Archive | Cyberspace Law

Kill Calder v. Jones!

It sounds like a good Civ Pro 101 (or, perhaps, Cyberlaw 101) exam hypothetical :

“Your client, Scott Roberts, a Virginia resident, purchased a Pontiac engine block from Kauffman Racing Equipment, L.L.C., an Ohio-based company that builds automotive equipment and sells it to the public. Roberts purchased the engine block after viewing it on Kauffman’s website. Roberts did not travel to Ohio; indeed, he has never been to that State. After Roberts received the engine, he found it defective, but after various exchanges of communications between Roberts and Kauffman, Kauffman refused to refund Roberts’ purchase price. Roberts then began a campaign of posting comments criticizing Kaufmann on several websites related to automotive equipment. Kauffman alleges that these comments constitute defamation and intentional interference with contracts and business relationships. Question: Based on these facts alone, and assuming no other contacts between Roberts and the state of Ohio, can an Ohio state court exercise personal jurisdiction over Roberts?”

It’s not a hypothetical, but a real case, and Ohio Supreme Court answered in the affirmative, relying on my 3rd-least-favorite Supreme Court case of all time, Calder v. Jones. In Calder, the Court allowed a California court to exercise personal jurisdiction over the authors of an article that a California resident, Shirley Jones, alleged to be defamatory. The authors of the article lived in Florida, and had no contacts with the State of California other than (a) the “knowledge” that Ms. Jones lived in California (and that therefore the “harm” would be felt in California) and (b) the distribution of the allegedly defamatory comments in California.

It’s absurd. A doctrine that allows a finding that you have had the requisite “minimum contacts” with New Mexico sufficient to satisfy the Due Process Clause simply on the grounds that you have said nasty things – [...]

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North Carolina Department of Revenue’s Demand for Amazon Customer Records Violates the First Amendment

So holds Amazon.com v. Lay (W.D. Wash., decided yesterday):

Amazon pursues summary judgment as to its First Amendment claim that the DOR’s request for all information related to Amazon’s sales to North Carolina residents violates the First Amendment. The Court agrees and GRANTS the motion.

The First Amendment protects a buyer from having the expressive content of her purchase of books, music, and audiovisual materials disclosed to the government. Citizens are entitled to receive information and ideas through books, films, and other expressive materials anonymously. In the context of distribution of handbills, the Supreme Court held that anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995); Talley v. California, 362 U.S. 60, 64 (1960) (protecting anonymity in handing out campaign literature). The fear of government tracking and censoring one’s reading, listening, and viewing choices chills the exercise of First Amendment rights. In a concurring opinion, Justice Douglas highlighted the deleterious effect of governmental meddling in the reading habits of its citizens: “Some will fear to read what is unpopular what the powers-that-be dislike. When the light of publicity may reach any student, any teacher, inquiry will be discouraged.” United States v. Rumely, 345 U.S. 41, 57-58 (1953) (Douglas, J., concurring). [...]

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NPR’s “On Point” on the Rutgers Suicide, Cyberbullying, and Internet Crime Law

I was on the NPR program “On Point” today discussing the Rutgers suicide and criminal liability for invasions of privacy online. You can listen to the program here; I come in at the 13-minute mark. Here’s the blurb about the program from the “On Point” homepage:

Tyler Clementi was eighteen years old. He closed the door to his college dorm room and had an intimate encounter. As it happens, it was with another man — and, unknown to Clementi, it was streamed over the Web by his roommate, from down the hall.

Tyler Clementi then killed himself. He jumped off one of the biggest bridges in the country.

Now, his roommate, Rutgers freshmen Dharun Ravi, and Molly Wei, Ravi’s friend, are facing invasion of privacy charges, which could result in up to five years in jail. Should they be charged with a hate crime?

Interestingly, I was on the same radio program back in 2003 making philosophically similar points in a totally different context. Back then, the issue was the Patriot Act, and there was a lot of hysteria about government surveillance. On the show, I tried to counsel caution, focus on what was actually in the law, draw analogies to off-line conduct, and make sure we weren’t letting our fears get the best of us. (I join at the 16-minute mark.) Today, the issue was cyberbullying and a criminal case that has a lot of people very upset. On the show, I tried to counsel caution, focus on what facts were actually known, draw analogies to off-line conduct, and make sure we weren’t letting our passions get the best of us. Hmm, I guess I’m just a “counsel caution” kind of guy. [...]

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“If You Pick a Fight in Missouri, You Can Reasonably Expect to Settle It Here”

So says Baldwin v. Fischer-Smith (Mo. Ct. App. July 6, posted on Westlaw a few days ago), in holding that a defendant whose Web page allegedly libeled a Missouri dog kennel could be sued in Missouri. (The defendant’s Web page specifically mentioned that the kennel was located in Missouri.) There’s a longstanding dispute about this question of personal jurisdiction, and the opinion basically just adheres to one side of the dispute; but it’s pretty readable, and might be of interest to people who have been following the issue. [...]

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Viacom v Youtube, and Why it Matters:

A while back, I posted my early reaction to the SDNY’s decision in the long-running Viacom lawsuit asserting secondary copyright infringement on the part of Youtube. Here’s what I said then:

The case was/is enormously important — Youtube was asserting that it was immune under the Digital Millennium Copyright Act (specifically, Sec. 512(c)) from copyright infringement claims arising out of user postings. Sec 512(c) sets up a “notice-and-takedown” scheme under which website owners are immune from third-party infringements as long as they “respond expeditiously” when notified of specific infringements by copyright holders. Viacom was relying on a portion of the statute that denies the immunity if the website operator has “actual knowledge that the material . . . on the system or network is infringing” OR if “in the absence of such actual knowledge, [it is] aware of facts or circumstances from which infringing activity is apparent . . .”

The critical question in the case was: given that it is a matter of common knowledge that there’s lots and lots and lots of infringing activity on Youtube, does that make the infringing activity “apparent”? If so, the 512(c) immunity is unavailable for Youtube. The court — correctly, in my view — said no, it does not. The “facts and circumstances” to which the statute refers must be of “specific and identifiable infringements of particular items. Mere knowledge of prevalence of such activity in general is not enough.” Sec. 512, and the other immunities provided in the Act for online conduct, “place the burden of policing copyright infringement — identifying the potentially infringing material and adequately documenting infringement — squarely on the owners of copyright. We decline to shift a substantial burden from the copyright owner to the provider . . .”

One could easily argue that these copyright immunities

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Robots and Cyberattacks, Both! Surrogates, the Movie

As many of our readers know, I have long been fascinated by robotics, and have a particular interest in battlefield robotics and related questions of law.  I felt I was late to the cyberwarfare field – and don’t know enough about it – and so have left it for others.  But robotics … well!  Robotics and the law, well, well!  However, one of the important features about Predator drones and UAVs as the US has developed them is that they involve important overlaps between robotics and cyber fields, because the UAV has to be controlled somehow from halfway around the world.  If the classic conceptual parts of a robot are

  • gross locomotion and its ability to move and act in the physical world;
  • the brain and computing and processing power; and
  • sensors to bring data streams into the computational resources, so as to figure out how to move and what gross physical world actions to take …

then, in the case of how the US uses UAVs, we need to add a fourth, the cyber component of communication and control over long distances.  At that point, questions of cyberattack on the robotic system become live.

This brings me to a movie I just watched last night on Netflix, Surrogates – from the comic book series of the same name to the Bruce Willis movie.  It manages to combine robotics with cyber.  Not bad – I thought the critics were overly tough, frankly, but then I have both low standards and low taste in movies.  I liked it.  I think it is a movie that Jack Goldsmith and anyone else working on cyber and robotics issues should see (I will assume that Glenn Reynolds has already watched it … twice).  With popcorn.

[youtube]http://www.youtube.com/watch?v=Zl_h9RaL0es[/youtube]

(Robots as caregivers have suddenly been surging [...]

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Youtube wins Viacom Lawsuit:

Judge Stanton in the SDNY has granted Youtube’s motion for summary judgment in in the long-running copyright infringement lawsuit brought by Viacom (and, in a nice soccer-related twist, The English Football Association’s Premier League was another (losing) plaintiff). [The full text of the decision is here]

The case was/is enormously important — Youtube was asserting that it was immune under the Digital Millennium Copyright Act (specifically, Sec. 512(c)) from copyright infringement claims arising out of user postings. Sec 512(c) sets up a “notice-and-takedown” scheme under which website owners are immune from third-party infringements as long as they “respond expeditiously” when notified of specific infringements by copyright holders. Viacom was relying on a portion of the statutory immunity, which denies the immunity if the website operator has “actual knowledge that the material or an activity using the material on the system or network is infringing” OR if “in the absence of such actual knowledge, [it is] aware of facts or circumstances from which infringing activity is apparent . . .”

The critical question in the case was: given that it is a matter of common knowledge that there’s lots and lots and lots of infringing activity on Youtube, does that mean that “infringing activity is apparent” and that, accordingly, the 512(c) immunity is unavailable for Youtube? The court — correctly, in my view — said no, that’s not what it means. The “facts and circumstances” to which the statute refers must be of “specific and identifiable infringements of particular items. Mere knowledge of prevalence of such activity in general is not enough.” Sec. 512, and the other immunities provided in the Act for online conduct, “place the burden of policing copyright infringement — identifying the potentially infringing material and adequately documenting infringement — squarely on the owners of copyright. We [...]

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Jack Goldsmith on Cyber War

This week’s The New Republic features a cover story by Harvard Law School’s Jack Goldsmith on cyberwar.  (June 24, 2010.)  It’s a long, serious review essay, using Richard A. Clarke and Robert K. Knake’s new book, Cyber War, as the hook.  But Jack goes well beyond a book review into the rapidly expanding literature on the subject – expanding across technical computer science and engineering, software, security, strategic, and legal lines.  Terrifically well written and intelligent, I strongly recommend it (full disclosure: I haven’t read the book under review) – whether you know the field or are looking to get an overview of it.  One thing is clear, it is not going away.

Years ago I decided my inner geek comparative advantage was in robotics, but I read this essay with particular attention to its discussion of complexity of systems, and just how hard it is to get a handle on cyber systems, and their diffuse, distributed natures:

Many factors make computer systems vulnerable, but the most fundamental factor is their extraordinary complexity. Most computers connected to the Internet are general-purpose machines designed to perform multiple tasks. The operating-system software that manages these tasks–as well as the computer’s relationship to the user–typically has tens of millions, and sometimes more than one hundred million, lines of operating instructions, or code. It is practically impossible to identify and to analyze all the different ways these lines of code can interact or might fail to operate as expected. And when the operating-system software interfaces with computer processors, various software applications, Web browsers, and the endless and endlessly complex pieces of hardware and software that constitute the computer and telecommunications networks that make up the Internet, the potential for unforeseen mistakes or failures becomes unfathomably large.

The complexity of computer systems often leads to

[...]

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The Future of Privacy: Facial Recognition, Public Facts, and 300 Million Little Brothers

It’s been a pleasure to blog this week.  I hope you’ve enjoyed this conversation and I’d love to continue it.  If you’re interested in reading more, check out our book, Wild West 2.0.  It is the most-discussed Internet policy book of 2010 (Jimmy Wales called it “an invaluable guide” to the “brave new world of the Internet”) and it sold out Amazon.com once already.  Or, contact me directly through my site at davidcthompson.com.  Thanks again to Eugene and the whole Volokh Conspiracy for inviting me to participate this week.

This week, we’ve discussed the “Wild West 2.0” metaphor for the Internet.  Today, I’m going to present a few quick ideas that didn’t make it into this week’s posts.   I don’t have enough space to flesh them all out, but I hope to provoke some thoughts and discussions that will continue beyond this week.

What will widespread surveillance and facial recognition do to privacy?

It’s always been the law in the U.S. that images you take in public are yours to use non-commercially.  There are a few exceptions around security, peeping Toms, and so-called “upskirt” photography, but basically you can take a photo from any public place and make any non-commercial use of it.

There are good reasons for this policy, ranging from a basic respect for the free press and free expression, to the First Amendment.

But, today, facial recognition is quickly becoming available on a wide scale.  For just one example, an application called Face.com allows Facebook users to use photo recognition to find their friends in photos (even if they have not been tagged, or if they have removed their tag).  Using the tool, it’s often possible to find hundreds of untagged photos of your friends (or yourself) posted by other people.

The Face.com developers [...]

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Fixing the CDA 230 Subsidy While Preserving Online Anonymity

Thanks again for the great responses in comments.  I’ve learned a lot about how people think about the Internet of 2010 and whether it fits the “Wild West 2.0” model.

On Monday, we discussed why the Internet of 2010 resembles the closing of the Wild West frontier.  On Tuesday, we talked about whether CDA 230 is appropriate for the Internet of 2010.  Yesterday, we talked about why CDA 230 is a subsidy to online libel.

Today, I want to present some ideas to preserve the best parts of anonymous free expression, while fixing the subsidy that Section 230 of the Communications Decency Act gives to libelous speech.  I’d love to hear your thoughts.

Online Anonymous Speech is a Good Thing

Anonymous online speech can be powerful and beneficial.  You are free to leave anonymous or pseudonymous comments on this site, which encourages free discussion of political issues.  Protesters in Iran can spread ideas, corporate whistleblowers can speak out, and the government is deterred from at least one form of intrusion into personal life.  On a personal level, you can explore your identity, research controversial causes or issues, or just vent frustration.  All of these are good things and worthy of preservation.

But in the offline world there is also accountability for anonymous speech that is libelous or invasive of privacy.  By taking control of the media away from The New York Times and putting it in the hands of individual bloggers, the Internet have empowered free expression and opinion, but also empowered hundreds of millions of people to anonymously libel each other and invade each others’ privacy.

Updating the Assumptions Underlying CDA 230

CDA 230 was based on a number of guesses about how the Internet of the then-future would work.  We’ve had almost fifteen years to [...]

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Google Changed Reputation and Privacy Forever

In the early Internet, it was impossible to find isolated references to people, places, and things.   Many users navigated using directories like the original Yahoo, and early search tools like Gopher (structured documents) and Archie (FTP) were limited .

The search engines changed everything.  Starting with Lycos and AltaVista, information was freed from obscurity.  Suddenly, no matter where on the Internet your name might be mentioned, a search engine could find it.

On Monday, we discussed why the Internet is a new frontier.  On Tuesday ,we questioned whether Section 230 of the Communications Decency Act of 1996 still fits the Internet of 2010.  Today, I’ll explain how the rise of search engines since 1996 has changed reputation and privacy, and why CDA 230 subsidizes libel by preventing speakers and facilitators from internalizing the costs of their actions.

Google Has Changed How Information is Consumed

I don’t think Google is evil.

But Google is far from perfect.  Google creates the illusion that just ten search results reflect some meaningful judgment on a person’s life.  For example, the top five Google search results for any search term get 88% of the clicks.  The over-attention given to the first few Google results is partly user error, but it’s also a form of rational ignorance on the part of searchers: Google gives good enough results most of the time, so there is little incentive to look deeper.

The attention given to the first few Google results would be fine if Google always provided accurate, balanced, and relevant information.  Unfortunately, it doesn’t.  Google has no way to measure whether websites contain information that is true, fair, or proportionate.  Instead, Google uses rough heuristics—most notably the number of links to a page—to try to calculate a page’s popularity.  Popularity substitutes for relevancy, often [...]

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The Communications Decency Act of 1996 Meets the Closed Frontier

(Thanks for the great comments!  I’ll be speaking in Las Vegas this afternoon 3:45 pm today at the EduComm conference at the Mirage, Ballroom D.)

Anonymous and pseudonymous speech dates back at least to the early days of the printing press.   Anonymous online speech has been a powerful force for change in situations ranging from simple campus disputes to political protests in Iran.  And the technology of the Internet makes it unlikely that any attempt to eliminate anonymous speech could succeed.

That said, the fact that there always will be anonymous online communication does not tell us whether it deserves subsidy.  Yesterday, I explained why the Internet is a new frontier.  Today, I challenge that Section 230 the Communications Decency Act of 1996 provides a subsidy to anonymous online speech, and ask whether that subsidy is sustainable in the closed frontier era of the Internet.

To be clear: I am in favor of anonymous online speech, and sometimes I’m also a user of it.  I disagree strongly with Eric Schmidt’s opinion of privacy and anonymity.  My goal this week is not to destroy anonymous online speech, but instead to figure out how to best preserve its value while curbing abuses, especially in light of the growing regulatory pressure that arises at the close of a frontier.

Offline Speech Combines Practical Anonymity with Legal Accountability

Offline, speech has never been absolute.  In the offline world, the right to speak comes also comes with the responsibility of the familiar speech torts.  If someone publishes false statements about you, you can sue them for libel.  If someone publishes “peeping tom” photos of you or other true-but-private information, you may sue them for invasion of privacy (and they may also be criminally prosecuted).  And so on.

What makes this legal regime [...]

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The Closing of the Internet Frontier?

A gold rush.  A wide-open anything-goes frontier.  Prostitution.  Gambling.  Drugs.  Lax law enforcement. Vigilantism and mob justice.  Petty scammers at every turn.

The subject?  Not the dusty Wild West of American history, but instead the Internet of just 10 years ago.

In the last decade, the Internet has gone from open frontier populated by a select few, to a regular part of life for a majority of Americans and Europeans.   Predictably, the change from sparse frontier to societal integration has caused rather significant cultural clashes between early adopters and latecomers.  Disputes rage about whether we should view and regulate the Internet like an open frontier or like the rest of “offline” society.

This week, I will try to answer that question by exploring the similarities between the Internet and the original Wild West frontier.  I’ll examine what the close of the Wild West frontier teaches us about the next 10 years of the Internet.  As an example, I’ll focus on what the frontier experience tells us about online privacy and laws like Section 230 of the Communications Decency Act.  On Friday, I also hope to take a quick look at the broad impact of the Internet on the future of privac.

I look forward to discussing these issues with readers; this site has managed to consistently attract some of the brightest and most civilized commenters online.  I’m happy to take questions, comments, and suggestions.  And thank you, Eugene, for the kind introduction; I’m proud to be able to contribute to such an important community.

The Internet as Frontier Experience

The history of the Internet echoes the history of the American West.  We go into much greater detail in the book (Amazon), but even at a glance the parallels between Wild West 1.0 (1800s America) and Wild [...]

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Interesting Free Speech Question:

Ari David, who’s running for Congress against long-time incumbent Henry Waxman, raises an interesting and troubling free speech issue on his blog here. Apparently (taking everything he says to be factually correct) he hired some folks to create an iPhone app with text (not surprisingly) highly critical of Waxman — e.g.,

“HENRY WAXMAN… SUPPORTED Cap & Trade legislation that would have brought us $7 a gallon gas and as President Obama has stated would make electricity rates “necessarily sky rocket.”
VOTED TO CUT Medicare spending by a half a trillion dollars which would severely hurt seniors. . . .
TRIED to make over-the-counter vitamins and supplements prescription only . . .
TRIED TO STRANGLE family farms with insane Soviet-Style regulation . . .”

Apple, however, has turned them down, on grounds that the app is “defamatory.”

Does David have any legal recourse here? Probably not. The First Amendment, of course, does not grant him any free speech rights against private actors like Apple, and even if Apple is using the defamation rationale as a pretext for denying his application on purely political grounds (e.g., they like Henry Waxman), there’s nothing (that I know of, anyway) that would stop them from doing that. [David does make an interesting suggestion -- that Apple's actions constitute an "in-kind contribution" to Waxman's campaign, which if true would, I suppose, trigger various election law reporting/disclosure obligations).

It makes for a nice test case for one's views about the inapplicability of the First Amendment to private actors -- should Apple have some non-discrimination obligation when it comes to allowing people space on their app platform?
[And incidentally, I have a question that I bet some of you can answer for me. What does it mean, exactly, that Apple has rejected their app? I understand that [...]

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State of the Net:

If you’re interested, Jerry Brito over at SurprisinglyFree.com, has been doing a series of interviews with legal thinkers and entrepreneurs focusing on a variety of tech issues, and he’s posted a podcast of an interview he did with me a couple of weeks ago on Net governance issues - it turned out pretty well, I think, and those of you who find those issues of interest might find it useful and/or thought-provoking. [...]

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