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More Crazy Internet Jurisdictional Stuff:

In a kind of reprise of the well-known Yahoo! case (involving a French lawsuit against Yahoo! for displaying Nazi memorabilia on its auction website in violation of French law) from a several years ago, four Google executives are facing criminal charges in an Italian court arising out of a third-party posting of a video at a Google site:

The Italian case relates to a three-minute movie uploaded to Google Video's Italian site in 2006. In the video, four teenagers from the Northern city of Turin are seen teasing a boy with Down syndrome. After Google received two complaints about the content, the company says it removed the clip within 24 hours. But Italian officials, who didn't return calls for this article, argue the video should never have been allowed to be uploaded in the first place.

Google concedes the content caused offense. In a statement the company says: "As we have repeatedly made clear, our hearts go out to the victim and his family. We are pleased that as a result of our cooperation the bullies in the video have been identified and punished."

There's a great deal one can say about this — indeed, one might even say you could write a whole book about it! At one level, it illustrates an interesting and important difference in substantive law: US law, through sec. 230 of the Communications Decency Act (oddly enough), provides intermediaries (like Google here) a very broad immunity from liability for third-party-provided content, while Italian law (I take it, not knowing much about Italian law) does not. It's an important difference, because it reflects (presumably) a real difference of opinion, and of values, and of policy.

The hard question is: how can we realize the benefits of a truly global communications medium like the Net — the first truly global medium we've ever come up with, and whose promise is unimaginably immense — while different sovereigns impose their different visions of the good onto network traffic? We do not have a good answer for that, at the moment. The conventional wisdom here leads to results that are absurd: to summarize (see chapter 11 of the book for more detail): Italy can legitimately assert jurisdiction over Google if Google's conduct is having "significant effects" within Italy, and Google has tangible assets (machines, offices, typewriters, servers) that are located in Italy (or executives who might set foot someday on Italian soil). Viewed from Google's perspective, and the question "With what law does Google have an obligation to comply?", the conventional wisdom says that Google has the obligation to comply with the law of all sovereigns within whose territory it has tangible assets, or where its executives might travel. In my book, I call this "Jurisdictional Whack-a-Mole."

"If you (or your assets) pop up in Singapore, . . . Wham!! Singaporean law can be -- can legitimately be -- applied to you. Your daughter's junior high school newsletter, once posted on the Web, is subject to Malaysian, and Mexican, and Latvian law, simultaneously, because it may be having "significant effects" in one (or all) of those countries, and . . . the school's obligation to comply with those laws is defined by the likelihood that it has assets in any one of them, or that any of its officers might travel to any of them.

That's a strange kind of law -- law that only gets revealed to the interacting parties ex post, and which can therefore no longer guide the behavior of those subject to it in any meaningful way.

This is a really hard problem, and it is one that we need to solve. If I had a simple solution that I could summarize in a brief blog posting, I would do so — and I would not have felt the need to write a whole book about it. I'm hoping the book's website becomes a focus for some discussion about all this, because I'm pretty certain that we could use more discussion about it.

[with thanks to Paul B. Simon for passing along the links

DavidP

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  1. Cockfighting, the First Amendment, and Internet Jurisdiction:
  2. More Crazy Internet Jurisdictional Stuff:
Houston Lawyer:
I agree that it is a hard question. But, as I remember, traditional law on jurisdiction isn't exactly clear either. And the US isn't shy about going after executives of multinationals who step foot in this country after their company has been charged here.
2.10.2009 6:44pm
josil (mail):
This has the smell of universal jurisdiction, where Spain can charge former Chilean politicians with crimes against humanity while they are being medically treated in England.
Or, anyone can charge Israel with like crimes when their citizens travel to another country, especially Belgium and Norway.
2.10.2009 6:50pm
martinned (mail) (www):
At the risk of getting my head chopped off (again): Doesn't this simply mean that someone should get to work drafting a good, solid treaty? I know how long it took to draft the Convention on the Law of the Seas, and how sorry and excuse for a Treaty they ended up with, but what's the alternative?
2.10.2009 6:55pm
John Burgess (mail) (www):
martinned: I think you're right, but one also has to accept that sometimes 'cultural values' will make any sort of compromise or middle-ground position impossible.

That returns us to this conflict of laws, of course.

The US is not about to change its laws or interpretations to accept UK courts' rulings on libel, apparently, so Americans don't really have much of a ground from which to argue.
2.10.2009 7:00pm
Kirk:
martinned,

What's that alternative? I vote for Pax Americana*. It's not perfect, not remotely close; but once it's gone you might suddenly start wishing you had it back.


----------------------------------------------------
*If I may borrow a motif from David Post: if I had a simple brief explanation of how our preeminence in the free speech arena was a cause, an effect, or purely incidental to the Pax aspect, I'd surely give it here. As it is, I have to leave it as an exercise for the reader. But I do think it's clear that no one else currently comes remotely close to offering the same protection of expression that we do.
2.10.2009 7:04pm
martinned (mail) (www):
@John Burgess: I didn't mean to suggest a treaty on substantive law. As you're saying, that would be nearly impossible. But it should be possible to sort out the jurisdictional issues, although I guess this might involve some kind of specialised international tribunal.

(I'm guessing there wouldn't be many countries willing to use a strict forum of the defendant rule, since that would tend to favour the US. Forum of the plaintiff is essentially the current situation, so that's no good. What other possible rule is there?)
2.10.2009 7:05pm
martinned (mail) (www):
@Kirk: And how do you mean to enforce that? Under current rules, foreign courts clearly have jurisdiction in many cases. And US authorities can scream bloody murder if they like, but as long as the defendant has assets within the jurisdiction, a foreign court ruling can be enforced against them. (As it has been against Yahoo.)
2.10.2009 7:08pm
Oren:
How is this a hard issue? The Google execs should tell the Italians to shove it, and US Courts should refuse to give effect to judgments that are contrary to our public policy (see, tangentially related, here). Of course, Italy feels perfectly entitled to ignore our judgments when they are contrary to their public policy, so

Italy has made their law, let them enforce it.
2.10.2009 7:08pm
Oren:

And US authorities can scream bloody murder if they like, but as long as the defendant has assets within the jurisdiction, a foreign court ruling can be enforced against them.

A good reason to keep your assets in the most favorable jurisdiction. I see no reason that Google or Yahoo has to have any physical presence or assets in Italy or France.

I usually agree with you on this blog, martinned, but it is absolute lunacy to allow the internet to be hijacked by those that have the lowest standards imaginable. The world would cry bloody murder if the US started pressing charges against internet pornographers that violated our obscenity laws, especially as a criminal matter!
2.10.2009 7:12pm
Kirk:
martinned,

I'd prefer us to do as much quiet behind-the scenes wielding of the big stick as we can. Just to clarify, and I'm sure you'll disagree, but the sort of cases against free speech that can and do happen under French, German, and British law (and the Netherlands, too, it seems) are egregious violations of human rights as far as I'm concerned, and I'm evangelistic enough about that to want to push our ideas on you to the extent that we can.
2.10.2009 7:14pm
martinned (mail) (www):
@Oren: That's why I advocated some sort of treaty. But in the mean time, I imagine Google would like to do business with Italian customers, which means that they need Italian bank accounts and at least a small office in Italy. That's all it takes.
2.10.2009 7:15pm
martinned (mail) (www):
@Kirk: And you should, since I agree with you. I just don't give you much of a chance.
2.10.2009 7:17pm
Kirk:
martinned,

Ah. Well, we agree on both parts of your last comment (alas.)
2.10.2009 7:23pm
martinned (mail) (www):
@Kirk: Well, that does make the case for "some kind of treaty". A law suit like this one is a bit of an anomaly. One would expect a treaty on internet jurisdiction to eliminate it. (Though not necessarily the Yahoo case, since that was more about sale of goods than "pure" speech.) Avoiding this kind of case through a treaty on jurisdiction would tend to improve speech protection on the internet.
2.10.2009 7:29pm
Oren:

I imagine Google would like to do business with Italian customers, which means that they need Italian bank accounts and at least a small office in Italy. That's all it takes.

Utter nonsense. Google can accept VISA/MC/AMEX from Italian consumers using a US processor. If they need to pay Italian suppliers, a check or wire transfer from a US bank will have to suffice.

Unilateral disengagement with this tyrannical nonsense is the only option. Free (highly distasteful) speech is far too precious to me to cede a single inch in treaty negotiations.

I understand that I've been a bit over the top on this thread. In this instance, I think it's justified. No one has the right to legislate what The People can do with their computers on their soil except their duly elected Representatives.

Even worse, this continues while an Italian court refuses to give effect to a US judgment against one of their firms! Can anyone explain the logic there?
2.10.2009 7:35pm
Oren:
GAH, this thread is going to give me apoplexy. I'm going to sue all of your for intentional infliction of emotional distress!
2.10.2009 7:38pm
traveler496:
Oren

How does your recommended action resolve the matter for the four Google execs who (let's assume) may want to see Italy before they die?

Also, what's the principle (if any) underlying your recommendation? There seems to be an element of tit-for-tat involved but I'm not really sure how to generalize it to e.g. other countries telling us to shove it, to other areas of the law, etc.
2.10.2009 7:42pm
martinned (mail) (www):

Even worse, this continues while an Italian court refuses to give effect to a US judgment against one of their firms! Can anyone explain the logic there?

Easy: Ever since 1648, every state is sovereign within its own borders. Absent a treaty, it can do as it pleases.

I don't know what kind of presence Google have in Italy or why, but I'm sure whatever they do have they have good business reasons for having. Setting up a foreign subsidiary seems like a lot of hassle unless it serves some kind of purpose.
2.10.2009 7:45pm
Thomas_Holsinger:
Criminal charges generally require personal jurisdiction. If this one sticks, we can expect North Korea to create some interesting taxes and then charge Bill Gates with criminal tax evasion.
2.10.2009 7:52pm
Jon Roland (mail) (www):
Long overdue is a general international convention that limits national criminal and punitive civil jurisdiction to actions committed on the territory of the legislating authority. Universal jurisdiction only works for piracy, which we may define as warlike acts by foreign nonstate actors or nonstate actors operating from international commons. The common law "crimes against humanity" doesn't work in a system of nations, except perhaps for failed or occupied states.

We could also have a convention on the Internet modeled somewhat on those of the Universal Postal Union or International Telecommunications Union.

We have a classic treatise on the topic, Conflict of Criminal Laws, Edward S. Stimson (1936).
2.10.2009 7:54pm
martinned (mail) (www):
@Thomas_Holsinger: I'm not sure here, but the idea of personal jurisdiction may be something from US law only. AFAIK, courts need jurisdiction over the crime, for example because it was committed within the geographical area in which they have jurisdiction. I'm not sure why anything else would be necessary.

And yes, that does mean that North Korea could invent a tax for Bill Gates to pay, and them charge him with failure to pay. Then again, I don't suspect Bill Gates has any plans to travel to North Korea as it is.
2.10.2009 7:57pm
martinned (mail) (www):
@Jon Roland: I'm afraid it's not quite that simple. Legally, the crime that is charged here was committed in Italy, and anywhere else where this video was viewed. Libraries have been filled with hypotheticals about people shooting at each other from opposite sides of a border. There is no fundamental reason to favour the side of the border where the shooter stands over the side where the victim gets hit. Most legal systems I know of allow jurisdiction in either case.
2.10.2009 8:00pm
the federal white-collar criminal:
When you describe the jurisdictional rule as:

"If you (or your assets) pop up in Singapore, . . . Wham!! Singaporean law can be -- can legitimately be -- applied to you. Your daughter's junior high school newsletter, once posted on the Web, is subject to Malaysian, and Mexican, and Latvian law, simultaneously, because it may be having "significant effects" in one (or all) of those countries, and . . . the school's obligation to comply with those laws is defined by the likelihood that it has assets in any one of them, or that any of its officers might travel to any of them.

I think you are confusing jurisdiction to prescribe with jurisdiction to adjudicate or enforce. A state can always regulate behavior outside its territory that has significant effects inside its territory, regardless of whether the actor has assets there or is present there.

To subject the actor to the process of its courts ("jurisdiction to adjudicate"), there must be a more substantial connection, generally that the actor is present in the territory of the state or does significant business there.

Finally, to subject the actor to arrest or punishment ("jurisdiction to enforce"), the actor must generally be within a state's borders.

Thus, the school's obligation to comply with the laws of all these countries is not determined ex post. Rather, whether the school will actually be punished is determined ex post. Even if you are an extreme realist, this is not an abstract distinction—otherwise you'd say that whether you have an obligation not to cheat on your taxes is dependent on whether you will be in the audit pool for that year.

And I'd also dispute that this is ridiculous. You only say that because you disagree with the substantive law, not with the principle. Surely you think it's acceptable for the US to forbid people in Canada from firing missiles at US cities. But in that case, there's no more connection between the actor and the affected country than in the school newsletter case.
2.10.2009 8:02pm
martinned (mail) (www):
@the federal white-collar criminal: What about in absentia trials? In the US, the 6th amendment forbids that, but most countries allow it within certain circumstances. If a state decides to proceed in absentia, the problem transforms from one of jurisdiction to one of physical ability to carry out the sentence.
2.10.2009 8:06pm
Ricardo (mail):
The U.S. doesn't have much room to complain about how foreign countries exert jurisdiction over Americans who may have never set foot in these countries. The U.S. has an extradition treaty with the UK, for instance, that allows the U.S. to request the extradition of any UK citizen. This was used in the prosecution of Conrad Black most famously. In a less well-known case, the U.S. is requesting the extradition of British hacker Gary McKinnon who had never been outside of the UK but who had compromised Pentagon and NASA computers.

I know people here love to beat up on international law, but as martinned says, without a treaty clearly setting out how these cases are to be resolved, countries will continue to do whatever they want in this area without regard for the broader consequences. International agreement is the only way to possibly stem some of these problems.
2.10.2009 8:09pm
Oren:

How does your recommended action resolve the matter for the four Google execs who (let's assume) may want to see Italy before they die?

Unfortunately, if a country wants to prosecute your for some offense, you can't visit them. You don't see Eli Wiesel doing a Tehran book tour.


Also, what's the principle (if any) underlying your recommendation? There seems to be an element of tit-for-tat involved but I'm not really sure how to generalize it to e.g. other countries telling us to shove it, to other areas of the law, etc.

There are a few principles:

(1) No country has sovereignty over the internet at-large. Italy's claim of jurisdiction here is astounding -- anyone, anywhere can fun afoul of their law by posting a video that someone finds insulting.

Similarly, France claimed that an auction for the sale of Nazi paraphernalia by a non-Frenchman to another non-Frenchman is subject to their law merely because a Frenchman can view the auction (which were on yahoo.com not yahoo.fr). The court ruled that Yahoo had to make it so that no one in France could view such a thing, which, of course, means that no one can view it period.

(1b) No country shall attach libel liability for more traditional publications, especially when the publishers and authors explicitly decide not to distribute the materials in that country for fear of liability. In England, for instance, it's enough to show that someone imported a copy of a book, even if there is no official distribution.

(2) No US court or official should cooperate in any way with a judgment or extradition request for acts that are protected under the US Constitution or Statute. If Italy wants to step on free speech, they can do so without our help.

(3) US corporations are encouraged to use whatever means necessary to avoid compliance with such laws. This includes removing assets and personnel from hostile jurisdictions if the lawyers think it's prudent. The goal is, directly after such an announcement, to confer with the lawyers and immediately be able to declare total noncompliance.

Acquiescence sets a precedent that, once made, will be very hard to reverse.

By the way, in case anyone is interested in another instance where legal threats against a foreign corporation were entirely ignored and mocked should visit the legal threats page at The Pirate Bay. Especially this one (but read them all, they are are hilarious).
2.10.2009 8:10pm
Oren:

Easy: Ever since 1648, every state is sovereign within its own borders. Absent a treaty, it can do as it pleases.

So, if a man from Mexico City wants to purchase a fine piece of Nazi memorabilia from a gentleman in Nicaragua using an internet auction service hosted in California, where does French sovereignty attach?
2.10.2009 8:13pm
the federal white-collar criminal:
@martinned: Having the trial is adjudication and so does not require physical presence; in the US this comes up as personal jurisdiction, although as you point out, we don't allow that on the criminal side. Putting the person in prison is enforcement.

But I'll admit that I'm mostly recollecting my international law courses from law school, so if someone actually uses these concepts in their practice, I'd love to hear from you.
2.10.2009 8:15pm
martinned (mail) (www):
@Oren: If the French legislature so wishes, it attaches whenever such an auction is accessible/visible from France. My point is, that is something for France to decide, unless the states of the world get together and make a uniform rule.

BTW: Little puzzle: A man in LA sends an item of kiddie porn to a guy in San Francisco. This falls within Federal jurisdiction why?
2.10.2009 8:17pm
Oren:

The U.S. doesn't have much room to complain about how foreign countries exert jurisdiction over Americans who may have never set foot in these countries. [...] Conrad Black [...] Gary McKinnon [...]

(1) If the English government wants to rescind the extradition treaty, that is their sole right.

(2) If the British government announces that, from now on, they will not extradite people for offenses that are considered protected conduct under English law, that is also their sole right.

(3) Neither of the offenses that those gentlemen are alleged to have committed can be construed, in any way, to be contrary to the public policy of England. They would be just as criminal if they had be perpetrated against a UK newspaper or the UK military.
2.10.2009 8:18pm
Oren:

@Oren: If the French legislature so wishes, it attaches whenever such an auction is accessible/visible from France. My point is, that is something for France to decide, unless the states of the world get together and make a uniform rule.

Then our response should be to detach from France until they come to their senses.

As I've said before, there is no reason to have a French subsidiary if the French government is going to use that as leverage to impose their fiat on your operations the world over.
2.10.2009 8:21pm
martinned (mail) (www):

Then our response should be to detach from France until they come to their senses.

The question is, though, whether that is going to be worth the pain. What you're proposing could carry a hefty price for both the US and the other country involved.
2.10.2009 8:23pm
the federal white-collar criminal:
@Oren:

I still don't see why you think that the French asserting jurisdiction over material their citizens see is "astounding." The effect on French citizens is no different whether the poster is in France, the United States, or on the moon, so it's not exactly irrational for them to attach the same obligations. You're simply offended by the substantive rule.

I agree that the result of allowing jurisdiction in this instance is offensive to most people who like freedom of speech. But in that case, the way forward is to seek a special rule limiting jurisdiction over certain conduct.

Even then, it's a tricky problem. I don't think you would object (and correct me if I'm wrong) to the US regulating people posting computer viruses on sites that US citizens view, even if those people are not in the US or the site happens not to be hosted in the US. And what exactly is the difference between libel and a computer virus?
2.10.2009 8:26pm
David Schwartz (mail):
BTW: Little puzzle: A man in LA sends an item of kiddie porn to a guy in San Francisco. This falls within Federal jurisdiction why?
Too easy. Because both LA and San Francisco are areas subject to US Federal Jurisdiction. Now if you wanted to argue that Chile had jurisdiction, that would be a different argument.

Basically, if you go to a country with bad laws, you may wind up in jail or having property seized. Don't go to countries with bad laws that you don't wish to have to comply with.

When Italy starts losing business, they'll realize this isn't a fight they can win.
2.10.2009 8:29pm
Oren:

The question is, though, whether that is going to be worth the pain. What you're proposing could carry a hefty price for both the US and the other country involved.

First, I'm not advocating the US government break off relations with Italy, only that our corporations avoid doing anything that would lead to enforceable Italian judgments (combined with a US policy that only enforces those judgments that are consistent with public policy).

Moreover, I don't see any pain here at all. My buddy runs an ecommerce site and, checking his records, has in fact sold to some Italian customers. He assures me that he is Italian-judgment-proof.

If they want to make it so that Italians cannot wire money in and out of the country, the pain will be entirely on them. Otherwise, I don't see any way to keep Italians and Americans from doing business with each other on perfectly amiable terms.
2.10.2009 8:30pm
martinned (mail) (www):
@David Schwartz: You're not following. Why does the US federal government, as opposed to the state of California, have jurisdiction about that case. (The answer, BTW, is that the file was sent through a server in Virginia. One will note that that answer equally applies to a file sent from Toronto to Mexico City by way of Virginia.)
2.10.2009 8:31pm
Oren:

When Italy starts losing business, they'll realize this isn't a fight they can win.

Why would they lose business? Are they going to make it illegal for their citizens to engage in commerce with us?
2.10.2009 8:31pm
Kirk:
federal white-collar criminal,
I still don't see why you think that the French asserting jurisdiction over material their citizens see is "astounding."
From my perspective, it's not astounding that the French government may want to assert such jurisdiction. The boggle comes in their thinking that it's not their own problem to keep such material from entering, but that instead somehow they should get to dictate what Yahoo makes available on their (non-French-located) servers.
2.10.2009 8:36pm
martinned (mail) (www):
@Oren: Then what is your explanation for what Google are doing in Italy?
2.10.2009 8:36pm
Oren:

I still don't see why you think that the French asserting jurisdiction over material their citizens see is "astounding."

You misstate my position. France has jurisdiction over what her citizens see. If she wants to jail any Frenchman that views an auction for Nazi paraphernalia, I see no issue.


The effect on French citizens is no different whether the poster is in France, the United States, or on the moon, so it's not exactly irrational for them to attach the same obligations.

The effect is the same, but the person posting and processing the auction is entirely outside their territory. They can criminalize what happens within France (e.g. the viewing) but not what happens outside France (e.g. the posting).


I agree that the result of allowing jurisdiction in this instance is offensive to most people who like freedom of speech. But in that case, the way forward is to seek a special rule limiting jurisdiction over certain conduct.

Arlen Specter has already introduced the bill, I hope it passes.


Even then, it's a tricky problem. I don't think you would object (and correct me if I'm wrong) to the US regulating people posting computer viruses on sites that US citizens view, even if those people are not in the US or the site happens not to be hosted in the US. And what exactly is the difference between libel and a computer virus?

I do object to such a thing. When a US citizens requests information from a server outside US jurisdiction, they (ought) to accept that it is not subject to US law. Now, if the US citizen did not request such a thing but had a computer in a foreign jurisdiction exploits it in some way to take control of the system, that is a different matter.

If you want a technically-detailed description of this distinction, I'll provide one, but I don't want to bore the law geeks with computer geekery.
2.10.2009 8:38pm
Oren:

@Oren: Then what is your explanation for what Google are doing in Italy?

I imagine they hired some Italians to do some local work without realizing the legal morass they were stumbling into. If I were their counsel, I would start working up a strategy on how to become Italian-judgment-proof.
2.10.2009 8:40pm
martinned (mail) (www):
@Oren: "some local work" being what, exactly?
2.10.2009 8:45pm
martinned (mail) (www):
@Oren: The reason why I'm asking is that I don't know either, but I assume Google didn't simply set something up in Italy for the heck of it. There must be some business reason for it, meaning that your suggestion of "Italy-proofing" them would come at a price.
2.10.2009 8:50pm
the federal white-collar criminal:
@Oren:

(1) As to why you think France is wrong to criminalize posting of Nazi memorabilia by persons outside her territory, do you think it is wrong for the US to criminalize firing missiles at its territory by people outside its territory? I don't see a difference other than how you feel about the effects of seeing Nazi memorabilia versus things exploding.

(2) Why is it a different matter if the US viewer didn't request that the server in the foreign jurisdiction takes over his machine? That's exactly what libel is. Not many libelous publications say "by the way, this is false" on the first page. Rather, the viewer asks for something they think is truthful, and the publisher gives them something different, a lie.

I don't see why the technical details would make a difference. In either case, the US viewer's browser makes a request and the server returns a response. The hostile code might run locally, but so does the person acting in reliance on a libelous publication.
2.10.2009 8:51pm
Soronel Haetir (mail):
One item on the disengagement topic I find interesting, when Apple faced the same sorts of issues that Microsoft did with regard to the EU, Apple chose to quit doing business in the EU. Afaict Apple hasn't noticed a great deal of harm stemming from that choice.
2.10.2009 8:53pm
martinned (mail) (www):

One item on the disengagement topic I find interesting, when Apple faced the same sorts of issues that Microsoft did with regard to the EU, Apple chose to quit doing business in the EU. Afaict Apple hasn't noticed a great deal of harm stemming from that choice.

1. When was that, exactly? I can't remember a time when Macs weren't for sale here the same as in the US.

2. How would you tell? It would presumably hurt their bottom line, otherwise they wouldn't have come to Europe in the first place. But where would one get the counterfactual?
2.10.2009 8:57pm
CDU (mail) (www):
As to why you think France is wrong to criminalize posting of Nazi memorabilia by persons outside her territory, do you think it is wrong for the US to criminalize firing missiles at its territory by people outside its territory


Since when is a foreign country shooting at us a criminal matter? The correct response here is not to involve the courts, but to shoot back.
2.10.2009 9:17pm
Oren:

Why is it a different matter if the US viewer didn't request that the server in the foreign jurisdiction takes over his machine? That's exactly what libel is. Not many libelous publications say "by the way, this is false" on the first page. Rather, the viewer asks for something they think is truthful, and the publisher gives them something different, a lie.

No, the viewer asks for a document/book/video by unique identifying string. So long as the server provides the requested-for document, it's all gravy.


I don't see why the technical details would make a difference. In either case, the US viewer's browser makes a request and the server returns a response. The hostile code might run locally, but so does the person acting in reliance on a libelous publication.

It's not the viewer that is alleging injury for wrongful representation of the content, it's a third party claiming to be injured by the transmission.
2.10.2009 9:17pm
the federal white-collar criminal:
@CDU:

I said "a person," not the country. If it's just an isolated person, there's no government responsibility. Certainly, if the threat were high enough, a military response may be justified. Nonetheless, if a state is justified in using military force against a foreign private person, why wouldn't it be justified in prosecuting him criminally?
2.10.2009 9:28pm
Ricardo (mail):
Since when is a foreign country shooting at us a criminal matter? The correct response here is not to involve the courts, but to shoot back.

The example was an individual in a foreign country shooting at us and the answer is at least since Title 18, Sec. 2332b came onto the books. The U.S. uses the idea of extraterritorial jurisdiction; as long as it does so it can expect other countries to do likewise:

(a) Prohibited Acts.—
(1) Offenses.— Whoever, involving conduct transcending national boundaries and in a circumstance described in subsection (b)—
(A) kills, kidnaps, maims, commits an assault resulting in serious bodily injury, or assaults with a dangerous weapon any person within the United States; or
(B) creates a substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal property within the United States or by attempting or conspiring to destroy or damage any structure, conveyance, or other real or personal property within the United States;
[...]
(e) Extraterritorial Jurisdiction.— There is extraterritorial Federal jurisdiction— (emphasis added)
(1) over any offense under subsection (a), including any threat, attempt, or conspiracy to commit such offense...
2.10.2009 9:30pm
martinned (mail) (www):
@Ricardo: Actually, under the laws of other nations, the shooting-accross-the-border hypothetical wouldn't even be "extraterritorial" jurisdiction. Different countries have different rules on this point.
2.10.2009 9:34pm
TexasYellowDog:
Google is a global enterprise. It has at least a dozen data centers in Europe including one in Italy. It probably also has sale offices. These data centers are billion dollar operations. Do you think Google could respond to world wide queries from servers in the US?
2.10.2009 9:40pm
traveler496:
the federal white-collar criminal:
"(1) As to why you think France is wrong to criminalize posting of Nazi memorabilia by persons outside her territory, do you think it is wrong for the US to criminalize firing missiles at its territory by people outside its territory? I don't see a difference other than how you feel about the effects of seeing Nazi memorabilia versus things exploding."

One difference is that missiles are point-to-point whereas the internet is broadcast. So, the US outlawing US-bound missiles doesn't stop other countries who may wish to receive incoming missiles from doing so. (A second difference is that there will never be such a country - at least, not for long:-).
2.10.2009 9:49pm
David Schwartz (mail):
As to why you think France is wrong to criminalize posting of Nazi memorabilia by persons outside her territory, do you think it is wrong for the US to criminalize firing missiles at its territory by people outside its territory
Guns and arguments are just fundamentally different. You can't argue that what applies to one should apply to the other.
2.10.2009 9:49pm
Jon Roland (mail) (www):
martinned:

@Jon Roland: I'm afraid it's not quite that simple. Legally, the crime that is charged here was committed in Italy, and anywhere else where this video was viewed. Libraries have been filled with hypotheticals about people shooting at each other from opposite sides of a border. There is no fundamental reason to favour the side of the border where the shooter stands over the side where the victim gets hit. Most legal systems I know of allow jurisdiction in either case.

That jurisprudence is an innovation of the 20th century, which I consider a mistake, and my proposal would correct it. If you read Stimson, and in particular my Introduction to it, in which I discuss the "Four Corners" problem of jurisdiction, you will get the basis for the correction. The original, and sound, notion of the location where a crime is "committed" is the point in space and time where concurrence occurs between mens rea and actus reus. That means where the offender's head was at that point. Not his hand, his foot, or where the victim suffered the effects.
2.10.2009 9:52pm
the federal white-collar criminal:
@traveler496:

I agree that's an important difference, particularly since it makes the harm in the target country intentional. On the other hand, unintentional broadcast conduct can be just as harmful: consider a factory in Canada emitting toxic fumes, which cross the US border and harm US citizens. I don't think we'd want to require that the factory operators intend to hurt US citizens before prohibiting this type of behavior.

@David Schwartz:

That's my point! The difference is the substantive conduct, guns versus arguments, not the jurisdictional circumstances.
2.10.2009 9:55pm
freebird (mail):
Google likely has servers in Italy because it means they can serve content faster for Italian customers. It's a common trick to host things geographically close to where they'll be used to improve customer experience.
2.10.2009 9:57pm
C. Tigrin (mail):
@the federal white-collar criminal: do you think it is wrong for the US to criminalize firing missiles at its territory by people outside its territory? I don't see a difference other than how you feel about the effects of seeing Nazi memorabilia versus things exploding.

Apologies for intervening. Yes it is wrong for the US to criminalize the actions of people over which we have no jurisdiction. But it is right for the US to defend themselves from such actions or to respond in kind. Its very simple - the lack of treaties allows the US to act in its best interest without constraints.

Italy can convict, punish or seize whatever or whomever they please. And so can the US. Obviously Italy feels that Google have to bear the cost of policing a popular service, or more likely, they are just trying to extort some cash from the "rich Americans" (otherwise they would ban posting of such videos from their territory).
So, if they do confiscate American property in Italy, the US can likewise apply local law to their actions and confiscate Italian assets in the US... and so on and so on ... the guy with more and bigger guns wins.

After a few such cases a very nice and just treaty will emerge almost on its own. I call this a just application of American power. Its very different than mass destruction for the nebulous goal of "exporting democracy".
2.10.2009 9:59pm
martinned (mail) (www):
@Jon Roland: Then again, one could also argue that the crime occurs at the location of the last element that is necessary to make it a crime. Shooting a gun isn't (necessarily) a crime, but hitting someone is, so the crime is committed at the location of that final step, i.e. at the location of the victim.

I'm not saying either approach makes more sense than the other; there is simply no principled way to choose. Which is why different countries have different rules here, something that can only be remedied through a treaty.

BTW, your proposal amounts to giving jurisdiction to the forum of the defendant, at least where internet crimes are concerned. As I already wrote, above, that is a rule that would favour the US in internet cases, given that the majority of internet companies are based there. For that very reason, the US would have a hard time getting the rest of the world to sign off on your rule, or anything else resembling a forum of the defendant rule.
2.10.2009 10:04pm
martinned (mail) (www):

Obviously Italy feels that Google have to bear the cost of policing a popular service, or more likely, they are just trying to extort some cash from the "rich Americans" (otherwise they would ban posting of such videos from their territory).

I imagine posting the video is equally illegal, probably even under the exact same rule.
2.10.2009 10:05pm
Oren:

Google is a global enterprise. It has at least a dozen data centers in Europe including one in Italy. It probably also has sale offices. These data centers are billion dollar operations. Do you think Google could respond to world wide queries from servers in the US?

Estonia is a good option for northern Europe. Any of the Balkans are fine for the south. Sweden and Denmark are will round out your Western European operations.
2.10.2009 10:08pm
Oren:

I don't think we'd want to require that the factory operators intend to hurt US citizens before prohibiting this type of behavior.

I've not heard any attempts by the US to regulate Canadian emissions or vice versa.
2.10.2009 10:10pm
Ricardo (mail):
Having re-read the article and post above, it looks like jurisdiction is pretty straight-forward: the video was hosted on the "Italian" Google Video website which is, presumably, located in Italy. The unique thing about this case is not asserting jurisdiction over Google -- which by itself is not controversial since Google chose to set up a server in Italy that caters to Italian internet users -- but in criminally prosecuting the American executives.

So it's less of a jurisdiction issue and more of a stupid law issue. An unfortunate side-effect of doing business in other countries is being subject to their laws -- good ones along with stupid ones. A possible response from Google to this would be to simply block anyone with an Italian IP address from accessing Google content on the grounds that this is the only way Google can be sure it is not violating Italian criminal law. That would sent a pretty strong message and put this Milan prosecutor in his place.
2.10.2009 10:20pm
C. Tigrin (mail):
I imagine posting the video is equally illegal, probably even under the exact same rule.


Italian authorities can prevent posting by technical means in addition to the legal ban. It is also technically possible to prevent viewing of this particular video on Italian territory. This is what I had in mind.
2.10.2009 10:45pm
martinned (mail) (www):
@C. Tigrin: But then they'd have to do the filtering. That's the whole point here, they'd like Google to do it instead.
2.10.2009 10:46pm
traveler496:
Oren,

Thanks for clearly answering my question about the principles underlying your recommended action wrt the Italian court case against Google.

Thanks also for the pointer to the Pirate Bay legal threats page, which is indeed hilarious. There's something infectious about the awkwardly gleeful abandon with which they dismiss the direst of legal threats while often evincing a touchingly naive, abiding faith in the therapeutic power of retractable batons.
2.11.2009 12:31am
David Schwartz (mail):
That's my point! The difference is the substantive conduct, guns versus arguments, not the jurisdictional circumstances.
That's precisely what I said you couldn't do and what you agreed you couldn't do, but then you went ahead and did it.

If one country shoots a gun into another, that's one set of jurisdictional circumstances. If one country shoots a missile into another, that's a different set of jurisdictional circumstances.

You cannot argue that the jurisdictional argument is the same in both cases. It simply isn't.

Otherwise, you can argue that there is never a jurisdictional argument and all there ever is is substantive conduct.

If I shoot you in Paris, that is different substantive conduct from me shooting you in Peru. That is less different than the difference between a gun and an argument.
2.11.2009 1:11am
Owen Hutchins (mail):

@Jon Roland: I'm afraid it's not quite that simple. Legally, the crime that is charged here was committed in Italy, and anywhere else where this video was viewed. Libraries have been filled with hypotheticals about people shooting at each other from opposite sides of a border. There is no fundamental reason to favour the side of the border where the shooter stands over the side where the victim gets hit. Most legal systems I know of allow jurisdiction in either case.



If Google were shipping a product into Italy illegally, that would be closer to your analogy. As it is, this is more like looking across the border at someone doing something that is legal where they are, but illegal where you are.
2.11.2009 7:12am
Jon Roland (mail) (www):
martinned:

@Jon Roland: Then again, one could also argue that the crime occurs at the location of the last element that is necessary to make it a crime. Shooting a gun isn't (necessarily) a crime, but hitting someone is, so the crime is committed at the location of that final step, i.e. at the location of the victim.

You could argue that but that is not the rule established through several hundred years of common law, which we inherited, and which is represented in the Constitution by a single key term, committed, used three times. From a study of the background of that term, we find that it comes from the notion of the point in time and space where the criminal act, which is ultimately a mental act, becomes irreversible. Remember the five elements of a crime: mens rea, actus reus, concurrence, causation, and harm. Concurrence applies only to the first two, and defines the locus of commitment. Causation and harm are not essential to there having been a crime. Attempt is also a crime. It only establishes the effectiveness ane severity of it.

In the law of nations, established with the Peace of Westphalia in 1648, each nation is responsible for the acts of persons on its own territory. If someone commits an act of war from one sovereign's territory against a foreign sovereign, it is the first that has jurisdiction and the duty to prosecute and compensate the victims's sovereign (who may then compensate the individual victims).

Or, as is has been pointed out, one can just shoot back. But that kind of reprisal requires, under the Constitution, the sanction of letters of marque and reprisal, or it is an act of piracy.
2.11.2009 10:22am
martinned (mail) (www):
@Jon Roland: Now you're arguing US law. As I've been trying to point out, not every country has the same "hundred years of common law", much less the same constitution. In fact, if you like I can take a look at what Roman law says on this point, which would be a much more informative place to start looking for some kind of consensus, given its importance for the law in pretty much the entire non-arabic world.
2.11.2009 10:30am
martinned (mail) (www):
2.11.2009 10:31am
Oren:

If Google were shipping a product into Italy illegally, that would be closer to your analogy. As it is, this is more like looking across the border at someone doing something that is legal where they are, but illegal where you are.

Actually, shipping a product that is legal in your country into a country in which it is illegal is exactly the analogy that I had in mind. For instance, martinned can probably explain why Dutch (marijuana) seed banks are not prosecuted despite overtly advertising that they will ship seeds anywhere.

Were are we located:
We are affiliated with Amsterdam Marijuana Seeds. We are located in Amsterdam the Netherlands.

Do you ship World wide:
Yes, we ship our items world wide. It is impossible for us to check all laws in every country, so our advice is to check your
local laws about receiving cannabis seeds.

If you live in a country were it is not allowed to receive marijuana genetics, you should be aware of the risk of interception by local authorities.
2.11.2009 10:50am
Oren:
martinned, props to the Dutch government! At least they didn't release them like the Germans.

Substantively, pirates on the high seas are hostis humani generis and, since the proper response would have been a brief admiralty trial followed by summary execution, Dutch jurisdiction is a big step in the upwards direction.
2.11.2009 10:55am
martinned (mail) (www):

For instance, martinned can probably explain why Dutch (marijuana) seed banks are not prosecuted despite overtly advertising that they will ship seeds anywhere.

I would actually have to check whether this is even legal under Dutch law. Assuming that it is, I don't see how shipping these seeds to another country would be in violation of Dutch law. The more interesting question is whether the Dutch would extradite these guys. Technically, extradition treaties usually say that the offence that is charged has to be a felony in both jurisdictions in order to be extraditable, but in this case I wonder what the policy would be.
2.11.2009 11:00am
Oren:
I assumed such seed banks are legal (Holland hosts the Cannabis Cup after all) and so "prosecuted" was intended to mean prosecuted by other jurisdictions to which the seeds were shipped.

I know the DEA has a stick up its butt regarding Canadian distributors of MJ seeds but distribution is illegal on both sides of the border.
2.11.2009 11:33am
martinned (mail) (www):
@Oren: Dutch law regarding cannabis products is somewhat messy. The official rule is that it is all illegal. The second layer is that there is an official policy of non-prosecution for "personal use quantities" of marijuana, etc., being defined as one joint's worth, i.e. a T-bag. Beyond that, the story gets a bit sketchy. Clearly no one's getting prosecuted, but I wouldn't be able to tell you whether that is because the activity is not illegal, because it is the subject of an official non-prosection policy or because the police and prosecutors simply don't bother.

For the purposes of the present thread, though, one can simply make the point by assuming the shipping of seeds within the country is legal. In that case, one wouldn't expect Dutch law to forbid mailing the stuff abroad anymore than one would expect Dutch law to forbid the mailing of bibles to Saudi-Arabia.
2.11.2009 11:41am
ruralcounsel (mail):
This looks like a lovely opportunity for reciprocation ... just like the old cold war game of tossing out someone's embassy personnel after they tossed out some of yours.

If Italy, France, or whomever doesn't like Google or Yahoo or Ebay or whatever, they can figure out how to keep it out (without massively pissing off their own citizenry). Seems like that should be their problem. I don't recall the US getting too concerned about broadcasting Radio Free Europe into the Soviet bloc, and I doubt if it was appreciated much by the Soviets.

And if the exec's want to visit that country? Tough. Actions have consequences. All the way around. We just need to pass laws that allow us to confiscate assets of countries that act this way, and arrest politicians, prosecutors, and judges from these countries if they happen to set foot on US territory. Up the ante!

This sounds like a great way to stifle international trade and markets ... let the ripples spread!
2.11.2009 12:00pm
Saplier:
Litigate everything in Palo Alto!

"The Northern District of California is not an international court of internet law."

533 F.Supp.2d 996
2.11.2009 12:06pm
Blue:
martinned, your childlike faith in the ability of a magic "treaty wand" to solve this problem is touching. Naive, but touching.
2.11.2009 12:07pm
EricPWJohnson (mail):
Prof Post

I guess where the Italians feel they have legal jurisdiction falls under international treaties and law.

1st and the strongest argument is all of the participants were Italians

2nd the act occured in their jurisdiction

3rd materials for juveniles are routinely protected under most countries justice systems

4th the showing of the video was in itself a crime under Italian law as well as most countries outlaw the public distribution of torture, assault for personal or public gain etc

5th clearly justice could have been obstructed by not showing this to the authorities immediately so the participants were not forewarned


I strongly feel that an essay posted on the internet being compared to the snuff film of a unlawful act are not nor ever will be a valid comparison
2.11.2009 12:17pm
martinned (mail) (www):
@Blue: Within the European Union there are a number of treaties and regulations on this type of stuff, like Rome II on international torts. Why not make it global?

BTW, here is the summary of the Commission Green Paper on jurisdiction conflicts in criminal matters.


Selecting the Member State best placed to prosecute

During the pre-trial stage, the suggested mechanism focuses on consultation among the competent prosecuting authorities. Discussing jurisdiction issues with the individuals concerned might often reveal facts which could jeopardise a prosecution or affect the rights and interests of victims and witnesses. Whether such a risk is present in a specific case could be left to the national courts to be decided.

Unlike in the pre-trial phase, at the trial phase a national court which receives an accusation of an indictment usually examines whether it has jurisdiction to try the case. The Commission is proposing that the Member State should be required to examine whether it is best placed to prosecute. Judicial review would then amount solely to adjudication on whether the principles of reasonableness and due process have been respected.

A choice of jurisdiction could thus be set aside by the competent tribunal if it found that the choice made was arbitrary on the basis of doctrines known to the national legal order of the Member States, such as abuse of process. Questions of interpretation of Union-wide rules, including legislation on the proposed procedural mechanism and the criteria for the choice of jurisdiction, could be presented to the European Court of Justice (ECJ) for preliminary rulings CJEC ).

Alongside the allocation mechanism, the Commission is proposing an EU provision that would oblige Member States to concentrate proceedings on the same case in one "leading" jurisdiction. The criteria for determining the leading State would include territoriality, victims' interests, criteria related to efficiency of the proceedings, etc. The prioritisation rule could be that, when a prosecution is brought in a national court, the other Member States must halt or suspend ongoing proceedings.
2.11.2009 12:20pm
Oren:

2nd the act occured in their jurisdiction

The act of viewing did -- they can prosecute all the Italians that watched it (hint: not likely). The act of making it available (which Google is charged) could have happened entirely outside of Italy.

If I mail (by traditional post) a banned video to an Italian that is legal in my jurisdiction, Italian law obviously does not apply. How is the instant case not analogous?
2.11.2009 12:41pm
martinned (mail) (www):

If I mail (by traditional post) a banned video to an Italian that is legal in my jurisdiction, Italian law obviously does not apply.

What makes you say that? I would say that in those circumstances you did in fact violate Italian law.
2.11.2009 12:45pm
Oren:

What makes you say that? I would say that in those circumstances you did in fact violate Italian law.

So you support the right of the US to act against the Dutch seed banks?
2.11.2009 12:57pm
martinned (mail) (www):
@Oren: I imagine they do, to the extent that they are able.
2.11.2009 1:03pm
Seamus (mail):

@David Schwartz: You're not following. Why does the US federal government, as opposed to the state of California, have jurisdiction about that case. (The answer, BTW, is that the file was sent through a server in Virginia. One will note that that answer equally applies to a file sent from Toronto to Mexico City by way of Virginia.)



No, the answer is that the file "affects commerce," just as a marijuana plant grown in a Californian's backyard for use to relieve that Californian's painful and debilitating medical condition affects commerce. Even if the server were in California, the feds would still assert jurisdiction.
2.11.2009 1:25pm
Oren:
martinned, you don't want to go down that route.

Distribution of a controlled substance is a felony and that makes would make the credit card processors and their banks guilty of felony conspiracy. The DOJ could then obtain a pre-trial order freezing the assets of those banks and processors pursuant to RICO (since it's now quite easy to prove that there is a pattern of activity that conspires to violate the Controlled Substance Act).

From there, the principals can legally be snatched and brought into the US. See United States v. Verdugo-Urquidez and United States v. Alvarez-Machain.
2.11.2009 1:28pm
Seamus (mail):

Since when is a foreign country shooting at us a criminal matter? The correct response here is not to involve the courts, but to shoot back.



So we should posthumously acquit those Germans and Japanese we convicted and hanged for waging aggressive war?
2.11.2009 1:30pm
Seamus (mail):

"If you (or your assets) pop up in Singapore, . . . Wham!! Singaporean law can be -- can legitimately be -- applied to you. Your daughter's junior high school newsletter, once posted on the Web, is subject to Malaysian, and Mexican, and Latvian law, simultaneously, because it may be having "significant effects" in one (or all) of those countries, and . . . the school's obligation to comply with those laws is defined by the likelihood that it has assets in any one of them, or that any of its officers might travel to any of them.



Worse still, the internet rant of a U.S. citizen, in the United States, about the prophet Mohammed's (pbuh) pedophilia (for that matter, my mention of the fact) is subject to the blasphemy laws of Saudi Arabia and Iran. And given the United States v. Verdugo-Urquidez and United States v. Alvarez-Machain precedents that Oren cited, if the Saudis or Iranians get pissed enough to kidnap the blasphemer and drag him to Riyadh or Tehran for trial, there's not much the U.S. could object to (other than the criminalization of the act itself--but then we enforce our criminal antitrust laws against residents of countries that reject the principles of those laws, so we face a sauce-for-the-goose-sauce-for-the-gander problem there too).
2.11.2009 1:39pm
Blue:
"Within the European Union there are a number of treaties and regulations on this type of stuff, like Rome II on international torts. Why not make it global?"

Ah, see, this is the "treaty" martined wants to see--just bring the troublesome US brought down.

The problem, martin, is not the divergance in approaches. It is that one of those approaches--the American approach to free speech--is correct while another of those approaches--the European approach to banning speech--is incorrect.

A treaty trying to unify the two will have the inevitable result of placing restrictions on American speech. Thus the current situation is superior to any possible treaty.
2.11.2009 1:40pm
Charlie (Colorado) (mail):

That's a strange kind of law -- law that only gets revealed to the interacting parties ex post, and which can therefore no longer guide the behavior of those subject to it in any meaningful way.


David, to be frank, at least to a non-lawyer that doesn't sound even particularly unusual, much less strange. For example, I just discovered this week that a doctor who I saw for treatment ending in 1992, and who became a friend, is proscribed by HIPAA from exchanging emails with me without encryption, or so at least the clinic counsel, er, counsels. Or consider the unexpected consequences of the CPSIA.
2.11.2009 2:04pm
martinned (mail) (www):
@Oren: I didn't say that I liked it, but the US would be well within their rights to do so. (Except for any "snatching", that is.) US officials certainly do come here with some frequency to encourage our government to change their policy, but presumably their desire to maintain some degree of civility in international relations stops them from going after such cases more harshly.

@Blue: I repeat: What we're talking about is a treaty about forum, i.e. about which court can or cannot try a certain case. We're not talking about substantive law.

@Seamus: What, exactly, is so "interstate" about sending an image from Los Angeles to San Francisco?
2.11.2009 2:20pm
martinned (mail) (www):
BTW, among some articles that I had lying around about internet governance was a pretty good one on this very question, by Wilske &Schiller (1997), 50 Federal Communications Law Journal 117. It's available through Westlaw. While it obviously does not discuss the Yahoo case, it does discuss a lot of other early US case law.

Another good read here is of course Orin Kerr's article on perspective in internet law.
2.11.2009 2:33pm
Jon Roland (mail) (www):
Here is some Latin on the issue:
extra territorium jus dicenti impune non paretur -- he who administers justice outside of his territory is disobeyed with impunity.
2.11.2009 2:55pm
martinned (mail) (www):
@Jon Roland: True, but then that's the factual question again. As many have mentioned above, there is a difference in this case between Italy's legal right to enforce its laws against Google and its ability, as a matter of fact, to make its ruling stick.

BTW, to the extent that you're reading a rule of law into it, it still begs the question of which acts count as "extra territorium".
2.11.2009 3:02pm
Oren:
Speaking to the factual issue of enforcement, the question is how can we deprive States of the tools they need to make the ruling stick. Declaring a safe haven in US Courts is a good first step (and, concordant with our government's duty to protect the rights enumerated by our Constitution).

Incidentally, due to the absurd nature of the legal proceedings (and due to the fortuitous fact that someone snagged a whole copy of the video before it got yanked), multiple video sites are now offering the video (since I don't know about the relative judgment-proofing of the conspirators, I'll refrain from posting the link -- it's easy enough to find). This is, in my mind, the most admirable quality of the internet -- attempts to censor a piece of information invariably make it spread faster.
2.11.2009 3:37pm
martinned (mail) (www):

Declaring a safe haven in US Courts is a good first step.

Wouldn't that run afoul of the case or controversy requirement, like in the Yahoo case?
2.11.2009 3:40pm
Blue:
How can a treaty that determines fora be divorced from a discussion of substantive law? The procedural change you support would destroy many of the substantive rights to free expression possessed by Americans.
2.11.2009 3:42pm
martinned (mail) (www):
@Blue: Well, from the "America is the foundation of all wisdom and should therefore always gets what it wants" POV, any agreement on jurisdiction would always work in the way you indicate.

However, from a more earth-based point of view, such a treaty would normally have the effect of foreclosing cases such as this one, thus improving free speech protection on the internet.
2.11.2009 3:47pm
Blue:
Why is there any reason to think that? And why should anyone in the US desire an "Earth-based" system of laws or governance?
2.11.2009 3:50pm
martinned (mail) (www):
@Blue: Because unlike the "America Rules" system, it actually works.

Whether you like it or not, this case is happening, since Italy is well within its rights to proceed if they so please. The idea is to find some sensible way of avoiding this, hence my suggestion of a multilateral treaty on internet governance.
2.11.2009 3:54pm
Oren:


Declaring a safe haven in US Courts is a good first step.

Wouldn't that run afoul of the case or controversy requirement, like in the Yahoo case?

I was thinking along the lines of the Specter bill -- a law that requires US Courts to subject foreign judgments to the same Constitutional standard as domestic ones.
2.11.2009 3:59pm
martinned (mail) (www):
@Oren: In most cases, I would imagine that's already the case. (At least in most controversial cases.) If those French guys had actually tried to enforce their ruling against Yahoo in the US, I'm sure the US court would have refused based on public policy, right?
2.11.2009 4:01pm
EricPWJohnson (mail):
Oren,

I apologize, I was not clear

The posting of a video of a crime - posted in a foreign language to attract the italians - was an overt act correct?

The circumstances of the video was clear - it was in Italy, it was of a crime, it was of Italians committing a crime, and it was posted to promote the crime

All overt acts.

This was not a debate on whether Mussolini really made the trains run on time - it was the advocation for violence against disabled Italian children
2.11.2009 4:13pm
martinned (mail) (www):
From the first 9th circuit ruling in the Yahoo case:


Yahoo! obtains commercial advantage from the fact that users located in France are able to access its website; in fact, the company displays advertising banners in French to those users whom it identifies as French. Yahoo! cannot expect both to benefit from the fact that its content may
be viewed around the world and to be shielded from the resulting costs—one of which is that, if Yahoo! violates the speech laws of another nation, it must wait for the
foreign litigants to come to the United States to enforce the judgment before its First Amendment claim may be heard by a U.S. court. (379 F.3d 1120 at 1126.)

Apart from being generally appropriate here, it is dicta that Yahoo would have had a viable 1A claim if these French organisations had tried to enforce the ruling in the US somehow. (BTW, Yahoo actually won in the District Court, since that court did think the case was ripe, etc.)
2.11.2009 4:16pm
Blue:
Martin, I still do not see how your magic wand treaty keeps the Italians from actions like this in the future. All it is likely to do is validate their behavior.
2.11.2009 4:18pm
Oren:


This was not a debate on whether Mussolini really made the trains run on time - it was the advocation for violence against disabled Italian children


Advocacy that, no matter how vile, is protected speech here in the states. It's funny, I lived in Skokie IL (a city with a significant older Jewish population) when the Nazis marched through town, and I can't remember a time I've felt more proud of my country. We were so confident that their vile ideology has no place here that it does us no injury to let them march where they please.
2.11.2009 4:22pm
martinned (mail) (www):
@Blue: That depends on what rule the treaty would adopt. Presumably it would be something in the general vicinity of the common law forum non conveniens rule. (The Commission Green Paper you didn't like also went in this direction.) The result would be to reduce the likelihood of cases being heard in "incovenient" forums.

In this case Italy may well be a fairly convenient forum, in which case no one has any cause for complaint, but in general the outcome of such a rule would be to reduce the likelihood of US internet companies being sued or charged in foreign court.
2.11.2009 4:23pm
Oren:
Also, substantively, the posting of the video is not the crime in question here. The question is, whether a foreigner in a foreign land that transmits it to Italy can properly be said to fall under Italian jurisdiction.
2.11.2009 4:31pm
Oren:
Incidentally, the Aussie Supreme Court has also gotten on this absurd bandwagon, claiming that Australian courts can hear a libel case involving a US publication.
2.11.2009 4:32pm
martinned (mail) (www):

Incidentally, the Aussie Supreme Court has also gotten on this absurd bandwagon, claiming that Australian courts can hear a libel case involving a US publication.

Not to sound condacending, but do you have a law degree? If so, I don't see how you can possibly be surprised by such a ruling. (Dismayed, sure, but that's a different story.)
2.11.2009 4:35pm
Oren:
martinned, I gave up that track a while ago.

What possible jurisdiction could an Australian court have over a US publisher? There is no personal jurisdiction because the principals were never in Oz. There is no territorial jurisdiction because the allegedly tortuous acts took place in New Jersey.

Am I missing something?

PS. If you are going for condescending, it helps to spell it right. :-)
2.11.2009 5:04pm
Oren:
s/tortuous/Tortious/g

Also, I wasn't surprised, in the sense of not expecting it. It's perfectly normal and, indeed par for the course, for courts to claim maximal jurisdiction.

Specifically, the legal point that I find absurd is that the court claims the material was published in Australia. It was published on a server in the USA and then, by some third party who is not named to the lawsuit, copied into Australia.
2.11.2009 5:10pm
martinned (mail) (www):

What possible jurisdiction could an Australian court have over a US publisher? There is no personal jurisdiction because the principals were never in Oz. There is no territorial jurisdiction because the allegedly tortuous acts took place in New Jersey.


@Oren: Just like someone else earlier in this thread, you're making the mistake of exporting US personal jurisdiction ideas, which are connected to the US bill of rights, to the rest of the world. As for the rest, the general rules on the tort of defamation have changed very little in the last 150 years, which is why I'd expect any common law lawyer to know that the tort is committed wherever and whenever and by whomever the material is published. If someone saw it in Australia, it was arguably published there. (Although if it got there through no fault of the defendant, that would presumably be a defense.)

Overall, I'd say this thread has been a useful reminder of how different legal orders can have different obvious answers to the same easy question. The textbook example of that is the rule on acceptance of an offer through the mail in contract law: when does the contract come into existence? When the letter of acceptance is mailed, or when it is received? Both answers are about equally common, IIRC.

The same goes for the rules that define where certain acts took place. This Italian case is not about extraterritorial jurisdiction, but about a definition of the location of a tort or a crime that is different than the one used in the US.
2.11.2009 5:26pm
Oren:
Joe is a frenchman, Bob is Dutch. Joe travels to Amsterdam and buys some fine seeds from Bob (let's assume this transaction is legal in Holland). Joe returns to France where the police find his seeds. Instead of charging Joe, however, they decide to charge Bob because he was the one that sold them to Joe in Amsterdam and therefore caused them to be imported into France.

That's pretty much how I read the Oz case:

Dow Jones published an article inside the US and some unnamed person copied into Oz, where it was allegedly libels an Australian. Instead of suing the person that copied it, however, they decide to sue Dow Jones for having published the article in the US and therefore caused it to be copied into Australia.
2.11.2009 5:29pm
Oren:

As for the rest, the general rules on the tort of defamation have changed very little in the last 150 years, which is why I'd expect any common law lawyer to know that the tort is committed wherever and whenever and by whomever the material is published.

And I'm arguing that it takes a seriously warped view to think that the word "published" can mean "viewed".


If someone saw it in Australia, it was arguably published there. (Although if it got there through no fault of the defendant, that would presumably be a defense.)

"Publish" means "to prepare for public distribution or sale". On the internet, that logically translates to "create in digital form and then upload to a server where others can access it". To argue that that activity takes place anywhere that the article is read strikes me as the worst kind of sophistry.

I'm not trying to be histrionic or bombastic about this -- I'm honestly saying that, no matter how hard I try to wrap my mind around it, I cannot fathom any possible meaning of the word publish that functions in the way you suggest. It's just not what that word means in normal English.


This Italian case is not about extraterritorial jurisdiction, but about a definition of the location of a tort or a crime that is different than the one used in the US.

A definition of the location that I contend is illogical on its face.

Consider the following scenario, today I write a nasty blog entry willfully and recklessly libeling some Dutch guy named martinned. Nobody reads it. Next month, Lars in Amsterdam reads it.

At what point did I publish the article in Holland? Certainly not in February, because it wasn't read there in Feb. Certainly not in March, because I didn't do anything in March -- Lars did something. So you either have to say that when Lars read my blog in Holland, I published it there (which is bizarre) or that is reading it in Holland retroactively changed the nature of an act that happened in the past (also bizarre).

A much more natural reading of the word "publish" is the one I've been suggesting -- a piece of work is published where and when the author makes it available for public distribution.
2.11.2009 5:49pm
Oren:
Incidentally, does your jurisdiction have the familiar rule of legal construction that words, unless otherwise noted, are to be given their ordinary everyday meaning?
2.11.2009 5:51pm
martinned (mail) (www):

Joe is a frenchman, Bob is Dutch. Joe travels to Amsterdam and buys some fine seeds from Bob (let's assume this transaction is legal in Holland). Joe returns to France where the police find his seeds. Instead of charging Joe, however, they decide to charge Bob because he was the one that sold them to Joe in Amsterdam and therefore caused them to be imported into France.

No dice, since he did not, in fact, "cause them to be imported".

Otherwise, I'm afraid I'm away from my legal reference books at the moment, so I can't cite you the exact precedent that established the rule that in defamation cases the tort is committed wherever the matter is published. I can refer you to the UK Defamation Act of 1996, where you may want to take a look at section 1. (Remember, the point of the act is to amend the original common law, or earlier statutes like the Defamation act of 1952, and the libel acts of 1792, 1843 and 1845.) The tort of defamation goes back a long time, and its core precedents are well established, and from what you're telling me the Australian court seems to have applied them reasonably. (Do you have a cite, BTW? Australian case law can be searched here, for the last few decades.)
2.11.2009 5:51pm
martinned (mail) (www):

"Publish" means "to prepare for public distribution or sale". On the internet, that logically translates to "create in digital form and then upload to a server where others can access it".

Regardless of what that "logically" translates to, the word publish, within the confines of the tort of defamation, is much broader than this. Every time the text is copied, it is published. When it appears on my screen, a new copy exists that didn't exist before, meaning that it is published anew.

Of course this is a preposterous result, but it is the result of the combination of stare decisis and the wonderful world wide web. No country has any incentive to fix this on their own, since they understandably like reaching as far as they can reach. Hence the need for some kind of compromise agreement at a global level.
2.11.2009 5:58pm
Blue:
Any compromise would involve a significant change in US domestic law. Whatever the problems caused by nonsense like the Aussie court any possible solution would be far more damaging to the fundamental rights enjoyed by American citizens than the annoyances caused by this matter.

Our best approach is exactly what Oren suggests--place in statute black letter law that we would treat any plea for relief on these matters using US standards, not the standards of Britain, or Australia, or Germany, or Saudi Arabia. Refuse to be part of any international agreement that could bite us in the butt later.
2.11.2009 6:07pm
martinned (mail) (www):

Any compromise would involve a significant change in US domestic law. Whatever the problems caused by nonsense like the Aussie court any possible solution would be far more damaging to the fundamental rights enjoyed by American citizens than the annoyances caused by this matter.

Sketch me a possible law suit where this would be the result, please. I can't think of any, but that could be me.
2.11.2009 6:12pm
Seamus (mail):

@Seamus: What, exactly, is so "interstate" about sending an image from Los Angeles to San Francisco?



Don't argue with me; argue with the Supreme Court majorities in Wickard v. Filburn, Daniel v. Paul, and Gonzales v. Raich, all of which seem to have assumed that "interstate commerce" means damn near anything that the feds want to regulate (with the possible exceptions of acts of violence toward women or possession of firearms near schoolhouses--presumably unless said violence or possession really do have something to do with interstate commerce as normal people understand those words--say, if the perp crosses a state line to beat a woman).
2.11.2009 8:07pm
Oren:

Regardless of what that "logically" translates to, the word publish, within the confines of the tort of defamation, is much broader than this. Every time the text is copied, it is published. When it appears on my screen, a new copy exists that didn't exist before, meaning that it is published anew.

If publishing means "creating a copy" then, logically, the person doing the publishing is the person creating the copy. For example, if I write something libeling you on my blog and Amsterdam Lars reads it (thus making a copy on his computer), he has now published it in Holland. You should therefore sue him, the publisher, not me.

Similarly, Italy should prosecute the Italian YouTube viewers that published the work in Italy, not Google, which did not publish the work in Italy (in the sense you gave, to wit, Google never created a copy in Italy, only the users did).

Instead, the courts are adopting conflicting definitions of the word "publisher" and "publish" in which, for the same act, the latter verb need not be done by the former noun. That is to say, a work can by published by someone other that the publisher, which is just nonsense.

Either definition you pick, Dow Jones appears to walk. In my definition, that act of publishing took place outside Aussie jurisdiction. In your definition, the publishing was done by someone other than Dow Jones.
2.11.2009 9:00pm
Michael Ejercito (mail) (www):

"If you (or your assets) pop up in Singapore, . . . Wham!! Singaporean law can be -- can legitimately be -- applied to you. Your daughter's junior high school newsletter, once posted on the Web, is subject to Malaysian, and Mexican, and Latvian law, simultaneously, because it may be having "significant effects" in one (or all) of those countries, and . . . the school's obligation to comply with those laws is defined by the likelihood that it has assets in any one of them, or that any of its officers might travel to any of them.

Turkey has laws against saying or writing that there was a genocide of the Armenians.

How does that apply to those who mention that event and publish it on any website?
2.11.2009 9:48pm
Michael Ejercito (mail) (www):


BTW: Little puzzle: A man in LA sends an item of kiddie porn to a guy in San Francisco. This falls within Federal jurisdiction why?

It should not.

Of course, lack of federal jurisdiction will not stop the state of California from sending the offenders to San Quentin or Corcoran.
2.11.2009 10:03pm

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