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

I have received another derogatory grade for my second assignment and need a feedback of my classmates on that. For those who read my prospectus, what grade do you think it deserves? For those who did not read it, I encourage you to take a look at my prospectus and make your comment below on this page or e-mail it me privately to vladimirkruglyak@mail.ru stating whether the project of this magnitude worth 3, 4, or 5 points on the 5 points scale (note that the prospectus is submitted on time). If your grade is below 5, please explain in what instances other projects supersede mine. When you read "sources sharing common domains" do you raise any questions, what are they? To be objective, consider the motive behind the grade of (3) for this type of prospectus submitted at this type of the course. Note that I do realize that this project, in order to be completed, requires a series of surveys that must be funded. Without surveys I have to rely on someone else's data or on "pickpocketing" which is unethical and therefore is not my goal. Nevertheless, I believe that the project could have produced several revealing results without significant changes. I think, along with dozens of my colleagues who are majoring in various disciplines, that if the prospectus such as I did deserves the grade of 3, no other project should gain more than that because there is no alternative prospectus has been submitted in this course or replicated based on my prospectus. Do you agree, disagree, and why? Thank you everyone for the survey!!

As per today's lecture, I found many aspects such as long-arm statute, interstate commerce law, interpol networking, and stock trading/investing accounts outsourcing that could have illustrated the problem with jurisdiction over the electronic source. I am not sure if it has been said, but the principle of cloud computing is also important for many amateurs who wish to hide the hosts of their web pages. I am also encouraging you to read the J.Gilies and R. Cailliau's book called "How the web was born" so that you can understand better the notion of the internet policy that has originally been imposed in various countries. The authors have a diverse perspective on ideological and legal concepts related to the internet. I have much deeper concepts in mind which I do not mind to share with people who signed up for this course but to share them on the web page of the course in which my work is unfairly graded is senseless. For intellectually curious people and those who in general finds my comments on this site and in the prospectus as interesting, I am offering to join my facebook group where we can create a more profound discussion by exchanging superior educational materials and debating about the issues discussed in this course. The page which soon is going to become autonomous web page of a non-profit organization is located at http://www.facebook.com/group.php?gid=7314616938 --VladimirK 03:03, 9 March 2011 (UTC)

• • VladimirK, stop flaming and calm down. This type of hostility will not reward you. If you are concerned about your grade perhaps you should speak with the professors and teaching fellows as to how to improve your project. I believe that I have tried to help you by leaving comments both on the assignment page, and on your personal page in more detail. I am glad that you have considered the ethical implications of your research and have come to the conclusion that you did. Now all you really need to do is update your sources to the 21st century. Also, remember, this is just one grade out of several, and just the beginning of your project. Have fun with your topic, enjoy the work, and you will do fine. good luck ======:) Deinous 09:33, 9 March 2011 (UTC)

• • Hi Margaret, I did not notice that you also commented on my personal page. Thank you. I am absolutely calm and rather curious to see how administrators will review the second assignment because my prospectus apparently exceeds in many regards the posted expectations. Yes, I agree that I have to define some technical frameworks, so as everyone's prospectuses that are in fact half shorter than mine, but it is not what constitutes my grade. The oxymoron consists in the fact that the grading mechanism is acting against its own description of the grading criteria, even more funny, the grader does not know what the line between the good and perfect assignment is. In terms of pickpocketing, the common code of ethics suggests that it is unethical to jeopardize someone else's privacy, unless there is a serious exception such as duty. This code is broken in so many ways by both government and private entities that it makes no sense to bring the notion of ethics. It is rather about cryptography, super computers, and who can do more of techno-art without getting prosecuted. Take a look for example at the scandal with Russian spies versus the conflict in Libya. In both cases a sabotage is carefully organized in order to defame the adversary. It just does not square out how the twin towers could have been attacked with such a powerful networks that detected so many spies. In Libiya, the internal political climate just does not have enough reasons to create a protest of this magnitude. The notion of reciprocity persists regardless of geographic situation, and the internet is the perfect way to support all ethical and unethical causes of action. It just a matter of power, as we heard in class, to stop the perpetrators at the foreign territory. As of today, there is enough evidences in theory and perhaps on the internet to execute G.W. Bush and dozens of his allies for crimes against humanity, but which court would do that? It is similar to the grading issue in this class: I have a proof posted on the page that I have been degraded for other than academic reasons, but there is no authority in this school who can intervene to establish the status quo. The more prospectuses I see with the grade of five, the more reasons I have to submit this project at another school. So, with all this being said, I guess I will work on my outline and talk with people you are suggesting along with other professionals and journalists to develop further my project. --VladimirK 02:53, 10 March 2011 (UTC)

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)

Links

Judge Lets Sony Unmask Visitors to PS3-Jailbreak Site desscribes an interesting jurisdictional question to a copyright infringement case. Deinous 00:35, 9 March 2011 (UTC)