Class 12
“Private Sheriffs”
I. Administrative issues
A. Sign attendance sheet.
B. Paper length is fixed no matter the group size.
C. Polling & comment submission systems
http://cyber.law.harvard.edu/polling
II. Barlow – Declaration of the Independence of Cyberspace
A. http://www.eff.org/~barlow/Declaration-Final.html
B. “Governments … leave us alone.”
III. Problems governments might be asked to solve: Spam – unsolicited junk email
A. Badly targeted to what receivers actually want to buy. In some instances, may not generate any business.
B. Senders don’t internalize the cost of sending their junk mail. (But those who operate servers do incur costs.)
C. How to fix the problem
1. Require labeling of spam by senders.
2. Mail Abuse Protection System. Paul Vixie.
· Vixie says every outgoing mail server needs to secure it against anonymous users. Paul keeps a list of mail servers that are not secured (or that he otherwise thinks are spamming). Other mail servers ignore (and throw away mail) from that address.
· Hard to collect data about what’s going on. Vixie keeps his list secret, and contracts are required to receive the entire list.
· Possibility of implementing a Vixie or Vixie-like block list at the router level. Would make it impossible to get web pages (or otherwise send packets to and from) from those Vixie considers spamming. Ordinary “net routes around problems” reasoning does not hold here.
· Even Vixie might prefer sensible government regulation here.
D. Marsh v Alabama
1. Right to protest on the public property near the private property owned by whoever you want to protest
2. But what if the streets weren’t public? The case of Marsh. “If a street looks like public property, it is effectively public.” Allege that first amendment principles need to guide use of the private space that is used in the way public space is usually used.
· Analogy to the Internet is tricky.
E. Bill McSwain – represents Hamidi in Intel v. Hamidi
1. Those who read this case have strong instincts on both sides. Interested to hear thoughts of students.
2. Facts
· Hamidi became an engineer at Intel. Promoted repeatedly. Hurt his back when rear-ended on a business trip. Went on medical disability leave, and was subsequently fired.
· Hamidi turned to the Internet to let others know what happened to him – http://www.faceintel.com . No one suing about this.
· Has http://www.intelhamidi.com also.
· Wanted more people to know about what happened. Started sending email to Intel employees. Initial messages had no criticism of the company, only information about the organization he was forming. Used “crafty” methods to get around Intel’s attempt at blocking. Became somewhat more critical of Intel, but offered messages that were broadly applicable to Intel’s employees. Six emails sent to all (30,000) Intel employees over two years. Offers “unsubscribe” to anyone who requests it. Doesn’t attempt to hide or confuse his identity.
· After Hamidi’s fifth message, Intel sends him a cease and desist letter. Hamidi ignores it and sends a sixth message. Intel sues Hamidi in court. Injunction issued to bar Hamidi from sending additional messages.
3. This case differs from others in that it is uncontested that Hamidi’s messages did not harm Intel’s servers. Question of whether a showing of harm (employee productivity, etc.) can be separate from the computer systems themselves. Trial court missed this question altogether, but court of appeals was divided on it.
4. Other issues are tough too – labor law, state action, etc. But a court may not have to deal with the tough questions if threshold questions are resolved in Hamidi’s favor.
5. Analogy to postal mail is favorable to Hamidi. Intel could not stop Hamidi from sending 30,000 envelopes to Intel’s 30,000 employees even at their office addresses.
· Hamidi delivers hard copy of the mailing. See “pony express” pages at http://www.faceintel.com/seconddelivery.htm
6. Could Intel require all of its employees to opt out?
· Intel finds it easier just to get an injunction.
· Might be violating California and/or federal labor law.
7. Intel could send a “global opt out” across all employees?
· Again, labor law issues.
F. Jeff Williams – http://www.gtld-mou.org/gtld-discuss/mail-archive/08015.html
1. Doesn’t actually exist.
2. Sends a lot of worthless email.
3. McSwain: Maybe he’s a nuisance. Doesn’t mean he’s trespassing. And depends on his speech – whether it’s garbage or whether it’s just noise. Have to think through whether there’s any reasonable self-help. Could use “speech of public concern” tests to evaluate Williams’s messages.
G. Marsh suggests a right to keep people out of the actual private property. Seek to change this?
1. Question of how much weight to give to terms of use of web sites. Don’t want to prevent development of interesting robots and spiders that will yield innovative improvements to the Internet.
2. Hamidi’s case would be more Marsh-like if it were hard for Hamidi to be “near” Intel in any other way. This would be the case for a virtual company for which it’s impossible to picket “out front.”
H. Dechert inclined to support this pro bono work within reason. This levels the playing field for Hamidi.
IV. Implications of mergers between content providers and Internet access providers
A. Could produce a different kind of private sheriffs. AOL might provide preferred Internet access to Time Warner since they’re affiliated. Strategic behavior here could disadvantage other providers of content as well as other providers of network access.
V. Kinds of private sheriffs
A. Vigilantes – Paul Vixie and so forth.
1. Dangerous because they can’t be bought. Powerful because they’re experienced.
B. Strategic gatekeepers.
1. AOL
2. Microsoft
3. Google
4. Speculative in that this hasn’t much happened yet.
C. Defending one’s own interests on one’s own turf.
1. eBay v Bidder’s Edge
2. Intel v Hamidi
VI. Why to prefer private regulation over public?
A. Extensive set of rights against the state. Fewer rights against private parties.
VII. No class next Monday. Class next Thursday in Austin West.
Ben Edelman
edelman@law.harvard.edu