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Vanderbilt Journal of Entertainment & Technology Law

Article Title

Opinionated Software

First Page

269

Abstract

Information security is an important and urgent priority in the computer systems of corporations, governments, and private users. Malevolent software, such as computer viruses and worms, constantly threatens the confidentiality, integrity, and availability of digital information. Virus detection software announces the presence of a virus in a program by issuing a virus alert. A virus alert presents two conflicting legal issues. A virus alert, as a statement on an issue of great public concern, merits protection under the First Amendment. The reputational interest of a plaintiff disparaged by a virus alert, on the other hand, merits protection under the law of defamation. The United States Supreme Court has struck a balance by constitutionalizing the common law of defamation in a series of influential decisions. This article focuses on two implications of these decisions, namely that (1) a plaintiff must show that the defamatory statement is objectively verifiable as true or false; and (2) a plaintiff must prove its falsity with convincing clarity, while the defendant may prove the truthfulness of the statement as a defense. The crucial issues in these implications are truth, falsity, and verifiability.

This article analyzes the balance between the conflicting legal rights associated with a virus alert. It focuses on the legal meanings of truth, falsity, and verifiability of a virus alert, and the resolution of these issues in the context of the technology involved in a virus alert. The analysis merges perspectives from constitutional law, the law of defamation, and information technology. Insights from theoretical computer science demonstrate, for instance, that the truth of a virus alert may be unverifiable. In such a case the alert would receive full constitutional protection under the Supreme Court's First Amendment defamation jurisprudence.

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