Elephants and Mice Revisited: Law and Choice of Law on the Internet Professor Peter P. Swire Moritz College of Law Ohio State University Penn Law Review Symposium November 12, 2004

Overview n Elephants and Mice n What weve learned since 1998 n When does choice of law matter on the Internet? n Surveillance as a (controversial) tool for increasing the enforceability of law on the Internet

I. Elephants and Mice n Metaphor for when law and choice of law most likely to be effective on the Internet n Elephants: – Powerful, thick skin, impossible to hide – Subject to jurisdiction & COL – Can lobby & influence laws – Will have to comply once laws are in force

Elephants and Mice n Mice: – Small and mobile: porn and piracy sites that can reopen elsewhere if shut down – Breed annoyingly quickly: new sites open – Hide offshore & in crannies of network – Jurisdiction often doubtful & rarely enter the light of open court to dispute COL

II. Since 1998 n 1998 article predicted or described areas for Internet COL disputes: – Areas of COL conflict: privacy; hate speech; treasonable/political speech; defamation; taxation; gambling; pornography; intellectual property – Areas of possible conflict: labor laws; professional licensing – Analysis of B-to-C E-Commerce

Not Predicted in 1998 n Spyware/adware: adware by large companies (elephants) and law can address that; some spyware by mice n Cybercrime was missing – Computer hacking – Computer viruses – Identity theft – Phishing

III. When does COL Matter on the Net? n The task here: COL as a dependent variable n When will the COL rule matter on the Internet? – Law works (despite tech counter-measures)? – Is there jurisdiction? – Lack of harmonization? – Lack of self-regulation? – IFF yes to all these, then COL rule matters

Technology and Law n Early romantic view that the Internet treats censorship (or regulation) as damage, and routes around it n In practice, have not seen much strong encryption, untraceable e-cash, & untraceable routing of communications n Tech counter-measures less than many predicted, so law more likely to be effective

Is There Jurisdiction? n For elephants, there will often be jurisdiction & ability to enforce judgments (assets in country) n Some elephants (Yahoo) defend with corporate separateness – May work legally, less desirable for local companies n For mice, less likely to have jurisdiction, and enforceability of judgments is even less

Is There Harmonization? n Some harmonization, such as for privacy (Safe Harbor) & IP (TRIPS) n Major gaps, such as privacy (Safe Harbor), hate speech, treason, defamation, gambling, taxation, etc. n Big change since 1998 is COE Cybercrime Convention – Dual criminality & cooperation in investigations

Is There Self-Regulation? n COL in E-Commerce minimized by other systems – Credit card agreements – Clicks and bricks retailers, with local law applying – eBay, with its own legal & reputation systems n These self-regulatory systems have won in the market (my Trustwrap article)

International COL May Matter n Even when a case survives the filters, international E-Commerce less than predicted in 1998 – E-Commerce growth has not matched the expectations of the bubble – Self-regulatory systems reduce COL – Direct, transnational sales to consumers less than expected

Whats Left? n The 1998 list against elephants: – Hate speech (Yahoo!) – Defamation (Australia case) – Privacy (future of the Safe Harbor) – Internet gambling (WTO action) n In short, important but limited categories of cases raise COL issues on the Internet

Conclusion: Surveillance? n There are numerous other actions, by mice, that cause harm over the Internet in the eyes of at least some countries, – Piracy – Spam – Child or other pornography – Hacker and virus attacks – Terrorist communications & attacks

Surveillance could solve these n The temptation is to increase surveillance of Internet usage so that these mice cant hide n A key variable to how these harms get resolved among nations is likely to be the level of surveillance created over the Internet, more than decisions about COL

Conclusion n In the surveillance debates, the image of annoying-but-charming mice could become an image of rabid & dangerous rats n In the post-9/11 world, a major inquiry should be deciding in what ways and under what procedural protections surveillance of the Internet will exist. n Thats an important job (says the privacy scholar), but for another day