Select Page

Cyberlaw
West Virginia University School of Law
Risch, Michael V.

CYBER LAW
Professor Risch
MW 2:00-3:15
 
 
 
REGULATION:
 
Johnson and Post: Internet breaks down territorial borders
Breaks down legislative and regular territorial borders
Leads to objections about regulation: there are four
Legitimacy: no state or country with right to regulate the internet (ex: gambling because allowed in NV so access in NV but you can change your IP to NV)
Efficacy: people ignore
Cacophany: We have different laws in different states and countries that lead to too much noise.
Superfluidity: no need for regulation because of this (Barlow point of view).
Are there alternative services to circumvent objections:
ISP’s
Payment Intermediaries
Credit Cards
Paypal
Banks
Auction and sales operators
Search engines
Domain Name operators
Others?
Goldsmith: Evolutionary not Revolutionary
 
Self-Regulation/Norm Based: norm based regulation allowing people to police themselves based on basic social norms.
Coordinated Private Actions: Blacklists, Reputational Systems, Code (firewalls, etc.)
Legislatures and Treaties: Congress, State Governments, Foreign Countries, International Organizations, International Treaties
Power: over other citizens, business, servers and providers, norms, and trans-national enforcement.
 
 
DORMANT COMMERCE CLAUSE
 
Black Letter: if something (1) affects interstate commerce; (2)discriminates against interstate commerce; or (3)unduly burdens interstate commerce the law is not allowed
 
Rules seems to be inconsistent especially with the internet because people appear to be scrambling to do things they couldn’t/wouldn’t ordinarily do; eventually come up with state law.
Burdens a law places on interstate commerce must not be greater than local benefits law would confer to violate Dormant Commerce Clause
 
American Libraries Associations v. Pataki
 
Nudity and minors case: simulated nudity counts as committing a crime
Internet user can’t simply bypass a particular state. User would then have to comply with the regulation imposed by the state with the most stringent standard or forego Internet communcation of the message that might or might not subject her to prosecution (p.45)
Held: law violated commerce clause
 
Heckel
WA Internet spam law: law was valid because not significant enough of a burden on interstate commerce, but had good local benefits
The Act only reached deceptive messages
Heckel failed to prove that “the burden imposed on . . . commerce [by the Act] is clearly excessive in relation to the putative benefits.”
 
 
 
 
1/14/08                        Jurisdiction
 
JURISDICTION REVIEW
 
            -Court must have subject-matter jurisdiction over the mater in controversy and personal jurisdiction over the parties before it.
Specific Jurisdiction:
Sufficient contacts with the state on the specific matter at issue to impose jurisdiction
Purposeful availment
Action arises out of or relates to contacts with state
Jurisdiction is reasonable (comporting with “fair play and substantial justice.”
E.g. WVU could have sued Rich Rodriguez in Mi

omputer files over the net, PJ is proper)
                                                            ii.      Passive Web Site – does little more than make info available on net
                                                          iii.      Everything else is somewhere in the middle – look to level of interactivity and the commercial nature of exchange of info
Must examine the level of interactivity with the jurisdiction; sliding scale. This is specific jurisdiction.
1.      Mentions the Pres-Kap case about online ticketing that was consumers not producers, so sort of shows that trademark law might be a little different than ordinary business.
                                                            ii.      Court Finds: 3% [3000 customers] in PA, they registered them, gave them passwords so they were in direct contact with them, and had internet providers in Western PA. This was more than just passive presence and was ruled interactive and soliciting. If trying to get in PA and didn’t work: probably not.
                                                          iii.      If only in CA and moved to PA: no, because similar to WWVW whereas “fortuitous” or “coincidental” contact is not enough to fulfill minimum contact.