Program of Instruction for Lawyers: Day 1, Jurisdiction

Today, we’re in the Vorenberg Classroom on the Harvard Law School Campus for PIL 2003.  Our class Web site is available online.  Jonathan Zittrain is talking about jurisdiction.  Here are some notes.

The day opens with John Perry Barlow‘s classic Declaration of Independence for Cyberspace, which we often use to open the conversation of Net law.  One of the lawyers in the class says “it’s dated.”  Why, we ask?  “The poets are losing,” he says.

Jurisdiction on the Net is about problems with boundaries: global internet, local laws.  Net is meant to be location independent.  That causes people trying to enforce things or seek redress some headaches.

* When does a sovereign have the right to say: “You’ve done something on the Net somewhere that has an impact on someone in our country, so we want to do something about it.”? 

* Likewise, how can an individual or company who is harmed by someone far away (by some form of speech on the Net, e.g.) get the harming party to stop?

* How can an individual or company do business on the Net when they might be held to the most stringest laws anywhere in the world that the Net reaches?

Example: A company broadcasting from Canada over the Net, called iCraveTV: the business model called for activities that were clearly illegal under the United States’ 1992 Cable Act.  There was no consent for the rebroadcast into the United States.  Canadian law was less clear on the matter.  A court in Pittsburgh asserted jurisdiction becuase American citizens can see the broadcasts from American turf.  A TRO issued, and iCraveTV folded.  Personal jurisdiction was not a problem in this case, because the people against whom the judgment was enforced were in the US.

Sealand: the “safest place to store data in the world,” they claim.  Havenco operates the servers on Sealand.  As a hypo: the operator of iCraveTV is now living on Sealand and serving it up from there.  Could the US court have gotten personal jurisdiction over that person?  Yes, says JZ, not a slam-dunk, but yes, based on a digital impact on US citizens.

Question: are there any limitations to the US’s reach under its long-arm statutes?  Does personal jurisdiction extend to anyone on the globe?  It could, so long as the US courts found it of interest and the marines were willing to go there.

What constitutes internet law?  Is jurisdiction just a civ pro problem?  JZ says he finds it interesting when it’s not just a civ pro problem. 

What are the criteria that a country, like Portugal, might use to determine whether or not to exercise jurisdiction?  Hope for comity among the countries that care about these issues.  Asked another way, when might you, as a sovereign, want to exercise restraint?

Dow Jones v. Gutnick:  The United States would not have had much of a problem with the Barron’s piece about Mr. Gutnick.  What comity does the US owe to the Australians to hear the case in the US under Australian law, if Gutnick were to travel to New Jersey to bring suit where Dow Jones (the parent company) is based.  The US court in New Jersey would, almost certainly, not agree to hear the suit under Australian law.  So, Gutnick files not in New Jersey but in Australia, and the Dow Jones lawyers seek to have it moved back to New Jersey.  No dice.  A court in Victoria, Australia, does exercise jurisdiction — somewhat reluctantly.  The court emphasizes the fact that Barron’s online charges for the premium subscriptions, and that 1700 hits were from people had paid for these subscriptions in Australia (of about 550,000 hits on the page of the story, “Unholy Gains”).

The UDRP: You agree to submit to this dispute resolution policy when you register most domain names (all names in .com, .net and .org).  If you lose, the registrar moves the name to whomever wins in the proceeding.  Global internet, global law.

Or you might have local internet, local law. Yahoo! France is one extension in this direction.  Yahoo! had a sub in France, so PJ is not a problem.  Yahoo! urged the French court not to apply its law to the problem of sales of Nazi memorabilia.  But the French, after convening a panel of experts, decided to apply their law, based on the presumption that you could use a service to determine, with up to 85% accuracy, where a user, accessing your site, is based.  The judgment would apply to the French users.  Yahoo! was required to screen their sites such that French users, based on reasonable efforts, were blocked from accessing Nazi paraphrenalia.  Yahoo! has since run to the US courts.  Consider, likewise, the google.de and google.fr example related to Nazi-related content.

Or think also about how sovereigns are asking local ISPs to filter at the local level.  China filtering approach, where the Chinese ISPs are required by the government to filter out certain requests for sites, demonstrates this approach.

Commonwealth of PA: the AG can swear out an affidavit that a certain site has child pornography.  The law is intended to require ISPs locally to cut off access for PA residents to those sites or other sites hosted with it.

End of class.  See you tomorrow for IP day!

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