Users, Webmasters beware

FCW's DotGov Thursday column outlines some of the legal ground federal Web sites must cover

A great strength of the World Wide Web is its interactive features for establishing

a continuous dialogue between federal agencies and the public. But whether

you know it or not, you assume significant legal responsibilities when you

provide the opportunity for the public to interact with your agency or other

members of the public through your Web site.

Converging on your site are the laws that define our relationships to each

other, our governments (federal, state and local) and our property. For

example:

* If you provide content, you also are providing certain warranties unless

you specifically disclaim them.

* If you have created a participative Web site, you have significant oversight

obligations.

* There is even the potential for your site to be a source of harm (called

a tort) or criminal penalties (regarding civil rights, e-mail wire tapping,

copyright, and so on).

The federal government has waived significant areas of sovereign immunity

through the Federal Tort Claims Act. In addition, no one is immune from

criminal conduct in the course of his or her work as an employee of the

federal government. At the minimum, what we do carries a certain ethical

responsibility to meet the public's expectations of a fair and supportive

government.

As Web sites become more participative, an agreement is needed that defines

appropriate and inappropriate behavior. Most Web sites have the usual privacy

policy and an announcement that defines criminal conduct for hacking into

the Web site. A few sites have started to provide disclaimers on warranties,

copyright and endorsements when linking to other sites.

But an interactive environment requires action that reaches significantly

beyond those measures. We must embrace the creation of an agreement that

requires assent from users of your Web site, giving them the option to decline

the conditions defined in the agreement.

Here is an outline of the key issues that should be addressed in an agreement.

This is not an exhaustive list, and not everything needs to be included

in an agreement. The degree to which any of the items are addressed below

is a business decision.

Your agency attorney should develop the specific language of the agreement

in the context of the goals and objectives for your Web site. Turn to your

agency attorney for further explanation or e-mail me at rich.kellett@gsa.gov.

Key issues to address include:

Age of the participant: Covers whether you allow minors to participate in

your Web site.

Assent and opt out: Covers how assent is made, the legal responsibilities

that flow from assent, and the opportunity to opt out if the individual

does not wish to be bound by the agreement.

Children: New laws exist for addressing collecting information regarding

children. Define, if appropriate, the terms, conditions and processes for

complying with laws regarding children's participation in Web sites.

Civil rights: Covers types of conduct on the Web site that would violate

other individuals' civil rights.

Contracting: Covers when the agreement regarding participating on this Web

site becomes binding and to what extent.

Copyrights, trademarks and restrictions on use: Define copyrights and trademarks

that are contained on the Web site and define them as your intellectual

property. Define the scope and/or limits of how information from the site

can or cannot be used.

Criminal investigation: Define under what conditions information is released

for criminal investigations.

Damages: Usually, this area would address limits on damages or it would

require waiving damages to some degree by both parties. Limitations on damages

usually are defined as purchase price or replacement cost. Information (even

if it is free) usually is provided "as is" with no warranties.

Due process: If the activity on the Web site can result in revoking benefits

for which a property right exists, then provide how the individual's due

process rights are maintained before revoking those property rights.

Electronic signatures and records: Define whether electronic signatures

and records can be used in court disputes.

Fraud: Define under what conditions it is fraudulent to present erroneous

information. Users must be warned of the criminal consequences of not being

truthful at a federal Web site.

Freedom of Information Act: Provide information about how to submit a FOIA

request and/or conditions when FOIA requests are inappropriate. The user

agreement cannot change the law in this matter.

Indemnification: Define under what conditions, if any, the participant agrees

to indemnify the federal agency.

Jurisdiction: Jurisdiction is global unless limited by a specific statement

as to where claims can be filed. Usually, Web sites limit jurisdiction to

the courts in which the Web site is physically located. At a minimum, define

jurisdiction as a U.S. court. If you have a personal Web site, define jurisdiction

as your local courts for the district of whatever state you are in. Provide

an "opt out" if the individual chooses not to agree.

Limits on liability: Define whether the agency Web site is a distributor

(minimal liability for content) or publisher (significant liability for

content).

Links: Provide a disclaimer for endorsements when linking to other Web sites.

Ownership and use: Define ownership and use of any information users provide

to the Web site.

Privacy: In compliance with the Privacy Act of 1974, a privacy notice must

be provided. The notice must include the degree to which private information

will be shared or not shared.

Prohibited conduct: This will be a list of prohibited conduct that addresses

topics such as advertisements and promotions, civil rights, encrypted files

(for example, posting of encrypted files), gambling, intellectual property,

libel, political activity, pornography, privacy, slander, viruses and other

conduct issues.

Purpose: Define the dialogue that is the purpose of this Web site. Individuals

or organizations can be blocked if they deviate repeatedly.

Records management. State whether records are stored and for how long (mainly

a privacy issue).

"Savings" clause: States that if one section is unenforceable, the other

sections survive.

Security: Defines the types of activity that would lead to criminal prosecution

or being blocked from the Web site.

Spam: Defines under what conditions an e-mail name, TCP/IP address or domain

can be blocked.

Torts: Actions that might lead to damages. For instance, using your Web

site to spam other Web sites might be considered trespass.

Viruses: Set liability limits for when the public or the agency inadvertently

introduces computer viruses or other damaging software.

Warranties: Define to what level, if at all, you are providing warranties.

Generally, information content is used "as is" with no warranty.

—Kellett is founder of the Federal Web Business Council, co-chairman of the

Federal Webmasters Forum and director of GSA's Emerging IT Division.

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