Download pdf - Cyber Law jurisdiction

8/7/2019 Cyber Law jurisdiction

1/20

Internet Jurisdiction


2/20

Internet Personal Jurisdiction

When does a court have power over particularperson? Example: Can a resident of Pennsylvania be sued in

California for breach of an online contract?

Who decides? The court decides on its own jurisdiction.

Personal jurisdiction is largely geographic Acts, parties, physical presence in a state

Acts causing damage or injury in the state

BUT: the Internet does not respect geography Often cant tell where someone is

Cant tell routing, cable location, optical fiber, servers, etc.

Does it matter?


3/20

Internet Jurisdiction

Maintaining website that regularly sends information into theforum state on request is sufficient for general jurisdiction.

Maritz, Inc. v. CyberGold, Inc., 947 F.Supp. 1328 (E.D. Mo.1996). Opinion.

CyberGold had a website in California that sentadvertisements to interested users who signed up to receivethem

CyberGold had no employees or physical presence inMissouri

Maritz, a Missouri corporation, alleged trademark

infringement Held: Missouri jurisdiction proper. CyberGold automatically

and indiscriminately responds to each and every user whoaccesses its web site

NOT JUST JURISDICTION

OVER WEBTRANSACTIONS


4/20

08-732 LAW OF COMPUTER TECHNOLOGY FALL 2009 COPYRIGHT 2009 MICHAEL I. SHAMOS

Internet Jurisdiction Issues

Where does an Internet company reside? Where any of its servers is located?

Where the domain is registered?

Along the path where messages are routed to it?

Where more than 3 employees work?

Where its ISP is located?

Where a lot of computers are located?

Where orders are taken?

Where orders are filled?

Where goods are stored? What about information goods?

Do any of these distinctions make sense?

Do we need Internet courts?


5/20


Zippo: Internet Jurisdiction

Courts recognize three types of eCommerce activity Doing business over the Internet the knowing and repeated transmission of computer files over

the Internet

Personal jurisdiction proper

Passively informational websites little more than an electronic billboard for the posting of

information

No personal jurisdiction

Gray area: defendant has a website that allows a user to exchange

information with a host computer

jurisdiction depends on nature of the information transmittedand degree of interaction.


6/20


7/20


Intercon Case

Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc., 205 F.3d1244 (10th Cir., March 9, 2000). Full text.

Intercon is an Oklahoma ISP (icon.net)

Bell Atlantic Internet Solutions is a Delaware corp. offering dialupISP service in the northeast US. No presence in Oklahoma

Bell Atlantic mistakenly routed its email traffic to icon.net insteadof to its subcontractor iconnet.net

icon.net was choked with email, severely affecting its ISP service.Took 7 months for Bell Atlantic to correct the problem

Intercon sued Bell Atlantic in Oklahoma

HELD, jurisdiction proper because defendant purposefullyavailed itself of the Oklahoma server for months after beingnotified of the erroneous address

(District Court dismissed the case; Court of Appeals reversed.)


8/20


Effect ofForum Selection Clauses

Williams v. America OnLine, Inc., (2001 Mass. Super. No. 00-0962)

Software downloaded by AOL damaged Williams computer

Williams consented to an online Terms of Service contractcontaining the clause: You expressly agree that exclusive

jurisdiction for any claim or dispute with AOL or relating in any way toyour membership or your use of AOL resides in the court of Virginiaand you further agree and expressly consent to the exercise ofpersonal jurisdiction in the courts of Virginia in connection with anysuch dispute .

Williams was already an AOL member; previously agreed to a

Virginia forum selection clause Damage to computer occurred before Williams agreed to new

contract. New contract governs, but forum selection clause isunenforceable!


9/20


Butler v. Beer Across America

Beer Across America (BAA): Illinois company selling beer over the Internet;no offices, assets or personnel in Alabama; never visited Alabama

Butler and her son, a minor, live in Alabama. Son bought 12 bottles of beerfor $24.95 from BAA by ordering over the Internet

The Alabama Civil Damages Act provides for a civil action by the parent orguardian of a minor against any person who unlawfully sells or furnishes

spiritous liquors to such minor and may recover such damages as the jurymay assess.

Butler brought suit against BAA in Alabama. (Why?)

BAA had sold beer to other Alabama residents, bought beer from Alabamabrewers. Advertised nationally, but not specifically in Alabama

HELD: no personal jurisdiction over BAA in Alabama. Website electronicversion of a postal reply card

Butler is not without remedy. Case was transferred to court in Illinois.

Butler v. Beer Across America, 83 F.Supp. 2d 1261 (N.D. Ala. 2000)


10/20


Bases of International Jurisdiction

Territoriality principle regulate conduct within its territory

Nationality principle regulate conduct of nationals, wherever they are

Effects principle

regulate conduct having effect in the state

Universality principle jurisdiction over crimes that are universally condemned

Protective principle jurisdiction over defendants who threaten security of a state


11/20


The iCraveTV Case

TORONTO

UNITED STATES

CANADA

PITTSBURGH

NY

PA

BUFFALO

US TV stations broadcast from Buffalo

iCraveTV set up receivers in

Toronto, Canada

iCraveTV registered the iCraveTV.com

domain name in Pittsburgh

iCraveTV.com

No iCraveTV servers in the US

iCraveTV was sued in Federal Court inPittsburgh by TV networks, movie

studios and sports leagues for copyright

infringement

Do US courts have jurisdiction?

iCraveTV wrapped it own advertising

around the images and served them

to anyone visiting its website

Received US TV signals, stored themon a streaming RealServer in Canada

RealServer iCraveTV is a Canadian company owned

Pennsylvania residents

iCraveTV


12/20


Yahoo! Nazi Memorabilia Case

The Penal Code of France, Sec. R6456, makes it an offense other than for the needs of a film; a show or an exhibit enjoying

historical context,

to wear or exhibit in public a uniform, an insignia or an emblem whichevokes the uniforms, insignia or the emblems which were worn orexhibited [by Nazis]

Penalty:

fines; higher for subsequent offenses

confiscation of the object used to commit the infraction

perform public service; prohibition against carrying firearms for 3 years

Yahoo! auctions routinely offered Nazi items Yahoo! Inc. is a California corporation

Yahoo! France is a joint venture between Yahoo! Inc. and Softbank,a UK corporation


13/20



Yahoo! Inc. and Yahoo France were sued in France by LICRA(League Against Racism and Antisemitism) and UEJF (Union ofFrench Jewish Students) to enforce R6456

Yahoo argued:

Court had no jurisdiction over it

Yahoos content is directed to US internauts Yahoo servers are in the US

Any order against Yahoo could not be enforced in the USbecause of freedom of speech

HELD, France has jurisdiction over Yahoo because

violation of the Code was disruptive to public order

visualization of Nazi objects causes grief in France

Yahoo (US) offers French content to users in France


14/20



15/20



Yahoo! initially complied with the French order

Dec. 2000 Yahoo filed a declaratory judgment action in Californiaagainst LICRA and UEJF

asserts jurisdiction on grounds that:

LICRA, UEJF sent cease-and-desist letters into California

LICRA, UEJF agreed to Yahoos terms of service

LICRA, UEJF used the U.S. Marshal to serve process

alleges:

Yahoo cannot comply on technological grounds

French order chills freedom of expression in the U.S.

Online service providers are immunized by DMCA

Feb. 2001 Yahoo announced it would no longer comply

SUCCEEDED


16/20



Nov. 2001 California court granted summary judgment that the FirstAmendment precludes enforcement within the United States of aFrench order intended to regulate the content of its speech over theInternet. 169 F. Supp. 2d 1181 (N.D. Cal. 2001)

What is at issue here is whether it is consistent with the Constitution

and laws of the United States for another nation to regulate speechby a United States resident within the United States on the basisthat such speech can be accessed by Internet users in that nation.

Appeal to the Ninth Circuit, which held that California had nojurisdiction over LICRA (no purposeful availment) so it reversed the

District Court. The French decision stands but is not enforceable in the United

States.


17/20


Significance ofYahoo!

Goes way beyond Nazi memorabilia Basic question:

When acts performed in country A are legal in A butviolate the laws of B because of transmission over theInternet: Whose laws apply?

Does B have jurisdiction?

Should A act in aid of any judgment against its own citizen?


18/20

08-732 LAW OF COMPUTER TECHNOLOGY FALL 2

009 COPYRIGHT 2

009 MICHAEL I. SHAMOS

Major Ideas

Jurisdiction is largely territorial Territories make little sense on the Internet

The Zippo test is alive and well

Jurisdiction should be predictable, but isnt

Federal action may be necessary International jurisdiction is complicated by the

interaction of different legal systems

An Internet treaty may be required


19/20


009 COPYRIGHT 2


QA&


20/20


009 COPYRIGHT 2


Soma v. Standard Chartered Bank

Soma Medical International v. Standard Chartered Bank, 196F.3d 1292 (10th Cir. 1999). Full text.

Soma is a Delaware corporation doing business in Utah

Standard Chartered Bank (SCB) is a UK bank with an office inHong Kong (no presence in Utah)

Soma had an account with SCBs Hong Kong office SCB maintained a website accessible from Utah

Defendant Fong submitted a forged signature card to SCB; thenwithdrew $250,000 from Somas account

Soma sued SCB in Utah

HELD, no jurisdiction in Utah since SCB had a passive Web sitethat does little more than make information available to those whoare interested