The Internet and the State

Part 3: Jurisdiction

1. Jurisdiction: US Law

Reading

  1. You may wish to review your notes on personal jurisdiction from Civ Pro I.
  2. The struggle for a theory
    1. The Florida Attorney General's Opinion on Internet Gambling (October 18, 1995).
    2. U.S. vs. Thomas, 74 F.3d 701 (CA 6, 1996).
    3. Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa. 1997). Also located on westlaw.
    4. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, (9th Cir. 1997).
    5. The decision of the Minnesota court of appeal in the Granite Gate case, 568 N.W.2d 715, affirmed by an equally divided court, 576 N.W.2d 747 (Minn. 1998). Also located on Westlaw.
    6. U.S. v. Kammersell, 196 F.3d 1137 (10th Cir. 1999).
    7. AOL v. Huang, 106 F. Supp. 2d 848 (E.D.Va. 2000).
    8. Winfield Collection v. McCauley, 105 F. Supp. 2d 746 (E.D.Mich. 2000).
  3. A legislative response. 15 USCA 1125(c) & (d); also available on Westlaw(c) & (d) (as amended)
  4. One attempt at synthesis.  Jeremy Gilman, Personal Jurisdiction and the Internet: Traditional Jurisprudence for a New Medium, 56 BUSLAW 395 (2000) (edited - the entire article can be found on Westlaw).
  5. UPDATE: BNA, E-Commerce Law Daily, Relatively Recent Jurisdiction Decisions Said to Be Falling Behind Web Technologies (June 5, 2001)

Thinking

  1. A key issue in any attempt to apply traditional ideas of jurisdiction to the Internet is characterizing "where" the Internet event "happened".   In how many different locations is it reasonable to say that the following events happened:
  2. To what extent are your answers to the above contingent on the means by which Alice and Bob access the Internet?  Would any of the following affect your answers?
  3. Would any of these affect your answers?
  4. Should one require the same degree of contacts for each of the following types of assertions of state power:
  5. What in fact are the minimum contacts required for each of the above under US law?
  6. Assuming that the Due Process Clause of the Constitution requires some sort of minimum contacts with a res or its owner in order to assert jurisdiction over the res, what is the constitutionally required minimum contacts with the US required in order for the US to assert in rem jurisdiction over the disposition of a domain name when the registrant resides abroad?

Optional

  1. A useful review of the background on many types of jurisdiction is found at pages 38-92 of ABA, Achieving Legal and Business Order in Cyberspace: A Report on Global Jurisdiction Issues Created by the Internet (London Meeting Draft)
  2. Playboy Enterprises v. Chuckleberry Publishing, Inc., 939 F. Supp. 1032 (S.D.N.Y. 1996).
  3. Bochan v. LaFontaine, 68 F.Supp.2nd 692 (E.D. Va. 1999)
  4. Starmedia Network, Inc. v. Star Media, Inc., 2001 WL 417118 (S.D.N.Y. 2001). (pdf), also on Westlaw
  5. Porsche Cars N.A. v. Porsch.com, 51 F.Supp.2d 707 (E.D. Va. 1999) [pre-ACPA case]
  6. Thomas R. Lee, In Rem Jurisdiction in Cyberspace, 75 Wash. L. Rev. 97 (2000).
  7. Michael Geist, Is There a There There?: Towards Greater Certainty for Internet Jurisdiction (forthcoming 16 Berkeley Tech Law Journal).

2. Jurisdiction: US Law (continued)

Reading

  1. Edited version of American Libraries Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997); full version available at ACLU and also on Westlaw
  2. State v. Heckel, - Was. - (Slip Op., June 7, 2001); also on Findlaw, or on Westlaw
  3. Jack Goldsmith & Alan Sykes, The Internet and the Dormant Commerce Clause, 110 Yale L.J. 785 (2001) (Westlaw link) Version available for download from SSRN, or as Chicago John M. Olin Law & Economics Working Paper No. 105 (2d Series) (2000)]
  4. Yochai Benkler, Internet Regulation: A Case Study in the Problem of Unilateralism, 11 European J. of Int'l L. 167 (2000).  Version available for download in .pdf from SSRN (click on the red download box half way down the page).

Thinking

  1. What constraints, if any, does the Dormant Commerce Clause place on the ability of states to regulate uses of the Internet?
  2. Do the policy arguments for limiting state ability to regulate the Internet in favor of the federal government work with equal force when used to argue that one should limit the power of the federal government to regulate in favor of international or supra-national bodies?

Optional

  1. Dan L. Burk, Jurisdiction in a World Without Borders, 1 Va. J.L. & Tech. 3 (Spring 1997)
  2. Dan L. Burk, Federalism in Cyberspace, 28 Conn. L. Rev. 1095 (1996)
  3. Jack Goldsmith, Unilateral Regulation of the Internet: A Modest Defence, 11 European J. of Int'l L 135 (2000).
  4. Note, :-) Service With a Smiley: The Effect of E-mail and Other Electronic Communications on Service of Process, 11 Temple In'tl & Comp. L.J. 407 (1997). (Westlaw)

 3. Jurisdiction: International

Reading

  1. Trans-national Speech Regulation
    1. Joel Reidenberg, The Yahoo Case and the International Democratization of the Internet (April 2001) (pdf) (If that doesn't work, go to this page then click the download document button.)
    2. Yahoo! Inc. v. LA LIGUE CONTRE LE RACISME ET, L'ANTISEMITISME, 145 F.Supp.2d 1168 (N.D.Cal. 2001); .pdf version from Center for Democracy and Technology...UPDATE: Yahoo wins.  See Reuters story.
    3. Reuters, German Urges Global Rules on Hate on Web (June 28, 2000)
    4. Canada Tries to Bar Pro-Nazi View on Internet, New York Times (Aug. 2, 1998)
    5. Reuters, Fight Brews Over Swiss Bid to Block Web Sites (May 16, 2000)
    6. Tom Spring, CNN, Surfing with U.S. Customs (Oct. 20, 1999)
  2. The 'Great Firewall of China' and other cases of subversive speech regulation
    1. Leonard R. Sussman, Censor Dot Gov: The Internet and Press Freedom 2000
    2. Human Rights Watch, Freedom of Expression on the Internet
    3. Please review Froomkin, The Internet As A Source of Regulatory Arbitrage

Thinking

  1. Internet speech restrictions can have extra-territorial effects if they result in content being taken down.  But the absence of speech restrictions also has extra-territorial effects if they result in otherwise banned speech moving off-shore and readable domestically.  Are there legally (or morally?) meaningful differences between these two types of extraterritorial effects?
  2. Suppose the speech at issue in the various assigned readings were child pornography.  Would that change your feeling about the appropriate rule?

Optional

  1. LICRA ET UEJF vs YAHOO! Inc. and YAHOO FRANCE (Superior Court of Paris May 22, 2000) [unofficial translation of this decision]
  2. Bertelsmann Foundation: Self-Regulation of Internet Content (1999) [.pdf]
  3. Balkin, Noveck & Roosevelt, Filtering the Internet: A Best Practices Model (Sept. 15, 1999) The summary doesn't really do it justice: Click here to download the full report.
  4. Christopher D. Hunter, Negotiating the Global Internet Rating and Filtering System: Opposing Views of the Bertelsmann Foundation's Self-regulation of Internet Content Proposal
  5. Human Rights Watch, Freedom of Expression on the Internet
  6. AP, Chinese govt. seeks control of Web, Aug. 4, 2000
  7. Craig S. Smith, Ambivalence in China on Expanding Net Access, New York Times, Aug. 11, 2000
  8. Reuters, China says provinces setting up Internet Police (Aug. 7, 2000)

4. Jurisdiction: International (continued)

Reading

  1.  Playboy Enterprises v. Chuckleberry Publishing, Inc., 939 F. Supp. 1032 (S.D.N.Y. 1996). Also located on Westlaw
  2. Update:  Cable News Network v. CNNews.com, - F.Supp.2d - (E.D.Va. Sept. 18, 2001), 2001 WL 1111193
  3. ABA, Achieving Legal and Business Order in Cyberspace: A Report on Global Jurisdiction Issues Created by the Internet (London Meeting Draft) [pages 7-37]
  4. James Love, What you should know about The Hague Conference on Private International Law's Proposed Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (June 2, 2001)
  5. Trans Atlantic Consumer Dialogue, Resolution on the Proposed Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (May 2001)
  6. Simpson Garfinkel, Welcome to Sealand. Now bugger off. Wired 8.07 (July 2000).
  7. Gary Slapper, How a law-less 'data haven' is using law to protect itself (Aug. 15, 2000)
  8. Sealand's View of its history: "History of Sealand"
  9. About HavenCo and Why HavenCo and HavenCo FAQ and HavenCo AUP

Thinking

  1. What are the advantages and disadvantages of using international treaties to make policy choices?
  2. Given the growth of a global e-marketplace, is it reasonable for consumer groups to continue to demand that the consumer's residence should supply the choice of law in all consumer transactions?  Is that what consumers really want, or would they prefer the arguably lower prices that might be caused by letting sellers select the law, or use their local law?
  3. Is there any way to frame a reasonable compromise between the desire of sellers to have legal certainty and simplicity, and the desire of consumers to have the benefits of idiosyncratic local consumer law protections?
  4. You represent Alice.  Alice bought seriously defective and virus-infected software on line from Bobware which has caused her untold damages. You have just discovered that Bobware.com is run out of a server located at Haven Co -- and that there is no other information available about the company.  What do you do now?

Optional

  1. Sealand Factfile
  2. Adam Eisner, theWHIR.com, Sealand: Taking "Offshore Hosting" to A New Level (July 10, 2001)
  3. Legal opinions on Sealand (available on reserve in the library).
  4. Dominion of Melchizedek ("a rapidly expanding, post-modern state"); note especially the government profile
  5. David Johnson & David Post, Law and Borders - The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996)
  6. Jack Goldsmith, Against Cyberanarchy, 65 U.Chi. L. Rev. 1199 (1998).
  7. ABA, Achieving Legal and Business Order in Cyberspace: A Report on Global Jurisdiction Issues Created by the Internet (London Meeting Draft) [pages 92-end]
  8. Latest news on the Hague Convention available from CPT's Page on the Hague Conference on Private International Law's Proposed Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters


To Part 1   Part 2   Part 3   Part 4   Part 5
To Syllabus Index
To Class Policies

Last updated Nov 8, 2001