For example, in Register.com v. Verio, Register.com displayed a Terms of Service agreements that prohibited the use of information collected via WHOIS data queries for marketing and advertising purposes. When Verio created a program to crawl Register.com’s system to collect data on new domain name purchasers via WHOIS data queries, Register.com sued for breach of the terms of service. In this instance, the court found that Verio had trespassed on Register.com’s chattels by slowing down the WHOIS database and found that Verio had breached Register.com’s Terms of Service agreement.

Similarly, in Tickemaster v. Tickets.com, the court also found that Tickets.com had trespassed on Ticketmaster’s chattels when it used a spider to collect data from Ticketmaster’s website. The data collected was information as to exclusive events which Ticketmaster had gained information to by purchasing rights to the information. Ticketmaster sued for trespass to chattels and won as well.

In both these instances, contractual language like terms of service agreements provided some relief for websites. This relates to my thesis paper because a great deal of the digital content and information online is protected by Terms of Service agreements or User Agreements that prevent the user from infringing on certain rights of the content holders.

The courts have repeatedly demonstrated that there are certain property rights that exist in digital content. A great deal of digital property is protected by intellectual property law. Despite intellectual property rights, the court has demonstrated that other traditional property rights exist for digital content as well, such as trespass to chattels.

The reason I find all of this interesting is because the way that property rights are often protected for digital content is through user agreements and online terms of service agreements. Thus, without terms of service agreements and user agreements a great deal of information would be locked away behind passwords and internet barriers.

I spend a great deal of my paper discussing what I believe is a problem with user agreement sand terms of service agreements, and that is the lack of a meeting of the minds. For a contract to be formed, a meeting of the minds must take place. But must it?

The court has shown that not necessarily. In fact, the court in these two cases has shown that protection of digital property rights and access to information might actually outweigh the meeting of the minds requirement. Without protection of digital information online, what digital content creator would openly share their content with the world on the web? User agreements and terms of service provide the assurance a digital content creator needs for sharing content like music, movies, articles, information, photos, etc. So maybe the court is trying to say, it’s not so much that both parties understand and really agree to the terms of the contract, so much that neither party is unfairly advantaged or burdened by the online user agreement.

In each of theses cases a party was seeking the identity of anonymous internet users who were allegedly breaking the law. We discussed after class whether individuals had a false sense of security when surfing the internet and partook in actions that they would normally not partake in because they felt their identities could not be discovered.

One of the students in our class stated that he believed users who committed copyright infringement by downloading music illegally because they felt that they were not actually taking anything physical. Whereas, in “real-space”, walking into a physical CD store and stealing music was the actual theft of a physical, tangible thing that someone else might have purchased. While most users who participated in copyright infringement did so believing that they never intended to purchase the music they downloaded illegally and only partook in the practice of downloading music illegally for the sake of downloading music illegally.

I definitely see my classmate’s point, but I also think a contributory factor for the apathy toward the law in this respect has to do with the fact that users who download music illegally think they will not get caught.

In The Recording Industry Association of America v. Verizon Internet Service, the court found that Verizon was not required to hand over the identity of its users to the RIAA because the Digital Millennium Copyright Act (DMCA) section 512(h) did not apply to internet service providers who did not store any of the infringing content on their servers.

However, in Sony Music Industry v. Does, the court found that “Does”, the defendants’ identity was not protected under the First Amendment because the infringers were breaking the law. Judge Chine stated, “The defendants’ First Amendment right to remain anonymous must give way to plaintiffs’ right to use the judicial process to pursue what appear to be meritorious copyright infringement claims.”

In 2002 popular P2P file sharing programs were downloaded by over 148 million times and only a few thousand people been prosecuted and charged with criminal liability for downloading music illegally. Given these facts, it is clear that a reasonable person who downloads music illegally could expect that the likelihood that he or she would be prosecuted and held criminally liable for downloading music illegally is low.

The fact is a large number of users believe they are just one of millions of individuals who participate in a popular, illegal practice of downloading music illegally. Users who partake in this behavior feel that even if someone discovers that they have downloaded content illegally, they have not infringed to the same degree as those who are paraded before the media. They feel in some way their actions, although illegal are justifiable.

My classmate characterized it well: It’s easier to justify something that is not tangible and something a user would never actually purchase. It’s also easier to justify illegal behavior if the practice is common place and the infringing use by the user is meager in comparison to other user’s infringing use.

The fact is the internet is like a bulletin board and people choose to post, share and contribute to it resulting in sometimes illegal uses. However, because the internet is an open place for ideas, content and thought, it is not a shield or veil by which illegal behavior will be overlooked. The RIAA has already began to make an example of individuals who infringe on copyright. In the end, users are taking their chances that the RIAA and the law won’t catch up to technology.

The blog post can be read here.

According to Brian Cuban, “Texas law currently prohibits individuals from providing children with ‘harmful material’ if it ‘appeals to the purient interest’ and is ‘utterly without redeeming social value for minor’. The law however provides a defense for parents and guardians.”

If this is true, then my question involves the First Amendment and Filtering of Content provided to children by parents. Should a parent be given the right to show his or her child explicit pornographic material? Does it violate the parent’s right to freedom of speech if he or she is criminally prosecuted for providing his or her child with explicit pornographic material?

We learned in class that the theory behind Child Online Protection Act and the Child Internet Protection Act was to protect children from material that might be obscene or harmful to minors.

COPA defines “harmful to minors” as follows:

• Any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that—
• (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
• (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
• (C) taken as a whole lacks serious literary, artistic, political, or scientific value for minors.

The CIPA defines “harmful to minors” and “obscene” as follows:

• “obscene”, “child pornography” = references to federal criminal statutes
• “harmful to minors”:  Any picture, image, graphic image file, or other visual
  depiction that –
• (A) taken as a whole with respect to minors, appeals to
  prurient interest in nudity, sex or excretion;
• (B) depicts, describes, or represents, in a patently offensive
  way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and
• (C) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.

The government interest in creating these laws was to protect children from obscene and harmful material when children are provided the freedom to surf the internet. Whereas, the government’s interest in protecting children shifts when a parent provides the “obscene” and “harmful material” to his or her child.

It seems the government’s interest in protecting prurient interests only involves cases where a parent is unavailable to monitor his or her child’s actions. However, when a parent is present and providing the content to the child, the government interest is eliminated because any involvement by the government would be prohibiting the parent’s freedom of speech towards his or her child.

I find this theory very interesting. The government claims to have an interest in protecting “prurient interests”, but only when that interest doesn’t violate freedom of speech. Therefore, parents could decide that providing their children with credit card information for accessing pornographic material and the government would lose its interest in protecting the “purient interest” because the government’s involvement would violate freedom of speech.

So my question is: if a parent’s freedom of speech overrides the government’s interest in protecting prurient interests, by what standard are we protecting prurient interests with COPA and CIPA? Because clearly some parents would find COPA and the CIPA are too braod and inclusive, while others would argue that content is not restrictive enough.

When we previously read the ACLU v. Ashcroft, the majority found that there could be no community standard for evaluating obscene content accessed by children because the most conservative community standard would be adopted. COPA was overruled by the majority because they found filtering software was a viable alternative.

Despite the majority’s opinion, there doesn’t seem to be any standard established for protecting children from obscene and potentially harmful material accessible on the internet. It seems the court expects parents to be responsible and accountable in deciding what content their children should access. Clearly, Texas law supports the conclusion that parents have the right to provide pornographic material to their children. It seems the government’s interest is always trumped by parents’ freedom of speech in providing their children with content they feel is appropriate.

My last question: Why does the government continue to try to impose laws on regulating obscene material to children if their interest will likely fail a Freedom of Speech claim? Is it ever possible to have a online filtering process that doesn’t limit freedom of speech?

I wrote an article for Social Media Law Student a few weeks ago on Sexting and I’d like to expand on my thoughts towards sexting and Speech Regulation in the name of child protection.

From the reading we learned that many of the cases in support of regulation based their argument on Government having a strong interest in protecting minors from harmful and indecent material. I found it really interesting that Government felt it was so important to protect minors from being exposed to “obscene and indecent material” from a variety of avenues like movie theaters, radio, television and the internet, but failed to ask whether teens were contributing any of the “indecent” material.

According to my research for the Sexting article I wrote, 38% of teens engage in a practice called “sexting”. “Sexting” is when a minor sends a nude photo via their mobile phone or computer to another minor.

The government has a lot of concerns that teens are accessing nudity or obscene material from porn sites, but in reality minors are accessing much of the nudity and obscene material from each other, not websites.

How can the government protect minors from “obscene” material when minors are the creators and distributors of the “obscene” content?

The government’s answer is a broken answer. Just a few months ago an 18-year-old teen was charged with distributing and possession of child pornography after he received and shared a photo of his minor ex-girlfriend in a text message. He was sentenced to two years in prison and told to register as a sex offender.

CosmoGirl.com, a popular teen magazine, asked its readers how many of them knew sexting was a crime and still sexted anyway. 1 in 5 of their readers admitted to sending a sexually explicit photo to another person knowing the transmission of this content was illegal.

If 1 in 5 teens is participating in this form of activity, shouldn’t the government be more concerned about obscene material distributed between teens than obscene material distributed through already heavily regulated mediums like the radio, television and the internet? Is it really in public policy’s best interest to arrest and charge minors who engage in sexting as sex offenders for life and sentence them to two years in prison?

Additionally, distribution and possession of child pornography is illegal whether adults have access to it or whether children have access to it. But then again, isn’t regulating the sexual behavior a violation of the law? What about teen sexual behavior? Does the government have the right to create laws that punish teens who choose to relinquish nude photos of themselves to other teens through a communication device like a phone? Doesn’t that violate the 1st Amendment’s right to freedom of speech?

According to the Criminal Law classes I took, a minor cannot consent to sex because he or she is not an adult and therefore sex with a minor is a form of rape. Yet minors do consent to sex with each other, also known as the Romeo and Juliet law, which prohibits minors from being prosecuted for having sex with each other.

Why isn’t there any law protecting minors from their own lack of maturity when it comes to sexting? There are laws protecting minors from criminal charges for having sex with other minors, but none for minors who engage in a violation of a law intended to prevent the distribution and possession of child pornography by child predators.

Are minors the child predators who the lawmakers were intending to prosecute when they created child pornography laws? The government can regulate the radio, television, movies, the internet, but not communication between two minors. So the government’s response to this problem is to label promiscious teens as sex offenders and charge them with possession and distribution of child pornography. Inevitably, hormonal and curious teens are being punished by the very laws intended to protect them.

Somehow this just doesn’t seem like the lawmaker’s intent for creating child pornography laws and it doesn’t seem to prevent the problem of obscene material in the hands of minors either.

I have a strong interest in Social Media, in particular Web 2.0 technologies and the laws that govern online social networking sites. I think it’s very interesting how individuals shares their very private information so freely with websites in an attempt to attract “friends” or “followers” on social media sites. I have written several articles relating to this on the blawg I write for: Social Media Law Student.

I have chose to write my thesis paper on Terms of Services Agreements and the lack of the contractual “meeting of the minds”. Interestingly, Professor Sorkin mentioned in class that Facebook recently attempted to change its TOS Agreement and received a great deal of heat from its users. In response, Facebook created an open forum for discussion of what information Facebook should be allowed to share with advertisers and what information could not be shared. You can read more about the discussion here.

Professor Sorkin questioned what really would have happened if Facebook had refused to listen to its user’s concerns about the new TOS Agreements. One of the students in our class mentioned that probably 5% of the people would make a fuss or possibly quit Facebook, but the impact of ignoring those concerns would be minimal. I disagree for a few reasons.

It’s clear that Facebook has chosen to privately regulate itself on the internet. I wrote an article on its behavioral advertising practices in which I described the recent House of Representatives Committee for Energy and Commerce’s investigation into behavioral advertising. In that investigation, Facebook claimed that it prided itself in privately regulating its practices and provided an open forum for its users to discuss any concerns they may have with the distribution of their private content. Also, Chief Privacy Officer of Facebook Christopher M. Kelly stated that Facebook may sell information submitted by users, but that content would never be connected with the user’s actual identity. Facebook stood behind the policy that it could privately regulate itself because it was transparent and revealed all its methods of collecting and sharing its user’s content with advertisers.

Interestingly, very few Facebook users  found the original change to the Terms of Service agreement transparent enough and protested. In my Trademark and Copyright class we learned how the marketing world and the legal world can often conflict. However, in this case the marketing and legal world converged. Facebook is a brand and receives its sole source of income from advertisers. Facebook has advertisers because Facebook has 300 million users. The minute Facebook starts ignoring its users, it will become discarded and yesterday’s social networking site (think MySpace). In an effort to maintain its brand image and maintain customer loyalty, Facebook took the initiative to discard its old Terms of Service agreement for a plain langauge TOS Agreement that everyday people could understand. As a result of this effort, Facebook demonstrated it was a trustworthy brand that was listening and addressing its customer’s concerns while simplifying the overcomplicated aspects of the law.

Facebook was able to privately regulate itself so as to appease its fans while maintaining its business model.

Interestingly, there are several groups advocating for greater transparency in relation to behavioral advertising. Those groups have stated that there needs to be public and governmental regulation of Web 2.0 technologies and Social Networking sites. One of the strongest evidence supporting these claims came from Scott Cleland, the President of Precursor, LLC. Cleland identified that Consumer Reports from September 2008 demonstrated that:

61% of consumers are confident that what they do online is private and not shared without their permission

57% incorrectly believe that companies must identify themselves and indicate why they are collecting data and whether they intend to share it with other organizations

48% incorrectly believe their consent is required for companies to use the personal information they collect from online activities.

Finally, the Center for Digital Democracy along with a whole host of other groups have posted a primer containing 20 recommendations, ideas and possible solutions for the gap between consumer protection and consumer privacy online.

In the primer the privacy groups identified several legislative recommendations including:

Preventing collection of data on minors

Sensitive information should be defined and protected including health data, finances, ethnicity, races, sexual orientation, and political activity

Behavioral targeting for individual redlining activities should be illegal

The government should create and enforce a baseline to guarantee consumer privacy

Both these advocate groups express concern over the power of private regulation and if its sufficient for regulating Web 2.0 technologies and Social Media sites. I found their arguments particularly compelling and worth mentioning.

Even though Facebook can successfully regulate itself in this situation, it doesn’t mean Facebook will always be able to self regulate. There is still a definite gap between several popular Web 2.0 and Social Media technologies and transparency. Maybe the only way to have true enforcement of the law is for public and governmental regulation.

In class we discussed both the U.S. response to domain name cyber-squatting, Anti-Cybersquatting Consumer Protection Act (ACPA), and the global reponse to domain name disputes, the Uniform Dispute Resolution Policy (UDRP).

The ACPA grants jurisdiction over infringers or parties to the suit on the sole basis that the party registered the domain name in question with the Verisign registry located in Virgina. The court prefered a narrow interpretation of Schaffer and asserted the minimum requirements test identified in International Shoe was only required for quasi in rem II-type cases. In CNN v. Cnnews.com the dispute concerned “true in rem” jurisdiction and therefore there the court reasoned there was no requirement that the owner or person claiming the res have minimum contacts with the forum state. The court states, “More particularly, in the ACPA in rem action, it is not necessary that the allegedly infringing registrant have minimum contacts with the forum state; it is enough, as here, that the registry is located in the forum.”

Interestingly, the court in GlobalSantaFe Corp v. Globalsantafe.com stated it could ignore a directed ruling of a Korean Court because of the First-In-Time rule. The court reasoned that the proceedings concerning the disputed domain name were not concurrent, the Korean judgment was ordered to prevent the enforcement of the U.S. judgment, and the U.S. judgment supported public policy concerns under U.S. Law. The court stated that the Korean court attempted to block a U.S. judgment six months after it had been ordered. For these reasons, the court stated that the Korean Court’s directed ruling could be ignored.

I found the court’s jurisdiction statements rather concerning. If we review what we’ve learned so far about jurisdictions and cyberspace, we will see that the U.S. court has been inconsistent with what rules it values. Note 7 on page 185 of the textbook explains:

But should “first in time” really matter? What if Park, knowing that Global SantaFe was likely to file an ACPA action in the U.S., had gone into court in South Korea and sought, in advance, a declaratory judgment stating that the registration was permissible under South Korea trademark law? If such a judgment had been issued befor ehte U.S. case was filed, do you think the district court would have abstained from adjudicating the ACPA claim on comity grounds? Should it?

Under such a circumstance, it is doubtful that the U.S. courts would have upheld the South Korean law. The U.S. would have likely found some obscure law to grant it the right to claim jurisidction in this case. Remember the French Supreme Court’s ruling in Yahoo!, Inc. v. La Ligue Contre le Racisme et l’Antisemitisme? The Northern District Court of California was able overule the French Supreme Court’s judgment with regard to Nazi memorbilia for sale on Yahoo’s Auction website. Why didn’t the District Court remember the first in time rule then?

The UDRP allows domain name disputes to brought before an arbitration panel for a resolution. The panelists of the UDRP consider the following information when making a determination of domain dispute resolution:

Paragraph 4(a) – The Complainants must prove the following:

1. Disputed domain name (registered by Respondent) is identical or confusingly similar to service marks or trademarks, to which Complainants has rights.
2. Respondent has no rights or legitimate interest in domain name.
3. Bad faith

In the examples we read in class, there was often a loan dissenter who was able to show that either (2) or (3) was not satisfied for the claim. I prefer the UDRP for two reasons. One, the UDRP does not answer to any one nation, but rather a community of nations. The UDRP is independent from territorial boundaries and jurisdictional lines, which in my opinion makes it more autonomous.

Second, the ACPA forces a party who may have little to no contacts within the forum state to submit itself to the laws of that forum. Even if the defending party contracted with Verisign, a Virginia-based company, this does not mean the defendant ever had any contacts with forum state. Domain names can be purchased online in a simply transaction that costs as little as $10 for the year. Even if the domain name originates from a registry in Virginia, it doesn’t seem just or fair to require a defendant to incur great expense and time to defend his or her actions in the forum state. This requirement and jurisdicitonal claim by the ACPA is overly burdensome and extremely costly for the defendant and therefore unjust.

I prefer an autonomous body governing questions involving domain name dispute resolution to a single country. It allows for a more legitimacy and transparency. The internet is global, it does not effect a single countr yand therefore cannot be governed from from a singular view. For this reason, I think the UDRP is more just and a better take on domain name dispute resolution issues.

First, let me explain what we learned last week. We learned about three different types of automated standardized contracts including Shrink Wrap Licenses, Click Wrap Licenses and Browser Wrap Licenses. Shrink Wrap licenses are licenses that encompass software and state that if the user removes the shrink wrap, he or she consents to the license associated with the software. Click Wrap licenses are more commonly used today when a user downloads software and then is prompted to click an accept button consenting to terms of a license. Finally, Browse Wrap Licenses are licenses encompassed mainly by Web 2.0 and Social Media services that allow users to access sites if they consent to the terms. Ex: Facebook, WordPress, Gmail, etc.

Also, a group presented information on TPMs which is code implemented in a digital copyrighted work to prevent copyright infringement of the work. A few examples of how TPMs protect works is evident in a song for download that can only be played on certain media players or digital books that cannot be bought or resold to third parties and only be used on certain eBook readers.

We discussed briefly in class if whether or not Click Wrap licenses and Browse Wrap licenses were effective. I’d like to expand on our thoughts and discuss my opinions. In my opinion, Click Wrap licenses are not very effective, in fact, I think the majority of people don’t read any of the terms of services in the Click Wrap licenses or Browser Wrap Licenses. I also think that if Terms of Service agreements became too cumbersome to fill out (say requiring an initial of every page and faxedin copy), users would have little incentive to use the products governed by those licenses.

I don’t think the majority of individuals who use software, buy iTunes songs, read Kindle books, and use Facebook really know much about the Terms of Service and what they actually contracted to. (As evidenced by the iTunes Terms of Service agreement which required that users not use the iTunes software to create nuclear weapons or explosives.)

The fact is very few people read licenses and contractual information. I will admit as a law student, I take very little time to read forms with tiny print and I don’t read half the software agreements I consent to. I agree with my classmates that the reason nobody reads is because they are not written in plain English. I know anytime I look at a block of text in a contract with tiny words, I get tired. I can only imagine what a lay person feels when they see a block of contractual legalease.

What concerns me the most is that people don’t understand what they are contracting to and I don’t think its fair that anyone should be held accountable to a Click Wrap License that requires a law degree to understand. Developers and Terms of Service creators need to refrain from using legalease unless absolutely necessary. For example, one of the best legalease free licensing I’ve ever read can be found on the Creative Commons website. The Creative Commons offers both a legalease version and a lay person version of their licenses to make it eay for content creators to understand what they are contracting to.

People are associative beings and it helps when a visual is provided along with a word to explain a difficult concept. Instead of blocks of long legalease text, licenses should be presented to users visually and in bullet points with simple, easy to understand, non-legal words explaining the contractual agreements users are consenting to.

Finally, all licenses should be very visible on the browser page or displayed promptly before the first three uses of the software. In displaying the Terms of Service three times before use, the user cannot claim ignorance and by making the Terms clearly visible and easy to find, the user will be on notice that they are subject to the terms.

Zippo Case and Internet Contacts
Internet and Sliding Scale Analysis of Purposeful Availment

• Personal Jurisdiction (Right): At one end of the spectrum….If the defendant enters into contracts with residents of a foreign jurisdiction that involves the knowing and repeated transmission of computer files over the internet, personal jurisdiction is proper. Ex: D is doing business on the Internet: purchasing, marketing, advertising, money exchange, etc.
• No Personal Jurisdiction: At the opposite end…a passive website that does little more than make information available to those who are interested in it and is no grounds for exercise of personal jurisdiction. Ex: information posted on the internet, no interactivity.
• Middle Ground: The middle ground is occupied by interactive websites where a user can exchange information with the host computer. In theses cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the website. Ex: Interactive with exchange of information, examine how interactive.

I found particularly interesting the point made by the authors when they asked, “Might a web operator wishing to avoid jurisdiction exposure be encouraged to limit the utility of its webpage?” Allan R. Stein in Note 7 on Page 124 which states in Personal Jurisdiction and the Internet: Seeing Due Process through the Lens of Regulatory Precision:

For instance, rather than facilitate an online order of merchandise, a risk-averse seller will simply provide product information on its website, but require a follow-up phone call to finalize the order…It is hard to imagine how any state or perso would benefit from encouraging such behavior.

I think this is a good point. One of the primary purposes and benefits of the internet is ease of access to information, communication and the free flow of information. When viewed from this perspective, it appears to me the court failed to realize the overall benefits of the internet as a tool for communication and ease of access to information.

Granted, the Zippo opinion was written in 1997 when a great deal of the communication and interaction online was limited to AOL Instant Messages and Web Chats. Technology has evolved since then and now websites like Twitter, Facebook, MySpace and even hundreds of internet based or internet integrated companies (Threadless, eBay, WordPress, Google) thrive and profit from communication and interaction between the users and website. There is no way a company like Twitter, Facebook, MySpace, Threadless, eBay, Google or WordPress could prevail on a suit alleging improper jurisidction because by definition their companies require user communication and interaction.

However, in the real world, companies are able to prevail on causes of action which limit jurisdiction to their place of business, place of incorporation, and anywhere where there are sufficient contacts with the state. Sufficient contacts includes the idea of purposefully availing oneself on the jurisdiction, such as advertisements directed specifically at that state.

But the internet is not like real space, it exists beyond the realm of real space and can be visited by anyone, as discussed in the book. How can there be jurisdictional limits or rules on something that exists beyond territorial borders and cloaks everything with no true boundaries? Using a sliding scale to determine jurisdiction is not proper because it places an unfair burden on internet companies who do not truly purposely avail themselves on any particular jurisdiction, unless specifically stated.

I’m not sure if I have the answer to the jurisdiction questions of what should replace the sliding scale analysis, but internet jurisdictional questions should be governed by federal law and not state law. If the internet were governed by state law, far too many conflict of law cases would develop and there would be a higher likelihood of forum shopping. Ultimately, the court would have to look at the contacts with the particular district and decide if there are sufficient contacts.

The court could measure the sufficiency of contacts within the forum state by analyzing the data presented by behavioral advertisers. A great deal of data is collected on consumers everyday via behavioral advertising techniques such as the collection of data from cookies. Based on this information, marketers choose to show certain advertisements to certain users and display a certain advertisement in connection with that particular user. A website administrator who owns his or her own domain chooses to employ advertisers or not. If a website administrator chooses to place advertisements on his or her website, he or she should have reasonable notice that he or she could be hauled into court in the jurisdictions where the majority of his visitors reside. A website administrator can gain access to this information by requesting the information from the advertisers or by employing his own free statistical counter via Google Analytics, etc.

This approach to purposeful availment based on internet contacts is not fail proof, but it doesn’t limit communication, interaction or access to information. Therefore, I think it’s a better approach to the jurisdictional question than the one currently employed by the court.

One student in my class commented that France had the right to govern its people as it chooses and when a foreign company violates French law, French has every right to punish the foreign company. I agree with this assessment in the real world. Countries aren’t required to recognize a foreign nation’s rule of law. However, in this case we are talking about cyberspace which stretches beyond the traditional view of boundaries and space. As previously discussed in the last post, people have the ability and access to perform tasks in cyberspace that they would be unable to carry out in real space. This creates issues for jurisdiciton.

On that note, I agree with the majority opinion in Aschroft v. ACLU, in which the court found it unconstitutional to create of a community standard for regulating online content under the Child Online Protection Act (COPA). The majority focused on the fact that cyberspace has no boundaries or borders and took an exceptionalist view of regulating the internet. If the internet is regulated by a community standard, the most cautious and conservative view of regulation will be adopted preventing access to information and content. When I think of the government and lawmakers having that much power I instantly think of an Orwellian society or maybe something similar to the current regulation of online content by the Chinese. I believe there can be better laws in place to protect children from malicious content but also protect freedom of speech.

In a previous class, my class went online to the Marlboro website where we experimented with their age identification content for selling cigarettes to children. Marlboro won’t even let you visit their site without first verifying your age. In order to actually enter into the website, Marlboro requires that the user enter his or her address along with a great deal of person content and a customized quiz to verify the user is who he or she say they are. It seems like so many of the battles over jurisdiction could be less complicated if there was some way to verify a person’s identity and what law a person should be subject to while they surf the internet. Now, that sounds Orwellian, I know. But what if it wasn’t?

For example, Dick Hardt formulated the concept of Identity 2.0 as a way for users to verify who they are when they are online. Think of it as an online version of your driver’s license. If a concept like this existed in cyberspace, jurisdictional questions could become less difficult. The government would ultimately regulate the internet and be able to determine based on a user’s Identity 2.0 who the user was, what state they live in and what laws they are subject to. Governments would control what content their citizens could view and prevent them from violating the law. For example, a government would not allow a pedophile to visit his favorite illegal and illicit websites and children wouldn’t be subjected to websites which may violate COPA. However, the government would easily be able to identify who and what people are doing at all times online. The anonymity associated with the internet would not longer exist. Now that sounds Orwellian.

But then again, if the government or even corporations had the ability ot prevent users from accessing certain sites that violate local law, wouldn’t that violate the First Amendment and Freedom of Speech? Maybe Identity 2.0 isn’t a solution, but its clear that France shouldn’t be able to affect the rights of U.S. citizens.