Lex 8256: The Law in Cyberspace Seminar

Whose law governs?

    The disconnection of the World Wide Web from geographic place poses knotty problems when it comes to jurisdiction and choice of law.  First is the problem of personal (adjudicative) jurisdiction:  Where can a person be sued when it is said that he or she violated another person's rights, or a state's criminal law, by virtue of material posted on the Web?  As we discussed in connection with Ashcroft v. ACLU, a rule that the actor is subject to suit anywhere the page is visible would make him subject to suit anywhere in the country (indeed, the world), even though he had no personal connection with the jurisdiction in connection and it would be highly inconvenient for him to defend a suit there.  On the other hand, a more narrow rule might preclude suit in a jurisdiction even though the defendant's actions were in fact causing harm in that location, in violation of its public policy.  In the United States, the fifth and fourteenth amendment due process clauses limit state assertions of personal jurisdiction.  Read -- and think about -- Millennium Enterprises, Inc. v. Music Millennium, 33 F.Supp. 2d 907 (D. Ore. 1999), where a court confronts these issues.

    Next, we have the problem of prescriptive jurisdiction, or choice of law:  When can a state legitimately apply its substantive law to particular conduct?  Read American Libraries Ass'n v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997), and Ferguson v. Friendfinders, Inc., 94 Cal. App. 4th 1255 (2002).  Are the two cases consistent?  Under ALA v. Pataki, New York has no right to tell me that if I'm going to maintain a web site, I need either to conform to NY law or to install software designed to keep NY residents from accessing the site.  But under Friendfinders, California has a perfect right to tell me, that if I send mass email, I need either to conform to CA law or somehow to eliminate all of the CA addresses on the list (I can't imagine how).  Is there a difference?

    Take a look at Voyeur Dorm v. City of Tampa, 265 F.3d 1232 (11th Cir. 2001).   Could the City of Tampa draft an ordinance that would constitutionally bar the conduct at issue here?  (It helps to have taken Con Law II in answering this question.)

    Finally, read through the English translation of a Paris court's ruling in LICRA v. Yahoo, Inc.  This case arose out of a lawsuit brought against Yahoo!, in Paris, by the French League Against Racism and Anti-Semitism.  Yahoo Auctions was making available for sale on the Web Nazi memorabilia that, under French law, could not be sold in France; Yahoo! answered that the Yahoo Auctions service was primarily directed at U.S. viewers, and protested that it could not block the Nazi materials from sale in France without doing so everywhere.  The French court assembled a panel of technical experts to explore Yahoo!'s technical options.  Start reading in the middle of page 5, where you'll see a translation (from English to French and back into English) of the consultants' report.  Also read a rueful personal statement later posted by one of the consultants.