A large state university serves as a network "hub" for the state's high schools. The university itself is networked with every faculty member, staff member, and student having a network computer on his or her desk. The university also is connected to the Internet. A student electronically scans pictures of men and women in various sexual poses.
The university needs to consider how its policies are consistent with the law, because a state university exists in a jurisdiction that probably has indecency and obscenity laws, according to Allan Adler, a lawyer with Cohn and Marks. "We do not voluntarily submit ourselves to the law. It is the reality in which we live," he said.
Adler acknowledged, however, the common practical desire to reach consensus about behavior or conduct through negotiated policies and agreements. This is a typical approach in situations involving a communications medium, he said, where legal resolutions tend to be expensive and most parties get more than they bargained for in terms of restrictions on future conduct. Clearly, he said, there must be a set of social norms, whether defined by policy, contract, or law, and there must be some authority that enforces those norms; the ultimate authority is the law.
Assuming that the university in Scenario 1 communicated the network ground rules to users, their usage of the network would imply assent, Alder said. Assent is required in both contract and criminal law, by individuals in the former case and by society as a whole in the latter. That is, individuals must be notified of regulations that affect their conduct so that they have a fair opportunity to comply; if they do not assent to compliance, then they cannot fairly be held responsible for complying, he explained.
Responding to a suggestion that users could enforce rules themselves by employing screening devices, Adler argued that defamatory or fraudulent information would be difficult to informally identify and filter out, and the law would need to step in. For example, an individual about whom a defamatory story had been written might wish to prevent others from seeing the story, and thus would have to