Cyberlaw I: Speech and Privacy in Cyberspace
Course Description - Fall 2001
Broadly speaking, Cyberspace represents a conceptual distinction between activities that occur in the physical or real world and those that occur online or in virtual reality. As a practical matter, both the increasing importance and the expanding utility of the Internet are rendering distinctions between real-space and Cyberspace less perceptible. Even so, Cyberspace still presents a remarkable number of novel legal questions involving how computer users carry out various social, economic, and political transactions through the interconnection of computing and communications technologies. Today, lawyers are frequently challenged by legal problems having little relevant historical antecedent in our caselaw. Although the lack of reliable or pertinent precedent renders legal practice in this area difficult and, quite often, frustrating, the challenges are also exciting. In Cyberlaw, one cannot easily escape the feeling that despite the apparent absence of physical matter, Cyberspace is a bleeding edge of the law.
Cyberspace facilitates our ability to engage in a wide-range of activities, including activities in which we share a great deal of detailed and sometimes personal information about ourselves to strangers. In this course, we will examine two inter-related areas of the law that Cyberspace may be shaping in profound ways. We will consider some of the novel questions facing us concerning an individualís right of privacy when participating in an apparently public forum like Cyberspace. Why is privacy valued? Should privacy be regulated differently in Cyberspace than in real-space? If so, how? If not, why? These fundamental questions form the basis for our study of privacy in Cyberspace.
The course will also review the legal setting developed thus far concerning freedom of expression or speech rights in Cyberspace. As an outgrowth of the courseís examination of privacy and speech, we will evaluate the emerging legal framework with respect to the intersection of speech and privacy in areas of technology such as: the use of encryption in electronic communications, the publication of the fruits of intercepted private speech, and the emergence of Internet Governance. Participants in the course will make fairly extensive use of Cyberspace as a basis for class discussion, study, and research. There will be one short presentation and a research paper required on an issue discussed in the course.
The course grade will be based on the studentís performance on a significant research paper and class participation, including a brief presentation:
1. Research Paper -- 70%. The Research Paper must be at least 20 pages.
Topics. The deadline for selection of paper topics is the third week in the semester.
First Drafts. On a date announced in class, a first draft of your paper is due. Shortly thereafter, I will offer comments and suggestions on the paper in preparation ofr the final draft.
Final Drafts. Completed papers are due on the date announced in class.
2. Class Participation -- 30%. In-class discussion is essential in this course.
An important part of class participation is includes coming to class prepared to discuss the readings, and completion of a Joint presentation. Joint presentation: at least two students will be assigned to work together to develop a joint project for presentation to the class. The presentation consists of two students leading a class discussion on a selected topic by presenting distinct or opposing viewpoints on the topic (To increase the likelihood that the presentation stimulates an interesting class discussion, each team should present viewpoints or positions that clash on relevant issue(s)). Teams, presentation topics, and dates of presentation will be assigned in the second week of class. Once assigned a team and a topic, students should submit a short statement noting the viewpoints that will be supported during the presentation. Each student should be prepared to present his or her view for ten minutes followed by a Q & A from the class. An outline should be distributed in class. Since joint topics are assigned, students are encouraged to select a different topic for the paper.
3. Attendance is required.
4. The course texts include the readings hyperlinked on this course web page and Madeleine Schachter's Law of Internet Speech (Law of I.S.).
5. This course provides an opportunity to those who are so inclined to become thoroughly familiar with using the Internet to locate legal resources. Hence, an is available here. For students who have mastered legal research techniques using the Internet, yopu are encouraged to submit helpful resources that may be added to the index.
The readings for each class meeting:
Week 1: Cyberspace & the limits of jurisdiction...
If you have not done so already, spend some time exploring the web (surfing). Take notes on what websites you visit and list your favorite (or most frequently used) places on the Internet so we may discuss our Internet experiences during class. If your web browser does not have bookmarks, you may begin exploring the web from any of the links under "What are Cyberspaces?"
BLUMENTHAL v. DRUDGE, [p.89 of Law of I.S.];
PEOPLE SOLUTIONS v. PEOPLE SOLUTIONS, [p.94 of Law I.S.]
NOTE: Before turning in your first draft, you should read: Eugene Volokh, Writing a Student Article, 48 J. Legal Educ. 247 (1998).
RECOMMENDED READINGS: (particularly for those who want to explore the question of jurisdiction further...)
Allan R. Stein, The Unexceptional Problem of Jurisdiction in Cyberspace, 32 The International Lawyer 1167 (1998).
Minnesota v. Granite Gate Resorts, Inc., No. C6-97-89 (1997).
David R. Johnson & David Post, Law Without Borders -- The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996);
Dan L. Burk, Federalism in Cyberspace, 28 Conn. L. Rev. 1095 (1996).
A. Michael Froomkin, The Internet as a Source of Regulatory Arbitrage, in Brian Kahin & Charles Nesson, eds., Borders in Cyberspace: Information Policy and the Global Information Infrastructure 129 (1997).
James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hard-Wired Censors (1997)(Conference paper).
Weeks 2-4: Internet Governance and Private Sector Management of
Management of Internet Names and Addresses: Statement of Policy, National Telecommunications and Information Administration (1998).
ICANN for Beginners (from ICANNWATCH.COM)
BOOKFIELD COMMUNICATIONS, INC. v. WEST COAST ENTERTAINMENT CORP., [p.453 of Law of I.S.];
BIGSTAR ENTERTAINMENT v. NEXT BIG STAR, [p.460 of Law of I.S.];
LUCENT TECHNOLOGIES v. LUCENTSUCKS.COM, [p.467 of Law of I.S.];
SPORTY'S FARM LLC v. SPORTSMAN'S MARKET, INC., [p.473 of Law of I.S.];
Expansion of the UDRP;
Before The Law: ICANN Is The Gatekeeper Of Cyberspace, Internet.com: Domain Notes, (Nov. 2000).
RESPONSE TO THE INTERIM REPORT: THE RECOGNITION OF RIGHTS AND THE USE OF NAMES IN THE INTERNET DOMAIN NAME SYSTEMĖWIPO-2 (WIPO2 RFC-3) [AN HTML COPY IS HERE] [THE INTERIM REPORT IS HERE - WARNING...the actual report is an exceptionally large document, select your links carefully if your are not on a highspeed connection]
[IN-CLASS ARBITRATION PROJECT]
Weeks 5 - 7: Privacy in Cyberspace
Carefully Review The World Wide Web Security FAQ.
Minnesota v. Carter,(97-1147) _ U.S. _ (1998).
Fundamental Principles of Privacy [pp.294-95; 298-99; 306-08; 312-13; introductory discussion sections only, of Law of I.S.].
Smyth v. The Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996).
DAVIS v. GRACEY, [p. 337 of Law of I.S.];
McVEIGH v. COHEN, [p. 347 of Law of I.S.];
ANDERSEN CONSULTING v. UOP, [p. 353 of Law of I.S.];
QUAD/GRAPHICS v. SOUTHERN ADIRONDACK, [p. 366 of Law of I.S.];
PUTNAM PIT, INC v. CITY OF COOKEVILLE, [p. 369 of Law of I.S.];
Rod Dixon, Windows Nine-to-Five: Smyth v. Pillsbury and the Scope of an Employee's Right of Privacy in Computer Communications, 2 Va. J.L. & Tech. 4 (1997).
Rod Dixon, The Feds Should Act to Ensure Our Privacy Online , ComputerWorld, April 1999.
David J. Goldstone, A Funny Thing Happened on the Way to the Cyber Forum: Public vs. Private in Cyberspace Speech, 69 U. Colo. L. Rev. 1 (1998).
Jerry Kang, Information Privacy in Cyberspace Transactions, 50 Stan. L. Rev. 1193 (1998).
Weeks 8 -10: The Convergence of Encryption, Privacy, and Free Expression
USWEST v. FCC, 182 F.3d 1224 (10th Cir.1999), panel decision;
Universal City Studios v. Shawn Reimerdes, [p. 492 of Law of I.S.];
REALNETWORKS v. STREAMBOX, [p. 420 of Law of I.S.];
A & M RECORDS v. NAPSTER, [p. 405 of Law of I.S.];
PLAYBOY ENTERPRISES v. NETSCAPE, [p. 443 of Law of I.S.];
FUTUREDONTICS v. APPLIED ANAGRAMICS, [p. 507 of Law of I.S.];
JUNGER v. DALEY, [pp. 373 - 387473 of Law of I.S.].
John A. Fraser, The Use of Encrypted, Coded and Secret Communications Is an "Ancient Liberty" Protected by the United States Constitution, 2 Va. J.L. & Tech. 2 (1997).
Weeks 10- 11: First Amendment Principles
Reno v. ACLU, [p. 10 of Law of I.S.];
CUSUMANO v. YOFFIE (U.S. v. MICROSOFT), [p. 42 of Law of I.S.];
FIRST NATIONAL BANK v. BELLOTTI, [p. 51 of Law of I.S.];
The Law of the Horse:What Cyberlaw Might Teach, Lawrence Lessig, [p. 76 of Law of I.S.].
Weeks 12-14: Regulation of Content
US. v. ALKHABAZ (The Jake Baker Case), [p. 107 of Law of I.S.];
R.A.V. v. CITY OF ST. PAUL, [p. 112 of Law of I.S.];
Mainstream Loudon v. Board of Trustees of the Loudon County Library, [p. 182 of Law of I.S.];
Cubby v. CompuServe, Inc., [p. 199 of Law of I.S.];
ZERAN v. AOL, [p. 206 of Law of I.S.].
Julian Dibbell, A Rape in Cyberspace, first published in The Village Voice, Dec. 23, 1993;
Eugene Volokh, Freedom of Speech in Cyberspace from the Listener's Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex, 1996 U. Chi. Legal F. 377.
1999, 2000, 2001 Rod