Law's Role in Regulating Online Conduct and Speech

March 8

What is law's role in regulating online conduct and speech? At this point in the course you should be ready to tackle this question from a number of different perspectives. In this class we will begin to explore what role law is capable of playing as well as what role it should play. Remember John Perry Barlow's Declaration of Independence of Cyberspace which you read earlier in the course? Has his view of law's limited role been borne out? The sources of law impacting online conduct and speech are many, from intellectual property to tort to the First Amendment. Throughout today's class, we’ll tie the legal doctrines together with three themes:

• How regulation changes when it’s carried out by computers, rather than by people.
• Whether going online increases or decreases government control.
• The new kinds of power possessed by online intermediaries.

Readings

• David Johnson & David Post, Law and Borders (excerpts)

• Orin Kerr, The Problem of Perspective in Internet Law (excerpts)

• Simson Garfinkel, Welcome to Sealand, Now Bugger Off, Wired (July 2000)

• Yahoo! Inc v. La Ligue Contra Le Racisme, 433 F.3d 1199 (9th Cir. 2006)

Optional Readings

• Prof. Joseph Weiler: In the Dock, in Paris
• Salon: Online, the censors are scoring big wins
• EFF: Amazon and WikiLeaks - Online Speech is Only as Strong as the Weakest Intermediary
• David Ardia, Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law (Part IV)
• James Grimmelmann, Sealand, HavenCo, and the Rule of Law

Class Discussion

Perhaps I am missing some of the complex nuances of the arguments, but to me the resolution seems straightforward. Laws exist to govern people not machines. The legal entities are citizens, companies and governments, not routers and servers. Every Internet web service is a transaction between two legal entities at each endpoint with subcontractors facilitating the transport. The Internet or, more precisely, the collection of independent service providers that comprise the Internet, should be regulated in the same manner that all domestic and foreign commerce is managed today. Germany, for example, requires every German web site to include an "impressum" page listing the legal owner of the site and contact information. Just as it is more complex to import and export goods across national boundaries, we should expect similar complexities with transnational web services. Whether or not we agree with the laws of a particular sovereign nation, it seems prudent that international law should preside in cyberspace as surely as anywhere else on the planet. -Chris Sura 03:12, 7 March 2011 (UTC)

Hi. I just want to encourage anyone who hasn't yet read the optional reading by Grimmelmann on the fate of HavenCo to do so; it's a terrific read. I find the central irony of the piece - essentially that HavenCo, ostensibly an organization devoted avoidance of the law, was actually heavily dependent on the rule of law to operate, and that lack of law, not the opposite, is what ultimately destroyed HavenCo - to be fascinating. BrandonAndrzej 04:17, 8 March 2011 (UTC)

Like any good reader of mystery novels who once hooked into the plot flips to the back of the book to discover the ending, my curiosity forced me to google what happened to HavenCo and Sealand. Found http://www.theconstitutional.org/2011/02/15/sealand-and-havenco-part-ii-the-rise-and-fall-of-havenco/. Will take Brandon's suggestion and read the optional reading on the subject, but for the quick answer here it is. [[sjennings 14:55, 8 March 2011 (UTC)]]