Linking Legally

July 26, 2000

If I give out your telephone number to someone, am I thereby accountable for your future actions? If I give out your telephone number and you rob a bank, should the police come knocking at my door? If, even, I publish your telephone number in a book - let's call it, say, the Yellow Pages - and you are indicted for fraud, am I legally liable for complicity?

I am no lawyer, but: probably not. Otherwise our local telephone company would have been hauled into court thousands of times to atone for their practice of publicizing criminals. People would be a lot more careful accepting and distributing business cards. Newspapers would require a background check before accepting advertising.

Yet it's funny, isn't it, how the same reasoning does not seem to apply to hyperlinks on your web page. To many, the publication of a hyperlink appears to be an endorsement or even a form of assistance to the entity being linked. The list of web sites listed on my web page seems to tell the world that I like and recommend their services.

This is part of the reason why a number of websites are in court today, defending their right to link to allegedly illegal enterprises. In one high profile case, 2600, a website devoted to the hacking community, is under attack for linking to sites offering DeCSS, a program which allows users to copy DVDs. In another, Napster and Scour are being sued for enabling access to MP3 music files, many of which, the music industry alleges, are pirated copies.

These cases are in the news because they are being pursued by the music and publishing industries, corporations which are discovering that billions of dollars in royalties may be at stake. They have a strong incentive to restrict, by any means possible, the actions of those people who they argue are stealing their property.

But the stakes need not be so high. Websites which generate their income through advertising have taken action against the practice of 'deep linking,' that is, linking to a page deep within their site. The most notorious case involves Ticketmaster, which sued Microsoft's City information service, Sidewalk, for offering direct links to local event tickets.

Microsoft settled, but it is not so clear they had to; Tickets.Com received a preliminary ruling allowing it to link deep into Ticketmaster's site.

While commercial conflicts have caught most of the headlines, the battle over links is moving to a new frontier: whether a web site should be allowed to link to a site containing illegal or even immoral material. A French court, for example, ordered Yahoo to prevent French users from accessing a site selling Nazi memorabilia.

Even without legal pressure, website owners are moving to close links to questionable material. This is especially true of government and political websites, for whom an ill-placed link to a pornography site can result in embarrassment and ridicule. Schools, government agencies, libraries: all are exercising extra caution to ensure that their links do not pose a risk. Copyrighted materials, adult sites, fraudulent services: all these and more are on the black list.

Yet there is a danger of taking this too far. Greenpeace, for example, is a well known environmental activist organization which from time to time engages in acts of dubious legal virtue. A government website which links to environmental agencies should consider linking to them because they are widely known and influential. But a site worried about linking to organizations engaged in potentially criminal activity might think twice because of the legal implications. Yet would we consider it appropriate for a judge to order all sites linking to Greenpeace to cease and desist?

In community and government sites especially, the policies and practices of linking are likely to come under increasingly sharp scrutiny. On the one hand will be citizens concerned to ensure that their town sites do not link to enterprises of ill repute. On the other hand, managers and administrators want to keep the town's message positive and upbeat, linking only to those sites which promote the town's economic development and tourism resources. Yet some citizens may question why the official site links to one, and not another, of its constituents.

This happened to the city of Cookeville, Tennessee. Diligent webmasters administering the municipal site decided that the Putnam Pit, a muckraking news site critical of civic administration, did not merit a link. Geoffrey Davidian, the editor of the Putnam Pit, disagreed and took the city to court where an appeal court ruled that the city did not have the right to select links solely on the basis of content.

According to the judges, "The requirement that Web sites eligible to be linked to the city's site promote the city's tourism, industry, and economic welfare gives broad discretion to city officials, raising the possibility of discriminatory application of the policy based on viewpoint. In fact, the city's implementation of these policies suggests viewpoint discrimination." As of this writing, the link still does not appear on the Cookeville site and Davidian is organizing a rally to take place in mid-August.

How can governments react in the face of such conflicting directives? As commentator Steven Clift notes, such rulings may "scare governments away from linking to anyone, making their sites rather irrelevant to the broader community." Yet many civic administrations will want to provide access to the resources in their community, access to everything from the local college to the Chamber of Commerce to the Lion's Club. The city website, like it or not, is a nexus for such information, and is likely the first site potential visitors are likely to visit.

One alternative is to off-load the responsibility of providing links and information entirely. Clift, for example, suggests that communities create an arms-length public internet. Other governments may elect to contract private companies to create the listings. But such attempts simply move the problem one step further away, and if the civic site links to such an entity, the problem sites are only one more click away.

Another alternative is to list everything. This route entails considerably greater risk, as there will be people in any city or town who believe that the civic site should "not link to sites like that." There is no easy way out, and the situation is complicated by the fact that there is no limit on the number of links a civic website may post. This means that anyone who wants a link can, in principle, have one. But the courts - and the public - may have something to say about that.

Inevitably some standards will have to be drafted for websites and especially government websites, standards which declare, in a content neutral manner, which sites will be listed and which sites will not. Such standards ensure that citizens are not blocked because of their political view, and also that businesses are not blocked because their competition is owned by the Mayor's nephew.

Few government sites have published such a policy. Within the next few years, they all will. The only real issue here is whether governments will draft the standards themselves or whether they will let a litinay of litigation do it for them.


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