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James Tierney was offended by it too. However Mr. Tierney's response was to file a petition with the recently formed "Virtual Magistrate" Project, which resulted in the Virtual Magistrate Project's first released opinion ("Tierney and Email America," VM Docket No. 96-0001 (08 May 1996), located on the Internet on the Virtual Magistrate Home Page at http://vmag.law.vill.edu:8080/).
The Virtual Magistrate is a project produced at a meeting sponsored by the National Center for Automated Information Research (which is funding the pilot project) and the Cyberspace Law Institute. Its function is to bring alternative dispute resolution to the on-line world.
The Virtual Magistrate Project seeks to provide rapid initial resolution to some kinds of on-line content disputes in a fast, low cost, and neutral fashion. Its function, as stated in its "concept paper" is to "offer arbitration for rapid, interim resolution of disputes involving (1) users of online systems, (2) those who claim to be harmed by wrongful messages, postings, or files and (3) system operators (to the extent that complaints or demands for remedies are directed at system operators)."
The Virtual Magistrate Project's decision-making process is handled completely on-line. The dispute at issue is to be handled by the parties presenting their cases and reaching a resolution via e-mail, and the filings are then archived on a web page. After the matter is resolved and a decision released, the web page is made publicly accessible.
Because of the speed at which rights can be infringed over computer services and the Internet (where transmissions, including those that are defamatory or copyright-infringing, can reach the other side of the globe in seconds), the Virtual Magistrate Project aims to reach a decision within 72 hours after a complaint is filed. While this may still allow some time during which infringements may occur, it is still faster than courts would render a judgment on anything other than an emergency motion.
In Mr. Tierney's case, the matter took about twelve days from the time the petition was filed to the time the decision was released on May 21, 1996.
The mediators engaged by the Virtual Magistrate Project are selected and trained by the American Arbitration Association and Cyberspace Law Institute Fellows. Mediators are chosen for their familiarity with law and on-line services. Eight magistrates are currently participating in the pilot project, and they are assigned randomly to cases.
N. M. Norton, Jr., an attorney with the law firm of Wright, Lindsey & Jennings in Little Rock, Arkansas, and a recent member of the U.S. Information Infrastructure Advisory Council, drew the short straw and presided over Mr. Tierney's case, which was the first case filed with the Virtual Magistrate Project. (Magistrates are paid $250 for each dispute they handle, and there is a $10 cost to file a complaint initially.)
The organizers of the Virtual Magistrate Project hope that service providers will put clauses in their user-agreements requiring that all content based disputes will be turned over to the Virtual Magistrate Project for resolution, and will be willing to bind themselves to the Magistrates' decisions. In the case of complaints such as copyright infringements, the Virtual Magistrate Project also hopes to be able to bring the copyright holders into the dispute resolution process. However, it is worth noting that the Virtual Magistrate seeks only to provide injunctive-type remedies, and not to assign monetary penalties or damages. In some cases the Virtual Magistrate Project will serve as an interim mechanism before a court challenge can be filed.
Unfortunately, the Virtual Magistrate Project's first highly-publicized decision has generated a bit of controversy because of the way the complaint was handled. The critics allege that the first decision looks too much like a publicity stunt, regardless of the Virtual Magistrate Project's good intentions.
Mr. Tierney is a former Attorney General for the State of Maine, and he is also an advisor to the Virtual Magistrate Project on consumer fraud issues. His complaint about Email America "spamming" its ad on America Online was resolved with the input of America Online, but at no point did Email America participate-- the proceeding was basically a default judgment. In other words, the first preceding in front of the Virtual Magistrate did not meet the Virtual Magistrate Project's goal of active participation of all of the parties. The ideal situation, as mentioned, is to use a mediation clause in a service agreement that would bind both parties to such agreement to the decision of an organization like the Virtual Magistrate-- without the parties agreeing to the Magistrates authority, there can be no binding decision. However, America Online's service agreement has no such clause.
Further complaints about the initial decision are a result of the fact that the complaint to the Virtual Magistrate was somewhat unnecessary. The goal of Tierney's petition was to cause Email America's advertisement to be removed from the America Online system. This goal would not require any input on the part of Email America.
Regardless of the complaints that the advertisement is fraudulent, it is clearly an ad-- and such ads are clearly in violation of America Online's Terms of Service (which read, in part, that members may not "post or transmit any unsolicited advertising . . . to other members, individuals or entities, except in those areas (e.g. the classified areas) that are designed for such a purpose.") America Online is free to determine that Email America's note constitutes an advertisement and to remove the note from its system. Importantly, no one has challenged this decision-- thus the controversy is a one-sided dispute. The opinion released by the Virtual Magistrate amounts to an acknowledgment that America Online acted rationally in enforcing its service terms.
Regardless of the controversy surrounding the Virtual Magistrate Project's first decision, the principles behind the Project are sound. The Project serves a useful purpose. In some areas, the law that affects computer communications is not clear. In other cases, on-line services desire to be more open and give users more freedom to express themselves, yet the service operators feel they need to keep rigid control to avoid liability. Service providers have a great deal of subscriber turnover, and that turnover is often fueled by claims of "repression" or "censorship" when a service provider acts to protect itself by removing questionable content.
Perhaps, as the Virtual Magistrate Project develops, it will provide either some clarity in the gray areas, an alternative to a one-sided scheme of content control, or maybe at least a mechanism to allow a neutral party to endorse a service provider's defensive reaction.