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Additions to Syllabus

I’ve added the next chunk of assignments to the Syllabus. For your printing convenience, I also have listed them below. In case of any error or conflict, treat the Syllabus as the controlling copy. Materials should be available from the distribution center tomorrow.

6: Topics in Jurisdiction 

  1. Chapters 3, 4 & 5 in  Goldsmith & Wu 
  2. Firth v. New York, 747 N.Y.S.2d 69 (N.Y. 2002)
  3. Firth v. State of New York, 761 N.Y.S.2d 361 (N.Y.A.D. 3 Dept. Jun 12, 2003)
  4. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001) [Yahoo! II], rev’d, 433 F.3d 1199 (9th Cir. 2006)
  5. Edited version of Yahoo!, Inc. v. La Ligue Contre Le Racism et L’Antisemitism, 433 F.3d 1199 (9th Cir. 2006) (en banc).  (Westlaw version)

In light of the above, do you agree with the following analysis from Molly S. Van Houweling,  Enforcement Of Foreign Judgments, The First Amendment, And Internet Speech: Notes For The Next Yahoo! v. Licra, 24 Mich. J. Int’l L. 697 (2003)?

Like its predecessors, the Yahoo! court fails to explain convincingly why enforcing a speech-restrictive foreign judgment is repugnant to public policy where any animus toward speech is expressed only by a non-state actor, and where enforcement is unlikely to restrict or chill speech within the United States. There are, however, several serious problems–overlooked by the Yahoo! court–with enforcing speech-restrictive foreign judgments against Yahoo! and other Internet speakers.

First, there are reasons to be skeptical about the ability of geographic filtering technologies to keep illegal Internet speech from reaching a regulating jurisdiction. The French court argued that Yahoo! could feasibly use filtering technology in part because Yahoo! already used such technology to determine where users were located for purposes of displaying geographically and linguistically appropriate advertisements. But the fact that filtering technology works reasonably well for targeted advertising says little about its ability to prevent people within certain jurisdictions from obtaining illicit materials. Users have little incentive to circumvent technology that merely determines what type of advertisements they will receive. Surely some Internet users will object to being denied other types of speech that their governments want to keep away from them. One of the experts who advised the French court has since argued that even the measures he recommended could be “trivially circumvented.” Some language in the French opinion suggests that Yahoo! would be held strictly liable for reasonable but imperfect filtering. Therefore, one might conclude that enforcing the French judgment would significantly chill speech within the United States because speakers would fear liability-triggering leakage into France.

Second, adverse effects on speech within our borders might arise if geographic filtering technology was prohibitively expensive for some Internet speakers. … For Internet speakers who use the Internet as an inexpensive speech medium but (unlike Yahoo!) cannot afford to take advantage of geographic filtering technology, enforcement of a foreign judgment requiring filtering might shut down the Internet speaker altogether.

The potential inadequacy and expense of geographic filtering technologies are two reasons why enforcement of a speech-restrictive foreign judgment might chill Internet speech to a U.S. audience, triggering valid First Amendment and public policy concerns. But these problems with the technology and expense of geographic filtering may be temporary. It therefore seems worth considering whether, assuming cheap and effective geographic filtering technology, enforcement of foreign judgments against speakers like Yahoo! still poses First Amendment problems that justify refusing domestic enforcement.  Even if geographic filtering worked effectively and inexpensively, as it might someday, compliance with the French order would of course burden Yahoo!’s speech to French recipients. As noted above, some courts and commentators have suggested that the First Amendment does not protect speech directed to a foreign audience, and the Supreme Court has never clearly settled the question. …. The First Amendment should protect speech to foreign audiences even if the amendment is concerned primarily with domestic self-government. For one thing, speech to foreigners often indirectly impacts U.S. policy discussions and U.S. policy making. More generally, at least some speech has attributes of a network good. It is more valuable when more people use it–more valuable for building communities, for igniting illuminating debates, and for spreading ideas. Therefore, even a First Amendment theory concerned only with speech’s political value to U.S. speakers and listeners should acknowledge that our domestic dialogue benefits when we have more people (from more places) in on the conversation.

This First Amendment interest in speech to foreigners does not settle the question of the enforceability of foreign speech-restricting judgments. Perhaps the First Amendment interest in reaching a global audience is outweighed by the (generally applicable) governmental interest in maintaining neighborly relations by enforcing judgments against activities, including speech, that do harm in other countries. ….

There is a concern that lingers even if we conclude that policies in favor of enforcing foreign judgments outweigh a speaker’s interest in reaching a f7oreign audience with speech that is illegal in the foreign jurisdiction. Assuming that technology continues to improve, it may become easier to withhold speech from foreign countries than to sort out inconsistent foreign laws that specify what counts as harmful where.  At that point, the private benefit speakers receive from choosing to reach a global audience may not be worth the extra cost, in terms of legal research and compliance, of speaking globally–even if the public benefits from creating a global conversation exceed the costs.  Internet speakers may therefore react to enforcement of speech-restrictive foreign judgments by using geographic filtering technology to send all of their speech–harmful and harmless, illegal and legal, racist rants and recipes–only to a U.S. audience. Limiting Internet speech to only U.S. recipients could thus sacrifice not only the speech to foreigners that would violate foreign laws, but also speech that would be perfectly legal everywhere.

The Yahoo! district court unconvincingly suggests that enforcing the French court’s judgment against Yahoo! would chill speech from Yahoo! to U.S. recipients. That might be true if geographic filtering technology was ineffective or prohibitively expensive, but the Yahoo! court made neither of those findings, and problems with the technology are likely temporary. The enduring problem with enforcing this type of judgment is that it might encourage U.S. Internet speakers to communicate only with U.S. audiences, sacrificing even legal communication with foreign audiences–communication that is valuable here, and does no harm there. This possible consequence of enforcing foreign judgments that restrict Internet speech, an effect ignored by the Yahoo! court, strikes me as the most repugnant feature of enforcing speech-restrictive foreign judgments in the United States.


7: Topics in Jurisdiction  (continued)

  1. Chapters 9 & 10 in Goldstein & Wu
  2. Council of Europe, Convention on Cybercrime
  3. Statement of Attorney General Alberto R. Gonzales on the Passage of the Cybercrime Convention (Aug. 4, 2006)

Optional:  US Dept. of Justice, Council of Europe Convention on Cybercrime: Frequently Asked Questions and Answers (Update as of November 10, 2003)


8: ICANN for Beginners

  1. Froomkin, Form and Substance in Cyberspace, 6 J. Small & Emerging Bus. L.J. 93 (2002) 
  2. United States Department of Commerce National Telecommunications and Information Administrtatio (NTIA), US Statement of Principles on the Internet’s Domain Name and Addressing System (June 2005)
  3. Internet Governance Project, Concept Paper:  The Future US Role in Internet Governance: 7 points in response to the US Commerce Department’s “Statement of Principles (July 2005)
  4. The .xxx Mess
    1. Declan McCullah, News.com, Porn-friendly ‘.xxx’ domains approved (June 2, 2005)
    2. Declan McCullah, News.com, Bush administration objects to .xxx domains (Aug. 15, 2005)
    3. Charles Jade, Ars Technica, US wants ICANN to delay .xxx (Aug. 16, 2005)
    4. Internet Governance Project, Statement Opposing Political Intervention In The Internet’S. Core Technical Administrative Functions (Aug. 23, 2005)
    5. CDT, Letter to NTIA’s  Michael D. Gallagher (Sept. 30, 2005)
    6. Kieren McCarthy, The Register,  ICANN kills .xxx porn domain (Dec. 1, 2005)  
    7. Milton Mueller, ICANNWatch.org, XXX Controversy Signals Major Change in ICANN (Dec. 3, 2005)
    8. GAC Communiqué Section III (March 28, 2006) 
    9. ICANN, ICANN Board Votes Against .XXX Sponsored Top Level Domain Agreement (May 10, 2006) 
    10. Susan Crawford, A Low Point (May 12, 2006) 
    11. Milton Mueller, ICANNWatch.org, ICM Registry Mounts FOIA Appeal  (May 19, 2006)
    12. Internet Governance Project, Review of Documents Released under the Freedom of Information Act in the .XXX Case (May 19, 2006)

Optional:

  1. Froomkin, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L.J. 17 (2000), pp. 20-50.  [Really really optional: read the whole thing….]
  2. Joe Sims & Cythia L. Bauerly, A Response to Professor Froomkin: Why ICANN Does Not Violate the APA or the Constitution, 6 J. Small & Emerging Business L. 65 (2002) (Westlaw version)

Bonus: Listen to this .mp3 file in which Ambassador David Gross, U.S. Department of State summarizes the US position on WSIS in ten words.



9: UDRP: Boon or Bane?

  1. Anticybersquatting Consumer Protection Act, codified as Section 43(d) of the Lanham Act, 15 U.S.C. 1125 et seq. 
  2. ICANN, Uniform Domain Name Dispute Resolution Policy
  3. ICANN, Rules for Uniform Domain Name Dispute Resolution Policy
  4. Froomkin, ICANN’s UDRP: Causes and (Partial) Cures, 67 Brooklyn L. Rev.  605-637, 670-688
  5. Barcelona.com, Inc. v. Excelentisimo Ayuntamiento De Barcelona, 330 F.3d 617 (4th Cir. 2003) (Westlaw)


10. Filtering Online Smut

The leading Supreme Court cases (and statutes)

  1. Reno v. ACLU, 521 U.S. 844 (1997) (The CDA Case) [in reading this case, it may be useful to have a copy of this excerpt from Communications Decency Act] (Alternate text of CDA, 47 U.S.C.A. §§223, 230 )
  2. Edited version of United States v. ALA,  539 U.S. 194 (2003) [in reading this case, it may be useful to have a copy of the Children’s Internet Protection Act (CIPA) (codified at 20 U.S.C.A. § 7001 note) handy] 
  3. Ashcroft v. ACLU (COPA II), 542 U.S. 656  (2004) [in reading this case, it may be useful to have a copy of the Child Online Protection Act (COPA),  (1998) (codified at 47 U.S.C. §231 ).

Other cases/situations of note:

  1. New York adopted a statute prohibiting the online communication of speech “harmful to minors.” In American Library Association v. Pataki, 969 F.Supp.160 (S.D.N.Y. 1997), the district court struck it down on Commerce Clause grounds, stating: 

    [T]he Internet is one of those areas of commerce that must be marked off as a national preserve to protect users from inconsistent legislation that, taken to its most extreme, could paralyze development of the Internet altogether. Thus, the Commerce Clause ordains that only Congress can legislate in this area, subject, of course, to whatever limitations other provisions of the Constitution (such as the First Amendment) may require.

  2. The Loudoun County Library Board voted to filter Internet access. After complaints from civil libertarians, the board voted to reconsider the issue, but then  adopted  an even tougher filtering policy. Free speech organizations sued.  The Judge Brinkema, a former librarian, held the policy unconstitutional becaue the policy: (1) was not necessary to further any compelling government interest; (2) was not narrowly tailored; (3) restricted the access of adult patrons to protected material just because the material is unfit for minors; (4) provided inadequate standards for restricting access; and (5) provided inadequate procedural safeguards to ensure prompt judicial review. The Board of Trustees voted not to appeal Judge Brinkema’s decision. Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24 F. Supp. 2d 552 (E.D. Va. 1998)  (Optional: Read the decision) (Or read this excerpted version).
  3. Professors at public colleges and universities brought suit challenging constitutionality of a Virginia statute restricting state employees from accessing sexually explicit material on computers in their workplaces that were owned or leased by the state which stated in part: 

    “Except to the extent required in conjunction with a bona fide, agency-approved research project or other agency-approved undertaking, no agency employee shall utilize agency-owned or agency-leased computer equipment to access, download, print or store any information infrastructure files or services having sexually explicit content. Such agency approvals shall be given in writing by agency heads, and any such approvals shall be available to the public under the provisions of the Virginia Freedom of Information Act “

    Although they won in the District Court (before Judge Brinkema), the 4th Circuit reversed and upheld the statute on the grounds that (1) the statute did not infringe the First Amendment rights of state employees in general; (2) nor did it violate the First Amendment academic freedom rights of the plaintiff professors; and (3) to the extent the Constitution recognizes any right of academic freedom above and beyond the First Amendment rights to which every citizen is entitled, the right inheres in a university, not in individual professors. Urofsky v. Gilmore, 216 F.3d 401 (4th cir. 2000) (en banc)  (Optional: read the decision) The Supreme Court denied cert.

  4. Pennsylvania enacted an “Internet Child Pornography Law” authorizing the state Attorney General to force ISPs to block Pennsylvania residents’ access to sites the AG’s office identified as child pornography.  The ISPs had to block access through their networks whether or not there was a claim that the ISPs were responsible for the sites at issue.  The District Court struck down the law.   See the summary of CDT v. Pappert, 337 F.Supp.2d 606 (E.D. Penn. 2004) (via CDT) (.pdf), for details.
  5. As part of the Adam Walsh Child Protection And Safety Act Of 2006, the US Congress recenlty enacted the following language.  What objective does it serve? Is it likely to achieve that objective?  Is it constitutional?:
    ‘‘§ 2252C. Misleading words or digital images on the Internet

    ‘‘(a) IN GENERAL.—Whoever knowingly embeds words or digital images into the source code of a website with the intent to deceive a person into viewing material constituting obscenity shall be fined under this title and imprisoned for not more than 10 years.

    ‘‘(b) MINORS.—Whoever knowingly embeds words or digital images into the source code of a website with the intent to deceive a minor into viewing material harmful to minors on the Internet shall be fined under this title and imprisoned for not more than 20 years.

    ‘‘(c) CONSTRUCTION.—For the purposes of this section, a word or digital image that clearly indicates the sexual content of the site, such as ‘sex’ or ‘porn’, is not misleading.

    ‘‘(d) DEFINITIONS.—As used in this section—HR 4472 EAS

    ‘‘(1) the terms ‘material that is harmful to minors’ and ‘sex’ have the meaning given such terms in section 2252B; and ‘‘(2) the term ‘source code’ means the combination of text and other characters comprising the content, both viewable and nonviewable, of a web page, including any website publishing language, programming language, protocol or functional content, as well as any successor languages or protocols.’’.

In class I will be talking about technological means to filter onilne content.
If you want, optionally, to learn about that, have a look at

Things to think about

  • Suppose you were a parent seeking some sort of filtering software to install on a home computer that would be connected to the Internet and used by a child.
  • What would you want to know about the software?
  • What First Amendment issues do filters raise if the government …
    1. Subsidizes them in order to aid parents in their attempts to control the internet use of their children
    2. Requires them in public libraries
    3. Provides them free of charge online
    4. Regulates them to ensure quality
    5. Conditions all grants to elementary schools on the installation of filters on internet-enabled computers
    6. Conditions all grants to universities on the installation of filters on internet-enabled computers
  • To what extent would these First Amendment concerns be removed by the creation of a ‘perfect’ filter — one that didn’t make mistakes?


11.  Filters (continuted)

Unfiltered

  1. Among its many provisions, the Communications Decency Act contains § 230, which  states
    a) Findings
    The Congress finds the following:
    (1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
    (2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
    (3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
    (4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
    (5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
    (b) Policy
    It is the policy of the United States—
    (1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
    (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
    (3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
    (4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
    (5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
    (c) Protection for “Good Samaritan” blocking and screening of offensive material
    (1) Treatment of publisher or speaker
    No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
    (2) Civil liability
    No provider or user of an interactive computer service shall be held liable on account of—
    (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
    (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[So in original. Probably should be “subparagraph (A).”]
    (d) Obligations of interactive computer service
    A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.
    (e) Effect on other laws
    (1) No effect on criminal law
    Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.
    (2) No effect on intellectual property law
    Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.
    (3) State law
    Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
    (4) No effect on communications privacy law
    Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.
    (f) Definitions
    As used in this section:
    (1) Internet
    The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
    (2) Interactive computer service
    The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
    (3) Information content provider
    The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
    (4) Access software provider
    The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
    (A) filter, screen, allow, or disallow content;
    (B) pick, choose, analyze, or digest content; or
    (C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
  2. Several courts have read  § 230 to provide  complete immunity for ISPs with regard to the torts committed by their users over their systems. See, e.g., Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998) (section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service”); Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D.D.C. 1998) (AOL has Section 230 immunity from liability for the content of an independent contractor’s news reports, despite agreement with the contractor allowing AOL to modify or remove such content)
  3. Craigslist provides a classified ads service.  The Chicago Lawyers’ Committee for Civil Rights Under Law, sued Craigslist in 2006 for allegedly violating the Fair Housing Act (FHA), which prohibits (among other things) discriminatory advertisements for housing. Customers of Craigslist had posted advertisements for rental properies with clauses like “NO MINORITIES” and “Requirements: Clean Godly Christian Male”, both of which violate the provisions of the FHA. While Craigslist has pulled such advertisements (and has a policy requiring customers who post classified ads to adhere to the Fair Housing Act), Craigslist does not prescreen advertisements prior to publication on their site, and as of March 2006, refuses to do so. Instead, Craigslist depends on users to report abusive advertisements, which are then examined and removed if found to be inappropriate.   Does § 230 immunize Craigslist against FHA liability?

Required filters?

  1. Kathleen R. v. City of Livermore, 87 Cal.App.4th 684 (2001).
  2. Complaint of Virgnia Pear against Minneapolis Public Library (May 2, 2000)
  3. Cynthia L. Smith v. Minneapolis Public Library EEOC Determination. Re: Unrestricted Internet Access Policy of Minneapolis Public Library Creates Sexually Hostile Work Environment.(May 23, 2001) [Note-although the names are differnt this EEOC determination responds to several similar complaints including the Pear complaint above]

Stealth filters?

  1. Jonathan Zittrain & Benjamin Edelman, Documentation of Internet Filtering Worldwide (summary page)
  2. Jonathan Zittrain & Benjamin Edelman, Empirical Analysis of Internet Filtering in China (summary page)
  3. Peacefire, et al, Coalition statement against “stealth blocking”

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