an introduction to internet law (psst: there's no such thing!) steven j. mcdonald general...

An Introduction to Internet LawAn Introduction to Internet Law(Psst: There's no such thing!)(Psst: There's no such thing!)

Steven J. McDonaldSteven J. McDonaldGeneral CounselGeneral Counsel

Rhode Island School of DesignRhode Island School of Design

Margie Hodges ShawMargie Hodges ShawUniversity of RochesterUniversity of Rochester

Computer Policy and Law 2005Computer Policy and Law 2005

AgendaAgenda

• A brief overview of Internet law since A brief overview of Internet law since 17281728

• Computer use policies: Do you really Computer use policies: Do you really even need one?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 Questions (and maybe even some

answers)answers)

Two Views on Internet LawTwo Views on Internet Law


• "In the future, "In the future, virtually all law will virtually all law will be Internet law in be Internet law in one way or another."one way or another."

– George GilderGeorge Gilder


• "In the future, "In the future, virtually all law will virtually all law will be Internet law in be Internet law in one way or another."one way or another."

– George GilderGeorge Gilder

• And virtually all And virtually all Internet law will be Internet law will be pornography law. pornography law. Therefore, virtually Therefore, virtually all law will be all law will be pornography law.pornography law.

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.

A Brief Overview of Internet A Brief Overview of Internet Law Since 1728Law Since 1728

In the beginning was the word . . . .In the beginning was the word . . . .

What is the Internet?What is the Internet?

• A bulletin boardA bulletin board• A printing pressA printing press• A libraryA library• A bookstoreA bookstore• A television set A television set and and a television stationa television station• A telephone, with lots of party lines and A telephone, with lots of party lines and

unlimited conference callingunlimited conference calling• A post officeA post office

What is the Internet?What is the Internet?

A medium of communication!A medium of communication!

And that means that . . .And that means that . . .

• EveryoneEveryone with Internet access is potentially with Internet access is potentially an international publisher and broadcaster an international publisher and broadcaster – Including your faculty, staff, and students and Including your faculty, staff, and students and

even your five-year-old child!even your five-year-old child!

• This has some fairly significant legal This has some fairly significant legal implications . . . .implications . . . .– The same laws that apply to the The same laws that apply to the New York TimesNew York Times, ,

NBC, and NPR apply to Internet usersNBC, and NPR apply to Internet users– Including your faculty, staff, and students and Including your faculty, staff, and students and

your five-your-old child!your five-your-old child!

Three Key MisconceptionsThree 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 fact, conduct that is illegal or a violation of policy

in the "offline" world is just as illegal or a violation in the "offline" world is just as illegal or a violation of policy when it occurs onlineof policy when it occurs online

• Free Free accessaccess = free = free speech speech == unfettered unfettered speech speech– In fact, even public institutions may limit the use of In fact, even public institutions may limit the use of

their computer resources to business-related their computer resources to business-related purposespurposes

• If it's technically possible, it's legalIf it's technically possible, it's legal– In fact, the technology has some legal implications, In fact, the technology has some legal implications,

but it does not define the outer limits of the lawbut it does not define the outer limits of the law

One Key PointOne Key Point

• Internet law (and policy) existed long Internet law (and policy) existed long before the Internetbefore the Internet

One Key PointOne Key Point

• Internet law (and policy) existed long before Internet law (and policy) existed long before the Internet:the Internet:– The law of libelThe law of libel– The law of privacyThe law of privacy– The law of copyrightThe law of copyright– Criminal lawCriminal law– Your sexual harassment policy, code of student Your sexual harassment policy, code of student

conduct, workplace rulesconduct, workplace rules– . . .. . .

And Two Key ImplicationsAnd Two Key Implications

• Internet-specific rules aren't necessary Internet-specific rules aren't necessary and may create problemsand may create problems– Except when there are unique issues that Except when there are unique issues that

aren't already covered by generally aren't already covered by generally applicable laws and policiesapplicable laws and policies

• Education is criticalEducation is critical

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

New From Cornell

• https://cuweblogin2.cit.cornell.edu/cuwl-cgi/https://cuweblogin2.cit.cornell.edu/cuwl-cgi/policyPub.cgipolicyPub.cgi

Educational Institutions and Educational Institutions and Teachable MomentsTeachable Moments

New Whines and Old BattlesNew Whines and Old Battles

• It isn't always immediately clear It isn't always immediately clear (surprise!) how the law applies to new (surprise!) how the law applies to new situationssituations

• For example, the law of libel developed For example, the law of libel developed long before there were Internet service long before there were Internet service providersproviders

• So how do we figure out how to apply So how do we figure out how to apply libel law to ISPs?libel law to ISPs?

The Law of the HorseThe Law of the Horse

"Technological advances must continually "Technological advances must continually be evaluated and their relation to legal be evaluated and their relation to legal rules determined so that antiquated rules rules determined so that antiquated rules are not misapplied in modern settings. . . . are not misapplied in modern settings. . . . Yet, if the substance of a transaction has Yet, if the substance of a transaction has not changed, new technology does not not changed, new technology does not require a new legal rule merely because of require a new legal rule merely because of its novelty."its novelty."

– – Daniel v. Dow Jones & Co.Daniel v. Dow Jones & Co.

Key Dates in the DevelopmentKey Dates in the Developmentof the Law of ISP Liabilityof the Law of ISP Liability

• 1728 1728 –– The King v. ClerkThe King v. Clerk• 1889 1889 –– Fogg v. Boston & Lowell RR. Co.Fogg v. Boston & Lowell RR. Co.• 1933 1933 –– Layne v. The Tribune Co.Layne v. The Tribune Co.• 1952 1952 –– Hellar v. BiancoHellar v. Bianco• 1973 1973 –– Anderson v. New York TelephoneAnderson v. New York Telephone• 1986 1986 –– Spence v. FlyntSpence v. Flynt

Who is responsible?Who is responsible?

• PublishersPublishers– Create content and hold it forth as their ownCreate content and hold it forth as their own– Directly liable for the libels they disseminateDirectly liable for the libels they disseminate

• DistributorsDistributors– Don't create, but choose to, and actively do, distributeDon't create, but choose to, and actively do, distribute– Liable only if they "knew or should have known" that what Liable only if they "knew or should have known" that what

they are distributing is libelousthey are distributing is libelous– No duty to prescreenNo duty to prescreen

• ConduitsConduits– Operate a system by which other people communicateOperate a system by which other people communicate– No liability for libel, No liability for libel, regardlessregardless of knowledge of knowledge

Key Dates in the DevelopmentKey Dates in the Developmentof the Law of ISP Liabilityof the Law of ISP Liability

• 1991 1991 –– Cubby v. CompuServeCubby v. CompuServe

• 1995 1995 –– Stratton Oakmont v. ProdigyStratton Oakmont v. Prodigy

• 1996 1996 –– Communications Decency ActCommunications Decency Act

47 U.S.C. 47 U.S.C. § § 230(c)(1)230(c)(1)

"No provider or user of an "No provider or user of an interactive computer service shall interactive computer service shall be treated as the publisher or be treated as the publisher or speaker of any information speaker of any information provided by another information provided by another information content provider."content provider."

"Harmful Content""Harmful Content"

• Zeran v. AOLZeran v. AOL – defamation (even with knowledge) – defamation (even with knowledge)

• Doe v. AOLDoe v. AOL – child pornography – child pornography

• Ben Ezra, Weinstein & Co v. AOLBen Ezra, Weinstein & Co v. AOL – inaccurate stock – inaccurate stock quotesquotes

• Stoner v. eBayStoner v. eBay – bootleg sound recordings – bootleg sound recordings

• Green v. AOLGreen v. AOL – computer viruses – computer viruses

• Kathleen R. v. City of LivermoreKathleen R. v. City of Livermore – minor access to – minor access to obscenityobscenity

"Harmful Content""Harmful Content"

• Zeran v. AOLZeran v. AOL – defamation (even with knowledge) – defamation (even with knowledge)

• Doe v. AOLDoe v. AOL – child pornography – child pornography

• Ben Ezra, Weinstein & Co v. AOLBen Ezra, Weinstein & Co v. AOL – inaccurate stock quotes – inaccurate stock quotes

• Stoner v. eBayStoner v. eBay – bootleg sound recordings – bootleg sound recordings

• Green v. AOLGreen v. AOL – computer viruses – computer viruses

• Kathleen R. v. City of LivermoreKathleen R. v. City of Livermore – minor access to obscenity – minor access to obscenity

More recently:More recently:

• • OptInRealBig.Com v. Ironport SystemsOptInRealBig.Com v. Ironport Systems – – forwarded spam reportsforwarded spam reports

• • Noah v. AOLNoah v. AOL– – religious harassmentreligious harassment

No, No, HeHe Did It Did It

"No provider or user of an "No provider or user of an interactive computer service shall interactive computer service shall be treated as the publisher or be treated as the publisher or speaker of any information speaker of any information provided by another information provided by another information content providercontent provider."."

More LegaleseMore Legalese

"Information content provider" = "Information content provider" = "any person or entity that is "any person or entity that is responsible, responsible, in whole or in partin whole or in part, for , for the the creation or developmentcreation or development of of information provided through the information provided through the Internet or any other interactive Internet or any other interactive computer service"computer service"

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

–– Batzel v. SmithBatzel v. Smith

Provided by both . . .Provided by both . . .

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

–– Carafano v. Metrosplash.comCarafano v. Metrosplash.com

Let's TalkLet's Talk

"No provider or user of an "No provider or user of an interactive computer service shall interactive computer service shall be treated as the be treated as the publisher or publisher or speakerspeaker of any information of any information provided by another information provided by another information content provider."content provider."

Cubby Lives?Cubby Lives?

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

–– Barrett v. RosenthalBarrett v. Rosenthal

Winners and UsersWinners and Users

"No provider or "No provider or useruser of an of an interactive computer service shall interactive computer service shall be treated as the publisher or be treated as the publisher or speaker of any information speaker of any information provided by another information provided by another information content provider."content provider."

Other Implications?Other Implications?

"No provider or user of an "No provider or user of an interactive computer service shall interactive computer service shall be treated as the be treated as the publisher or publisher or speakerspeaker of any information of any information provided by another information provided by another information content provider."content provider."

Other Implications?Other Implications?

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

–– Doe v. GTEDoe v. GTE

47 U.S.C. §47 U.S.C. § 230(e)(2)230(e)(2)

"Nothing in this section shall be "Nothing in this section shall be construed to limit or expand any construed to limit or expand any law pertaining to intellectual law pertaining to intellectual property."property."

CubbyCubby for Copyright! for Copyright!

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

– – CoStar Group v. LoopNetCoStar Group v. LoopNet

Who Decides?Who Decides?

State Trial Courts

State Appellate Courts

Highest State Court

Federal District Courts Special Federal Courts

Federal Courts of Appeal

United States Supreme Court

Judicial JurisdictionJudicial Jurisdiction

• Subject matter jurisdictionSubject matter jurisdiction– Jurisdiction over the caseJurisdiction over the case

• Type of case Type of case • Amount in disputeAmount in dispute

• Personal jurisdictionPersonal jurisdiction– Jurisdiction over the partiesJurisdiction over the parties

• Originally a matter of pure geography . . .Originally a matter of pure geography . . .

A Really Big ShoeA Really Big Shoe

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

–– International Shoe Co. v. WashingtonInternational Shoe Co. v. Washington

And AnotherAnd Another

""We find that Sullivan, as the producer and We find that Sullivan, as the producer and master of ceremonies of 'The Ed Sullivan master of ceremonies of 'The Ed Sullivan Show,' entered Arizona by producing the play Show,' entered Arizona by producing the play entitled 'A Case of Libel' in New York City.entitled 'A Case of Libel' in New York City. . . . . . .

[T][T]he telecast of the show . . . in Arizona [was] he telecast of the show . . . in Arizona [was] voluntary, purposeful, reasonably foreseeable voluntary, purposeful, reasonably foreseeable and calculated to have effectand calculated to have effect in Arizona . . . ." in Arizona . . . ."

Pegler v. SullivanPegler v. Sullivan

Zippo Zippo Dee Doo DahDee Doo Dah• "If a defendant enters into contracts with residents of a "If a defendant enters into contracts with residents of a

foreign jurisdiction that involved the knowing and foreign jurisdiction that involved the knowing and repeated transmission of computer files over the Internet, repeated transmission of computer files over the Internet, personal jurisdiction is proper."personal jurisdiction is proper."

• "A passive Web site that does little more than make "A passive Web site that does little more than make information available to those who are interested in it is information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction."not grounds for the exercise [of] personal jurisdiction."

• "The middle ground is occupied by interactive Web sites "The middle ground is occupied by interactive Web sites where a user can exchange information with the host where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and determined by examining the level of interactivity and commercial nature of the exchange of information that commercial nature of the exchange of information that occurs on the Web site."occurs on the Web site."

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

Jurisdiction.edu?Jurisdiction.edu?

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

Revell v. LidovRevell v. Lidov

International JurisdictionInternational Jurisdiction

• Within the U.S., the law usually doesn't vary Within the U.S., the law usually doesn't vary much from state to statemuch from state to state

• But the Internet doesn't stop at national But the Internet doesn't stop at national borders, eitherborders, either




• "In the information age, the whole planet is "In the information age, the whole planet is just a click away. So, unfortunately, are all just a click away. So, unfortunately, are all the lawyers." -- the lawyers." -- University BusinessUniversity Business




• "In the information age, the whole planet is "In the information age, the whole planet is just a click away. So, unfortunately, are all just a click away. So, unfortunately, are all the lawyers." -- the lawyers." -- University BusinessUniversity Business

• "In cyberspace, the First Amendment is just a "In cyberspace, the First Amendment is just a local ordinance." -- local ordinance." -- variously attributedvariously attributed

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

an introduction to internet law (psst: there's no such thing!) steven j. mcdonald general...

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