Understanding the Law in Cyberspace


Cyber law, or the law of cyberspace, is not so much an area of law as a collection of new legal issues and dilemmas that have arisen as a result of the Internet’s ever increasing intrusion into daily life. The Internet has not only facilitated communication, commerce, and personal expression, but it has also introduced new ways of thinking and performing these routine activities. At the same time, it has created new focal points for disputes and new questions about ownership, privacy, and jurisdiction which have found their way into the legal system. The wide availability of music, texts, and other works of art online, and the nearly unrestrained ability to download files containing these works onto one’s computer, has presented tricky dilemmas for courts and practitioners who apply and interpret the principles of intellectual property law. The easy anonymity with which individuals communicate over the Internet has far-reaching implications for the enforcement of defamation law and the effective limits of privacy rights. There are also more abstract questions—Who owns the Internet? Where is the Internet “located”?—which give rise to more practical issues, such as which court has the authority to hear a case that arises from activity that occurs in cyberspace? Courts are only now beginning to grapple with the plethora of legal quandaries that the Internet and cyberspace present. 

  • Dow Jones v. Gutnick: The full text of the High Court of Australia decision in the landmark case of Dow Jones v. Gutnick is available at this link. The case concerned accusations of defamation brought by Melbourne businessman Joseph Gutnick against United States-based publisher Dow Jones over allegation made in 2002 in its publication, Barron’s, that Gutnick was an associate of a known tax evader and money launderer. One of the issues that the court needed to resolve was whether Gutnick could bring his law suit in Australia, where he lived. Only five hard copies of the offending issue of Barron’s had been distributed in Australia. However, the material was readily available on the Internet at Barron’s Online to readers worldwide, and the court found that the tort of defamation had occurred in Australia as soon as the material was downloaded to a computer located in Australia. The court therefore concluded that the Australian courts had jurisdiction over Gutnick’s defamation claims.  
  • Blumenthal v. Drudge: Former Clinton-aide Sidney Blumenthal brought this defamation lawsuit against Matt Drudge, owner and operator of the Drudge Report, for publishing a false allegation that Blumenthal abused his wife. Blumenthal brought the case in federal court in Washington, D.C., and Drudge argued that the court lacked personal jurisdiction because he did not live in D.C. and had only minimal contacts with the city. However, the court found that it could exercise jurisdiction over Drudge because, although Drudge had written the defamatory content on his computer in California, he directly targeted readers in D.C. with the political content of his posts, his site allowed readers in D.C. to email him, and he e-mailed each new digested version of the Drudge Report to all his subscribers, including those in D.C. The court also noted Drudge’s extensive off-line contacts in D.C., noting that he had traveled to D.C. to be interviewed on TV news shows.
  • Keith-Smith v. WilliamsKeith-Smith v. Williams was the first “cyber-libel” case to be heard in the British court system. The adjudication of this case confirmed that the rules relating to defamation and libel applied to representations distributed online in cyberspace as well as to statements made “off-line” in press and broadcast media.
  • United States v. Baker: University of Michigan student Jake Baker submitted a number of pornographic stories to a usenet group, including a story that detailed his fantasy of raping and murdering one of his classmates. Baker was charged with violating a federal statute that prohibits the communication through the instruments of interstate or foreign commerce of threats to kidnap or injure another person. In the criminal case that followed, the charges were ultimately dismissed because there was no evidence that Baker intended to carry out his alleged “threats.” This case has become a focal point for debate over whether Internet speech enjoys First Amendment protection.
  • The Jake Baker Scandal: A Perversion of Logic by Adam S. Miller: In the aftermath of United States v. Baker, journalist Adam. S. Miller wrote this article for Trinity College’s Trincoll Journal, which billed itself as “The Net’s First Weekly Multimedia Magazine.” Miller explored the constitutional implications of charging and trying Baker for speech transmitted over the Internet. 
  • Digital Millennium Copyright Act: This link provides access to the full text of the Digital Millennium Copyright Act (DMCA), as well as to the various versions of the bill that were presented to the House and the Senate prior to its passage. The DMCA essentially ratified two treaties sponsored by the World Intellectual Property Organization (WIPO). First, it criminalized the production and distribution of technology, devices, and services that are intended to circumvent protective measures taken to control or restrict access to copyrighted works on the Internet. Second, it criminalized the actual circumvention of such protective measures, whether or not said circumvention resulted in an actual copyright infringement. 
  • World Intellectual Property Organization: The World Intellectual Property Organization, or WIPO, is a specialized agency of the United Nations, dedicated to issues of international intellectual property law, including issues related to the Internet and the rise of digital media.
  • Open Net Initiative: The Open Net Initiative is a joint venture of four academic centers for the study of cyberspace: the Citizen Lab at the University of Toronto , The Berkman Center for Internet & Society at Harvard University, the Advanced Network Research Group at the University of Cambridge, and the Oxford Internet Institute at Oxford University. The purpose of the Open Net Initiative is to identify instances of cyber-monitoring as well as restrictions on Internet access or on access to particular information or services available through the Internet. 
  • Berkman Center for Internet & Society: The Berkman Center for Internet & Society is an academic research center under the auspices of Harvard Law School. The Berkman Center aims to study and participate in the development of cyberspace, particularly with respect to the development of norms and standards, legal or otherwise, through which to govern and regulate the Internet. The Berkman Center is a sponsor of the Citizen Media Law Project and a joint sponsor, with three other academic institutions, of the Open Net Initiative. 
  • The Norwegian Research Center for Computers and the Law: The Norwegian Research Center for Computers and the Law was one of the first academic research institutions in the world to devote itself to issues related to the legal implications of cyberspace. Today, it concentrates its research on issues of Internet governance, eGovernment, data protection and security, and media law. 
  • The Center for Internet and Society at Stanford Law School: The Center for Internet and Society is an academic research center under the auspices of Stanford Law School. It sponsors a “Fair Use Project,” the purpose of which is to clarify the boundaries of the fair use doctrine under copyright law in the Internet Age, and a “Consumer Privacy Project,” the purpose of which is to improve privacy protections on the Internet and inform citizens about the threats to their privacy that are inherent in Internet activity.
  • Center for the Study of the Public Domain at Duke University Law School: The Center for the Study of the Public Domain is an academic research center under the auspices of Duke University Law School. Instead of taking as its launching point the issue of copyright law, the Center for the Study of the Public Domain concentrates on those materials that are available on the Internet that are not subject to any copyright protection.
  • UCLA Online Institute for Cyberspace Law and Policy: The UCLA School of Law maintains a comprehensive archive of major cases and statutes, and other legal resources, relating to cyberlaw and the Internet. Materials have been collected through the year 2003.
  • Citizen Media Law Project: The Citizen Media Law Project is sponsored by Harvard University Law School. Its purpose is to provide resources and information for individuals and organizations involved in online media, and, when necessary, to provide them with legal assistance.
  • Amicus Brief Filed in Freedom of the Press Case by Citizen Media Law Project: This link provides the full text of an amicus brief filed by the Citizen Media Law Project and the Harvard Cyber Law Clinic in a New Hampshire state court case in which a mortgage lender sought to enjoin an online new agency from publishing information about bad mortgage lending practices in the New Hampshire area. The case implicates the principles of freedom of the press as they apply to online journalists, including bloggers.
  • Reno v. ACLU: This link provides the full text of the landmark U.S. Supreme Court case that struck down certain provisions of the Communications Decency Act of 1996, which sought to protect minors from obscene and explicit material on the Internet, as violating the free speech protections of the First Amendment and the due process provisions of the Fifth Amendment. 
  • FCC Consumer Fact Sheet on Children's Internet Protection Act: The Children’s Internet Protection Act, or CIPA, is a federal statute that mandates schools and libraries to restrict access to “offensive content” available on the Internet by children using school and library computers. The Federal Communications Commission, a federal governmental agency, drafted a fact sheet for school and library personnel to guide them in complying with CIPA’s provisions. 
  • United States v. American Library Association: In this landmark case, the U.S. Supreme Court, in a 6-3 majority decision, found that CIPA was not unconstitutional and that the U.S. government could make the grant of federal funds to schools and libraries contingent upon the installation of Internet “blocking” or “filtering” software on school and library computers, as long as such software did not impose an unreasonable burden on adults’ access to the objectionable material.
  • The Uniform Electronic Transactions Act: The Uniform Electronic Transactions Act (UETA) is a model act proposed by the National Conference of Commissioner on Uniform State Laws with the purpose of introducing uniformity into the treatment by the various states of transactions conducted online by passing laws regulating the retention of records related to such transactions, and the validity of electronic signatures in making contracts and purchase agreements online. The UETA has been adopted by 47 of the 50 states and the District of Columbia, as well as by the territories of Puerto Rico and the Virgin Islands.
  • Trademark Cyberpiracy Prevention Act: The Trademark Cyberpiracy Prevention Act, or the Anticybersquatting Consumer Protection Act, made it possible to bring a civil action against individuals or entities who bought Internet domain names that contain or include trademarks with the sole intent of selling them for a profit to the trademark holder. The full text of the Act as passed by Congress can be accessed through this link. 
  • Report to Congress on the AntiCybersquatting Consumer Protection Act of 1999: Section 3006 of the AntiCybersquatting Consumer Protection Act of 1999, which was signed into law by President Clinton, directed the Secretary of the Department of Congress, in concert with the Patents and Trademarks Office and the Federal Election Commission, to make recommendations to Congress regarding the resolution of disputes over domain names. Instead of making recommendations, the Secretary of Commerce, by this time a member of the Bush cabinet, counseled legislative restraint, arguing that disputes over domain names and issues relating to “cybersquatting” were adequately provided for under existing law.
  • Internet Corporation for Assigned Names and Numbers: The Internet Corporation for Assigned Names and Numbers, or ICANN, is a not-for-profit organization that coordinates unique Internet addresses and domain names throughout the world for the smooth and secure functioning of the Internet. 
  • U.S. CAN-SPAM Act of 2003: This link provides access to the full text of the U.S. CAN-SPAM Act of 2003. Congress passed this anti-spam law with the purpose of limiting the transmission of unsolicited “spam” e-mail and to impose penalties and fines when necessary. 
  • Compuserve v. Cyber Promotions: In this landmark anti-spam case, Compuserve alleged that by flooding its clients’ inboxes with spam and deliberately evading their efforts to protect their computer equipment from this flood, Cyber Promotions was committing the tort of trespass on personal property and should be enjoined from sending such massive amounts of commercial e-mail. The court found in favor of Compuserve and found Cyber Promotions liable for trespass.