Journals
Volume 32, No. 1, Winter 2002
Frontiers of the Law: The Internet and Cyberspace
Yahoo!: National Borders in Cyberspace and Their Impact on International Lawyers
Mark S. Kende
Cyberspace is often described as lacking boundaries. Yet the judicial dispute in France and the United States, concerning Yahoo!’s allowing of Internet Nazi memorabilia auctions, shows borders are arising in cyberspace. The thesis of this article is that the French court judgment against Yahoo! was a proper exercise of national sovereignty even though it interfered with Internet commerce. Moreover, judgments like that in the French Yahoo! case show that international and comparative lawyers will play an increasingly important role as more virtual national borders emerge.
Suing the Insecure?: A Duty of Care in Cyberspace
Stephen E. Henderson & Matthew E. Yarbrough
The Internet, already of major significance throughout much of the globe, is expected to become increasingly pervasive in diverse arenas, from health care, to commerce, to entertainment, and is expected to become increasingly critical to essential infrastructures, including banking, power, and telecommunications. Yet the medium is both inherently and unnecessarily insecure. In particular, today’s Internet can be crippled by distributed denial-of-service attacks launched by relatively unsophisticated and judgment-proof parties. Not every computing system involved in such attacks, however, is necessarily without resources. Application of traditional negligence liability, coupled with other government incentives and support institutions, will encourage better security and can be structured to avoid significant disruption of Internet culture.
Cyber-Mediation: Computer-Mediated Communications Medium Massaging the Message
Llewellyn Joseph Gibbons, Robin M. Kennedy & Jon Michael Gibbs
This article examines the feasibility of online mediation in the context of ecommerce disputes. It evaluates some modalities, presents cross-cultural mediation as a theoretical construct to describe online mediation, and recommends guidelines for the practice of online mediation. Physical presence, at least to some mediators, is the sine qua non of mediation. The distinguishing characteristic of online mediation is that the mediator and the parties do not share simultaneously the same physical location. Much of the legal literature evaluating the potential of online mediation can be best characterized as the battle of the anecdotes. In response to this less rigorous approach, this article examines the rich social science literature on the effects of computer-mediated communications (CMC). The article discusses some real world dispute resolution projects, problems, and software tools. The authors conclude that although online mediation has the potential to provide new and creative methods to facilitate dispute resolution, if online mediation is to be efficacious at resolving disputes, future efforts at online mediation must be informed by both the experiences of the mediator and the existing research in computer-mediated communications.
Comment: Untangling the "Publisher" Versus "Information Content Provider" Paradox of 47 U.S.C. § 230: Toward a Rational Application of the Communications Decency Act in Defamation Suits Against Internet Service Providers
Bryan J. Davis
The Communications Decency Act, 47 U.S.C. § 230, is designed to immunize Internet service providers from liability for defamation by third-party-created content. However, federal court decisions interpreting section 230 have broadened the statute’s immunity to include Internet service providers that arguably are co-creators of defamatory material with third parties. This comment analyzes the statute and the decisions interpreting the statute in the context of evolving standards of defamation liability on the Internet. It concludes by suggesting an alternative approach to application of the statute that would result in more rational and fair results for parties litigating Internet defamation suits.
Comment: Don’t Shoot the Messenger: Limiting the Liability of Anonymous Remailer Operators
Robyn Wagner
Access to the Internet and other distributed networks has rapidly progressed from novelty to norm. As laws can shape the course of technology, so too can technology shape the course of the law. In the next century, lawyers and policy makers will increasingly face the complexities arising out of this balance. It is essential, then, that both technical and legal limitations be thoroughly investigated and understood before approaching the regulation of new technology.
Cryptographic software currently enables people to communicate with potentially impenetrable confidentiality. Such software can also make truly anonymous speech possible. Many of the implications arising from these abilities are just now reaching society. Can a truly anonymous party be investigated or prosecuted? Who should be held liable when trade secrets are leaked anonymously via message boards or mailing lists? The obvious answer may be to prohibit truly anonymous speech, or at least to limit its efficacy. Legislation to restrict or prohibit anonymous speech has been passed and continues to be introduced both in state legislatures and in Congress. Such measures may be myopic, however, for a number of reasons. There are many legal, legitimate reasons for which a person may wish to conceal his electronic identity. Moreover, in a burgeoning digital society, any attempted government regulation of technology that offers transactional freedom should be viewed with a wary eye.
