Regulating Cyberspace: Jurisdiction in the Internet Era

Wilberforce O Agyekum

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With the astronomical growth of this new media called the internet, legal scholars, lawyers, and the courts are grappling with issues of Jurisdiction literally everyday. I have organized this brief primer for your consideration.

  1. Personal Jurisdiction:

    1. The Supreme Court and Due Process

· Court requires personal jurisdiction over Defendant

· Can be either general or specific

· General – cause of action is unrelated to D’s activity, and D’s activities in the forum state are either “substantial" or “continuous and systematic"

· Specific – cause of action arises from or relates to D’s activities within the forum

· Either way, Due Process Clause of the 14th Amendment requires that:

  • D have minimum contacts with the forum, and

  • The maintenance of the suite does not offend “traditional notions of fair play and substantial justice" (Asahi Metal)

Due process requires that D has fair warning that a particular activity may subject him to the jurisdiction of a foreign sovereign; “fair warning" is satisfied if D directed his activities at residents of the forum state

  1. Purposeful Availment and the Internet:
  • Test for “minimum contacts" (due process clause, 14tht Amendment)

  • World Wide Volkswagon/Asahi - Does D placing an article in the “stream of commerce" satisfy minimum contacts?

Notes : The Fourteenth Amendment cases illustrate the difficulty courts have had in fitting Internet activities into the ‘Purposeful Availment’ framework.

  • Are the problems the product of some special characteristic of the internet or the Supreme Court’s Fourteenth Amendment analysis (WWV, Burger King) notwithstanding the internet.

a) In General - Web Pages

Inset Systems, Inc., v. Instructions Set, Inc,

Zippo Manufacturing Co. v. Zippo Dot Com., Inc

ALS Scan, Inc. v. Digital Service Consultants, Inc.

Note: The Limits of Purposeful Availment

The cases illustrates that there are several approaches to determine purposeful availment. All turn on the Supreme Court’s failure to provide clear guidance when a defendant is aware that her behavior has extra-territorial effects.

Compare and contrast the online activities of email, websurfing, blogging, participating in virtual worlds, engaging in online commerce, or hosting with World Wide Volkswagon and Asahi.

  • is there or should there be a difference between push versus pull technology (i.e., sending information on one’s own initiative versus sending information upon request.) See Gutnick

In Zippo, the question turned on the degree of interactivity. Why does the degree of interactivity matter? Arguably, unless the website obtains information about the user’s location or otherwise targets a jurisdiction, interactivity adds nothing to the purposeful availment inquiry. To the extent that interactivity is used as a proxy or a means of determining whether the technology involved is push versus pull, the test would appear to obscure the inquiry.

b) Tortious Conduct

Anticybersquatting Consumer Protection Act

Bochan v. La Fontaine

Cable News Network L.P. v. CNNews.com

Note: Cases involving electronic transactions and tortuous conduct raise the question of how and to what extent should the analysis change when the online behavior is more than maintaining a website. Does the nature of the substantive harm claimed in a given case impact resolution of the jurisdictional questions. Are judges more prepared to assist plaintiffs in defamation actions in terms of the jurisdictional inquiry than corporate plaintiffs in cases involving commercial torts?

Amberson and Thomas raise the question of whether the physical presence of data is sufficient to confer jurisdiction over a defendant. Thomas (venue case) turns in large part on how Congress defined the offense in question. What concerns might justify regulating printed obscene materials in any jurisdiction through which it moves; and are those concerns present with respect to materials sent over the internet.

The ACPA materials and CNN raise the question of whether some of the jurisdictional problems can be resolved through in rem (property) jurisdiction.

When the ACPA was enacted, all .com, .net, and .org were registered with Network Solutions based in Reston, Virginia. This is no longer the case; therefore a rule that fixes in rem jurisdiction over domain name disputes as the place of registration of the domain name no longer automatically defaults to a given United States courts jurisdiction over the disputes.

*Personal Jurisdiction quite often turns on whether Internet communications are seen as more traditional advertisements, telephone communications, data in the ‘stream of commerce’, etc.

  1. Contractual Forum Selection & Choice of Law

Carnival Cruise Lines, Inc. v. Shute

Caspi v. Microsoft Network

Contracts and private ordering play an important role in resolving cyberspatial disputes.

Note: Carnival and Cruise Lines both concern consent and bargaining power. Clicking accept may subject one to jurisdiction in another state. See online social networking terms of use and review the forum selection clause.

C) Regulatory Authority

  1. State Regulation of Cyberspace in the United States

a) Cyberspace as a Separate Place?

Voyeur Dorm, L.C. v. City of Tampa, Fla.

The case turned in larger part on interpreting the local Tampa ordinance. When should Cyberspace be treated as a separate place. The opinion seem to suggest that under certain circumstances, there are no local effects that justify regulating the online activity. In other words, certain Internet activities do not threaten public health, safety, or morality of residents, and could, therefore, be considered outside the police power of the state. Consider Professor David Post’s distinction between cyberspace exceptionalism and cyberspace unexceptionalism.

*Hunter’s discussion of the “cyberspace as place" metaphor. Justice O’Conner’s opinion in Reno v. ACLU raising the idea of zoning cyberspace .

b) Due Process and the Dormant Commerce Clause

American Library Association v. Pataki

State of Washington v. Heckel

Note: Heckel – the requirement that state laws actually burden interstate commerce by creating conflicting obligations, but some other authorities note that complying with regulations from multiple jurisdictions may be sufficiently burdensome to run afoul of the dormant commerce clause.

  1. International Regulation of Cyberspace

Dow Jones & Co. v. Gutnick

Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc.

Ligue Contre Le Racism et L’Antisemitisme v. Yahoo!

David Post, Governing Cyberspace Law

Chang v. Virginia Mobile USA, L.L.C.

Note: Decisions are not focused exclusively on the U.S. Constitution’s Due Process Clause or even United States notions of First Amendment freedoms.

  • Gutnick addresses whether the difference between Push versus pull technologies should impact the jurisdictional inquiry.

  • Chuckelberry Publishing responds to the analogy of viewing an Italian hosted website as the digital equivalent of flying to Italy.

To a larger extent than the U.S. Cases, these decisions, especially Yahoo!, address the role that technology should play to limit access based on geography.

Does filtering need to be perfect in order to regulate behavior or to avoid being subject to regulation by another sovereign. This question also raises the DMCA’s anticircumvention provisions.

The Reimerdes court rejected the argument that it should not grant an injunction against a hacker website because the technology in question is now virally and freely available on the internet.

One may also view the jurisdictional question through the lens of Learned Hand’s risk avoidance formula. In other words, because Internet users are aware that they may be transacting with individuals outside of their jurisdiction, how should the related costs of either litigation or filtering be allocated? Should the calculus differ because dispute may involve citizens of different states within the United States versus citizens of different nations.

Given that governments have moved forward with efforts to regulate the internet, what have gained and lost as a consequence? Does the answer depend on whether one participates in online communities? Think about differences between online commerce versus online communities such as social media networking sites and virtual worlds.

Additional Resources

Cyberspace Law, Cases and Materials, Third Edition, KU Lipton

Seattle Attorneys Network

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