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.

Slides: Law's Role in Regulating Online Conduct and Speech

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)]]

I was truly inspired by Orin Kerr's The Problem of Perspective in Internet Law. Someone who is deeply curious about Internet Law has to read this review! The basic legal principle of application of law based on fact raises a fundamental question within Internet Law. The most critical issue of current digital law is not how to list all the newly created technologies but on which perspective we are going to observe the case and apply laws. The view points of users and outsiders can be very tricky but need to be clarified for more accurate legal judgment. I would love to read the rest of this review and other related topics so that I develop better insights in analyzing Internet controversies. --Yu Ri 15:20, 8 March 2011 (UTC)

Thanks Brandon and Sjennings for the tips - I was also curious about the fate of HavenCo, and found it particularly interesting to learn that they were originally founded and registered in the UK. So yes, much more dependent on law than they led the public to believe. It also seems shortsighted that, in an effort to stretch the boundaries of the Internet, they saw the creation of a new physical space with its own set of lax regulations as the ultimate design. Other rebellious projects (i.e., torrent services, wikileaks, etc) were able to accomplish as much by operating entirely within the virtual space and defying territorial boundaries. Jsanfilippo 16:01, 8 March 2011 (UTC)

In reading “The Problem of Perspective in Internet Law” it brought up some interesting thoughts about the blurring between the “physical” and “virtual” worlds. How will law govern these types of scenarios in the future? In November, there was a sale of virtual property for $335K in the Virtual Entropia Universe. This was the largest virtual real estate deal to date and creates a whole new set of challenges with Internet law. What laws do you apply/enforce to a property that technically does not exist in the true sense of the physical definition? Earboleda 16:56, 8 March 2011 (UTC)