcadero Ctr., 7th Floor, San
>> >                    Francisco, CA 94111
>> >          PHONE:    (415) 765-4697
>> >          FAX:      (415) 399-3041
>> >
>> >          LSN-REF:  CYBERSPACE:APS97-032
>> >
>> >     HARD COPY PAPER REQUESTS:  Copies of this paper are
>> >     obtainable from http://www.ssrn.com/CyberLaw/lawpaper.html
>> >
>> >     Economic scholarship has recently focused a great deal of
>> >     attention on the phenomenon of network externalities, or
>> >     network effects:  markets in which the value that consumers
>> >     place on a good increases as others buy the good.  Though the
>> >     economic theory of network effects is less than fifteen years
>> >     old, and is still not thoroughly understood, network effects
>> >     are increasingly playing a role in legal argument.  Judges,
>> >     litigators and scholars have suggested that antitrust law,
>> >     intellectual property, telecommunications law, Internet law,
>> >     corporate law, contract law and even the law of racial
>> >     discrimination need to be modified to take account of network
>> >     effects.  Their arguments reflect a wide range of views about
>> >     what network effects are and how courts should react to them.
>> >
>> >     In this Article, we explore the application of network
>> >     economic theory in each of these contexts.  We suggest ways
>> >     in which particular legal rules should -- and should not --
>> >     be modified to take account of network effects.  We also
>> >     attempt to draw some general conclusions about the role of
>> >     network economic theory in the legal enterprise, and about
>> >     the way in which courts should revise legal doctrines in
>> >     response to theories from fields outside the law.
>> >
>> >
>> >     ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
>> >
>> >     "Governing Cyberspace" (48 Wayne L. Rev., 1997)
>> >
>> >      BY: DAVID G. POST
>> >            Temple University Law School
>> >
>> >          48 Wayne L. Rev. (1997)
>> >
>> >          CONTACT:  Prof. David G. Post
>> >          E-MAIL:   MAILTO:postd at erols.com
>> >          POSTAL:   Temple University Law School, Cyberspace Law
>> >                    Institute, 1719 N. Broad St., Philadelphia, PA
>> >                    19122
>> >          PHONE:    (215) 204-2225
>> >          FAX:      (215) 204-1185
>> >
>> >          LSN-REF:  CYBERSPACE:APS97-033
>> >
>> >     HARD COPY PAPER REQUESTS:  Copies of this paper are
>> >     obtainable from http://www.ssrn.com/CyberLaw/lawpaper.html
>> >
>> >     What is the source of those law(s) that will govern our
>> >     interactions in cyberspace?  What body of rules will
>> >     participants in cyberspace transactions consult to determine
>> >     their substantive obligations and who is to make those rules?
>> >
>> >     This paper sketches out two alternative models for the way in
>> >     which order can emerge in this environment, models I refer to
>> >     as "Hamilton" and "Jefferson."  Hamilton involves an
>> >     increasing degree of centralization of control, achieved by
>> >     means of increasing international coordination among existing
>> >     sovereigns, through multi-lateral treaties and/or the
>> >     creation of new international governing bodies along the
>> >     lines of the World Trade Organization, the World Intellectual
>> >     Property Organization, and the like.  Jefferson invokes a
>> >     radical decentralization of law-making, the development of
>> >     processes that do not impose order on the electronic world
>> >     but through which order can emerge, in which individual
>> >     network access providers, rather than territorially-based
>> >     states, become the essential units of governance.  The
>> >     normative choice is a significant one, and I argue that
>> >     mobility users' ability to move unhindered into and out of
>> >     individual networks with their distinct rule-sets is a
>> >     powerful guarantee that the resulting distribution of rules
>> >     is a just one; indeed, that our very conception of what
>> >     constitutes justice may change as we observe the kind of law
>> >     that emerges from unchurched individual choice.
>> >
>> >
>> >     ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
>> >
>> >     "Freedom of Speech, Shielding Children, and Transcending
>> >      Balancing"
>> >
>> >          Sup. Ct. L. Rev. (1997)
>> >
>> >      BY: EUGENE VOLOKH
>> >            UCLA Law School
>> >
>> >          CONTACT:  Prof. Eugene Volokh
>> >          E-MAIL:   MAILTO:volokh at law.ucla.edu
>> >          POSTAL:   405 Hilgard Ave., Los Angeles, CA 90095
>> >          PHONE:    (310) 206-3926
>> >          FAX:      (310) 206-7010
>> >
>> >          LSN-REF:  CYBERSPACE:APS97-034
>> >
>> >     HARD COPY PAPER REQUESTS:  Copies of this paper are
>> >     obtainable from http://www.ssrn.com/CyberLaw/lawpaper.html
>> >
>> >     The Court has long accepted that the government has a strong
>> >     interest in shielding children from speech that's supposedly
>> >     unsuitable for them, for instance speech that's sexually
>> >     explicit or profane.  But the Court has also long accepted
>> >     that such speech does have substantial First Amendment
>> >     value.  The question thus becomes: How is the Court to
>> >     reconcile the strong claim of government interest with the
>> >     strong claim of First Amendment right?  The conventional
>> >     answer, which the Court followed in the recent cyberspace
>> >     indecency case (Reno v. ACLU), is that the court must apply
>> >     "strict scrutiny" -- must uphold the law if and only if it's
>> >     the least restrictive means of serving the government
>> >     interest.  In this article, I make four claims:
>> >     1. Though the Court's result in Reno was right, its
>> >     application of strict scrutiny was less than candid.
>> >     2. Under a more accurate application of strict scrutiny, the
>> >     Court might well have had to uphold the Communications
>> >     Decency Act.  In my view, this suggests that strict scrutiny
>> >     is itself an unsound test for such cases.
>> >     3. There are several different alternatives for dealing with
>> >     speech restrictions aimed at shielding children; the best one
>> >     is probably something analogous to the Court's "undue burden"
>> >     (or, more precisely, "substantial burden") test.
>> >     4. This criticism of the Court's "strict scrutiny" approach
>> >     also applies to other kinds of speech restrictions.  Strict
>> >     scrutiny is generally an unsound approach to free speech
>> >     cases; I offer some suggestions for a possible framework to
>> >     replace it.
>> >
>> >
>> >     ------------------------------------------------------------
>> >                       PROFESSIONAL ANNOUNCEMENT
>> >     ------------------------------------------------------------
>> >
>> >                 "The Internet and the First Amendment"
>> >               The Seton Hall Constitutional Law Journal
>> >                            March 11, 1998
>> >
>> >     The Seton Hall Constitutional Law Journal is pleased to host
>> >     a symposium conference on the Internet and the First
>> >     Amendment, to be held at the Seton Hall University School of
>> >     Law on March 11, 1998.
>> >
>> >     Confirmed speakers on the program will include:
>> >
>> >     *  PROFESSOR MARK ALEXANDER, Seton Hall University
>> >     *  PROFESSOR DAN BURK, Seton Hall University
>> >     *  EDWARD CAVAZOS, Interliant Inc.
>> >     *  SCOTT CHARNEY, United States Department of Justice
>> >     *  PROFESSOR JULIE COHEN, University of Pittsburgh
>> >     *  MIKE GODWIN, Electronic Frontier Foundation
>> >     *  ROBERT HAMILTON, Jones Day Reavis & Pogue
>> >     *  PROFESSOR LARRY LESSIG, Harvard Law School
>> >
>> >     Topics to be covered will include:
>> >
>> >     *  Commercial Speech on the Internet,
>> >     *  Cyberporn after Reno v. ACLU,
>> >     *  Cryptography and the First Amendment,
>> >     *  Vicarious Liability for Dignitary Torts,
>> >     *  Anonymous Speech on the Net
>> >
>> >     Seton Hall University School of Law is located in Newark, New
>> >     Jersey, with convenient access to air transportation via
>> >     Newark airport; to Amtrack, New Jersey Transit, and New York
>> >     area PATH trains via Penn Station Newark; and to major
>> >     automobile routes including the New Jersey Turnpike and
>> >     Garden State Parkway.
>> >
>> >     For further information, please
>> >                  CONTACT:  Michael MacManus
>> >                  E-MAIL:   MAILTO:macmanmi at shu.edu
>> >
>> >
>> >     ------------------------------------------------------------
>> >                      CYBERSPACE LAW INFORMATION
>> >     ------------------------------------------------------------
>> >
>> >
>> >                       CYBERSPACE LAW EDITOR
>> >                          ---------------
>> >
>> >     LAWRENCE LESSIG
>> >        Professor of Law, Harvard University
>> >
>> >
>> >
>> >                    CYBERSPACE LAW ADVISORY BOARD
>> >                       ----------------------
>> >
>> >     A. MICHAEL FROOMKIN
>> >       Associate Professor of Law, University Miami School of Law
>> >       Fellow, Cyberspace Law Institute; Member of Editorial
>> >       Board of Journal of Online Law; Foreign Associate, the
>> >       Royal Institute of International Affairs
>> >
>> >     I. TROTTER HARDY
>> >       Professor of Law, William and Mary School of Law; Editor,
>> >       the Journal of Online Law
>> >
>> >     DAVID R. JOHNSON
>> >       Chairman, Counsel Connect; Co-Director, Cyberspace Law
>> >       Institute
>> >
>> >     ETHAN KATSH
>> >       Professor of Legal Studies, University of Massachusetts at
>> >       Amherst; Co-Director, Online Ombuds Office; Fellow,
>> >       Cyberspace Law Institute; Member of Editorial Board of
>> >       Journal of Online Law, Cyberlaw, Technolaw, and West Legal
>> >       Network
>> >
>> >     MARK A. LEMLEY
>> >       Assistant Professor, University of Texas School of Law;
>> >       Of Counsel, Fish & Richardson, P.C.; Member, Board of
>> >       Editors, American Intellectual Property Law Association
>> >       Quarterly Journal; Advisory Editor, Texas Intellectual
>> >       Property Law Journal
>> >
>> >     JESSICA LITMAN
>> >       Professor of Law, Wayne State University Law School
>> >
>> >     DAVID POST
>> >       Associate Professor of Law, Temple University Law School;
>> >       Co-Director, Cyberspace Law Institute; Editorial Board,
>> >       Lexis Electronic Authors Press
>> >
>> >     MARGARET JANE RADIN
>> >       William Benjamin Scott and Luna M. Scott Professor of Law,
>> >       Stanford Law School; Founding board of editors, Legal
>> >       Theory; Co-Director, Cyberspace Law Institute
>> >
>> >     PAMELA SAMUELSON
>> >       Professor of Law and of Information Management, University
>> >       of California at Berkeley; Contributing Editor,
>> >       Communications of the ACM; Fellow of the Electronic
>> >       Frontier Foundation
>> >
>> >     EUGENE VOLOKH
>> >       Acting Professor of Law, UCLA Law School
>> >
>> >
>> >                       ABOUT CYBERSPACE LAW
>> >                          --------------
>> >
>> >     This journal publishes abstracts of papers dealing with
>> >     all aspects of the regulation of cyberspace, whether that
>> >     regulation is through law, social norms, or the
>> >     architecture of the network.  The approach of the journal
>> >     is inter-disciplinary:  We will abstract papers in law and
>> >     in other related social science disciplines that raise
>> >     issues related to the regulation of cyberspace.
>> >
>> >     Comments and suggestions about Cyberspace Law are welcome.
>> >     Please send them to the editor at:
>> >
>> >                   MAILTO:Lawrence_Lessig at SSRN.Com
>> >
>> >     Cyberspace Law is the seventh internet-based journal of
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>> >     a division of Social Science Electronic Publishing, Inc.
>> >     (SSEP).
>> >
>> >     LSN also publishes (or will soon publish) other journals in
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>> >
>> >     LSN is co-directed by Ronald J. Gilson and A. Mitchell
>> >     Polinsky.  Gilson is the Charles J. Meyers Professor of
>> >     Law and Business at Stanford Law School, and the Marc
>> >     and Eva Stern Professor of Law and Business at Columbia
>> >     University School of Law.  Polinsky is the Josephine
>> >     Scott Crocker Professor of Law and Economics and Director
>> >     of the John M. Olin Program in Law and Economics at
>> >     Stanford Law School.  Professors Gilson and Polinsky also
>> >     are the editors of LEA.
>> >
>> >
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>> >                    ANNOUNCEMENTS, AND JOB OPENINGS
>> >                  ----------------------------------
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>> >
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>> >
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>> >
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>> >
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>> >
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