1. An Introduction to Internet Law (Psst: There's no such thing!) Steven J. McDonald General Counsel Rhode Island School of Design Margie Hodges Shaw University of Rochester Computer Policy and Law 2005

2. Agenda A brief overview of Internet law since 1728A brief overview of Internet law since 1728 Computer use policies: Do you really even need one?Computer use policies: Do you really even need one? ISP liability and the law of the horseISP liability and the law of the horse Meta-geography and cyber-jurisdictionMeta-geography and cyber-jurisdiction Questions (and maybe even some answers)Questions (and maybe even some answers)

3. Two Views on Internet Law

4. "In the future, virtually all law will be Internet law in one way or another.""In the future, virtually all law will be Internet law in one way or another." –George Gilder

5. Two Views on Internet Law "In the future, virtually all law will be Internet law in one way or another.""In the future, virtually all law will be Internet law in one way or another." –George Gilder And virtually all Internet law will be pornography law. Therefore, virtually all law will be pornography law.And virtually all Internet law will be pornography law. Therefore, virtually all law will be pornography law.

6. Two Views on Internet Law "In the future, virtually all law will be Internet law in one way or another." –George Gilder Internet law is all law, right now.

7. A Brief Overview of Internet Law Since 1728 In the beginning was the word....

8. What is the Internet? A bulletin boardA bulletin board A printing pressA printing press A libraryA library A bookstoreA bookstore A television set and a television stationA television set and a television station A telephone, with lots of party lines and unlimited conference callingA telephone, with lots of party lines and unlimited conference calling A post officeA post office

9. What is the Internet? A medium of communication!

10. And that means that... Everyone with Internet access is potentially an international publisher and broadcasterEveryone with Internet access is potentially an international publisher and broadcaster –Including your faculty, staff, and students and even your five-year-old child! This has some fairly significant legal implications....This has some fairly significant legal implications.... –The same laws that apply to the New York Times, NBC, and NPR apply to Internet users –Including your faculty, staff, and students and your five-your-old child!

11. Three Key Misconceptions Cyberspace is a separate legal jurisdictionCyberspace is a separate legal jurisdiction –In fact, conduct that is illegal or a violation of policy in the "offline" world is just as illegal or a violation of policy when it occurs online Free access = free speech = unfettered speechFree access = free speech = unfettered speech –In fact, even public institutions may limit the use of their computer resources to business-related purposes If it's technically possible, it's legal If it's technically possible, it's legal –In fact, the technology has some legal implications, but it does not define the outer limits of the law

12. One Key Point Internet law (and policy) existed long before the InternetInternet law (and policy) existed long before the Internet

13. One Key Point Internet law (and policy) existed long before the Internet:Internet law (and policy) existed long before the Internet: –The law of libel –The law of privacy –The law of copyright –Criminal law –Your sexual harassment policy, code of student conduct, workplace rules –...

14. And Two Key Implications Internet-specific rules aren't necessary and may create problemsInternet-specific rules aren't necessary and may create problems –Except when there are unique issues that aren't already covered by generally applicable laws and policies Education is criticalEducation is critical

15. Driver Education for the Information Superhighway Ohio State: Virtual Legality –http://www.cio.ohio-state.edu/policies/legality.html James Madison: Electronic Information Security User Education –https://secureweb.jmu.edu/cgi-bin/chpasswd.secaware.fpl

16. New From Cornell https://cuweblogin2.cit.cornell.edu/cuwl- cgi/policyPub.cgihttps://cuweblogin2.cit.cornell.edu/cuwl- cgi/policyPub.cgi

17. Educational Institutions and Teachable Moments

18. New Whines and Old Battles It isn't always immediately clear (surprise!) how the law applies to new situationsIt isn't always immediately clear (surprise!) how the law applies to new situations For example, the law of libel developed long before there were Internet service providersFor example, the law of libel developed long before there were Internet service providers So how do we figure out how to apply libel law to ISPs?So how do we figure out how to apply libel law to ISPs?

19. The Law of the Horse "Technological advances must continually be evaluated and their relation to legal rules determined so that antiquated rules are not misapplied in modern settings.... Yet, if the substance of a transaction has not changed, new technology does not require a new legal rule merely because of its novelty." – Daniel v. Dow Jones & Co.

20. Key Dates in the Development of the Law of ISP Liability 1728 – The King v. Clerk1728 – The King v. Clerk 1889 – Fogg v. Boston & Lowell RR. Co.1889 – Fogg v. Boston & Lowell RR. Co. 1933 – Layne v. The Tribune Co.1933 – Layne v. The Tribune Co. 1952 – Hellar v. Bianco1952 – Hellar v. Bianco 1973 – Anderson v. New York Telephone1973 – Anderson v. New York Telephone 1986 – Spence v. Flynt1986 – Spence v. Flynt

21. Who is responsible? PublishersPublishers –Create content and hold it forth as their own –Directly liable for the libels they disseminate DistributorsDistributors –Don't create, but choose to, and actively do, distribute –Liable only if they "knew or should have known" that what they are distributing is libelous –No duty to prescreen ConduitsConduits –Operate a system by which other people communicate –No liability for libel, regardless of knowledge

22. Key Dates in the Development of the Law of ISP Liability 1991 – Cubby v. CompuServe1991 – Cubby v. CompuServe 1995 – Stratton Oakmont v. Prodigy1995 – Stratton Oakmont v. Prodigy 1996 – Communications Decency Act1996 – Communications Decency Act

23. 47 U.S.C. § 230(c)(1) "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."

24. "Harmful Content" Zeran v. AOL – defamation (even with knowledge)Zeran v. AOL – defamation (even with knowledge) Doe v. AOL – child pornographyDoe v. AOL – child pornography Ben Ezra, Weinstein & Co v. AOL – inaccurate stock quotesBen Ezra, Weinstein & Co v. AOL – inaccurate stock quotes Stoner v. eBay – bootleg sound recordingsStoner v. eBay – bootleg sound recordings Green v. AOL – computer virusesGreen v. AOL – computer viruses Kathleen R. v. City of Livermore – minor access to obscenityKathleen R. v. City of Livermore – minor access to obscenity

25. "Harmful Content" Zeran v. AOL – defamation (even with knowledge)Zeran v. AOL – defamation (even with knowledge) Doe v. AOL – child pornographyDoe v. AOL – child pornography Ben Ezra, Weinstein & Co v. AOL – inaccurate stock quotesBen Ezra, Weinstein & Co v. AOL – inaccurate stock quotes Stoner v. eBay – bootleg sound recordingsStoner v. eBay – bootleg sound recordings Green v. AOL – computer virusesGreen v. AOL – computer viruses Kathleen R. v. City of Livermore – minor access to obscenityKathleen R. v. City of Livermore – minor access to obscenity More recently: OptInRealBig.Com v. Ironport Systems OptInRealBig.Com v. Ironport Systems – forwarded spam reports – forwarded spam reports Noah v. AOL Noah v. AOL – religious harassment

26. No, He Did It "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."

27. More Legalese "Information content provider" = "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"

28. Provided by another... "[T]he exclusion of 'publisher' liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published while retaining its basic form and message. The 'development of information' therefore means something more substantial than merely editing portions of an e-mail and selecting material for publication." – Batzel v. Smith

29. Provided by both... "Carafano responds that Matchmaker contributes much... structure and content... by asking 62 detailed questions and providing a menu of 'pre- prepared responses.' However, this is a distinction of degree rather than of kind, and Matchmaker still lacks responsibility for the 'underlying misinformation.'" – Carafano v. Metrosplash.com

30. Let's Talk "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."

31. Cubby Lives? "We agree with appellants that the statute cannot be deemed to abrogate the common law principle that one who republishes defamatory matter originated by a third person is subject to liability if he or she knows or has reason to know of its defamatory character." – Barrett v. Rosenthal

32. Winners and Users "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."

33. Other Implications? "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."

34. Other Implications? "There is another possibility: perhaps § 230(c)(1) forecloses any liability that depends on deeming the ISP a 'publisher' – defamation law would be a good example of such liability – while permitting the states to regulate ISPs in their capacity as intermediaries." – Doe v. GTE

35. 47 U.S.C. § 230(e)(2) "Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property."

36. Cubby for Copyright! "It is clear that Congress intended the DMCA's safe harbor for ISPs to be a floor, not a ceiling, of protection..... At bottom, we hold that ISPs, when passively storing material at the direction of users in order to make that material available to other users upon their request, do not 'copy' the material in direct violation of § 106 of the Copyright Act.... An ISP, however, can become liable indirectly upon a showing of additional involvement sufficient to establish a contributory or vicarious violation of the Act. In that case, the ISP could still look to the DMCA for a safe harbor if it fulfilled the conditions therein." – CoStar Group v. LoopNet

37. Who Decides?

38. Judicial Jurisdiction Subject matter jurisdictionSubject matter jurisdiction –Jurisdiction over the case Type of caseType of case Amount in disputeAmount in dispute Personal jurisdictionPersonal jurisdiction –Jurisdiction over the parties Originally a matter of pure geography...Originally a matter of pure geography...

39. A Really Big Shoe "[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" – International Shoe Co. v. Washington

40. And Another " We find that Sullivan, as the producer and master of ceremonies of 'The Ed Sullivan Show,' entered Arizona by producing the play entitled 'A Case of Libel' in New York City.... [T] he telecast of the show... in Arizona [was] voluntary, purposeful, reasonably foreseeable and calculated to have effect in Arizona...." Pegler v. Sullivan

41. Zippo Dee Doo Dah "If a defendant enters into contracts with residents of a foreign jurisdiction that involved the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper.""If a defendant enters into contracts with residents of a foreign jurisdiction that involved the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper." "A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction.""A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction." "The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.""The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site." Zippo Mfg. Co. v. Zippo Dot Com, Inc.

42. Jurisdiction.edu? "Revell first urges that the district court may assert general jurisdiction over Columbia because its website provides internet users the opportunity to subscribe to the Columbia Journalism Review, purchase advertising on the website or in the journal, and submit electronic applications for admission.... Though the maintenance of a website is, in a sense, a continuous presence everywhere in the world, the cited contacts of Columbia with Texas are not in any way 'substantial.'" Revell v. Lidov

43. International Jurisdiction Within the U.S., the law usually doesn't vary much from state to stateWithin the U.S., the law usually doesn't vary much from state to state But the Internet doesn't stop at national borders, eitherBut the Internet doesn't stop at national borders, either

44. International Jurisdiction Within the U.S., the law usually doesn't vary much from state to stateWithin the U.S., the law usually doesn't vary much from state to state But the Internet doesn't stop at national borders, eitherBut the Internet doesn't stop at national borders, either "In the information age, the whole planet is just a click away. So, unfortunately, are all the lawyers." -- University Business"In the information age, the whole planet is just a click away. So, unfortunately, are all the lawyers." -- University Business

45. International Jurisdiction Within the U.S., the law usually doesn't vary much from state to stateWithin the U.S., the law usually doesn't vary much from state to state But the Internet doesn't stop at national borders, eitherBut the Internet doesn't stop at national borders, either "In the information age, the whole planet is just a click away. So, unfortunately, are all the lawyers." -- University Business"In the information age, the whole planet is just a click away. So, unfortunately, are all the lawyers." -- University Business "In cyberspace, the First Amendment is just a local ordinance." -- variously attributed"In cyberspace, the First Amendment is just a local ordinance." -- variously attributed

46. Finally: Top Five Tips for Success 1. Forget about computers 2. Treat pornography as you would the Bible 3. Even publics should be private 4. Don’t go looking for trouble 5. Teach your children well