This document currently contains Units 1-18. It was last modified on April 16, 2008

Internet Law Syllabus Spring 2008

There is no casebook for this class.

There is one required book: Jack Goldsmith & Tim Wu, Who Controls the Internet (2006).

All other required readings will be available from the distribution center. (Optional readings are not included in the packets.)

When possible I have also linked below to online versions of the required readings. Links are not reliable, however (we call it ‘link rot’), so let me know if any have stopped working.

Please note that some of the texts in your packets are edited for length; the links, however, are to the full original versions…some of which are very long. Also, not all of the readings are available online for copyright reasons. You will need to purchase the packets.

1: What is ‘The Internet’ and what shall we do about it?

Reading:

Doing:

  • Register for this site, then test your registration by logging in.
  • Figure out how to make your e-mail program automatically attach a “signature block” or “.sig” to each of your messages. The block should include at least your name and e-mail address. Please if you can, have the program include the “signature” in the text of the email rather than as a v-card, an attachment, or anything else that isn’t easily visible by every e-mail program out there. I use PINE, in some ways a very old-fashioned program, because it is utterly virus-proof, but PINE doesn’t handle attachments especially nicely.
  • Send me an email in which you
    1. Have a subject line that says [Internet 08] at the start of the subject line
    2. Tell me about a paragraph’s worth about yourself. (It helps me get to know the students in my class.)
    3. Include your day & evening phone numbers and both e-mail and relatively lasting postal mail addresses for my files.
    4. Demonstrate your mastery of the “signature block” above.

Thinking:

The Internet is a complex, predominantly self-regulating, system. Although national governments and a few international agreements regulate certain aspects of the Internet, these regulations generally cover few of the technical standards and almost none of the social standards. Despite this, the Internet is an orderly anarchy. Decision-making concerning fundamental issues of Internet management (including both technical matters and issues of social propriety) is primarily by consensus.

The same is not true, however, about other aspects of the Internet, which are subject to a complex patchwork of international law, national law, national regulation, and vast amounts of private ordering — some by technical fiat, some by mass user activity, and some by other means.

Please be prepared to discuss the following general questions (ideally with specific examples):

1. Based on your experience (if any) with the Internet to date, what parts, if any, of the “the Internet” (whatever that is) might need formalized regulation? What parts are best suited for self-regulation?

2. If there is to be formalized regulation of “the Internet” then who should do it? Who can do it? How? At what costs?

We’ll be returning to these questions over and over again….

Highly Optional Reading:

  1. B. Carpenter, RFC 1985, Architectural Principles of the Internet (1996).
  2. R. Rader, Domain Name and Related Definitions (May, 2001).
  3. Stuart Staniford, Vern Paxson & Nicholas Weaver, How to 0wn the Internet in Your Spare Time (May, 2002). (.pdf) (Warning: this is a bit technical in spots.)
  4. S. Christey, RFC 2795, The Infinite Monkey Protocol Suite (IMPS).
  5. D. Waitzman, RFC 2549, IP over Avian Carriers with Quality of Service (updates RFC 1149).

2: Metaphor, Analogy, Reality

As the Internet becomes bound into all of our daily activities, many argue that it makes increasingly little sense to think of “Internet Law” as a general subject. Instead, more and more, the Internet aspects of a subject are either a normal part of it, or a sub-field of it. Consider the car: it’s a very important part of our lives, and yet you will never meet a “car lawyer”. You may meet a personal injury lawyer who specializes in auto accidents; or a labor lawyer who works for United Auto Workers union; or a city planner who specializes in road design. No one would think of teaching a course that followed the legal issues caused by autos during the course of their existence — starting with the mining of the metals and the making of the plastics, running through labor and employment issues during construction, trademark issues going into car names, then car sales law (and lemon laws!), warranty and product liability, tort, dram shop liability, DUI, vehicular homicide, title and tax issues, and finally Superfund issues for car parts disposal.

We do teach many courses in law school that focus on a particular activity, e.g. Banking or Telecommunications, but in almost every such case we do so either because there is a statute, code, or a small group of statutes regulating the activity, or because regulation is dominated by a single agency (the SEC, the EPA) — although in no case is this distinction pure or sharp, as the common law will always seep its way in.

But that doesn’t explain this class. There is as yet no agency that regulates “the Internet” (although there are one or two that might like the job!), and indeed there is debate — which we will consider– as to the extent to which the Internet, or parts of it, are subject to regulation at all. What justification is there for treating the Internet as a subject of instruction in law school?

One answer is that it’s fun, and perhaps it might excite you enough to consider trying to make a career in it, if not as an “Internet Lawyer” (probably not possible given the breadth of the subject now), then at least as a [fill-in-the-blank] lawyer with a specialty in the Internet aspect of the field: a defamation lawyer specializing in online slime, a banking lawyer specializing in e-banking, a copyright lawyer specializing in stamping out innovation protecting rights-holders’ interests, and so on.

Another answer is that you can learn some useful stuff, although the extent to which it will dazzle partners during interviews is probably decreasing.

Perhaps the best answer, though, is that this class can teach you some skills you may not as easily acquire through the study of more clearly defined areas of law where, of necessity, more of your focus is on assimilating existing doctrine. Internet law makes one confront how the law deal with new things. It might be a new problem, or a virgin statute that has yet to be interpreted by a court, or a real-time situation in which courts around the country are in disagreement over a fundamental issue, but in each case some work has to be done to decide whether and how to regulate the new.

Of course, the law’s first reflex in dealing with the new is to make it old again by reaching for analogies to the familiar. Above, for example, I analogized the Internet to cars. Judge Frank Easterbrook famously analogized it to horses. (Cf. Frank H. Easterbrook, Cyberspace and the Law of the Horse, and Larry Lessig, The Law of the Horse). Sometimes these analogies, pingenholings, or categorizations, solve our problems. Sometimes the problem is that there are competing categorizations on offer, each with divergent outcomes, and someone — a judge, a legislature, a bureaucrat, an international negotiating team, a commentator, a lawyer advising a client with a new product — must select among them. And sometimes, perhaps, the reflex to make the new old breaks down, and we must make a new rule entirely, or none.

In considering the following assigned cases, think not only about what outcomes seem just or proper, but also about the method by which you reach your conclusions.

In Cyber Promotions v. America Online, 948 F. Supp 436 (ED Pa. 1996), the court rejected a claim by Cyber-Promotions that AOL acted illegally when AOL blocked mail from Cyber-Promotions to AOL subscribers (at one point, AOL accumulated a bunch of the mail then returned it all to to Cyber, crashing Cyber’s servers). Is this decisions consistent with the cases above? How do the lines between “private” and “public” apply to the Internet?

Two more things to think about:

  1. Elizabeth Kolbert, Pimps and Dragons
  2. T.R. Reid, Washington Post, Thanks for Last Night! (Dec. 18, 2000).

Some additional issues for discussion, besides the obvious ones raised by the readings:

  1. At what age would you let your child have unrestricted access to the Internet?
  2. How would you go about writing an “acceptable use of the Internet” policy for a law school? For a client’s organization?
    • What risks would you be most worried about?
    • What are the interest groups involved?
    • How would it differ from the rules you might impose on your children?
  3. Are there any limits on the ability of a firm, a law school, or an Internet service provider (ISP) to impose conditions on users of its computers?
  4. Many people say that this is the key to understanding the Internet. Do you agree?
  5. In what meaningful ways is Britannia a place? Like a place? Not like a place? How is this different from UM-Internet-space?

Doing:

Go to the Internet Skills Page [coming soon] and do at least two things from each of the first four categories.

Optional

  1. David Kaufer, Flaming: A White Paper (June 2000).
  2. Roger Clarke’s compilation of NET-ETHIQUETTE: Mini Case Studies of Dysfunctional Human Behaviour on the Net [Follow some of the great links]
  3. Katharine Mieszkowski, Salon.com, Candy From Strangers (Aug. 13, 2001).
  4. Alan Finder, For Some, Online Persona Undermines a Résumé, New York Times (June 11, 2006).
  5. S. Hambridge, RFC 1855: Nettiquette Guidelines (October 1995).
  6. Michael Singer, Are You Reading Your Kid’s E-Mail? (May 16, 2001).
  7. I presume that, as future lawyers, you have already read the acceptable use policies that apply to you as UM students. After all, violating them is a serious offense. But just in case you have not, here is the UM Law Computer Use Policy. Can you find the University’s Internet use policies? How many are there? Which one(s) apply to law students? In case of conflict with the law school’s policy, which one controls?
  8. Joseph Reagle, Why the Internet is Good: Community governance that works well (1998). You can skip the five numbered Appendices are optional, but I do recommend the Internet Quotation Appendix.

3: Looking Under the Hood: How the Web Works

Using your browser, examine the HTML code for this page (in Firefox it’s ctrl-U) (in Internet Explorer click on “view” then on “source” from the drop-down).

In class I will present a very basic introduction to what all this code means and why you should care. For example, we will discuss the difference between the following lines of code:

1. Point your browser at http://c2.com/cgi/wiki?GrandConspiracy

2. Point your browser at http://www.churchofcherry.org/images/hardcore%20pussy.jpg

3. Click here.

4. Be nice to the cat

5. Click on this picture:

Reading:

  1. Review the National Research Council, Signposts in Cyberspace (2005) §§ 1.1 - 1.5 (pages 1-1 to 1-11) reading from Unit 1.
  2. Excerpts from Froomkin, The Internet as a Source of Regulatory Arbitrage (book chapter) in Borders in Cyberspace (Brian Kahin and Charles Nesson, eds.) (MIT Press, 1997).

To prepare for class also look at the following documents and make as much sense of them as you can. We will go over this in class.

  1. Understanding and using HTML
  2. Basic HTML commands
  3. HTML commands for links

Optional:

  1. Ben Worthen, Who owns the Internet? We have a map that shows you (March 17, 2006).

4: Is “Cyberspace”?

I like to say that the Internet is not a thing, but the interconnection of many things. That’s not the most common view. The most common view is that it is a place–”cyberspace”. And the adoption of that metaphor has, many argue, serious consequences.

Readings (will probably occupy at least 2 classes):

  1. Excerpts from David R, Johnson & David G. Post, Law and Borders–The Rise of law in Cyberspace, 48 Stanford Law Review 1367 (1996).
  2. Excerpts from Dan Hunter, Cyberspace As Place And The Tragedy Of The Digital Anticommons, 91 Cal. L. Rev. 439 (2003). (Introduction, Sections I, III.A, III.C.1, III.D, IV (pp. 502-end), Conclusion)
  3. Excerpt from Mark Lemley, Place And Cyberspace,91 Cal. L. Rev. 521, 523-26 (2003).
  4. Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232 (11th Cir. 2001).
  5. Johnathan L. Zittrain, Jurisdiction (draft 2005), pages 78-93

And here’s my question: If cyberspace is a place, is there a bar exam?

More seriously, if “cyberspace as place” is not the best metaphor — is there a better one? Or are we stuck with it?

5 : Introduction to Jurisdiction

In thinking about jurisdiction, please keep in mind that there are at least three kinds of jurisdiction:

  • Jurisdiction to prescribe (make something criminal)
  • Jurisdiction to adjudicate
  • Jurisdiction to regulate

They are not necessarily the same — or are they?

Reading:

  1. Johnathan L. Zittrain, Jurisdiction (draft 2005), pages 1-38
  2. Tom Zeller, Countless Dens of Uncatchable Thieves, New York Times (April 3, 2006).
  3. Justice Department takes down $2.5 billion Internet gambling operation (May. 17, 2006).

Consider the following questions:

1. A key issue in any attempt to apply traditional ideas of jurisdiction to the Internet is characterizing “where” the Internet event “happened”. In how many different locations is it reasonable to say that the following events happened:

  • Alice sends email to Bob
  • Alice and Bob exchange a series of emails
  • Alice and Bob exchange a series of emails, inducing Alice to fly out to visit Bob
  • Alice views Bob’s web page
  • Alice libels Bob over Usenet
  • Alice purchases digital content from Bob’s web page, for immediate delivery, paying by credit card
  • Alice orders a package from Bob’s web page, which is later delivered from a warehouse at another location

2. To what extent are your answers to the above contingent on the means by which Alice and Bob access the Internet? Would any of the following affect your answers?

  • Access is by DSL to the home
  • Access is over a network in the workplace
  • Access is local dialup from the home to a nearby server
  • Access is local dialup, but unbeknownst to the customer, the server is in another state
  • Access is via dialup to an 800 number
  • Access is via satellite

3. Would any of these affect your answers?

  • The URL for Bob’s email and web page ends in .com, but Bob and Bob’s server are located abroad
  • The URL for Bob’s email and web page ends in .tm but Bob is located in Hawaii
  • Bob is ten years old and is using his parent’s Internet account without their permission.

4. Should one require the same degree of contacts for each of the following types of assertions of state power:

  • Exercise of personal jurisdiction over the defendant in a civil case?
  • Exercise of personal jurisdiction over the defendant in a criminal case? Selection of venue?
  • Exercise of prospective legislative or regulatory power over a general class of activities.
  • Exercise of in rem jurisdiction over a thing?

5. What in fact are the minimum contacts required for each of the above under US law? (Pull out your notes from civ pro I!)

6. Assuming that the Due Process Clause of the Constitution requires some sort of minimum contacts with a res or its owner in order to assert jurisdiction over the res, what is the constitutionally required minimum contacts with the US required in order for the US to assert in rem jurisdiction over the disposition of a domain name when the registrant resides abroad?

7. Do the policy arguments for limiting state ability to regulate the Internet in favor of the federal government work with equal force when used to argue that one should limit the power of the federal government to regulate in favor of international or supra-national bodies?

6: Topics in Jurisdiction

Reading:

  1. Chapters 3, 4 & 5 in Goldsmith & Wu
  2. Firth v. New York, 747 N.Y.S.2d 69 (N.Y. 2002).
  3. Firth v. State of New York, 761 N.Y.S.2d 361 (N.Y.A.D. 3 Dept. Jun 12, 2003).
  4. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001) [Yahoo! II], rev’d, 433 F.3d 1199 (9th Cir. 2006).
  5. Edited version of Yahoo!, Inc. v. La Ligue Contre Le Racism et L’Antisemitism, 433 F.3d 1199 (9th Cir. 2006) (en banc). (Westlaw version)

Thinking:

In light of the above, do you agree with the following analysis from Molly S. Van Houweling, Enforcement Of Foreign Judgments, The First Amendment, And Internet Speech: Notes For The Next Yahoo! v. Licra, 24 Mich. J. Int’l L. 697 (2003)?

Like its predecessors, the Yahoo! court fails to explain convincingly why enforcing a speech-restrictive foreign judgment is repugnant to public policy where any animus toward speech is expressed only by a non-state actor, and where enforcement is unlikely to restrict or chill speech within the United States. There are, however, several serious problems–overlooked by the Yahoo! court–with enforcing speech-restrictive foreign judgments against Yahoo! and other Internet speakers.

First, there are reasons to be skeptical about the ability of geographic filtering technologies to keep illegal Internet speech from reaching a regulating jurisdiction. The French court argued that Yahoo! could feasibly use filtering technology in part because Yahoo! already used such technology to determine where users were located for purposes of displaying geographically and linguistically appropriate advertisements. But the fact that filtering technology works reasonably well for targeted advertising says little about its ability to prevent people within certain jurisdictions from obtaining illicit materials. Users have little incentive to circumvent technology that merely determines what type of advertisements they will receive. Surely some Internet users will object to being denied other types of speech that their governments want to keep away from them. One of the experts who advised the French court has since argued that even the measures he recommended could be “trivially circumvented.” Some language in the French opinion suggests that Yahoo! would be held strictly liable for reasonable but imperfect filtering. Therefore, one might conclude that enforcing the French judgment would significantly chill speech within the United States because speakers would fear liability-triggering leakage into France.

Second, adverse effects on speech within our borders might arise if geographic filtering technology was prohibitively expensive for some Internet speakers. … For Internet speakers who use the Internet as an inexpensive speech medium but (unlike Yahoo!) cannot afford to take advantage of geographic filtering technology, enforcement of a foreign judgment requiring filtering might shut down the Internet speaker altogether.

The potential inadequacy and expense of geographic filtering technologies are two reasons why enforcement of a speech-restrictive foreign judgment might chill Internet speech to a U.S. audience, triggering valid First Amendment and public policy concerns. But these problems with the technology and expense of geographic filtering may be temporary. It therefore seems worth considering whether, assuming cheap and effective geographic filtering technology, enforcement of foreign judgments against speakers like Yahoo! still poses First Amendment problems that justify refusing domestic enforcement. Even if geographic filtering worked effectively and inexpensively, as it might someday, compliance with the French order would of course burden Yahoo!’s speech to French recipients. As noted above, some courts and commentators have suggested that the First Amendment does not protect speech directed to a foreign audience, and the Supreme Court has never clearly settled the question. …. The First Amendment should protect speech to foreign audiences even if the amendment is concerned primarily with domestic self-government. For one thing, speech to foreigners often indirectly impacts U.S. policy discussions and U.S. policy making. More generally, at least some speech has attributes of a network good. It is more valuable when more people use it–more valuable for building communities, for igniting illuminating debates, and for spreading ideas. Therefore, even a First Amendment theory concerned only with speech’s political value to U.S. speakers and listeners should acknowledge that our domestic dialogue benefits when we have more people (from more places) in on the conversation.

This First Amendment interest in speech to foreigners does not settle the question of the enforceability of foreign speech-restricting judgments. Perhaps the First Amendment interest in reaching a global audience is outweighed by the (generally applicable) governmental interest in maintaining neighborly relations by enforcing judgments against activities, including speech, that do harm in other countries. ….

There is a concern that lingers even if we conclude that policies in favor of enforcing foreign judgments outweigh a speaker’s interest in reaching a foreign audience with speech that is illegal in the foreign jurisdiction. Assuming that technology continues to improve, it may become easier to withhold speech from foreign countries than to sort out inconsistent foreign laws that specify what counts as harmful where. At that point, the private benefit speakers receive from choosing to reach a global audience may not be worth the extra cost, in terms of legal research and compliance, of speaking globally–even if the public benefits from creating a global conversation exceed the costs. Internet speakers may therefore react to enforcement of speech-restrictive foreign judgments by using geographic filtering technology to send all of their speech–harmful and harmless, illegal and legal, racist rants and recipes–only to a U.S. audience. Limiting Internet speech to only U.S. recipients could thus sacrifice not only the speech to foreigners that would violate foreign laws, but also speech that would be perfectly legal everywhere.

The Yahoo! district court unconvincingly suggests that enforcing the French court’s judgment against Yahoo! would chill speech from Yahoo! to U.S. recipients. That might be true if geographic filtering technology was ineffective or prohibitively expensive, but the Yahoo! court made neither of those findings, and problems with the technology are likely temporary. The enduring problem with enforcing this type of judgment is that it might encourage U.S. Internet speakers to communicate only with U.S. audiences, sacrificing even legal communication with foreign audiences–communication that is valuable here, and does no harm there. This possible consequence of enforcing foreign judgments that restrict Internet speech, an effect ignored by the Yahoo! court, strikes me as the most repugnant feature of enforcing speech-restrictive foreign judgments in the United States.

7: Topics in Jurisdiction (continued)

  1. Chapters 9 & 10 in Goldsmith & Wu
  2. Council of Europe, Convention on Cybercrime
  3. Statement of Attorney General Alberto R. Gonzales on the Passage of the Cybercrime Convention (Aug. 4, 2006).
  4. U.S. v. Schaefer, 501 F.3d 1197 (C.A.10 2007).

Optional: US Dept. of Justice, Council of Europe Convention on Cybercrime: Frequently Asked Questions and Answers (Update as of November 10, 2003)

Thinking

  1. Do you agree with General Gonzales’s analysis of the Cybercrime Convention? Why?
  2. There’s something very formalist about the Schaefer decision. Does this sort of formalism have a place in judicial decisions about the Internet?

8. Filtering Online Smut

The leading Supreme Court cases (and statutes)

  1. Reno v. ACLU, 521 U.S. 844 (1997). (The CDA Case) [in reading this case, it may be useful to have a copy of this excerpt from Communications Decency Act] (Alternate text of CDA, 47 U.S.C.A. §§223, 230 )
  2. Edited version of United States v. ALA, 539 U.S. 194 (2003). [in reading this case, it may be useful to have a copy of the Children’s Internet Protection Act (CIPA) (codified at 20 U.S.C.A. § 7001 note) handy]
  3. Ashcroft v. ACLU (COPA II), 542 U.S. 656 (2004). [in reading this case, it may be useful to have a copy of the Child Online Protection Act (COPA), (1998) (codified at 47 U.S.C. §231 ).

  4. Excerpts from American Civil Liberties Union v. Gonzales (COPA III), 478 F.Supp.2d 775 (E.D.Pa. 2007).

Other cases/situations of note:

  1. New York adopted a statute prohibiting the online communication of speech “harmful to minors.” In American Library Association v. Pataki, 969 F.Supp.160 (S.D.N.Y. 1997), the district court struck it down on Commerce Clause grounds, stating:

    [T]he Internet is one of those areas of commerce that must be marked off as a national preserve to protect users from inconsistent legislation that, taken to its most extreme, could paralyze development of the Internet altogether. Thus, the Commerce Clause ordains that only Congress can legislate in this area, subject, of course, to whatever limitations other provisions of the Constitution (such as the First Amendment) may require.

  2. The Loudoun County Library Board voted to filter Internet access. After complaints from civil libertarians, the board voted to reconsider the issue, but then adopted an even tougher filtering policy. Free speech organizations sued. Judge Brinkema, a former librarian, held the policy unconstitutional because the policy: (1) was not necessary to further any compelling government interest; (2) was not narrowly tailored; (3) restricted the access of adult patrons to protected material just because the material is unfit for minors; (4) provided inadequate standards for restricting access; and (5) provided inadequate procedural safeguards to ensure prompt judicial review. The Board of Trustees voted not to appeal Judge Brinkema’s decision. Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 24 F. Supp. 2d 552 (E.D. Va. 1998) (Optional: Read the decision) (Or read this excerpted version).
  3. Professors at public colleges and universities brought suit challenging constitutionality of a Virginia statute restricting state employees from accessing sexually explicit material on computers in their workplaces that were owned or leased by the state which stated in part:

    “Except to the extent required in conjunction with a bona fide, agency-approved research project or other agency-approved undertaking, no agency employee shall utilize agency-owned or agency-leased computer equipment to access, download, print or store any information infrastructure files or services having sexually explicit content. Such agency approvals shall be given in writing by agency heads, and any such approvals shall be available to the public under the provisions of the Virginia Freedom of Information Act “

    Although they won in the District Court (before Judge Brinkema), the 4th Circuit reversed and upheld the statute on the grounds that (1) the statute did not infringe the First Amendment rights of state employees in general; (2) nor did it violate the First Amendment academic freedom rights of the plaintiff professors; and (3) to the extent the Constitution recognizes any right of academic freedom above and beyond the First Amendment rights to which every citizen is entitled, the right inheres in a university, not in individual professors. Urofsky v. Gilmore, 216 F.3d 401 (4th cir. 2000) (en banc) (Optional: read the decision) The Supreme Court denied cert.

  4. Pennsylvania enacted an “Internet Child Pornography Law” authorizing the state Attorney General to force ISPs to block Pennsylvania residents’ access to sites the AG’s office identified as child pornography. The ISPs had to block access through their networks whether or not there was a claim that the ISPs were responsible for the sites at issue. The District Court struck down the law. See the summary of CDT v. Pappert, 337 F.Supp.2d 606 (E.D. Penn. 2004) (via CDT) (.pdf), for details.
  5. As part of the Adam Walsh Child Protection And Safety Act Of 2006, the US Congress recently enacted the following language. What objective does it serve? Is it likely to achieve that objective? Is it constitutional?:

    ‘‘§ 2252C. Misleading words or digital images on the Internet ‘‘(a) IN GENERAL.—Whoever knowingly embeds words or digital images into the source code of a website with the intent to deceive a person into viewing material constituting obscenity shall be fined under this title and imprisoned for not more than 10 years.

    ‘‘(b) MINORS.—Whoever knowingly embeds words or digital images into the source code of a website with the intent to deceive a minor into viewing material harmful to minors on the Internet shall be fined under this title and imprisoned for not more than 20 years.

    ‘‘(c) CONSTRUCTION.—For the purposes of this section, a word or digital image that clearly indicates the sexual content of the site, such as ‘sex’ or ‘porn’, is not misleading.

    ‘‘(d) DEFINITIONS.—As used in this section—HR 4472 EAS

    ‘‘(1) the terms ‘material that is harmful to minors’ and ‘sex’ have the meaning given such terms in section 2252B; and ‘‘(2) the term ‘source code’ means the combination of text and other characters comprising the content, both viewable and nonviewable, of a web page, including any website publishing language, programming language, protocol or functional content, as well as any successor languages or protocols.’’.

In class I will be talking about technological means to filter online content.
If you want, optionally, to learn about that, have a look at

Things to think about

  • Suppose you were a parent seeking some sort of filtering software to install on a home computer that would be connected to the Internet and used by a child.
  • What would you want to know about the software?
  • What First Amendment issues do filters raise if the government …
    1. Subsidizes them in order to aid parents in their attempts to control the internet use of their children
    2. Requires them in public libraries
    3. Provides them free of charge online
    4. Regulates them to ensure quality
    5. Conditions all grants to elementary schools on the installation of filters on internet-enabled computers
    6. Conditions all grants to universities on the installation of filters on internet-enabled computers
  • To what extent would these First Amendment concerns be removed by the creation of a ‘perfect’ filter — one that didn’t make mistakes?

9. Filters (continued)

Unfiltered

  1. Among its many provisions, the Communications Decency Act contains § 230, which states

    a) Findings

    The Congress finds the following:

    (1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

    (2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

    (3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

    (4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

    (5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

    (b) Policy
    It is the policy of the United States—

    (1) to promote the continued development of the Internet and other interactive computer services and other interactive media;

    (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

    (3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;

    (4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and

    (5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

    (c) Protection for “Good Samaritan” blocking and screening of offensive material

    (1) Treatment of publisher or speaker

    No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

    (2) Civil liability

    No provider or user of an interactive computer service shall be held liable on account of—

     

    (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

    (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[So in original. Probably should be “subparagraph (A).”]

    (d) Obligations of interactive computer service

    A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.

    (e) Effect on other laws

    (1) No effect on criminal law

    Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.

    (2) No effect on intellectual property law

    Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

    (3) State law

    Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

    (4) No effect on communications privacy law

    Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.

    (f) Definitions

    As used in this section:

    (1) Internet

    The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.

    (2) Interactive computer service

    The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

    (3) Information content provider

    The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

    (4) Access software provider

    The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:

    (A) filter, screen, allow, or disallow content;

    (B) pick, choose, analyze, or digest content; or

    (C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.

  2. Several courts have read § 230 to provide complete immunity for ISPs with regard to the torts committed by their users over their systems. See, e.g., Zeran v. AOL, 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998) (section 230 “creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service”); Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D.D.C. 1998) (AOL has Section 230 immunity from liability for the content of an independent contractor’s news reports, despite agreement with the contractor allowing AOL to modify or remove such content)
  3. On the other hand, there are some limits — and courts may be finding more. For example, consider the case of an online publisher who refused to remove defamatory content in comments after being given notice that the material is defamatory.
  4. Note also the opinion [optional reading] of a very divided court in Fair Housing Council of San Fernando Valley v. Roommate.com, 489 F.3d 921, vacated for rehearing en banc, 506 F.3d 716 (9th Cir. 2007). The issue was to what extent sec. 230 immunized the solicitation and structuring of responses via drop-down menus that encouraged and then organized the expression of discriminatory housing preferences which in other contexts would have been illegal.
  5. Craigslist provides a classified ads service. The Chicago Lawyers’ Committee for Civil Rights Under Law, sued Craigslist in 2006 for allegedly violating the Fair Housing Act (FHA), which prohibits (among other things) discriminatory advertisements for housing. Customers of Craigslist had posted advertisements for rental properties with clauses like “NO MINORITIES” and “Requirements: Clean Godly Christian Male”, both of which violate the provisions of the FHA. While Craigslist has pulled such advertisements (and has a policy requiring customers who post classified ads to adhere to the Fair Housing Act), Craigslist does not prescreen advertisements prior to publication on their site, and as of March 2006, refuses to do so. Instead, Craigslist depends on users to report abusive advertisements, which are then examined and removed if found to be inappropriate. Does § 230 immunize Craigslist against FHA liability?
  6. Note that by its own terms sec. 230 does not apply to federal criminal law, intellectual property law, and electronic communications privacy law.

Required filters?

  1. Kathleen R. v. City of Livermore, 87 Cal.App.4th 684 (2001).
  2. Complaint of Virgnia Pear against Minneapolis Public Library (May 2, 2000).
  3. Cynthia L. Smith v. Minneapolis Public Library EEOC Determination. Re: Unrestricted Internet Access Policy of Minneapolis Public Library Creates Sexually Hostile Work Environment.(May 23, 2001) [Note-although the names are different this EEOC determination responds to several similar complaints including the Pear complaint above]

Stealth filters?

  1. Jonathan Zittrain & Benjamin Edelman, Documentation of Internet Filtering Worldwide (summary page)
  2. Jonathan Zittrain & Benjamin Edelman, Empirical Analysis of Internet Filtering in China (summary page)
  3. Peacefire, et al, Coalition statement against “stealth blocking”

Sharing filters

The California Court of Appeal for the Fourth District held Jan. 11 in Pallorium Inc. v. Jared, Cal. Ct. App., No. G036124, 1/11/06, aff’d 2007 WL 80955, unpublished/noncitable (Jan 11, 2007), review denied (Apr 11, 2007), that an open relay data filter operator who makes his filter and its supporting database publicly available enjoys immunity from liability under the Communications Decency Act.

Filtering Ads

Declan McCullagh, Web ad blocking may not be (entirely) legal., C-Net (Sep 14. 2007).

10. Spam & Spam-fighting

  1. Wikipedia, Spam
  2. Wikipedia, DNSBL
  3. Skim the CAN-SPAM Act of 2003 [Optional: read about the FTC’s Report on “bounties” for spammers and “Son of Can-Spam”]
  4. Skim the Summary of State anti-Spam Laws
  5. State v. Heckel, 143 Wash.2d 824, 24 P.3d 404 (Wash. 2001). Westlaw
  6. Excerpts from Roger Allan Ford, Preemption Of State Spam Laws By The Federal Can-Spam Act , 72 U. Chi. L. Rev. 355 (2005). (Westlaw full text)
  7. Review White Buffalo Ventures, LLC v. University of Texas at Austin, 420 F.3d 366, 2005 WL 1806353 (C.A.5, Aug 02, 2005). [Unit 2]
  8. Review Intel Corp. v. Hamidi, 71 P.3d 296, 30 Cal.4th 1342 (2003) [Unit 2]
  9. MAPS, Introduction to the Realtime Blackhole List (RBL) servers
  10. David G. Post, Of Black Holes and Decentralized Law-Making in Cyberspace, Vand. J. Ent. L. & Pract. (2000).

Questions for Thinking and Discussion

  1. Was there a need for law here? Or were people using Internet tools on track to solving the spam problem?
  2. What does the law add/subtract that the technical means did not provide?
  3. More generally, what sort of Internet issues lend themselves to technical solutions and what sort call for a legal response?
  4. Does the Spam problem tell us anything useful about what level of government is best suited to deal with Internet issues? Were the states on track to cope or was this a federal matter? Is the federal government enough? If not, what then?
  5. Can or should the law speak to the side-effects of technical solutions to Internet problems? If so, what should it say? If not, how do you get it to shut up?
  6. Does the following law have anything to teach us (and is it as a good or bad example?):

18 USC § 2261A. Stalking
“Whoever–
“(1) travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to that person, a member of the immediate family (as defined in section 115) of that person, or the spouse or intimate partner of that person; or
“(2) with the intent–
“(A) to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States; or “(B) to place a person in another State or tribal jurisdiction, or within the special maritime and territorial jurisdiction of the United States, in reasonable fear of the death of, or serious bodily injury to–
“(i) that person;
“(ii) a member of the immediate family (as defined in section 115 of that person; or
“(iii) a spouse or intimate partner of that person;

uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii) of subparagraph (B);

shall be punished as provided in section 2261(b) of this title.”.”.

Optional:

  1. Short and useful definition of an Open Relay
  2. John Leyden, Open relay spam is ‘dying out’
  3. Basic Spam Fighting and Advanced Spam Fighting
  4. Spam Gourmet
  5. Roger Clarke’s Spam Page
  6. Wikipedia, Advance Fee Fraud
  7. The 419 Eater & Scamorama
  8. List of Spam Blacklists
  9. Spam-L FAQ, Tracking Spam & Blocking Spam
  10. David Dickinson, An Architecture For Spam Regulation, 57 Fed. Comm. L.J. 129 (2004). (Westlaw)
  11. Optinrealbig.com, LLC v. IronPort Systems, Inc. 323 F. Supp. 2d 1037 (N.D. Cal. 2004).
  12. CompuServe, Inc. v. Cyberpromotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997).
  13. Harris Interactive Files Suit Against AOL, Microsoft, Qwest and Other ISPs Over Restraint of Trade; Judge Denies TRO in Harris v. Maps Case (Aug. 8, 2000). [scroll down to the middle of the page to find article]; MAPS, MAPS AIDS HARRIS INTERACTIVE IN MOVE TO 100% CONFIRMED OPT-IN (Aug. 21, 2001).[scroll to bottom of the page to find article]
  14. Patricia Odell, Richard H. Levey, Yesmail Gets Restraining Order Against MAPS Blacklist, DirectNewsline (July 17, 2000).; Yesmail and MAPS Agree to Put Litigation on Hold, DirectNewsline (July 26, 2000).
  15. MAPS Settles Experian Litigation; Industry Leading E-mail Standards Remain in Place(Oct. 3, 2001). [scroll to middle of the page]; MAPS, EXACTIS SUIT AGAINST MAPS DISMISSED (Oct. 3, 2001). [scroll to middle of the page]
  16. Ferguson v. Friendfinder, Cal. Sup. Ct. (S.F.) (June 7, 2000).

11: Controlling Access to data (I): Anonymity vs. Privacy-destroying technology

  1. Froomkin, Anonymity in the Balance, in Digital Anonymity and the Law: Tensions and Dimensions (C. Nicoll, J.E.J. Prins & M.J.M. van Dellen eds. 2003).
  2. Edited version of American Libraries Ass’n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997).; full version available at ACLU and also on Westlaw
  3. Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177 (2004). (findlaw)
  4. Edited version of Vo v. City of Garden Grove, 115 Cal.App.4th 425 (2004). (Westlaw) (alt. pdf)

Optional:

  1. Froomkin, The Death of Privacy?, 52 Stan. L. Rev.. 1461 (2000).
  2. Comment: Don’t Shoot The Messenger: Limiting The Liability Of Anonymous Remailer Operators, 32 N.M. L. Rev. 99

Thinking

  1. Even if the First Amendment allows it, in light of the Dormant Commerce Clause can states legislate against anonymity?
  2. What values does anonymity serve/harm? How do these compare online to offline?
  3. What are the costs/benefits of a ‘goldfish bowl’ world in which movements, reading habits, associations are recorded and accessible to others? Does it matter who the others are (governments, courts, parents, angry spouses, nosy neighbors)? On what terms they can get it (free, payment, good cause shown)?

12. Controlling Access to Data (II): More on Anonymity & Control of Personal Information

  1. Public Attitudes:
    1. Kimberly Stevens, New York Times, Late-Late Show, Starring Your Neighbors (Apr. 13, 2000).
    2. Carl S. Kaplan, Reconsidering the Privacy of Office Computers, New York Times (July 27, 2001). [Alternate link]
    3. Dick Kelsey, Newsbytes, Site Warns Of New Neighbors Who Are Sex Offenders (June 13, 2001).
    4. Daniel Henninger,Wall St. Journal, Disinhibitation Nation (April 21, 2006).
    5. Noah Bierman, Miami Herald, UM Newspaper Defends Controversial Article (Nov. 20, 2005).
  2. Data Retention Programs (and Programs)
    1. William M. Arkin, Name, Rank, E-Mail Address?, The Washington Post (April 10, 2000).
    2. Haaretzdaily.com, Big Brother is watching you - and documenting (Feb. 20, 2003).
    3. Lisa Guernsey, You Can Surf, but You Can’t Hide, The New York Times (February 7, 2002).
    4. Stefanie Olsen, Nearly Undetectable Tracking Device Raises Concern, CNET News.com (July 12, 2000).
    5. Roger Clarke, Identification, Anonymity and Pseudonymity in Consumer Transactions: A Vital Systems Design and Public Policy Issue
    6. Edgar Bronfman, Jr, Remarks (May 26, 2000). [Please note the irony of this link.]
    7. 18 USC 2701, Unlawful access to stored communications
    8. In re Doubleclick Inc Privacy Litigation., 154 F.Supp.2d 497 (S.D.N.Y., 2001). [Westlaw]
  3. IDing Speakers As Social Policy
    1. Eric Friedman and Paul Resnick, The Social Cost of Cheap Pseudonyms (Aug. 17, 2000). (.pdf), Introduction & Conclusion
    2. David L. Sobel, The Process that “John Doe” Is Due: Addressing the Legal Challenge to Internet Anonymity, 5 Va. J.L. & Tech. 3 (2000).
      1. Paul Levy, Public Citizen, Company and law firm misused John Doe subpoena to enable retaliation
      2. Excerpts from John DOE No. 1 v. Cahill, — A.2d —-, 2005 WL 2455266 (Del. Oct 05, 2005). Westlaw
    3. BBC, Yahoo ‘helped jail China writer’ (Sept. 7, 2005).
    4. Kevin Poulsen, Wired, Feds Fear Air Broadband Terror (July 11, 2005).
    5. EFF, Secret Code in Color Printers Lets Government Track You (Oct. 17, 2005).
    6. Kevin F. Berry, The Corporate Counselor, How to Unmask an Anonymous Blogger (Apr. 4, 2006).
    7. European Union, DIRECTIVE 2006/24/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC

Optional:

  1. National ID Cards? Froomkin, The Uneasy Case for National ID Cards as a Means to Enhance Privacy (draft).
  2. Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088 (W. D. Wash. 2001).
  3. Anderson v. Hale, 2001 WL 503045, 2001 U.S. Dist. LEXIS 6127, 49 Fed.R.Serv.3d 364 (N.D. Ill. May 10, 2001).
  4. In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va.Cir.Ct.,2000).
  5. Stephen K. Gielda, Church of the Swimming Elephant, What it is like behind Cotse? (June 5, 2001).
  6. Jennifer Lynch, Identity Theft in Cyberspace: Crime Control Methods and Their Effectiveness in Combating Phishing Attacks, 20 Berk. Tech. L. Rev. 259 (2005). [Westlaw]

Doing

Take the Phishing Fraud IQ Test

Thinking

  1. Are sites such as Ratingsonline.com or RatemyProfessors.com a public service, an amusing diversion, an invitation to libel, a snare and delusion, or all of the above?
  2. Anything to worry about in course outlines online or law school application essays online?
  3. Who is Grady Harp? and does it matter?
  4. How critical is the presentation of self in everyday life? What does it affect? How much of that could the Internet change?
    • How would this class be different if we were all telecommuting from home, and manifested to each other via the avatar (virtual image) of our choice?
    • What image would you select for your personal avatar? One based on your actual image? A movie star? A cartoon character? An inanimate object?
    • Does the existence of this service affect your opinion on the importance of the presentation of self?

13. Controlling Access to data (III): DRM & UELAs

  1. Jonathan Zittrain, Technological Complements to Copyright, pp. 16-19 & 31-120 [optional: read the rest too]
  2. Edited version of Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,  545 U.S. 913 (2005) (Westlaw) (Findlaw)
  3. Aaron McKenna, TG Daily, RTF EULA (22 Oct 2005)
  4. Wendy Seltzer, Legal Tags: Forbidding Vistas: Windows licensing disserves the user (Oct. 19, 2006)
    5.

Optional:

    1. Molly Shaffer van Houweling, The New Servitudes, (forthcoming Geo. L.J. 2008) (SSRN)
    2. Diane M. Barker, Definiing the Countours of the Digital Millenium Copyright Act: The Growing Body of Case Law Surrounding the DMCA, 20 Berk. Tech. L.J. 47 (2005) [Westlaw]

14. Search Engines (I): Introduction

  1. James Grimmelmann, The Structure of Search Engine Law, 93 Iowa L. Rev. 1 (2007) (PDF)

15. Search Engines (II): Assorted Problems

  1. Kelly v. Arriba Soft, 336 F3d 811 (9th Cir. 2003) (Westlaw) 
  2. Edited version of Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007)  (Westlaw)
  3. Edited version of Google v. American Blind & Wallpaper Factory, 2005 WL 832398 (N.D. Cal. March 30, 2005) 
  4. Jessie Seyfer, The Recorder, Google Foe Ends Unique Trademark Suit Over Keywords (Sept. 5, 2007)
  5. US FTC, Commercial Alter Complaint Requesting Investigation of Various internet Search Engine Companies for Paid Placement and Paid Inclusion Programs (June 27, 2002)
  6. Edited version of FTC v. Dircect Marketing Concepts Inc,, 2004 WL 1399185 (D. Mass. 2004) (Westlaw)
  7. Search King v. Google Tech., 2003 WL 21464568 (W.D. Ok. 2003)
  8. Sara Kehaulani Goo, Washington Post, Click Fraud’ Threatens Foundation of Web Ads: Google Faces Another Lawsuit by Businesses Claiming Overcharges (Oct 22, 2006).


16. Search Engines (III):  More Problems

  1. Excerpt from Lucas D. Introna & Helen Nissenbaum, The Politics of Search Engines (2000) 
  2. Susan L. Gerhart, First Monday, Do Web search engines suppress controversy? (2004)
  3. Excerpt from Herman Tavani, Search Engines, Personal Information, and the Problem of Privacy in Public
  4. Excerpt from Remburg v. Docusearch, Inc, 816 A.2d 1001 (N.H. 2003) (Westlaw)
  5. Find  the Google Privacy Policy online and read it.  Be prepared to state in class 
    1. How you found it,
    2. How many pages long it is, and
    3. How many documents are incorporated by referrence.  (Read all the relevant ones…)
  6. Excerpt from Gonazales v. Google, 234 FRD 674 (ND Cal. 2006) (Westlaw)
  7. Katie Hafner, New York Times, We’re Google. So Sue Us. (Oct. 23, 2006)
  8. 17 USC 512
  9. Excerpt from Field v. Google, 412 F.Supp.2d 1106 (D.Nev. 2006) (Westlaw) (eff)

17. Cryptography as a Threat to the State 

    Reading

    1. Statement of Louis J. Freeh, Director of the Federal Bureau of Investigation, Before the Senate Committee on Judiciary Subcommittee for the Technology, Terrorism, and Government Information, on Cybercrime (March 28,  2000);
    2. Declan McCullagh, Former FBI chief takes on encryption, CNET News.com (Oct. 14, 2002)
    3. Froomkin, The Metaphor is the Key: Cryptography, the Courts, and the Constitution, 143 Penn. L. Rev. 709 (1995), §§ I.A, I.C.2(a)&(b), III & IV.B
    4. Anonymous, Introduction to Blacknet
    5. Orin S. Kerr,  The Fourth Amendment in Cyberspace: Can Encryption Create a “Reasonable Expectation of Privacy?”, 33 Conn. L. Rev. 503, 503-04, 507-24 (2001) (on SSRN)
    6. Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)
    7. Kyllo v. United States, 533 U.S. 27 (2001).  Majority opinion.  Dissenting opinion.
    8. In re Boucher, 2007 WL 4246473yy (D. VM Nov. 29 2009)

    Thinking

    • Which of the following are First Amendment “speech”
      • a message encrypted in a code no one remembers
      • ancient hieroglyphics
      • modern art
      • the source code for cryptographic software
      • a paper piano roll in a player piano
      • a list of random numbers
      • a program (compiled) for cryptographic software
      • an encrypted message
      • a gun
      • a nuclear bomb
      • blueprints for a gun
      • blueprints for a nucelar bomb
      • instructions on how to build a nuclear bomb in rhyming couplets set to music
    • What meaning does a ‘reasonable expectation of privacy’ have as technology changes?
    • What limits can the US government impose on the use of cryptography in peacetime?  In wartime?
    • How dangerous is cryptography in the wrong hands?
    • Can it be kept out of the wrong hands?  How?
    • If cryptography cannot be kept out of the wrong hands, what policies can nations adopt to minimize illicit uses short of an outright ban?

    Optional

    1. Bernstein v. United States, 176 F.3d 1132 (9th Cir. 1999) [note that this opinion was withdrawn by Bernstein v. U.S. Dept. of Justice, 192 F.3d 1308 (1999), which granted a rehearing en banc; the matter was subsequently remanded to the district court for further proceedings in which the government basically said it doesn’t intend to enforce the regulations against people like Bernstein]
    2. D.J. Bernstein, Bernstein v. United States web site
    3. Eben Moglen, So Much For Savages (1999)
    4. Dam, Kenneth and Lin, Herbert (Eds), Executive Summary of the CRISIS Report
    5. Hal Abelson et al, The Risks of Key Recovery, Key Escrow & Trusted Third Party Encryption (1998)
    6. Peter Lewis, On the Net (Sept. 11, 1995)
    7. Tim C. May, The Crypto Anarchist Manifesto,
    8. Report of the President’s Working Group on Unlawful Conduct on the Internet, The Electronic Frontier: The Challenge of Unlawful Conduct Involving Use of the Internet
    9. Bruce Sterling, The Hacker Crackdown (1994),
    10. John Gilmore, Re: PERL/RSA t-shirts for Americans only (June 6, 1995)
    11. Dave Touretzky, How to decrypt a DVD: in haiku form (2001)
    12. Highly recommended: Don’t Eat Pete, D-e-C-S-S (descramble) (.mp3) 

18: ICANN for Beginners

  1. Froomkin, Form and Substance in Cyberspace, 6 J. Small & Emerging Bus. L.J. 93 (2002)
  2. United States Department of Commerce National Telecommunications and Information Administrtatio (NTIA), US Statement of Principles on the Internet’s Domain Name and Addressing System (June 2005)
  3. Internet Governance Project, Concept Paper: The Future US Role in Internet Governance: 7 points in response to the US Commerce Department’s “Statement of Principles (July 2005)
  4. The .xxx Mess
    1. Declan McCullah, News.com, Porn-friendly ‘.xxx’ domains approved (June 2, 2005)
    2. Declan McCullah, News.com, Bush administration objects to .xxx domains (Aug. 15, 2005)
    3. Charles Jade, Ars Technica, US wants ICANN to delay .xxx (Aug. 16, 2005)
    4. Internet Governance Project, Statement Opposing Political Intervention In The Internet’S. Core Technical Administrative Functions (Aug. 23, 2005)
    5. CDT, Letter to NTIA’s Michael D. Gallagher (Sept. 30, 2005)
    6. Kieren McCarthy, The Register, ICANN kills .xxx porn domain (Dec. 1, 2005)
    7. Milton Mueller, ICANNWatch.org, XXX Controversy Signals Major Change in ICANN (Dec. 3, 2005)
    8. GAC Communiqué Section III (March 28, 2006)
    9. ICANN, ICANN Board Votes Against .XXX Sponsored Top Level Domain Agreement (May 10, 2006)
    10. Susan Crawford, A Low Point (May 12, 2006)
    11. Milton Mueller, ICANNWatch.org, ICM Registry Mounts FOIA Appeal (May 19, 2006)
    12. Internet Governance Project, Review of Documents Released under the Freedom of Information Act in the .XXX Case (May 19, 2006)

Optional:

  1. Froomkin, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L.J. 17 (2000), pp. 20-50.
  2. Joe Sims & Cythia L. Bauerly, A Response to Professor Froomkin: Why ICANN Does Not Violate the APA or the Constitution, 6 J. Small & Emerging Business L. 65 (2002) (Westlaw version)