2. An Introduction to Internet Law (Psst: There's no such thing!) Steven J. McDonald General Counsel Rhode Island School of Design and Robert W. Hamilton Jones Day Computer Policy and Law 2006

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

4. Two Views on Internet Law

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

6. Two Views on Internet Law "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.

7. 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.

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

9. What is the Internet?

10. A bulletin board A printing press A library A bookstore A television set and a television station A telephone, with lots of party lines and unlimited conference calling A post office...

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

12. And that means that... Everyone 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.... –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!

13. Three Key Misconceptions Cyberspace 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 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 –In fact, the technology has some legal implications, but it does not define the outer limits of the law

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

15. One Key Point 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 –...

16. And Two Key Implications Internet-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 critical

17. Updating Your Typewriter Use Policy

18. How Can I Possibly Deal With That? If a student sends a series of sexually harassing e-mail messages to another student, and your computer use/e-mail policy doesn't specifically prohibit sexual harassment, can you do anything about it?

19. How Can I Possibly Deal With That? If a student sends a series of sexually harassing typewritten letters to another student, and your typewriter use policy doesn't specifically prohibit sexual harassment, can you do anything about it? Of course!

20. The Purity of Parity

21. Policy in a Box All users of university computing resources must: –Comply with all federal, Ohio, and other applicable law; all generally applicable university rules and policies; and all applicable contracts and licenses.

26. 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.

27. New Whines and Old Battles It 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 providers So how do we figure out how to apply libel law to ISPs?

28. ISP Liability Under what circumstances should we hold an ISP legally liable for unlawful or tortious content disseminated to others over the ISP’s network?

29. Theories of Potential Liability Direct Liability Contributory / Aiding and Abetting Vicarious respondeat superior principal-agent co-conspirator Negligence

30. Who is responsible? Publishers –Create content and hold it forth as their own –Directly liable for the libels they communicate Distributors –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 Conduits –Operate a system by which other people communicate –No liability for libel, regardless of knowledge

31. The Common Law of Libel: Elements of the Tort A defamatory statement about the plaintiff published by the defendant with “malice” that causes damage published by the defendant

32. “publish” is a term of art: Restatement (2d) of Torts § 577(1) “Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.” “publish”  create or develop content “publish” = communicate to 3d person what does “communicate” mean?

33. “Communicate” has two key elements Provide the statement to another with some knowledge of its meaning

34. Both elements are necessary! Providing a statement to another without knowledge of its content  “communicating” Causing another to read what you’ve already read without physically providing the statement  “communicating” McFadden v. Anthony (NY Sup. 1952)

35. ISP Liability and the Law of the Horse Messengers Bulletin Boards Bookstores and Newsstands Graffiti Common Carriers (telegraph, telephone)

36. Key Dates in the Development of the Law of ISP Liability 1728 – The King v. Clerk 1889 – Fogg v. Boston & Lowell RR. Co. 1952 – Hellar v. Bianco 1959 – Smith v. California 1973 – Anderson v. New York Telephone 1986 – Spence v. Flynt

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

38. 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."

39. 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."

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

41. 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

42. 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

43. 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."

44. 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"

45. 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

46. 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

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

48. This Just In: 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

49. Who Decides?

50. Judicial Jurisdiction Subject matter jurisdiction –Jurisdiction over the case Type of case Amount in dispute Personal jurisdiction –Jurisdiction over the parties Originally a matter of pure geography...

51. Judicial Geography

52. Internet Geography

53. Where do you want to be sued today?

54. 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

55. 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

56. 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." "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." Zippo Mfg. Co. v. Zippo Dot Com, Inc.

57. 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

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

59. International Jurisdiction Within the U.S., the law usually doesn't vary much from state to state But 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

60. International Jurisdiction Within the U.S., the law usually doesn't vary much from state to state But 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 cyberspace, the First Amendment is just a local ordinance." -- variously attributed

61. Finally: Top Five Tips for Success

62. 1. Forget about computers

63. Finally: Top Five Tips for Success 1. Forget about computers

64. Finally: Top Five Tips for Success 1. Forget about computers 2. Treat pornography as you would the Bible

65. Finally: Top Five Tips for Success 1. Forget about computers 2. Treat pornography as you would the Bible 3. Even publics should be private

66. 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

67. 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

68. Questions?