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

Professor Risch
Spring 2008
§Why do we have Cyber law?
·          Law of the Horse (general rules) – Easterbrook
o    Should focus on general principles (contracts, torts, etc) and see how they apply to the different technologies that we have.
o    Judges à when a judge gets a new case dealing with a new issue, the judge doesn’t have the luxury to say how cyberspace is so different. The judge has to look at what body of law he has to work with and how he can apply it to the issue at hand.
o    You have to have a good understanding of the underlying law, but you have to be sensitive to what cyber law brings to the table that makes it different.
·          Non-Horse Law – Lessig
o    There is something different about cyberspace that other places wouldn’t show us
·          All types of law overlap and they all blend together, but Cyber law doesn’t really fall into one area or the other.
I: Setting the Stage: The Legitimacy and Possibility of Gov’t Regulation of Online Activity
A Radical Separatism
§ Barlow Reading (p.1) – falls on the Lessig side: believes the internet is in a dream world
·          Says that government has no right to regulate the internet and that online problems will be worked out by users over time.
·          Self regulation:
o    Business self regulation different from utopian regulation?
§   Ebay example – more regulation than just self regulation or reputation because if there is fraud, you bring law enforcement in.
·          Underlying business model
§   Facebook, Myspace –
§   Youtube – they can self regulate, but they may chose not to.
·          What is regulation, who is doing regulation, is a self regulation work? The law provides the rule that gives a safe harbor and automatically triggers self regulation.
·          Johnson and Post (p. 3) vs. Goldsmith (p. 7)
o    Cyberspace is different because of the absence of territorial borders, there is a distruction of the power of local governments to assert control, the effects of online behavior, legitimacy of local soveigns efforts to regulate global phenomenon, and the ability of physical location to give notice.
·          Johnson and Post – regulation break downs/ Goldsmith – there are things governments can do as long as you can get jurisdictions
o    Objections to Regulation:
§   Legitimacy – consent and jurisdiction; you have no right to tell me what to do
§   Efficacy – enforcement of regulation; what good is a regulation if you can’t enforce it. Goldsmith says, get the jurisdiction and you can enforce it.
·          Different states can get efficacy
·          Set standards to follow
§   Cacophany – different rules in different jurisdictions and what are we supposed to do when we are in a global network
·          Commerce Clause issue on mud flaps à one state says mudflaps on trucks are required, others don’t. 
§   Superfluidity – cyberspace is already self-regulated; we don’t need regulations because we already took care of them ourselves.
·          If you don’t have any boundaries or laws, people are going to do whatever they want to do.
o    Are there alternative sources to overcome these 4 objections (p. 20-23)?
§   Transactional Intermediaries
·          ISP’s
·          Payment intermediaries (credit cards, paypal, banks)
·          Auction and sales operators
·          Search engines
o    Not list things based on certain laws
·          Domain name operators
·          Others?
***ALL OF these can be used to aid the free market – there is an incentive to use these. The idea is that you can come to these places for better business.
§   Self regulation – Norms
·          Used to work – back in the good old days
·          Is such norm based regulation effective now?
o    No
§   Coordinated Private actions – even consensual action can still be bad
·          Blacklists
o    Blackout Co. is shut down for sending spam and was put on a spam list by ISP. Putting this companies name on the spam list may be defamation.
o    But ISPs can choose whether to subscribe to blacklists.
·          Reputational systems
·          Code (firewalls, spam filters, DAM)
Organizations that would regulation the internet:
Legislatures and Treaties – organizations that regulate the internet
State Governments
Foreign countries
International organizations
International treaties
Where do we exercise power?
Power over citizens
Power over business
Power over servers and providers
Power over norms – just having the regulation can effect the way people behave even if we don’t enforce it
Trans-national enforcement – what do you do if you are a foreign entity and you want to enforce your rules somewhere else?
Commerce Clause (p. 37)
Dormant CC is important feature of federal supremacy and usually invoked in order to invalidate some state law of regulation that comes into conflict with a federal statute or the constitution itself.
DCC – any regulation not by Congress that interferes with Congress’s right to regulate is invalid
Regulation must affect Interstate commerce
Regulation is going to be invalid if it 1) discriminates against interstate commerce or 2) it has undue burden on interstate commerce (regulation that basically makes it harder to do interstate commerce – outright inconsistent regulations)
Cacophony and the Commerce Clause
Pataki (p.37): NY statute that made it a crime to use a computer to distribute harmful, sexually explicit content to minors. The statutes applied not just to initiation of email messages but to all internet activity, including the creation of websites. Thus under NY statute, a website creator in CA could inadvertently violate the law simply because the site could be viewed in NY. Cost of compliance is extremely hard if not impossible.
internet is an instrument of commerce and you must weigh the burden on commerce versus the local benefit. To do this, you apply the pike balancing test which is 1) the legitimacy of the state interest, and 2) the balancing test of the burden versus benefit.
If the regulation in one state will result in chaos, then it is likely a commerce issue.
Heckel: In contrast to the NY statute, which could reach all content posted on the Internet and therefore subject individuals to liability based on unintended access, the WA Act reaches only those deceptive UCE messages directed to a Washington resident or initiated from a computer located in Washington; in other words, the Act does not impose liability for messages that are merely routed through WA or that are read by a WA resident who was not the actual addressee.
You apply a 2-step process: 1) if it openly discriminates, it is almost per se violation of the commerce clause, or 2) if it does not discriminate, you use the Pike balancing test. When determining the Pike balancing test, you have to look at a) what it is regulating and b) the cost of compliance.
Unlike Pataki, here there was no cost to comply with the statute, but violators had to take additional steps to violate the law like direct their messages through 3rd parties or lying in the subject line (must have the intent to deceive).
Why does Pataki violate DCC, but Heckel does not?
Pataki (global restriction)
Actual or simulated nudity that is
Harmful to minors
On any computer system
Initiate or engage communication with minor
No limitations on any state, no knowledge of recipient, no active communication
Website is trying to regulate conduct outside of NY
Heckel (only dealing with Washington residents)
Initiate transmission of email
From WA
To WA (constructive knowledge upon domain name registry)
Intend to send false or misleading information (domain or email headers)
We want to encourage people to post things on internet, but do NOT want bulk email. We are much more concerned with the chilling effect on internet than on sending spam email.
Pike Balancing Test: Have to balance the harms vs. the benefits. There is the possibility of lots of viewpoints of what is harmful to minors.
When does an entity have the right to regulate something on the internet?
o   If they have the power (don’t violate the CC)?
o   Only if you can enforce it because regulation with out enforcement will be difficult to keep going in practice.
Jurisdiction Review:
o   First look to see if the forum state has a long arm statute (must comply with fair play and substantial justice). If it doesn’t have a long arm statute, than you get a person into court in that state based off of general and specific jurisdiction. Then look to see if there is general and/or specific jurisdiction.
o   General Jurisdiction – sufficient contacts with the state on related or unrelated matters to impose jurisdiction even if the specific acts are unrelated to the state. (for any reason, you can be sued in that state)
o   Specific Jurisdiction – sufficient contacts with the state on the SPECIFIC matter at issue to impose jurisdiction (only arises where general jurisdiction doesn’t exist) (mus

court found that this website did not contain referencese to TX, didn’t refer to Revell’s activities in TX, and it wasn’t directed at TX readers, so no specific jurisdiction. Because if he didn’t even know, you can’t satisfy the effects test.
Clickers Questions
·         While visiting NY, Professor posts defamatory comments about Rich Rod on his blog. The server is located in Chicago. Jurisdiction in WV?
o    General jurisdiction – probably the right answer because professor is from WV and therefore WV has jurisdiction over them. You can always sue someone where they live or in their forum state!!
o    Specific jurisdiction – can make the argument, but don’t have to get here because general jurisdiction is met. Can say specific because jurisdiction might be reasonable where some of the actions occurred in WV because you are a professor in WV.
·         While visiting NY, Professor posts defamatory comments about Rich Rod on his blog. The server is located in Chicago. Jurisdiction in NY?
o    Specific jurisdiction – the wrongdoing was done there. So long as where I am blogging from, I can get sued there if it is for the actual blogging. If you are in NY, it is possible you can have jurisdiction, but not necessarily. No correct answer here.
§ Is it fair for the P to sue me in that state. If you don’t want to be sued for posting blogs in NY, then don’t post there.
§ Is it fair to drag me in… if you do the wrong there, its fair. The issue is the effects test if no one in NY actually ever sees the blog.
o    Neither specific or general – doesn’t matter where you were when you posted the blog. There is nothing specific to NY.
·         While visiting NY, Professor posts defamatory comments about Rich Rod on his blog. The server is located in Chicago. Jurisdiction in Michigan?
o    Specific jurisdiction – Effects test; intentional action aimed at him in Michigan and will cause harm in Michigan because it will harm his reputation in Michigan. Assuming people can read the blog in Michigan, it may change the effects test. Probably be specific because it would meet the effects test in part because defamation in particular, you do harm where the P is located.
o    Neither specific or general – it might not satisfy the effects test and Rod may not even be a current Michigan resident
·         While visiting NY, Professor posts defamatory comments about Rich Rod on his blog. The server is located in Chicago. Jurisdiction in Illinois?
o    Neither general or specific – It is hard to say that anyone actually knows where the server is located and so no one can actually avail themselves to the location of the server when you don’t know that actual location.
§ 2008 probably is not jurisdiction in Illinois because there is no way of knowing where the server is
§ 1997 probably would have had jurisdiction in Illinois because they would have purposely signed up for the blog and the server in Illinois.
§ Could have had specific jurisdiction if the blog was read by residents of Illinois.
·         While visiting NY, Professor posts defamatory comments about Rich Rod on his blog. The server is located in Chicago. Jurisdiction in California?
o    Specific jurisdiction – if CA residents read the blog, possibly. It depends on how passive the blog is… if it is active and is being read in CA, then it can be argued that you are purposefully availing yourself to that state and the residents.
o    Zippo framework – what is the level of interactivity. How much am I reaching out to the blog in CA? Is it with respect to the post or the blog generally?
Probably with respect to the blog generally, even if they aren’t reading the specific comment based