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Defamation, Free Speech, Jurisdiction and the Net? 349

Posted by Cliff
from the stuff-to-talk-about dept.
An anonymous reader asks: "I'm writing a legal article on jurisdiction and defamation via the web. There seems to be a trend in various national courts (eg the UK, Australia, Malaysia) to treat the place where a web-page is *read* (ie browsed) as the place of publication of its contents, regardless of where the page or the server serving it are located. This has far-reaching ramifications, as it opens up anyone publishing anything on a web-site (and also Usenet) in America to the more restrictive domestic laws of other countries -- not just for slander/libel/defamation, but also treason, lese-majestie, hate speech and general censorship laws (think Yahoo and France). Does anyone have personal, practical experience of being threatened by foreign governments or government bodies for material put up on the Net? Or is it just an inevitable consequence, to be overcome by geographical tagging of a browser's location (think icravetv.com) or similar measures?"

"Many people assert that informed Netizens see this as a way of fragmenting the Net, of imposing geographic boundaries and destroying part of the fundamental location-agnostic nature of the web and the Net -- ie, that it's a Bad Thing. Is this really so? Does anyone see this as a good, or at least a neutral, thing?"

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Defamation, Free Speech, Jurisdiction and the Net?

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  • Just try to make web sites that please all foriegn governments.
    • Would that be a 404 or 403 error?
    • A Call To Arms (Score:3, Insightful)

      by heretic108 (454817)
      One of the noblest moments in human history was when settlers in the new America rose up to assert and defend their independence from the religious oppression that was endemic throughout Europe.

      We now face a similar threat to freedom, with governments around the world asserting power to stifle free speech originating from other countries.

      However, this time, guns simply won't work.

      The call to arms that I espouse is for all internet users to adopt the weapons of anonymity and encryption.

      For the sake of basic online human rights, I call on all netizens to familiarise themselves with all anonymising technologies, and for all people with development skills to create and improve such technologies.

      One basic weapon is the anonymising proxy server. This allows people to use the web to publish opinions that cannot be traced to them personally (assuming of course the operator of the proxy server don't keep logs and make them available to various authorities worldwide).

      But an even more potent weapon is the Free Network project [freenetproject.org] at www.freenetproject.org [freenetproject.org]. Freenet provides technology that allows freesites (similar to websites) to be published. The advantage of freesites is that they can't be traced to their author, since they are distributed at several points around the network. In fact, any attempt to locate the source of the information, or delete it, results in such information proliferating further around the net.

      However, Freenet is just a taste of things to come. There's a whole new generation of stealth technologies emerging which will wrest the power of the internet out of the hands of governments and restore it to the common citizen. One such technology is the Invisible Internet Project (formerly called Invisible IRC Proxy), which will provide secure IP-level tunnelling, anonymising and encryption features.

      People, please don't take these threats to your freedom lying down. If enough of us start using these new liberating technologies, we'll be too large a market for ISPs and governments to block us.
      • This is simple historical revisionism. The prime example of "religious freedom" in the US was a backward group of fundies that came to the new world not to live in peace with tolerance but so that they would be free to opress anyone they could hold dominion over. This is why they they left Holland where they were already tolerated.

        The "Religious" came to America so that they could enact Blue Laws and generally interfere in other peoples affairs, not for "religious freedom".


    • A MiniHowTo on Pleasing Malaysia Court -

      1. Get A Lot Of Money.

      2. Donate The Money To The Prime Minister Of Malaysia, or, Give A Sizeable Chunk Of Your Company (in terms of shares / ownership) to One Or More Sons Of The Prime Minister. In Other Words, Bribe The Guy, Or Bribe His Family.

      3. Get To Know The Judges - who are appointed by the Prime Minister - through the Prime Minister himeself.

      4. Before You File A Defamation Suit, Tell The Prime Minister About It. Make Sure That The Judges *Are* Informed Of Your Up And Coming Suit.

      5. From Then Onwards, Everything Is Arranged For You. You Can Ask For Whatever Amount. You Victory Is Guaranteed Even If YOur Evidence Is Extra-Ordinarily Flimsy.

      6. If You Can't Collect The Judgement - If The Losing Side Don't Have The Money - You Can Sue Again, And Make Those Bastards Pay For "Defaming You". The Court System Of Malaysia Will Throw Your Enemies Into Jail, Because No Justice In Malaysia Will Dare To Make The "Friends Of Prime Minister" Look Bad.

      End Of MiniHowTo
  • Radio? (Score:4, Insightful)

    by st0rmshad0w (412661) on Wednesday January 09, 2002 @04:16PM (#2811748)
    If they can't do anything about broadcast radio propaganda etc, why should they be able to claim jurisdiction over web traffic? The parallels are pretty close.
    • They do. Re:Radio? (Score:3, Informative)

      by func (183330)
      Absolutely. If I hear a broadcast from Iran, or any one of the countries that have told the ITF (I think that's the acronym, can't remember right now) that their citizens are not allowed to talk on my ham radio, I'm legally required to not listen to it. I guess I'm supposed to plug my ears, or pull the radio plug out of the wall as soon as I hear a callsign from one of the blacklisted countries. Pretty silly, no?
      • BZZT! Wrong.

        You are required not to TALK to that station. You can listen all you want.

        So, if you hear
        CQ CQ CQ de EPA0X3
        You can listen to your heart's content without it ITU (International Telecommunication Union) having a problem with it (now, your local government may, but that's a different story).

        However, if you reply, then you are in trouble.
    • Because part of the web's data goes through THEIR systems... Physically... they are paying for it, it is using their resources... Broadcasts via radio is not using THEIR resources... That's why.
      • Because part of the web's data goes through THEIR systems... Physically... they are paying for it, it is using their resources... Broadcasts via radio is not using THEIR resources... That's why.
        If radio waves are not their resources, then why is it bought and sold and licensed and regulated?

        And if radio/tv does not use resources, why is it that I can go to jail for using what is "physically" on my property? (DirecTV "pirating")

        • And if radio/tv does not use resources, why is it that I can go to jail for using what is "physically" on my property? (DirecTV "pirating")

          Probably because you are in the US, and you are STEALING their service. You do not go to jail if you simply receive their signal, you go to jail if you decrypt their signal without their permission. Big difference between pirating, and using resources.

          The 'resources' aka the frequencies are liscensed by the government simply to keep interferance to a minimum. So technically yes, both TV/Radio use resources, but they are in a different category than those resources that are used by the web.
      • Then I would argue that the responsibility to stop any illegal activity from crossing their borders. If I publish something that breaks a law in Australia and it finds its way there thru one of thier servers / datalines, then the gov't should blame those that are allowing such material to cross into their countries.

        Of course, this is hard as hell for them to do, so its politically easier to go after the orig. author.
      • Nobody forces governments to accept internet traffic from foreign sources. If they don't like the data they are getting, they can cut themselves off. (Their citizens might not like that plan, though.) This is not possible with radio waves. Any foreign radio signal will use up, or at least interfere with that part of the radio spectrum in that government's sovereign airspace.
    • It's illegal in most countries to own extremely high-powered broadcast equipment in certain (like FM) bands. This is so that London has to buy transponders in France in order to have it's content broadcast there. That way, the French can regulate British content in France. This analogy flies out the window when you realize that it only takes a NIC to broadcast worldwide instantly.

    • Re:Radio? (Score:4, Informative)

      by TekPolitik (147802) on Wednesday January 09, 2002 @06:17PM (#2812635) Journal
      If they can't do anything about broadcast radio propaganda etc, why should they be able to claim jurisdiction over web traffic? The parallels are pretty close.

      This story is pretty bogus - the courts have not been saying that defamation is always actionable where it's read. It's only in very specific cases where it can be actionable where read - notably in cases where the plaintiff can show the content was affirmatively directed to places including the place where it was read.

      For example, in the Dow Jones case in Australia, they had paying subscribers who had paid by credit card and the service thus had access to reliable information on the country they were delivering to. The Victorian court held that this was analogous to sending the journals by snail mail to Australia.

      An appeal in the Dow Jones case is currently pending in the High Court (the ultimate court of appeal in Australia), and may even be overturned to that extent.

  • Sorry theyre WRONG (Score:3, Interesting)

    by CDWert (450988) on Wednesday January 09, 2002 @04:18PM (#2811762) Homepage
    If I put a BillBoard up on Canadian Soil bashing an American company can they sue me in America , (where as on the web it can be seen from) NO !

    Its crap, If I shout slanders from France to Germany say can I be sued in Germany NO,

    If I dance Naked in ??? and you can see me from ??? (Alright bad example as you would most certainly be blind at that point) and its legal to dance naked where I am , can I be sued for indecent exposure where you are ?

    I tell you this I some worthless Aussie tried to sue me here I go over there and show the boy what "Down Under" really means.........
    • Not entirely so (Score:4, Insightful)

      by Proaxiom (544639) on Wednesday January 09, 2002 @05:07PM (#2812130)
      Let's pick a purely hypothetical example here.

      Suppose a kid, let's call him Jon, is sitting in a country, let's say Norway, and writes software that does something that pisses off somebody else, let's say the Motion Picture Association of America, because it does something like, oh, decrypts the content scrambling system on DVDs.

      Now let's say this is perfectly legal in Norway but not in the MPAA's country, let's call it America.

      Does this enable the MPAA to sue poor Jon for breaking a law that does not apply where he lives?

      Of course, maybe this has no point because of course it is purely hypothetical, as I said...

      • Now, I know we're talking hypthetically, here, but my guess is that the MPAA wouldn't have the right to sue Jon, and they wouldn't try. Instead, they'd sue some organization (let's call it 2600) run by some guy (Emmanuel Goldstein, for our convenience), who was violating laws concerning the distribution of said programs.
      • Does this enable the MPAA to sue poor Jon for breaking a law that does not apply where he lives?

        The hypothetical Jon was never sued under US law.
  • by pm (11079) on Wednesday January 09, 2002 @04:21PM (#2811778)
    If you use the (admittedly stretched) analogy of the internet as a broadcast medium, then you should be able to look at how current laws governing radio and television broadcasts are handled.

    What are the laws like covering broadcasts and how are they enforced? With the right medium (satellite, etc.) you should be able to reach many parts of the world where various broadcasts are deemed illegal. For example, pornography and some countries in the Middle East. How are these handled? I would have thought political broadcasts by one country might be deemed illegal in other countries with differing views.
    • by markmoss (301064) on Wednesday January 09, 2002 @05:03PM (#2812096)
      What are the laws like covering broadcasts and how are they enforced? I think that the laws covering broadcasts across borders are pretty confused at this point. One thing is that most border crossing is accidental -- that is, the intended audience is quite clearly in the same jurisdiction as the broadcast antenna, and it's not the broadcaster's fault that the laws of physics don't allow radio waves to stop cleanly at the border. However, they don't normally travel several thousand miles past the border, while the internet does.

      The other thing is that in hostile situations, it's been fairly common for one country to deliberately beam propaganda to another, in the other country's language. (Lord Hawhaw, Tokyo Rose, Radio Free Europe, ...) But in those cases, it was hardly possible for the target countries to get the broadcasters into their courts.

      A few years ago I did hear of efforts in the UN to get an international law established concerning broadcasting, which would have given the laws and courts in a recipient country jurisdiction against beamed-in broadcasts. The General Assembly is numerically dominated by tin-pot third world dictators and corrupt politicians; naturally such "leaders" want to be able to outlaw anyone letting the people know how badly they are being scr***d. I'm not sure how far that got. It sounded like some of the liberal-fascists in the Clinton administration were sympathetic. The US couldn't sign on without violating the 1st Amendment, but I'm sure there are government officials that would like to give foreigners the ability to do what they can't... OTOH, the US wouldn't like to give up beaming signals into Cuba, North Korea, Serbia, Afghanistan, or whatever "terrorist" or "genocidal" target du jour.
      • it's not the broadcaster's fault that the laws of physics don't allow radio waves to stop cleanly at the border.

        That's the answer! Farraday cages around each country.
        • Farraday cages around each country. I thought about that, but my post was getting too long already. Just think of the boost to the aluminum netting industry! 8-)

          However, it is quite possible to internet-filter a whole country. Saudi Arabia does. China is trying to. However, my feeling is that a country that actually does that is not only centuries behind the times already, but will continue to fall further behind the free nations at a rate exceeding 100 years per century. Now all we have to do is make the USA a free nation again...
  • by Artifice_Eternity (306661) on Wednesday January 09, 2002 @04:23PM (#2811789) Homepage
    With WIPO and others creating interlocking treaties to enforce "intellectual property rights" across national borders, our own 1st Amendment rights may be increasingly threatened.

    Things that we'd regard as valid speech may offend other governments or piss off multinational corporations -- I just hope they won't gain the leverage to suppress them across borders. Certainly in areas connected to copyrighted, trademarked and patented material, the big corporations are trying to gain global power to suppress speech they don't like.
    • You know, this is something we should all have seen coming from a long way off. For years Sci-Fi writers and pundits have been preaching that the Internet is the beginnings of a movement towards world wide government - making things homogeneous across international boundaries in things like laws.

      What everyone seemed to miss is that politics is inherently a creater of compromise. Neither side in a dispute ever (ok, hardly ever) gets their own way - inevitably a compromise is reached.

      So what they really missed is looking around the world and realizing we have the MOST free national laws (to use the term loosly). I think everyone envisioned the rest of the world being elevated up to our standards of law and justice and due process.

      In reality, from WIPO and elsewhere, we are being dragged 'down' to a more common level with the despots, the tyrants, the police states. Those who are least free will see a letting up of the iron bootjack. Those who are more free will see more of a police state.

      Well, this is just the beginning of us seeing the police state. Welcome to the rest of the world!
      • > we have the MOST free national laws

        Do you really ? How do you know, how many countries have you lived in, how many different environments within your own country have you lived in ?

        The freedom granted to a rich preppy born into a good Mayflower descended family with strong political ties is rather different to those available to a ghetto kid effectively imprisoned to his own neighbourhood.

        Freedom is a loose term, in some ways America is free, in others it isn't.

        You might want to try freeing your mind a bit. Go live in thailand for a year, as long as you don't 'diss the royal family you will find yourself astounded at what you can do freely.

        I don't know which country is most free, but neither do you. Where did you learn that USA had most freedom ? was it in America perhaps ?
      • realizing we have the MOST free national laws

        Have you tried buying a cuban cigar recently? How about going for a drive in Florida with more than $100 in your pocket? How about joining the political party of your choice? Media such as TV and newspapers which isn't directly controlled by the government (You must insert our propaganda into this program, you must not show this news footage), and is also self-censored by the owners.

        In a lot of practical ways, the US is the least free western nation.

    • Does the political principle of "free speech" mean you are free to express someone else's speech? I understand you wanting to protect your speech from government, but you seem to want to be free to use someone else's speech. Isn't it reasonable that people should be able to protect their speech from others as well as from the government?

      And what about the 5th amendment, in part: "...nor shall private property be taken for public use, without just compensation."

      What happens when the principle of free speech collides with the principle of just compensation?

      If the government doesn't protect copyright, for example, aren't they essentially allowing public use of a creative work without just compensation?
  • extradition (Score:3, Interesting)

    by crystalplague (547876) on Wednesday January 09, 2002 @04:24PM (#2811804)
    just remember, if someone violates the laws of another country from their country, the offended country must extradite them in order to prosecute. a lot of times there is too much red tape to make this worthwhile. especially for something as trivial as a web page.
    • Re:extradition (Score:2, Insightful)

      by 2Bits (167227)
      just remember, if someone violates the laws of another country from their country, the offended country must extradite them in order to prosecute


      No, that only applies to "offended" countries that are strong enough, or have something to leverage. Then the "offending" country may "comply".

      A columbian drug dealer who sends drug to the US might be in trouble coz the US government does not like that. A USian traffic weapons (guess where is the source of 50% of world arms trade?) to a poor country is just fine, and in the US, he may be a very respectable business man and a patriot too, as he has contributed to the US economy. And what can the poor country government do, beside being told by the US government to go to hell?
    • just remember, if someone violates the laws of another country from their country, the offended country must extradite them in order to prosecute.


      ... or just wait until she/he sets her/his foot on domestic ground.
  • DMCA? (Score:4, Insightful)

    by Anonymous Coward on Wednesday January 09, 2002 @04:25PM (#2811810)
    publishing anything on a web-site (and also Usenet) in America to the more restrictive domestic laws of other countries

    I would be more afraid of the opposite, like encryption developers from, say, Norway, Australia, Russia or Finland, being applied doses of whoop-ass called DMCA (or perhaps even the far-reaching 'terrorism' laws mr. Asscrotch created)

  • by Oroborus (131587)
    I see this as a potentially positive development. In my view, it will end up like the patent system (not that I'm making any value judgements about the patent office, don't jump on that). Countries will each balance their individual values against others. Just as IBM and HP have numerous conflicting patents, and as long as they're balanced in their infringements nobody has to sue, different countries will balance their regional restrictions (ie, China will allow political discussions, the US will allow communist or anti-US sentiment) and all that will be cut out is the truly universally damaging content. (Child pornography, primarily).

    That's just a hope though, realistically it'll probably just be the US throwing it's weight around trying to impose it's views on the world.
    • this is an overly-simplistic understanding of what's going on. note that in the U.S., virtually no political speach is illegal (some is, like plots to overthrow the gvt., but very little). it China, all sorts of stuff is prohibited. in germany, pro-Nazi stuff is prohibited. any "compromise" represents a reduction in the fredoms of people in the U.S. - not good for us here. the problem is that in many place, like China, what's valued is the system (current gvt, communism, whatnot); in the U.S. (in theory, anyway) it's the freedoms, valued above the system in which they exist. the US already allows pro-communist sentiment.
  • I don't know if there are any cases that are on point, but you might be able to choose the location by specifying jurisdiction and choice of law as part of the terms of use of the site.


    It is highly questionable if it is only a one page site, but if you have it on every page and the other party goes to more than one page, you could argue that they contracted to have it in your chosen jurisdiction.


    But even so, if the jurisdiction is improper, you may still have to answer in the improper jurisdiction and file a motion to dismiss there.

    • There's already been a problem within the US. Tennessee used Tennessee state law to prosecute the owners of a porn site in California, on the grounds that since their "content" could be downloaded in Tennessee they were "publishing" it there.

      If I were setting up terms of use, I'd ask my lawyer whether they only governed contract disputes. Criminal law could be another kettle of fish. But by now there must be case law to support using "void where prohibited" clauses.

      [Note for non-US readers: each state of the US can and does have different laws.]
  • by anothy (83176) on Wednesday January 09, 2002 @04:26PM (#2811820) Homepage
    this is slightly off-topic (mod away), but i note the assumption that non-US laws are inherently more restrictive than US laws. this is increasingly not the case. note DMCA and USA-Patriot, among others, and recent high-profile cases of foreign nationals being arested in the U.S. for breaking such laws.
    mind you, i think your assumption was true a decade ago, and i'd like to see it be true again...
    • Balance... (Score:4, Insightful)

      by PHAEDRU5 (213667) <instascreed@gmai l . com> on Wednesday January 09, 2002 @05:29PM (#2812278) Homepage
      America may well have the DMCA and the USA-Patriot Act, but it also has the ACLU, Alan Dershowitz, Johnny Cochrane, etc., etc.

      In other words, we may have restrictive laws, but we also have a bunch of chiselers out to finess them.

      Contract this with countries that

      - like the former USSR, have great Constitutions in the abstract, and secret police to liquidate you if you attempt to exercise any "right" you may have.

      - don't have Constitutions at all, just the will of the assorted ruling gerontocracies.

      - have Constitutions, and strict laws derived therefrom, but with noting like the counter-balancing provided by, say, the ACLU

      Things are strange right now in the U.S. There's change happening based on technology and terrorism and at such times over-reactions will occur. I have no doubt that things will free up in the next decade.
      • ACLU, dershowitz etc have not been able to prevent the detention of over a thousand dark people without arrest. We don't even know how many are detained.

        Right now, all the AG has to say is that you are "suspected in terrorist activities" and you can be held indefinately without ever being charged. Indefinately means till you die of old age or torture.

        Right now the definition of terrorist seems broad enough to mean "any person of seemingly arabic descent" in the future it might mean "any person associated with an enviromental organization" or "any and all person who did not vote for George W. Bush". And guess what nothing you can do about it. Congress does not have to approve, the pres simply declares it.

        Unfortunately those are the facts.
  • Statement about World Military Terroristic intents [osearth.com]

    Ever hear of preventitive health care? How about preventitive warfare?
  • content control (Score:2, Insightful)

    by Anonymous Coward
    Any foriegn service provider that allows access to american networks should be responsible.
  • by Jens (85040) <jens-slashdot@sp ... .de minus author> on Wednesday January 09, 2002 @04:28PM (#2811836) Homepage
    "as it opens up anyone publishing anything on a web-site (and also Usenet) in America to the more restrictive domestic laws of other countries"

    This should read "as it opens up anyone publishing anything on a web-site (and also Usenet) to the more restrictive domestic laws of America". See DMCA for example (USA only).

    Sigh. Why do so many Americans just blindly assume everyone else is behind. Yes, there are countries for which this is true. But there are also many for which the reverse is true.

    So, to be more specific you could kill the "in America" in the sentence above and would even be more true: Also web pages on other countries could be subjected to more restrictive laws in again other countries.

    Right? Yeah, I'll stop nitpicking now.

    • You are correct in that there are some contries that are more pedantic in attempting to restrict electronic speech, and there are some that are less. However, I think the intent of the submittor is that other countries have (thus far) been the only ones to attempt to restrict the electronic speech made in other countries by citizens not of the country making the restriction attempts.
      I see your point, and realize that you were mostly making one of sementics, but I think the differentiation of who's actually tried this hare-brained censorship is an important one to make.
  • International law (Score:2, Insightful)

    by Godeke (32895)
    The question really hinges upon how international treaties pan out. The DMCA was passed to implement an international treaty for enforcing intellectual property, the Hauge Convention. It is an attempt to make everyone subject to everyone else's laws. Of course that is impossible to implement as simply as that - the standards around the world are too varied to be applied directly to everyone as there would be nothing left legal.

    So what will happen? Most likely it will continue as it has for years; corporations and well financed individuals will shop for a juridiction that fits their needs and will prey upon those without similar resources. But more excessive legal claims are obviously impossible; for example, a Chinese government monopistic company claiming that Fortune magazine is slandered them or Iran claiming that FOX must stop broadcasting "impure" TV. However, don't expect the individual website to get such consideration, and don't expect the US not to try to bully it around the other way from time to time...

    • The Hauge Convention is not the WIPO Copyright Treaty.

      The WIPO Copyright Treaty is the next step in a series of international IP treatys, besides a lot of sane stuff it also includes the no circumvention devices clause. I'm not sure whether the DMCA implements the WIPO CT in the US or the WIPO CT was influenced by the DMCA (or drafts thereof).

      The Hague Conventions makes cross-border litigation easier. That is, for example, if someone sends you a mail bomb from abroad, you can sue him in your country, which is actually a good idea. The only problem is with broadcast mediums such as Internet: Here it means that you can be sued everywhere where your posted stuff can be received. (Please note that many countries already have bilateral treaties like the HC, including the US and most of Europe. It's only that the majority people don't make use of it even if it was possible.)
  • by gartogg (317481)
    No. It's not. The simple truth is that if a person in England tries to sue someone in the US of A for slander, (because there the burden of proof is on the defendant) they'd be laughed out of court. people cannot be forced to briung the site offline if they are not in the country that the lawsuit is in, and so the laws are mostly worthless.

    I suppose it will take a trial case pursued by the EFF or somebody similar to actually show that the jurisdiction cannot work in this fashion. This will be especially obvious as soon as someone tries to extradite a US citizen to some muslim country where people cannot view "indecently clad" women in pictures, or say things "against Islam." Imagine someone in Afghanistan 6 months ago sueing the Baptist or Catholic or whatever church because their site contained information about Christianity.
    • The simple truth is that if a person in England tries to sue someone in the US of A for slander, (because there the burden of proof is on the defendant) they'd be laughed out of court.

      The reality is slightly more murky than that. One UK litigant successfully obtained a summary judgement in the British courts against a Canadian defendant who was resident in the USA, for on line defamation in a USENET newsgroup. He used this judgement to obtain an advantageous settlement with the defendant's university.

      Here are a notice about the lawsuit [universitybusiness.com], a Wired article about some of Godfrey's other suits [wired.com], and a notice abour Cornell University's settlement with Godfrey. [pacific.net.sg] Again, several other cases are mentioned.

      Although there did appear to be a question over whether the plaintiff could collect on his default judgement, in fact he appears to have successfully leveraged such judgements to obtain monetary settlements.

  • by bbh (210459)
    I'm writing a legal article on jurisdiction and defamation via the web

    Bernie again?????
  • law article (Score:3, Informative)

    by queequeg1 (180099) on Wednesday January 09, 2002 @04:34PM (#2811892)
    Check out the following article from the Oregon State bar bulletin. Although it addresses jurisdiction mostly from an intellectual property perspective, many of of the cited cases touch upon the more amorphous concepts involved.

    Personal Jurisdiction in the Silicon Forest [osbar.org]
  • EULA (Score:4, Interesting)

    by opusbuddy (164089) on Wednesday January 09, 2002 @04:35PM (#2811895) Homepage
    It's simple, really. All I have to do is force entry into my website through a page that requires you to agree to an End User License Agreement, giving you license to use my website.

    In using my website, you agree to be bound by the laws of the United States and that you agree to accept any responsibility for any violations of local laws or treaties that using my website may cause. Further, you agree that you will hold the grantor of this license free from any responsibility should you find the material licensed to you to be libelous or in any other way offensive.

    This EULA is not transferable.

    Blah, blah, blah....

    Oh and by the way, IANAL.

  • by gandalf_grey (93942) on Wednesday January 09, 2002 @04:39PM (#2811929) Homepage
    This "think of the children" attitude will be the end of all that is good and rightous with the internet. No, something is published on the server. If other countries don't want the content, or think their citizens are not intelligent enough to make their own decisions... then it's up to that country to block access if they so choose (or get off the net entirely).

    I realize this may seem extreme/rude/harsh to some... however, nobody can forecast the laws that another country may decide to introduce. The web is open and free, and to be of any use it must continue to remain so. Like radio or telivision... if you don't like it, change the channel.

  • geolocation is a tool, and has not inherent good or evil in it. It can be USED in good or bad ways.

    Say I were to use it to differentiate prices: people buying books who are coming from one state pay price $X, people coming from another state pay price $Y. Not because of different shipping costs (which may be equal), but because market research has told me that people from state X are willing to pay me more money for the the product.

    Or it can be used to block access to material (iCraveTV) - only people from state X are allowed to see this.

    Or it can be used in a good way. Think caching servers. If there is a cache server for a major website in every high usage area so that server response times are faster and overall network traffic is lower. However, a lot of sites do this already (fist page: choose your location server).

    What is important is that geolocation is used in a good way, improving the lives of citizens, and not restricting what they can and cannot see/hear/know about when that information may be important to them.

    So it can behave like many tools. With this hammer, I can build you a house (good) or hit you on the head (bad). With this international treaty, we can (re)build nations in peace, or we can use it to restrict and isolate a nation that does not see things from the true (read: MY) point of view.

    So does anyone have any ideas about a good international treaty that can be used to help citizens of all countries? Maybe an extension to the UN Charter of Human Rights [un.org].

    • by 3seas (184403)
      The Universal Law

      Preamble

      The purpose of human life is to prosper and live happily. The function of society is to guarantee those conditions that allow all individuals to fulfill their purpose. Those conditions can be guaranteed through a constitution that forbids the use of initiatory force or coercion by any person or group against any individual:

      The Constitution

      Article 1: No person, group of persons, or government may initiate force, threat of force, or fraud against any individual's self or property.

      Article 2: Force may be morally and legally used only in defense against those who violate Article 1.

      Article 3: No exceptions shall ever exist to Articles 1 and 2.
      • Now all you have to do is define 'force'.

        Damn details.
      • That Constitution would cause smoke to come out of robots' ears. Article 2 is an exception to Article 1, but Article 3 says that Article 1 has no exceptions.
      • Some pervert persuades your 9 year old daughter into having sex with him.

        The wierdo with the apartment directly beneath you likes to brew his own personal batches of nitro glycerine. Understandably, you're nervous.

        An unscrupulous business person changes his mind and backs out of a contract.

        A 17 year old teenager with a Trans Am drives through your residential neighborhood at over 100 miles an hour.

        A slovenly neighbor leaves all manner of junk in his yard, bringing down local property values.

        And so on.

        No, this doesn't work. Good idea, but it's not quite right.

        C//
        • Whoa! Guess I forgot where I was, who I was amongst. Programmers, who better to change the meaning of words, as it's the skill of programming.

          Maybe you all should take a break from defining functions and all.

          i.e. The wierdo with the apartment directly beneath you likes to brew his own personal batches of nitro glycerine. Understandably, you're nervous.

          That sounds very "threat of force" to me
          • That sounds very "threat of force" to me

            Threatening issually involves intent, often clearly demonstrated. Feeling threatened involves perception, which is far less clear. Someone might feel threatened by the guns in your house, for example, on the theory that you might use them inappropriately. This is an appropriate analogy. Our nitroglycerine mixing whacko might well feel that what he's doing is perfectly safe, albeit we as a society agree that it isn't and use the rules of reasonable men.

            C//
        • You must not have recognized it, but this is basically the Libertarian political philosophy. You'd best think about what you're saying before you go criticising the most principled, consistent, and well-respected political philosophy in the world.

          Some pervert persuades your 9 year old daughter into having sex with him.

          Children are not adults, and can't make most decisions for themselves. It is the job of parents to be responsible for their children until they're of an appropriate age to arbitrate their own lives. Until your daughter is an adult, she's effectively your property, within certain limits (maybe a fourth article should be added, like the one the Libertarian platform has, to address which rights over the children are given to the parents and which are reserved for the children themselves; for example, parents should be able to restrict the child's right to have sex, but the child should retain control of her right to use the restroom when she wishes), and thus if someone has sex with her without your consent, that's force against your property, and you're justified to retaliate.

          The wierdo with the apartment directly beneath you likes to brew his own personal batches of nitro glycerine. Understandably, you're nervous.

          Complain to the owner of the apartment, who has no obligation to rent the apartment to that person. Given the choice between losing you as a renter and losing the crazy guy with the bomb fetish, I'd say the situation will probably be dealt with to your satisfaction.

          If the landlord creates a rule against having explosives on the property, and that person violates the rule by having explosives on the property, then that person has initiated force against the landlord and the landlord is free to retaliate.

          If not, it's not your property, so leave.

          An unscrupulous business person changes his mind and backs out of a contract.

          That's fraud, which is a form of force. If someone says to you, "I will give you $500 in exchange for oral sex," and you provide the oral sex, and he doesn't provide the $500, he's initiated force against you and you're free to defend yourself.

          A 17 year old teenager with a Trans Am drives through your residential neighborhood at over 100 miles an hour.

          If the teenager incurs any damage to you or anyone else, he/she will be responsible for the damage. Beyond that, complain to the owner of the street, and convince the owner of the street to enforce a speed limit. You're only free to do what you want on your OWN property, on someone else's property, you have to follow their rules, otherwise you're using force against their property and they're free to defend themselves.

          A slovenly neighbor leaves all manner of junk in his yard, bringing down local property values.

          Convince everyone whose property borders on this man's property to build a wall on their property that obstructs view of his property. Or ask him nicely to remove his junk, or volunteer to remove it for him.

          No, this doesn't work. Good idea, but it's not quite right.

          Yes, it does work. Good idea, and it is quite right.

          It just takes a little bit of common sense.
          • Some pervert persuades your 9 year old daughter into having sex with him.

            Simple. Sex without consent is considered a forceful act. As a 9 year old cannot consent to sex, any sex is a forceful act against their will, whether they are persuaded to or not.

            One could also suggest that persuading a 9 year old to have sex is prima facie fraud. The child is inevitably being deceived.

            A slovenly neighbor leaves all manner of junk in his yard, bringing down local property values.

            Well.. isn't it a free country? Why the hell can't I leave junk in my yard? Why are YOUR property values MY concern? I would suggest that under this code, property values do not count as 'harm'. Provided the junk isn't dangerous in anyway (and therefore a threat of force) why should you be legally enforced to be tidy?

            A 17 year old teenager with a Trans Am drives through your residential neighborhood at over 100 miles an hour.

            I would say A Trans Am travelling at an unsafe speed through a residential neighborhood is a threat of force, considering what it would do to anyone it hit - and considering that under the circumstances, there is a high chance it could hit someone. 'Nuff said.

            • I would say A Trans Am travelling at an unsafe speed through a residential neighborhood is a threat of force, considering what it would do to anyone it hit - and considering that under the circumstances, there is a high chance it could hit someone. 'Nuff said.

              No, clearly not enough has been said. The teenager has no intention to threaten or endanger, he's just an idiot out having a good time. The "threat", as you put it, is in your mind. You feel threatened.

              And that brings up an interesting point. How do we, the People, as a law making body, decide what kind of things it's reasonable to feel threatened by? I'll tell you how: we vote. It's called collective government. Welcome to the 21st century and all that.

              C//
          • You must not have recognized it, ...

            Actually, I did recognize it, as well as your tendency to be patronizing, which is probably related to your tendency to engage in absolutes.

            Children are not adults, and can't make most decisions for themselves.

            Why, thank you for lecturing! The vast sea of humanity around you easily recognizes a child's inability to make life-changing decisions for themselves and has -- all without having to devise a cleverly worded slogan -- put it into law in a form which serviceably fulfills the needs of the people. Will wonders never cease?

            Given the choice between losing you as a renter and losing the crazy guy with the bomb fetish, I'd say the situation will probably be dealt with to your satisfaction.

            But not soon enough. Nitrocglycerine is volatile! Someone's mixing volatile explosives 8' under your ass, and your answer is "wait for the landlord to intervene"? Surely thou jesteth!

            If the landlord creates a rule against having explosives on the property,...

            Good that you should bring this up! In fact, the "Landlord", at our collective request, has indeed made such a rule in virtually every city around.

            That's fraud, which is a form of force.

            I didn't say that he deliberately deceived you, I said that he backed out. Changed his mind.

            If the teenager incurs any damage to you or anyone else, he/she will be responsible for the damage.

            The majority of the sea of humanity around you doesn't want to risk that damage, and you'd feel exactly the same way if you had a wife or kid anywhere near that street. Now stop being ridiculous, nobody wants anything like what you're proposing. Do away with traffic law. Har har.

            Beyond that, complain to the owner of the street,

            Glad that you brought that up again! As it so happens, the owner of the street, at our collective request, is ready to doing something about it already.

            Convince everyone whose property borders on this man's property to build a wall on their property that obstructs view of his property.

            Ahem. The front of the property.

            Or ask him nicely to remove his junk, or volunteer to remove it for him.

            He says "no," and tells you to fuck off.

            Yes, it does work. Good idea, and it is quite right.

            No. It's been tested and failed. Government is an instrument of the collective will. Given a choice, people move away from the kind of anarchy that you propose.

            C//
          • "
            A 17 year old teenager with a Trans Am drives through your residential neighborhood at over 100 miles an hour.
            "

            "
            If the teenager incurs any damage to you or anyone else, he/she will be responsible for the damage. Beyond that, complain to the owner of the street, and convince the owner of the street to enforce a speed limit. You're only free to do what you want on your OWN property, on someone else's property, you have to follow their rules, otherwise you're using force against their property and they're free to defend themselves.
            "

            Street owner says that it's his son, he's allowed to do it and you can fuck off and you're not allowed to walk or drive down the street any more. That's a bit of a pisser if your house fronts onto the street isn't it? You've just been jailed because breaking out of your jail would involve your instigating a threat of force against the street owner for which you can be shot.
  • So long as the sentencing against MS anti-trust is the curve we would be being sentenced on,.....

    Nothing to be at all concerned about!
  • by Tenebrious1 (530949) on Wednesday January 09, 2002 @04:43PM (#2811972) Homepage
    where a web-page is *read* (ie browsed) as the place of publication of its contents, regardless of where the page or the server serving it are located.

    It seems to me that it is an action carried out by the person doing the surfing. Much like an American going to Canada and trying to come back across with Cuban cigars. Is it the fault of the guy trying to smuggle in the goods, or of the Candadian government for allowing its own citizens and and visitors to buy the cigars?

    Not that I favor net censorship. Yes, there is some nasty stuff out there. But you don't have to surf to it. You don't have to expose yourself to it. If you do so and get offended, who's responsiblity is it? Yours. Not the governments, not the person who put up the website. It's not like a billboard, where you will see it if you look in a general direction.

    Yes, searches sometimes turn up (possibly) objectionable results, but that just means the searcher needs to learn how to refine searches.

    Education, not restrictions.
  • Well, this certainly takes a different spin on things, eh?

    This interpretation of "country of publication" should, then, also effect the copyright laws of printed matter as well. So, I open a book in Singapore and it that makes Singapore the country of publication? I don't think so.

    This sounds like any number of "We Own The Net" attitudes spawned by a lack of understanding.

    The cure for this is to simply beginning access block for the offending countries. In this case, blocking Australia from wholesale chunks of the net would certainly force a new new view of the situation.

    After all, that's what those Allow/Deny's are for, right? If you don't want trouble with neighbor's kids, don't let them in your yard ;-)
  • by kinko (82040)
    Being from New Zealand, I don't think you can generalise with statements like "restrictive domestic laws of other countries".

    U.S. courts claim jurisdiction over many things that occur outside the states, and many US federal laws cover things that occur outside US boundaries - eg illegal to bribe overseas officials, even if you do it from outside U.S. territory.

    Here's something to think about. In many western countries, the age of consent is 16. In the Australian territory of Northern Territory, it is (or was) 12. (!!??!) By US definition, this is child pornography.

    Also, remember that under the WIPO treaties, large (and not-so-large) US companies have lots of power over companies in other countries regarding trademarks and copyrights, and I would say that these powers are often abused. Of course, this happens for non-US companies too, it's just that there are so many more large US ones. As patents are covered by these treaties, the US seems to be of the opinion "it is good for the US economy if US companies hold many patents that would otherwise go to non-US companies".

    I'm not saying what is right or wrong, and I don't want this post to look anti-US, just add a bit of balance. Eg the N.Z. government, under some pressure from U.S. government, is reviewing it's copyright laws to move them into line regarding copyright of digital materials.

    So I guess my point is that U.S. laws are being effected in other countries as well. I don't think U.S. yahoo should be subject to French laws, but if they had a French office then a French magistrate could argue that they were operating in France. U.S. judges do this stuff too.

    --

    • Also, remember that under the WIPO treaties, large (and not-so-large) US companies have lots of power over companies in other countries regarding trademarks and copyrights

      I think that argument doesn't stand up to rational examination. WIPO treaties were signed by participating countries - they willing agreed to establish laws that came up to the standards of this treaty. These laws are establishing a world wide uniform code for IPO rights.

      The premise of this article is that people may be vulnerable to foriegn contries that have established very different standards, i.e. a problem with laws being very different in another juristiction. Exactly the opposite of the effect of WIPO.
  • I think that two things need to happen over the reasonably near future, if the Internet is to avoid falling into disrespect and neglect.

    Firstly, there needs to be some sort of mechanism for content to be tailored to particular audiences in different regions. This might be enforced by forming barriers between different telecoms networks, but it would probably make more sense for it to be a guideline. If you choose to download something in a region that isn't indicated, you are now responsible for the content; you were given fair warning. This seems a reasonable compromise on the issue of what is politically acceptable in different regions.

    Secondly, the Internet needs proper tracability. As I've said here before, with freedom comes responsibility. If you want to keep your rights to free speech, you're going to have to accept that you can't do it truly anonymously. Otherwise, spamming will be the least of your problems; undefended defamation, damaging legal, financial or medical advice, free information on how to make bombs, etc. could become the norm. At that point, the Internet loses all credibility as a serious medium. The big names go away, it falls into disuse, and it dies.

    On the other hand, one of the great advantages to the Internet is the fact that you can, currently, say things anonymously. In cases where what you say is true, but would get you in trouble if you were identified, this is useful; it's only a problem when it's abused (and as we all know, it is regularly abused). So, in the same way as the world has worked for years outside of the Internet, we need a system where you can opt not to give your name initially, but where suitable authorities (e.g., the police acting on a court order in many western countries) can identify you if you are found to have done something wrong, so you are still accountable.

    This allows for an investigation to be carried out into whether or not something that's been said is against the rules, and only when it's been found to be wrong do the authorities identify the poster and take action against them. Sure, it's not perfect, but at least now it's the same as the rest of the world, and guys can't go around claiming to be doctors and getting people killed or slagging me off behind my back. And hey, you get to annihilate most of the world's spammers in the process. Now you can have the free speech you value so highly, but you can still get screwed if you abuse the privilege. That sounds like a pretty fair compromise to me.

  • Remember that while the Berlin Wall was up, that the west attempted to broadcast their radio signals into East Germany. These radio stations told the East German people news of the rest of the world from a different perspective. Their signals were broadcasted from western countries to behind the Iron Curtain, and were considered pirate by the communist governments of the time. Many attempts were Still, many westerners considered that it was the right thing to do at the time and that certain governments were wrong.

    The broadcasts persisted, and some might say that they had an important role in the fall of communism.

    We must ensure that we do not build up walls of our own that blind us from what is going on outside.

    But don't take my word for it. Read [google.com] up on this topic [uky.edu] and figure it out for yourself.

  • The American fore fathers had a solution to this problem nestled in the US Constitution's Bill of Rights. Its called the Second Amendment and it gives every American the right to defend itself from domestic and foreign oppression. Thomas Jefferson, for one, believed that revolutions are necessary when Governments and their backers become oppressive.

    If you think those in power are going to cater to your desires without force or bribery, you are sorely mistaken.

  • The Amateur Action BBS case (1994, confirmed on appeal 1996) established in the Federal jurisdiction that the community standards of the recipient's physical locale apply for the purpose of obscenity law whether transmission is electronic or otherwise (18USC 1465).

    http://www.soci.niu.edu/~cudigest/aabbs/aabbs.html

  • More Importantly... (Score:3, Interesting)

    by twoflower (24166) on Wednesday January 09, 2002 @04:56PM (#2812054)
    This has far-reaching ramifications, as it opens up anyone publishing anything on a web-site (and also Usenet) in America to the more restrictive domestic laws of other countries ...
    More importantly, it opens up those of us publishing info on a website in a truly free country to the more restrictive domestic laws of the United States of America. See thefreeworld.net [thefreeworld.net] for an example of needing to avoid this.

    Twoflower
  • I hope they recognize the location of the server as the place of publication.... Locate your server in a public restroom where there's lots of graffiti. Then use a "community standards" argument to defend your content.
  • by Have Blue (616) on Wednesday January 09, 2002 @05:09PM (#2812145) Homepage
    Anyone who solicits advice on legal issues from slashdot is a fool. Do your own research, you'll get better results too.
  • Although treating the geographic location where a web page is viewed as the "place of publication" has some common-sense appeal and at least provides the argument that the law of that respective geographic location should control any action brought because of that location, there is one great mitigating factor: The US Constitution. In the recent case involving Yahoo, the United States District Court declared that a French Court's order requiring Yahoo! to remove auction items of Nazi memorabilia because such postings offended France's "collective memory" (NB - whatever the ^&$*#! that is) was unenforceable in the United States because that order violated the Constitution's First Amendment.

    I do acknowledge that multi-national corporations have other additional problems, especially if they have offices/assets in those contries whose laws prohibit the content posted, but some protection is better than none. I predict that US courts will continue to follow the precedent set by the Yahoo! case.

  • Yes, this seems to be a big problem which is currently underestimated.

    The international criminal law of most countries tends to be mostly concerned about how to catch "criminals" that act from abroad. So usually every offense that has the slightest relation to a country can be brought in action at courts of this country. The same problem exists with international private law: In the case of torts or IP infringment one can go to the courts of the own country and the applicable law is the law of that country.

    This of course is very unfortunate: If you want to publish something on the WWW, Usenet, etc. you would have to check the laws of every country you plan to visit (or have extradition or long-arm treaties with such countries). In my opinion, we need international treaty that establish a principle of country of origin for all material posted on international networks (even personal email). So one would only have to check the laws of the country one is in, maybe the country of the ISP/webspace provider/... (if different).

  • I did kinda... (Score:2, Informative)

    by meggito (516763)
    I put up some controversial material and I soon got a message stating that my website was a little to similar to another (that I had never been to). Someone threatened to file suit and such, but I am fairly sure (almost positive) it was because they disapproved of the content (as I would if I saw it now) rather than because of any website similarities. I wouldn't be surprised if their website was not made to look like mine (they were just a little too similar).
  • There is a big difference between placing an unsolicited phone call to someone and saying something obscene and receiving a call from someone and saying the same thing.

    When you receive an unsolicited call you can set the standard for decency and if they didn't like that standard, they either shouldn't have called or they should have hung up as soon as they got from where you were coming.

    Likewise there is a big difference between emailing someone an unsolicited message and someone hitting your website. If you send someone an unsolicited email and it arrives in a foreign country, you have committed an act in that foreign country. However, if your website receives a request for information from a foreign country and you respond -- its a different story: The foreign national committed the act of sending a request for information outside his country and you responded, outside his country, to that act (which he committed both inside and outside his country). Subscribing to a mailing list is a solicitation for email so you can't claim that email received from such an email list to which you have subscribed is "unsolicited". This stuff isn't really controversial except to the brain-dead and/or brain-washed -- it is simply the rational approach to these trans-national communications technologies.

    Countries that allow their nationals to be arrested by foreign countries for acts committed outside those foreign countries are not true "countries" in the sense of sovereign states and their passports should not be relied upon.

    Since very few countries are willing to act appropriately in most of these situations, their passports are not, for those purposes, truly those of sovereign states.

    The response to this situation by the de facto sovereign individual is to limit travel:

    Countries that arrest foreign tourists for acts committed outside their countries should be avoided by all tourists.

  • hmmm, enough speculation, let's do some real-world tests...

    King Fahad bin Abdul Aziz Al Saud is a stinky fat old man who likes to molest little boys.

    George W. Bush is a homosexual rapist who wears women's underwear. (I say homosexual because I figure GW is probably a homophobe, not 'cause I consider it an insult generally)

    President Chirac is a murderer! he killed my entire family!

    ok, I'm gonna go hide for awhile now while we wait to see the results...
  • Jurisdiction Issues (Score:3, Informative)

    by wpriii (228202) on Wednesday January 09, 2002 @05:26PM (#2812259)
    The area of internet jurisdiction is very complex and often confused. When it comes to defamation, look at a case called Calder v. Jones, 465 US 783. Basically, the court found that California had the jurisdiction to hale Floridians into Cal because their defamation against Shirley Jones was an intentional act, that was aimed at California and they knew their comments were likely to cause harm in California. Several courts have applied Calder to the Internet, where the "effects" of the defamation is where the jurisdiction can also be found.
  • If the copy of the NYTimes that you would buy in London has been edited to the laws of England?

    I'm not talking about the European version, but one which has been imported.

    If you can get the American version of the NYTimes in England, I'd say that the laws are highly questionable with regard to web browsers, and I would clearly make that point.
  • America (Score:2, Insightful)

    by Toby Dick (517451)
    I am not American, therefore I have different worries: "foreign" laws do not harrass me, but nowadays I never know when or if Americans, like Gestapo in the olden days, fetch me to a court that is not responsive or responsible to anyone, leaving my loved ones wondering where I am. Mind you, I'm not a terrorist, but if an American somehow gets the idea, there is no way I'll be saved from this lawless court. Perhaps I'm doomed after this post? This man can't be anything but a terrorist? What is he hiding? Let's take him in for torture for a couple of months and see what he's been up to!
  • Your question is similar to one that I have been researching for some time, in my role as an adjunct professor [desales.edu] of E-Commerce. What is the impact of the Internet on governments?

    There is a rich history of how governments have confronted new technologies in the past. It's the sort of history that I wish high schools would teach: some of the laws passed in response to new technologies are extremely funny. The introduction of steam engines, canals, railroads, the telegraph, repeating arms, the automobile--even the safety razor--emboldened legions of pompous politicians eager to satiate their constituents' desire to Put A Stop To This. And Put A Stop To This they did--until they realized that the next town over was benefiting from all the jobs building the railroad line, or manufacturers were locating plants across the state line to avoid their jurisdiction, or (the worst possible fate for a pol) people were just laughing at them and ignoring the law. (Through 1976, at least, it was illegal for a man in the State of Illinois to shave himself unless he was a licensed barber.)

    There typically has been a pattern to how governments (the bureaucrats, the politicians, and the judiciary) come to grips with a new technology. The initial response typically is "Put A Stop To This". The next response is "Regulate It!"--generally meaning "slow it down," as the original cast of pompous pols is replaced by wannabe-graybeards urging "caution" and "restraint." As bureaucrats and politicians see wider acceptance of the technology the next step is natural: "How Can We Tax It?" The rules and requirements tend to get relaxed as the bureaucrats, etc., become comfortable with the technology, in a phase I call "Hey! This Could Be Useful." Ultimately, for extremely disruptive technologies, there is a phase we might call "We'd Better Get On The Bandwagon."

    Railroads are a perfect example: in the 1830s and 1840s every politician was in the Put A Stop To This camp; by the later 1840s and early 1850s there was grudging acceptance, but still "restraint" and "caution". (There were, for instance, repeated debates about whether it was safe for the Post Office should use trains to move mail.) By the 1850s railroads were confronting a bevy of tax proposals: taxes on rights-of-way, taxes on locomotives, taxes on rail cars, and taxes on revenue. When the U.S. Army used railroads to bring fresh troops to Gettysburg--and won the battle--the utility of railroads was made manifest. Suddenly every politician was a closet railfan, and the pols fell over one another in their rush to champion, sponsor, or even subsidize the building of Yet Another Railway Line. By the late 1860s, up until the economic collapse of 1873, and then again in the later 1870s, the We'd Better Get On The Bandwagon phase was at its peak: rather than regulating or taxing railroads, politicians were working fiendishly to ensure that the railroad didn't pass them by. Towns with railroads lived, towns without railroads died.

    The technology has changed--politicians have not. What has also changed--and what makes this process seem so much more contentious--is that the Internet has appeared in the public consciousness, and in your living room, at an extremely rapid pace. And the pace of change is only increasing. Meanwhile, the pace at which politicians (and bureaucrats and judges) move through the Put A Stop To This/Regulate It To Death/How Can We Tax It/Hey This Could Be Useful framework hasn't changed much.

    Which phase are we in?
    I think we're definitely in the Put A Stop To This phase, and we're going to stay there for a long time--partly because the pace of change means that there is always something new to put a stop to, but also because the growing reach of the Internet means that there is always a fresh crop of less-than-clueful politicians just a router hop away. When the Internet finally got to Afghanistan, the Taliban...Put A Stop To It.

    The Next Phases
    As some officials begin to comprehend the impact of the Internet, we begin to see the phase of "caution" and "restraint." In the U.S., for instance, we have federal programs to wire every school and public library for Internet access--but politicians still fuss and fume about "Net Nanny" programs and how to write laws that meticulously prevent librarians from just using a little common sense. State tax officials are hard at work trying to harmonize state sales tax laws in order to implement sales taxes on e-commerce purchases. In some places--a very few places--politicians and bureaucrats are even talking [adida.com] (NB: talking, not acting) about using community development funds to wire downtowns with fiber optic. These few--these very few--understand that this is the railroad question all over again: if you have cheap bandwidth, you will prosper; if you have little or no bandwidth, your town will die.

    That Said, Let's Make Some Distinctions
    Several people posting on this topic have brought up the Digital Millennium Copyright Act as an example of draconian law similar to the examples you mentioned. There are certainly aspects of the DMCA that fall into the Put A Stop To This phase--particularly issues like rules on defeating encryption, whereby "decrypting" something protected by ROT13 becomes a federal crime. (The best response to that, as with safety razors in Illinois, is publicity and ridicule.) But one of the major challenges facing governments--the bureaus, the courts, and the representatives--is the development of intangible property. Note that I'm explicitly not using the term "intellectual property"--the issue is broader, and different, than intellectual property laws. The Internet enables the instantaneous transfer of valuable merchandise across borders--municipal borders, state borders, and national borders. If I buy a copy of Opera 6.0 [opera.com] for example, I am "importing" software from Norway. Except--I actually import nothing. If I go to a website and pay $16 for MP3 files of eight of my favorite songs, I get something valuable (Econ 1A--it's valuable because I'm willing to pay for it). But I do not have even one more molecule than I owned before I started that download. That presents all kinds of problems: a huge portion of tax receipts depend upon various forms of excise taxes, and excise taxes depending upon physical property crossing physical boundaries. (Quiz: if I buy $34,000 worth of map data from a provider in Europe and retrieve the data by FTP, does the transaction get included in balance of payment statistics reported by the U.S. Dept. of Commerce? Nope.) As more and more commerce consists of file transfers and other forms of distributing intangible property, oodles of legal, financial, and tax issues appear. The DMCA has some dumb aspects--but it is at least a first attempt to come to grips with some of this issues.

    Moving forward
    As the world and the Internet community forge ahead, there will be ample opportunities to learn from other people's mistakes. When a judge in, say, Ohio prepares to issue a decision banning "hate speech" there may be an assistant who will point out that the speech in question is a fatwa issued in Iran, and the ruling might make the judge look as silly as that bozo judge in France [ecommercetimes.com].

    There is another dimension
    Regardless of whether, when, or how politicians around the world finally come to grips with the Internet, there will always be someone, somewhere, who wants to prevent it. With good reason: there are lots of cultures around the world that feel threatened by American movies, American music, American literature, and American attitudes about all sorts of things. And they--rightly--see the Internet as a conduit for all things American, and fear the consequences for their cultures. And that's an entirely legitimate fear--even with millions of users from other countries, the Internet culture is a mirror image of the American "frontier experience" in its wildest and wooliest. I think that's a good thing--but I'm an American. The Saudis, the Chinese, the Taliban, and a fool of a judge in Paris all disagree. There's an irony in the fact that a tool developed by the U.S. Defense Department will become the ultimate weapon of American cultural hegemony. And eventually the bureaucrats, courts, and politicians will have to come to grips with that.

    In sum...
    When pundits or pols in Austria, Australia, or Austin are fussing and fulminating about this Internet-based Crisis! or that, remember: this is just a phase. Pat them on the head, and tell that someday they will grow out of it.

Pound for pound, the amoeba is the most vicious animal on earth.

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