Technology Law Column

This page has been speech-enabled for Macintosh owners using the Talker Netscape Plug-in. Hit Escape to discontinue speech.

Published in the Chicago Daily Law Bulletin, March 9, 1995 at page 6.

Lawyers' Electronic Ads Leave Bad Taste

Copyright 1995 by David Loundy

People say that communicating on computer networks is an exercise in anarchy - that Cyberspace is a lawless society.

This is not really true.

More accurately, Cyberspace is a society ruled by a sort of frontier justice. It is also a society which intersects with the law of every country through which it passes. It is important that the attorney who wishes to take advantage of the Global Information Infrastructure in his or her practice at least give some thought to the issues posed by merely interacting as attorneys on the Internet. For the purpose of illustration, we will use a case study involving lawyer advertising on the Internet.

To begin our story, let us look at how two attorneys became the two most hated individuals in the history of the Internet. Those of you reading this far probably have already guessed that I am talking about Lawrence Canter and Martha Siegel, the famous "green card lawyers" who "spammed" the Internet.

What did they do?

They posted an advertisement for their immigration services to several thousand Usenet News news groups. Why was this bad? Numerous reasons.

Canter & Siegel have claimed that what they did was acceptable, since no laws prohibited their behavior. Is this response accurate? It is not as clear an issue as they would make it seem, considering that Canter & Siegel's advertisement intended to solicit clients and appeared in approximately 140 countries, including some countries that restrict lawyer solicitation.

Providing legal services over the Internet raises serious questions concerning the interstate practice of law, just as advising clients in any state in which you are not licensed to practice does. I do not seek to present a definitive answer to the interstate practice of law issue, which does not seem to have an agreed upon answer, but I do seek to raise awareness of a potential concern for lawyers.

Also, while First Amendment speech rights are always facing off against restrictions on attorney advertising, to use a popular phrase, "the First Amendment is a local ordinance." While Cantor & Siegel's message may have been sent from a computer in one state, it was posted to Usenet News news groups that are read world-wide, and it was even posted to news groups intended for readers in specific foreign countries. Some German commentators on the matter, for example, commented that, had the advertisement come from German lawyers it would likely have been a sanctionable offense.

This case of advertising is at one end of the continuum. Other issues need to be considered, such as an attorney's use of a World-Wide-Web page, on which the attorney desires to place legal commentary and possibly firm marketing information. Also, because some states even regulate attorney letterhead and business card language, attorneys who use "signature files" should consider the implications of any language they use.

Signature files generally consist of a few lines of text that are appended to any piece of e-mail sent or posts made to public news groups. Often, these files consist of contact and employment information, and may often include quotations and even disclaimers. There has been some discussion in legal groups on the Internet that descriptive language which may be fairly standard for some professions may raise ethics issues for attorneys using the same type of information in their signatures.

Other legal issues are raised by Cantor & Siegel's actions, because of the way they posted their messages to the Internet (and the way other people using their methods have subsequently posted other advertisements - Mr. Cantor & Ms. Siegel have written a book on how to advertise on the Internet, and have started a company, "CyberSell," to assist people seeking to advertise on the Internet).

Similar issues are raised as a result of retaliation on the part of outraged network users for this type of advertising. Cantor & Siegel upset Internet users when they posted their advertisements, because they "spammed" them instead of "crossposting" the ads, a serious breach on net-etiquette (or netiquette, if you prefer).

Crossposting entails sending one copy of a message, but addressing it to readers of several different news groups. This is analogous to sending an ad from office to office (in this case, several thousand offices) with a routing slip attached.

Spamming, on the other hand, entails sending an individual copy of the message to each news group. This is analogous to having a mail carrier deliver several thousand copies of an ad to individual recipients. The reason why spamming is a breach of Netiquette is because each one of the computers on the Internet which carries Usenet News must store thousands of copies of the message, instead of only one, which takes up a lot of storage space paid for by the computer owners - not by the advertisers. The offending message must also be processed and transmitted several thousand times by all of the computers around the world through which the message passes - all of these machines are connected over phone lines being paid for by someone other than the advertiser.

In addition, most news-reading software is smart enough to ignore a message crossposted to several news groups after it has been read once. One the other hand, a spammed message may have to be looked at dozens of times by each person reading news on the Internet. Many news group readers must therefore pay by the hour for the privilege of deleting dozens of copies of someone's unwelcome advertisement.

And this is not even mentioning the most obvious breach on Netiquette - that of posting messages to groups regardless of the intended topic of discussion for the group. While spamming may only be a breach of etiquette, and is not necessarily illegal, these activities have earned Canter & Siegel the wrath of a good share of Internet users - not the sort of publicity you would want for your practice.

As CyberSell has refined its advertising techniques, however, it has gone too far. One of its latest "spams" included postings to moderated news groups (news groups where all of the posts must be approved by a moderator before they are publicly distributed), and even private e-mail mailing lists. To post these notes, the message sender had to "forge" approval by the groups' moderator or the mailing lists' administrator. This is a fete apparently so simple that the rudimentary details of how to send a "forged approval" were explained to me in 100 words or less.

Sending notes to private e-mail lists or moderated news groups may border on wire fraud (18 U.S.C. Section 1343). An argument could be made (that probably would not be laughed out of court) that sending forged posts also violates 18 U.S.C. $1029 (fraud and related activity in connection with access devices), and a stronger case still could be made that such posts constitute unauthorized access to computers used in interstate commerce in violation of 18 U.S.C. Section 1030.

One System Administrator even claimed that having one's name forged as approving of a CyberSell advertisement should be considered actionable defamation, since no socially acceptable discussion group moderator would approve of any of CyberSell's messages.

Some members of the Internet community have reacted in true vigilante style. Just as messages can be sent with "forged approvals," messages can also be sent with "forged cancels." Ordinarily, the only person who can cancel a Usenet News post sent world-wide is the original message sender. To retaliate against spams, some network users have sent messages forged to look as if they were sent by the original message sender trying to cancel their original post. Because the Internet has a large core of computer scientist users, automatic "spam canceling" software has even developed which scans Usenet News for posts that look like spams and sends out all of the necessary forged "cancel" messages to eliminate the unwanted posts.

Forging a cancel message is likely a violation of 18 U.S.C. Section 2701, which addresses unauthorized access to stored computer communications, in addition to the other statutes already mentioned.

For the most part, those who have been canceling spammed posts say that they are doing so in a content-neutral fashion - only canceling spams, not crossposts, and without regard to the content of the message. This is not always the case, however. For example, recently some posts critical of the Church of Scientology have been canceled out of news groups devoted to discussing the Church and its teachings.

While some of these activities - forging approvals or forging cancels of Internet posts - may be illegal in the United States, it is important to note that the National Information Infrastructure is plugged into a global information infrastructure. Many of the cancel messages have come from overseas.

Vigilante justice is currently working to keep abuse in check, but abuse is defined by the majority. Internet users who cancel spams have drawn wide praise and support along with a bit of criticism (most vocally by Martha Siegel).

On the other hand, a great deal of effort was put into flushing out the true identity of the person who canceled the Scientology posts so that he or she could be reported to whoever provided him or her with Internet access in the hopes of terminating the cancel sender's access.

Better national and international standards need to be put into place to govern some of the concerns arising on the Global Information Infrastructure. Meanwhile, it is important that practitioners using the Internet be aware of the "legal" issues involved with conducting business on the 'Net, be they concerns created by local law or situation-determined etiquette expectations.

The Infobahn can be a tremendous tool to aid in the practice of law, but just as it can be used to enhance your practice and reputation, so too can it result in conflicts, embarrassment, and unwanted legal questions.

[Technology Law] [E-Law Web Page]