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Please Note: As with any law school course, what is actually discussed during any given class may vary from what was projected and intended at the beginning of the semester. We may fall behind. Events during the semester may involve additions. In any event, that's why participants are responsible for reviewing this page periodically. (If you remember when you last checked it, the dates at the bottom of this Note will indicate whether it has been revised since then.)

Any reading assignment may become the subject matter of a quiz without further advance notice. All quiz grades combined may constitute up to 10 percent of the seminar grade.

The Casebook. Our casebook for the class is Bellia, Berman and Post, Cyberlaw: Problems of Policy and Jurisprudence in the Information Age (Thomson/West, 3d ed. 2007), available in the law school bookstore.

Other readings. There will be from time to time (such as our first class meeting) additional readings that you will access on the Internet. Some will have been created by the instructor, most will be the work of others. If you do not have Internet access from home there are computers available at the law school and elsewhere around the UI campus.

Occasionally you may find an Internet readings link that does not respond. This may be a temporary condition, or the link may no longer be available or active. Should that occur use it as a challenge to your Web searching skills to find alternative sources rather than a reason to skip it entirely -- and please e-mail me about it as well. -- N.J., December 3, 2007; Jan. 13, 2008; Feb. 26, 2008; March 3, 2008; March 23, 2008; March 29, 2008.

You will be held to the professional standards outlined in "So You Want to be a Lawyer: A Play in Four Acts." If you have not yet read it, do so. If you have, review it.

Read, from "Communications Law: Concepts, Perspectives and Goals", the following sub-sections: "Information Age, Information Economy," "First Amendment: The Reasons For, and Purposes and Effects Of," "New Paradigms and 'Thinking Outside the Box,'" "Down-sizing, Out-sourcing, Entrepreneurship, Flat Organizations and the Virtual Corporation," "The Billion-Dollar Bonanza," "You Want It, You Got It," "Orders of Magnitude and the '99.9%-Off Sale," "Technological Displacement and Broadside Blows," "Globalization," and "Information Rich, Information Poor."

Supplement this with "Convergence and Cyberspace" from Johnson, "Regulating the Cyber-Journalist" (1997).

EDUPAGE is a source of potential topics, cool insights into what's going on in cyberspace, and a summary of relatively current news that can save you hours of reading -- not to mention provide you a source of conversational tidbits with which to impress your friends, family, and potential employers. "Relatively" because the organization stopped publishing it in that form in December 2006, but still makes its archives available at http://listserv.educause.edu/archives/edupage.html. As you'll see, below, you are about to be handed a personal assignment involving that archive as a part of our discussion during our first seminar session.

Note that of the final five seminar sessions three (or four) will be devoted to your oral presentations.

In order to get a sense of the significance of what we're about to undertake in this semester, we need to remind ourselves of the Tsunami magnitude of the impact of the Internet upon almost every aspect of human life on Earth. It is not an exaggeration, in my opinion, to compare its effect to the changes wrought by printing, steam engines, electricity, the automobile, flight, and broadcasting. The automobile, for example, had an impact on everything from teenage courtship patterns, to suburban sprawl, to one of the largest engineering and construction projects in our nation's history (the Interstate highway system), to wars in the Middle East over oil.

I may bring into class a brief video excerpt from a documentary depicting life in Iowa during the 1930s and 1940s -- a time that your grandparents may have told you about, and that I am just barely old enough to remember having lived through. If I do show that excerpt, the purpose is to give us a benchmark, a sense of pre-Internet life in America, and a reminder of how recent it was.

Compared with life 65 years ago, how much of our time today -- which eventually mounts up, and becomes our lives -- do we spend in a mediated reality: Watching TV, listening to radio (whether at home, at work, or while moving about), or listening to music with iPod or home stereo earphones on (rather than sitting around singing in the evening while someone plays the piano or a guitar); talking on a cell phone, or text messaging (IM or emailing or chat rooms), communicating by way of Facebook, My Space, blogs or Web pages (rather than face-to-face conversations or handwritten letters); ordering merchandise off the Internet from people we've never met, whether businesses or eBay (rather than going in to our hometown merchants' stores and live auctions); doing research on the Internet (rather than asking our librarian); buying fictional, "virtual" islands in Second Life (rather than farmland in Iowa); reading online newspapers (rather than subscribing, holding and reading an actual newspaper while drinking our morning coffee)?

This is not an appeal for a return to "the good old days," which were, after all, not all that good from a variety of perspectives. It is, rather, an effort to get you to start thinking about the full range of the dimensions by which a Tsunami change -- such as steam or the automobile -- impacts everything: business, politics, education, family relations, our sense of self, war and terrorism, socialization and socializing, governing, and, yes, "the law."

One of your many responsibilities as lawyers over the next half-century will be to try to bring some rationality and order to this chaos, to reshape a legal system into something that will work now that, to borrow Tom Friedman's book title, The World is Flat, a legal system that can function in a cyberspace that is simultaneously both everywhere and nowhere. Hopefully, you'll be able to look back years from now and credit this seminar with giving you at least a little advance start on getting that job done.

Here's an assignment for our first evening:

Welcome All:

1. Our first evening together with Cyberspace Law Seminar is next Wednesday, 6:00-8:00 p.m., in Room 125.

2. We'll introduce ourselves, and I'll cover some of the administrative details.

3. But I'd like to get underway our exploration of "how the Internet is impacting the law, and how the law is impacting the Internet" -- the overall theme of the seminar.

To bring some substance into that discussion, here's a brief assignment (that is also, not incidentally, designed to get you to begin thinking about possible paper topics).

Go to the Edupage Archives: http://listserv.educause.edu/archives/edupage.html

You will see there a list of the months of 2006 (and prior years). (As explained, above, the organization stopped publishing the news in this form in December 2006.) Each seminar participant is assigned -- arbitrarily (alphabetically/reverse chronologically) -- one of those months, as follows:

. . . and I'll take January.

As discussed in "Preliminary Reading Assignments," above, Edupage used to be published about three times a week. Each "issue" contains three or four paragraphs summarizing news stories having at least something to do with our interests. After you click on your month you'll see the dates of each issue within that month. A click on a date will bring you that date's issue.

What you are to look for are your three top choices of stories; not just stories that are "interesting," but stories that you think do, or could, raise interesting legal issues that might be the basis for exploration in a seminar paper. (All you need look at are the Edupage accounts of those stories; you need not go to the original source versions -- although, of course, you are not forbidden to do so.)

Then send me the three links to the days' issues that contain your stories, along with those stories' headlines.

The primary purpose of this exercise is to provide stimulation for an evening's discussion of potential topics that will go beyond the usual online gambling, downloading music, multi-player video games, and porn.

(If you've honestly gone through every story for your month and they, plus your imagination and legal knowledge, are not enough to trigger three possible legal topics, feel free to select those that suggest possible "public policy" issues that could, perhaps, be addressed through regulation or legislation.)

4. Our seminar Web site will be: https://www.nicholasjohnson.org/cls08.

5. Our  text, incidentally, as you probably know already, is Bellia, Berman and Post, Cyberlaw: Problems of Policy and Jurisprudence in the Information Age (3d ed., 2007).

Reading Assignments for Wednesday

5. On the CLS08 Web site you will find "Reading Assignments" (the Web page you are now examining) and, near the top of that page, "Preliminary Reading Assignments," containing three items that can be quickly read (some of which you may have read before).

6. And, to get us started with our casebook, read the first chapter, "Introduction," especially "A. Why Cyberlaw?" (with its provocative piece on the "Law of the Horse") and, to give you a sense of the authors' orientation, "B. Our Approach" (that's 12+ pages of a 20-page chapter).

As you'll see from those few pages, and our first evening's discussion, this seminar, its subject matter, and our authors' approach to it, are going to make this a very different experience from how you've approached most law school courses.

What is "The Internet"? (a) To make sure we're all on the same page, (b) as introductory information for those who are new to the Internet/Web, and (c) as a review for all of us, one of the best statements is found in the Findings of Fact from a three-judge federal district court panel. (Not only am I referring to it for this purpose, years later, but so are our authors in the latest edition of their book.) The case, ACLU v. Reno (E.D. Pa. 1996), is one we may look at for its holding and legal analysis later on in the semester. (It deals with a Congressional effort to restrict obscenity and indecency on the Internet: the "Communications Decency Act.")

For now, we just want to read a small portion of the opinion, "II. Findings of Fact, paragraphs 1-48 (only). (It printed out to about 7-1/2 pages for me.) [If you were to print the entire opinion (which you need not do for this evening) it (for me) runs about 60 pages.] The opinion is available from, among other places, the eff site.

[Note: It's only 48 short paragraphs; the numbering of paragraphs helps to follow (and refer to) portions of it; a significant part of the reason for our reading this is to pull together in one place the history and description of the Internet, so even if some of this 1996 description is no longer applicable to what's out there today, it is a useful description of the stages we've gone through and the speed with which we've done it.]

If you'd prefer a five-minute video explanation you might want to watch Professor John Hodgman's brief lecture prepared for and delivered from "The Daily Show with Jon Stewart" July 19, 2006.

What we are next going to do is look at cyberlaw from two different perspectives; one is the more conventional approach, the other is that of our authors. To get you in this mood, let us start with the ancient fable from India, "Six Blind Men and an Elephant." It may be something you remember reading (or having been read to you) as a youngster. At this stage our own limited vision of cyberlaw is equivalent to theirs of the elephant. What do they have to teach us about alternative approaches to cyberlaw?

At this point in our overview we're going to refer back to, and provide a specific illustration of, a number of the points in "Communications Law: Concepts, Perspectives and Goals" (especially "New Paradigms and 'Thinking Outside the Box,'" "The Billion-Dollar Bonanza," "You Want It, You Got It," and "Technological Displacement and Broadside Blows").

We will watch a couple of videos. One is a two-part from the January 2, 2005, "CBS 60 Minutes" about Google. The other is one take on how this might all evolve by the year 2014 into a system the authors call "EPIC." We'll also try to display that off the Web as a video, but read the script first at http://www.masternewmedia.org/news/2004/11/29/summary_of_the_world_googlezon.htm.

Be prepared to discuss: Just based on what you already know about Google without having watched the "60 Minutes" piece, what examples does it provide for you of the ideas discussed in the "Concepts, Perspectives and Goals" paper?

I thought it would be useful to devote one or two evenings to at least a sampling of some of the range of issues that come up when we take a conventional approach to consideration of the impact of the law on the Internet -- and the impact of the Internet on the law.

The material for this evening may also have some impact on your thinking about the topic for your paper.

We will certainly not get through all of the following references during this seminar session, but we can at least get started, and then finish it up next week before moving on.

While the selection of what follows for this evening has not been totally random, neither does it pretend to be a thorough overview. (References to page length are, of course, approximations that vary with font and format.)

Copyright

Copyright law as a separate course and area of study. As you well know, but I will remind you anyway, there are entire courses devoted to copyright law -- including those at our law school taught by outstanding professors. Thick casebooks, numerous statutory provisions, regulations and court opinions contribute to this body of law. There is also an interesting history of the evolution of copyright over centuries, and its role as a part of international/global law and regulation.

If a part of the reason you are taking this seminar is because you are thinking about the possibility of specializing in intellectual property law I would definitely recommend that you include a copyright law class while you're in law school.

This evening we're not only not going to master copyright law, we're not even going to survey all of the basics. But you will get at least a superficial overview, and an opportunity to think about the impact of the technology that is the Internet on the underlying law and policy that is copyright -- and about all that music you downloaded for free.

Copyright law. For a superficial overview, read Section One of Professor Stacey L. Dogan's Learning Cyberlaw in Cyberspace: Copyright in Cyberspace. (2 pages)

Copyright policy. Read John Perry Barlow, "The Economy of Ideas," Wired 2.03, March 1994. (Barlow is the Pinedale, Wyoming, cattle rancher who wrote lyrics for the Grateful Dead and helped found the eff (electronic frontier foundation) with Lotus developer Mitch Kapor. A mind-stretching piece with which to begin our discussion.) (16 pages)

Then apply your law and policy insights to a very limited selection from Los Angeles Times v. Free Republic (C.D. Calif. 1999). Read the first 5 full paragraphs of the opinion; then read, from Part II. C. 3. ("Discussion"/"The Fair Use Doctrine"/"The Amount and Substantiality . . ."), only the last four paragraphs of that sub-section (a total of 2 pages). Do you agree with the court's conclusions? Should it make a difference, today, that both the Washington Post and Los Angeles Times make available, on the same Web page with every story they provide online, an option for readers to send it to a friend, or print it out? From an administrative/enforcement perspective which option creates the more difficulty for the copyright owner?

Now consider only the first four paragraphs from Playboy Enterprises v. Frena (M.D. Fla. 1993). Based on what you now know about "fair use," do you think Frena had a stronger, or a weaker, case than the Free Republic? (1 page)

Some questions to think about ahead of time involving my Web-posting of this material: (1) Have I violated the copyright law? How and why, or why not? How many, and which, of my steps along the way constituted potential violations? (2) Are there analytically significant distinctions between my linking to Dogan's site and to Wired's? Sometimes, if you're concerned that an item you're linking to may be removed in the future, you might just click on "Save As" and then upload it to your Web site, rather than link to another's site. Should that make a difference for copyright purposes? Is it relevant that I did, or did not, buy that issue of Wired, or that a friend gave it to me? (3) Assume this would have been a violation for any one of a number of reasons, but is not because of some exceptions, or defenses, that I could raise. What might they be?

"A difference to be a difference has to make a difference" or, "At what point does a difference in degree become a difference in kind?"

Read only the first seven paragraphs from Reno v. Condon, 528 U.S. 141 (2000). (1 page) What was it about the kind of records in question in this case that caused congressional concern? There are a great variety of records of various kinds about all of us on file here and there, such as school, military, medical, criminal, court, bank and phone. Do we care, and should we, whether these records are in "hard copy" or "electronic" form, and if the latter, whether they are available only on stand-alone computers or on password-protected Internet sites?

Do you have a Facebook account/page? Have you ever explored how much of your personal privacy you gave away when you did that? Do you care? Take a look at this site: http://www.albumoftheday.com/facebook/. Did that affect the answers you'd now give to the prior two questions?

A rather fundamental, but usually unspoken, couple of assumptions about virtually everything else we study in law school are that (a) there is such a thing as location, and that (b) location, or geography, is relevant. Legislation is binding within a state, or nation. A higher court's decision is binding on the lower courts in that "jurisdiction" (i.e., geographical place). In order for a country, or court, to "have jurisdiction" over you requires that you be present -- if not physically, at least in some sense -- in a geographical place.

Cyberlaw cuts the rope that tethers our balloon we call "the law" to some fixed spot on Planet Earth.  When you are in cyberspace you are both everywhere and nowhere. What are we to make of that? Does the Internet require a "re-do" of the entire law school curriculum?

Read the entirety of Quill Corp. v. North Dakota, 504 U.S. 298 (1992). Note that although this link takes you to Justice Stevens' majority opinion, there are also two additional opinions by Justices White and Scalia that you get by clicking on these links (or those on the majority opinion main page). (The majority's opinion is 7 pages plus some endnotes, Scalia's is one page, White's is four plus notes.) [Note: Once again, I strongly recommend you use these links rather than the truncated version of the opinion in our book, pp. 122-127, which, among other things, omits entirely the opinions of Justices White and Scalia.]

Quill will give you a sense of what the Supreme Court -- and the rest of the legal profession -- is struggling with on these issues.

A related problem (geography) arises in the context of defamation law. Defamation requires an injury to one's reputation. Normally, that means a reputation in a given community. Moreover, language considered defamatory in one context/community might be unexceptional, or even flattering, in another.

Read Rindos v. Hardwick (Sup.Ct. W. Aust. 1994) (1 page). Where is Rindos' community for purposes of defamation law? (If you're interested in knowing more about this case see the one page with links, "The Hardwick Case," http://wings.buffalo.edu/anthropology/Rindos/Law/#Hardwick.)

Could a "community" exist only in cyberspace? Suppose a "chat room" is occupied by strangers all using anonymous pen names. One pen named participant defames another pen name in the chat room. On the assumption the identity of the defamer can be ascertained, can s/he be sued for defamation? Would the allegedly defamatory comment have to relate to the online community (say, socially agreed upon standards regarding "flaming")?

Tonight's the evening you elect the seminar's ombudsperson. And we'll also want to start off with a report from each participant regarding (a) your continued satisfaction (or not) with your "topic," (b) what your research has uncovered so far, and (c) what roadblocks or frustrations you may have encountered that, together, we may be able to ease.
 

Having done that, we want to take another look at this elephant called cyberlaw (remember the "Six Blind Men and an Elephant"?).

Steve Martin often appeared as a guest on "Saturday Night Live." One of his routines involved pointing into the distance and asking, "What the hell is that?"

David Letterman has a segment on the CBS "Late Show" he calls "Is this anything?"

Theirs are the questions with which we have begun our study of cyberlaw. What is this thing called "cyberspace"? Is it anything? In what sense is there a "cyberspace law"? Why do we need to address that question more than we did comparable questions when studying contract or tort law? How might one go about approaching the task of coming up with an answer?

We have already done much of this, both with your assignment with Edupage, coming up with three items that suggest the range of cyberlaw issues, and then with our hop-skip-and-jump across copyright, privacy, jurisdiction, taxation and defamation in cyberspace.

Although what follows are a lot of individual readings, they are short (sometimes just a quotation) and easy going.

Take a look at the very brief quotations and readings on the Web site I have titled, "Roses, Cheese and Cyberlaw." This site concludes with a couple of very brief quiz questions, neither of which should make your head hurt. E-mail me your answers before class.

For an example of a court's struggle with such questions, read from Chapter Two of our casebook ("Problems of Metaphor and Analogy: Introductory Case Studies") pages 21-23 and 30-42 (Intel Corporation v. Hamidi), and be prepared to discuss the questions raised by the authors on pages 42-44.

Case study: relatively current and local. Are emails from UIHC Director Emeritus John Colloton "public records"? (He is provided an office and secretary, but is unpaid, and has "no official duties." What purport to be copies of his emails were provided anonymously to the Iowa City Press-Citizen.) The Iowa Code, Chapter 22, defines and provides the law regarding "public records." The University of Iowa Operations Manual, II, Sec. 19.4, potentially deals with both his "private" use, and the responsibility of whoever may have gained access to his files. Title 18, Section 2701, deals with those who obtain electronic documents from storage without authorization; and see Title 18, Section 2511, regarding disclosure of intercepted communication known to have been obtained illegally.

As a one minute diversion (especially if you haven't already found it on the Web), and an illustration of "convergence" in the sense of mergers, we'll pause to hear from Stephen Colbert as he answers "whatever happened to AT&T?" in this segment of his show on what was probably January 17, 2007.

Follow this with an overview from the authors of what they have in mind with this book: read (or review) the first two pages of Chapter One ("Introduction"), pages 1-2, followed by pages 12-13 ("Section B. Our Approach"). Then read the opening two pages from Chapter Three ("Problems of Geography and Sovereignty"), pages 63-64, and from Chapter Ten ("Problems of Cultural Change"), pages 733-734. Jump ahead to the first page of "Section B. Cyberspace, Community, and Globalization," page 753, and then to pages 776-787 ("Section C. Cyberspace and the Formation of Law and Policy," for Jonathan Zittrain, "The Generative Internet" and the related "Notes and Questions").

And we'll watch this brief bit on privacy that I think we skipped over the other evening: Do you have a Facebook account/page? Have you ever explored how much of your personal privacy you gave away when you did that? Do you care? Take a look at this site: http://www.albumoftheday.com/facebook/. Did that affect the answers you'd now give to the prior two questions?

At that point we're prepared to go back and start at the beginning with Chapter One,

This would be a good time to review again, from our first evening, (a) what we mean by "the Information Age" (here's a paragraph or two of mine on that subject you may find useful), and (b) from Chapter One ("Introduction"), pages 2-11, including Easterbrook, "Cyberspace and the Law of the Horse," and Larry Lessig's answer to Easterbrook: Lessig, "The Law of the Horse: What Cyberlaw Might Teach." Has any of the intervening reading and discussion changed your perspective on these two pieces?

This week we will be concentrating on Chapter Two ("Problems of Metaphor and Analogy: Introductory Case Studies").

Note that we are doing two things with this material. (1) We are continuing last week's inquiry: "what is cyberlaw?" So why are we talking about trademark law? Not to focus on trademark law as such (we have an excellent semester-long course devoted to the subject which I don't teach); we are merely using trademark law as a way of addressing "what is cyberlaw?" in a specific context rather than as just generalities. (2) Only incidentally, in the course of doing this, will we be exploring some of the basics of trademark law.

Incidentally, in that connection, the authors make reference (text, p. 48) to three sections of the Lanham Act without providing the text of those sections. It would be helpful for you to examine the actual language. Here are the links:

Lanham Act Sec. 32, 15 U.S.C. Sec. 1114, FindLaw at http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=15&sec=1114

Lanham Act Sec. 43(a), 15 U.S.C. Sec. 1125(a), FindLaw at http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=15&sec=1125

Lanham Act, 1995 amendments, 15 U.S.C. Sec. 1125(c), see above,
and 15 U.S.C. Sec. 1127, FindLaw at http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=15&sec=1127

Begin with pp. 23-29 (eBay v. Bidder's Edge), and pp. 44-57, the "Section B. Consumer Confusion and Online Trademarks" material (Brookfield Communications v. West Coast Entertainment, Planned Parenthood v. Bucci, PETA v. Doughney), followed by pp. 57-62, "Section C. Internet as Library" (Mainstream Loudoun v. Loudoun County Public Library).

Given the global -- that is, non-geographically-tethered -- nature of "cyberspace" what examples can you think of in which global standards have been necessary, created and applied (with or without a governmental, "inter-national" intervention)?

Can't think of any? What about the ancient (and current) law of admiralty? Read the material to which the admiralty link takes you. Do those passages offer analogies of use to us?

Having done that, segue to Chapter Three ("Problems of Geography and Sovereignty"), which you began last week with the first two pages. This week we continue on with pages 65-83. These pages include "Section A. The Theoretical Debate" (Johnson and Post, "Law and Borders -- The Rise of Law in Cyberspace;" Goldsmith, "The Internet and the Abiding Significance of Territorial Sovereignty" and "Against Cyberanarchy;" followed by Post's response, "Against 'Against Cyberanarchy'").

We still have some material from last week to cover:

"Section C. Internet as Library" (Mainstream Loudoun v. Loudoun County Public Library), pp. 57-62 (note the correction of page numbers). What ought to be the standard, the policy, and why? How are, and are not, distinctions between acquisitions and removals relevant and useful? Should "majority rule"? If not, how far should we go to protect the sensitivities of those who are offended by content?

Given the global -- that is, non-geographically-tethered -- nature of "cyberspace" what examples can you think of in which global standards have been necessary, created and applied (with or without a governmental, "inter-national" intervention)?

Can't think of any? What about the ancient (and current) law of admiralty? Read the material to which the admiralty link takes you. Do those passages offer analogies of use to us?

Having done that, segue to Chapter Three ("Problems of Geography and Sovereignty"), which you began with the first two pages. This week we continue on with pages 65-83. These pages include "Section A. The Theoretical Debate" (Johnson and Post, "Law and Borders -- The Rise of Law in Cyberspace;" Goldsmith, "The Internet and the Abiding Significance of Territorial Sovereignty" and "Against Cyberanarchy;" followed by Post's response, "Against 'Against Cyberanarchy'").

At this point, rather than plow into the next 110 pages on jurisdiction -- as important, even essential, that is to your practice of cyberspace law -- let's take a breather and have some fun with Chapter Four ("Problems of Legal Versus Technological Regulation"), A. "The Effect of Technological Change on Legal Rules," pp. 195-211. (Hopefully, we'll get back to at least some selections from the remainder of Chapter Three before the semester's over.) And if, by some miracle, we find ourselves with time on our hands after getting through this opening material in Chapter Four, there's more following p. 211 we can move into.

To remind once again, what we're primarily trying to do with the readings in this seminar is to develop our (mine as well as your) ability to think about, develop our ways of analyzing, the legal issues that arrise in cyberspace. When is an analogy or metaphor useful, and when does it get in the way and send us off down the wrong road? When does it make sense to treat the issue "the same as" we would in a brick-and-mortar world, and when do we really need to "take it from the top"? To the extent we want to go back to basics, the fundamental goals and purposes underlying a given legal doctrine to help us address these questions, how do we go about figuring out what they are? And how can we know if they should still be relevant in formulating new public policy?

This is not to say that the cases we're discussing, and "the law" of their holdings, are not important. They are. They become a part of the tool bag you bring to addressing problems like theirs in the future. There is a law of cyberspace that you need to study, research and know in order to practice. The more you pick up in law school the better. (Not incidentally, what you will learn in researching and writing your paper will be a major component of that, for a variety of reasons.)

But we cannot cover all of the law that currently exists in a two-hour class, much of which, moreover, is devoted to a presentation and discussion of students' seminar papers. Even less can we anticipate the cyberspace legal issues you will be confronting five, ten and twenty years after leaving law school. So that's why, when we have the kind of good discussion we had last week I'm not concerned that we didn't "cover" another three or four cases, or 15 or 20 pages.

To remind: Your "three-level outline" of your paper is due today by 11:30 a.m.

Recall that the first hour this week will involve interaction with Bart Eppenauer from Microsoft and the Patent Prosecution class (with dinner at 6:00 p.m.; meeting as usual in Room 125).

From 7:00-8:00 we'll continue with our assigned readings.

We may say an additional word or two about the Chapter Four  material we discussed last week: ("Problems of Legal Versus Technological Regulation"), A. "The Effect of Technological Change on Legal Rules," pp. 195-211 (Olmstead, Katz and Kyllo).

Having observed that these cases introduce us to "privacy and technology" issues as well as "the effect of technological change on legal rules," we'll move on to some of the later privacy material:

Chapter Eight: Problems of Privacy and Surveillance, pp. 561-75 ("A. Framing Privacy," essays and articles; Solove, Schwartz, Cohen).

Then we'll jump ahead to as much as we get through of: "B. Government Surveillance, 3. Acquisition of Noncontent Information," plus a tease of "4. National Security Investigations," pp. 616-626 (Smith, Pen Registers), wrapping up with "C. Private Acquisition of Communications and Data, 1. Employer Monitoring," pp. 648-656 (Fraser, Smyth and Konop).

pp. 238-282

Chapter 4 Problems of Legal versus Technological Regulation; Section C. The Effect of Legal Rules on Technological Innovation [p. 238]; 1. Home Video Recording Devices [pp. 239-255] (Sony, DMCA, Streambox); 2. Peer-to-Peer File Sharing [pp. 255-282] (Napster, Grokster)

No class; Spring Break week.

Jurisdiction and Contracts (cases plus notes)

pp. 112-125, Chapter 3. Problems of Geography and Sovereignty, C. "Jurisdiction to Adjudicate," 1. "The United States Personal Jurisdiction Inquiry," Calder, 2. Jurisdiction Based on Online Interaction," Zippo.

pp. 94-98, [Chapter 3. Problems of Geography and Sovereignty, B. "Jurisdiction to Prescribe," 1. "Extraterritorial Regulation of Speech,"] La Ligue v. Yahoo! (Paris, 2000).

pp. 137-145, Chapter 3. Problems of Geography and Sovereignty, D. "Judgment Recognition and the Power of Persuasion," Yahoo! v. La Ligue (N.D. Calif. 2001).

pp. 211-228, Chapter 4. Problems of Legal versus Technological Regulation, B. "The Use of Technology to Supplant Legal Rules," 1. "Automated Standardized Contracts," ProCD , Specht and Radin article.

We return this week to our focus on "privacy," as it plays a role in a variety of contexts in cyberspace.

What follows is essentially the reading for the remainder of the semester -- tonight and whenever we're able to schedule the makeup seminar session (possibly Thursday of next week, April 10).

So you just need to make your way through about half of what follows for our April 2 session.

Since much of a law student's study of privacy involves the citizens' constitutional protection from government provided by the Fourth Amendment, you might want to begin by reviewing the material from Week Six, February 27. [Chapter 4: Problems of Legal versus Technological Regulation, A. "The Effect of Technological Change on Legal Rules," pp. 195-211 (Olmstead, Katz and Kyllo).

Having had that discussion, during which we observed that these cases introduce us to "privacy and technology" issues as well as "the effect of technological change on legal rules," we'll move on to some of the later privacy material (always including the Notes):

pp. 561-75, Chapter 8, Problems of Privacy and Surveillance, A. "Framing Privacy," (essays and articles by Solove, Schwartz, and Cohen).

pp. 575-83, Chapter 8, Problems of Privacy and Surveillance, B. "Government Surveillance," 1. "Prospective Acquisition of Contents" (Berger, Interception of Communications).

pp. 583-93, Chapter 8, Problems of Privacy and Surveillance, B. "Government Surveillance," 2. "Retrospective Acquisition of Stored Communications" (Miller, Barr, Stored Communications).

pp. 616-25. Then we'll jump ahead to Chapter 8, Problems of Privacy and Surveillance, B. "Government Surveillance," 3. "Acquisition of Noncontent Information" (Smith, Pen Registers), plus a tease of

pp. 625-26, Chapter 8, Problems of Privacy and Surveillance, B. "Government Surveillance," 4. "National Security Investigations," wrapping up with

pp. 648-56, Chapter 8, Problems of Privacy and Surveillance, C. "Private Acquisition of Communications and Data," 1. "Employer Monitoring," (Fraser, Smyth and Konop), and

pp. 656-77, Chapter 8, Problems of Privacy and Surveillance, C. "Private Acquisition of Communications and Data," 2. "Transaction-Based Monitoring: Online Profiling and the Collection and Use of Personal Data" ("Online Profiling," DoubleClick, Dwyer, COPPA).

Then, since it's something you'll want to do anyway by way of reviewing the semester's material -- before we start with the presentation, and discussion, of your papers next week -- to the extent we have time this evening let's remind ourselves once again of what the authors think the entire book and semester have been about.

Take a look again at the snippets of introductory material throughout the book assigned for "Week Two," above, described there as follows:

"For an example of a court's struggle with such questions, read from Chapter Two of our casebook ("Problems of Metaphor and Analogy: Introductory Case Studies") pages 25-27 * * * Follow this with an overview from the authors of what they have in mind with this book: the first two pages of Chapter One ("Introduction"), pages 1-2, followed by pages 12-13 ("Section B. Our Approach"). Then read the opening two pages from Chapter Three ("Problems of Geography and Sovereignty"), pages 73-74, and from Chapter Eight ("Problems of Cultural Change"), pages 683-684. Jump ahead to the first page of "Section B. Cyberspace, Community, and Globalization," page 703 * * *."

Weeks 13, 14, 15; April 9, 16 and 23, 2008

Presentations of participants' papers.
 
 
 

January 11, 2006:We will discuss the "preliminary reading assignments," above, and . . .

then change direction on the very first session of the semester. [This was added January 3, 2006, and revised January 4, one addition, January 8.] What follows (well below this indented material) can be thought of as "introduction." That doesn't mean it isn't important. Quite the contrary. But it might be more fun, and instructive to start by playing what David Letterman calls, "Know Your Current Events," and then double back to that "introduction." Don't be intimidated by the length of this description of the assigned readings; the readings themselves are not many more pages than the assignment -- a couple pages here, a few paragraphs there. It shouldn't take you long to get through it. Besides, it's mostly light and fun, more designed as "things that make you go, 'hmmm'" than things that make your head hurt.

During the past three weeks a major story has been President George W. Bush's secret Executive Order of 2002 that authorized the National Security Agency to "spy" on Americans. It makes a useful subject with which to begin our inquiry. (a) It's an illustration of the sea changes in law and policy that can be brought about by changes in electronic technology. (b) It raises constitutional and statutory questions of presidential powers, and the balance of powers between the congress and the executive branch. (c) It opens up the issue of the new electronics impact on the law and public policy issues surrounding "privacy" -- to which we'll be giving more attention later on in the semester. (d) It may start you to thinking about what we mean by a "topic" for your research paper. (e) And it opens constitutional and legal questions about "war powers" -- designed to deal with "wars" against nations (whether "declared" or not) -- and their revision, and applicability, to tracking down "terrorists" (a term now apparently applied indiscriminately to members of Al-Qaeda and Quaker meetings alike).

Here are some readings for that discussion:

1. Find George Orwell, 1984 (1949), available online, for free, at http://www.online-literature.com/orwell/1984/. If you have never read this classic, once assigned as required reading in numerous high school and undergraduate classes, you will find it worth your while (and an easy, fun read) to do so. But that's not a requirement, just a friendly suggestion for your own betterment and enjoyment. (a) What is an assignment is that you click on Part 1 "Chapter 1" and read the first five paragraphs of the book, through the explanation of the "telescreen." One of our questions for seminar discussion will be how Orwell's imaginary governmental "spying" on citizens differs from what the NSA has been authorized to do; which is the more intrusive and why? (b) Then click on Part 3 (make sure you're in the Part 3 list) "Chapter 6" and read the last two paragraphs. Would it be possible to manipulate an American into the belief that "He loved Big Brother"? Is it already occurring (see "2," immediately below)? How might electronics technology be brought into service for that task?

2. In conversation, the Nazi leader Herman Goering is reported to have observed,

"Why, of course, the people don't want war. Why would some poor slob on a farm want to risk his life in a war when the best that he can get out of it is to come back to his farm in one piece? Naturally, the common people don't want war; neither in Russia nor in England nor in America, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a Parliament or a Communist dictatorship."

A site that checks out "urban legends" cites the original source as Gustave Gilbert, Nuremberg Diary. See http://www.snopes.com/quotes/goering.htm. Gilbert reports he protested to Goering, "There is one difference. In a democracy the people have some say in the matter through their elected representatives." Goering reportedly responded,

"Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

(Recall, Hitler was using television in the 1930s; President Franklin Roosevelt's use of radio made his "Fireside Chats" famous.) With whom do you side: Gilbert or Goering? Was Goering's assertion (a) wrong for any historic time or place, (b) right for every time and place, (c) right for the 1940s, but wrong for today, (d) wrong for the 1940s, but right for today, or (e) applicable only if dealing with qualities limited to Germans?

3. To begin your familiarity with the NSA -- indeed, government documents and organization generally -- we now have access to a declassified (and somewhat redacted) document prepared for the Bush Transition Team in December of 2000. It's Transition 2001: National Security Agency/Central Security Service (December 2000) (derived from NSA/CSS Manual 123 (February 24, 1998). Available from a number of online sites, if you're really interested in this stuff you might want to use the George Washington University National Security Agency Archive, http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB24/, as your source since it has a lot of other related documents as well. In any event, the Transition 2001 document from which you are to read some selections is an Adobe pdf file at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB24/nsa25.pdf. (Note that the pdf page numbering goes from 1-42; the document's page numbers go from 1-35; we will refer to the document's page numbers.) Read document pages (a) 1-7 (overview and organization chart) and (b) 31-34 (with emphasis on 31 and 32, the new challenges NSA faces as a result of digitization).

4. If you're not familiar with Wikipedia you'll want to know about it anyway: (a) as a source for your research, and (b) an interesting Internet-based innovation. It's at http://en.wikipedia.org/wiki/Main_Page. But at the moment we want to use its entry for the National Security Agency, available directly at http://en.wikipedia.org/wiki/National_Security_Agency. Read a total of about two pages: (a) the opening 5 paragraphs of introduction, (b) the section headed "Agency History," and (c) the section headed "ECHELON." (Obviously, you are not forbidden to read more if this interests you.)

5. That the New York Times chose to (a) hold this story for a year, and then (b) publish it on December 15, 2005, is itself basis for interesting legal issues. (E.g., should the media be able to publish stories the Administration believes constitute a threat to national security?) Anyhow, this is the story that broke the whole thing open, and was the beginning of the controversy swirling around the White House for the past near-month. Read James Risen and Eric Lichtblau, "Bush Secretly Lifted Some Limits on Spying in U.S. After 9/11, Officials Say," New York Times, December 15, 2005. The original can be found at http://www.nytimes.com/2005/12/15/politics/15cnd-program.html?ex=1136437200&en=63b5de9dad2be456&ei=5070, if you have a New York Times account (free), or https://www.nicholasjohnson.org/cls06/nyt51215.html if you don't. If you are rabidly partisan you will probably think it is either too critical, or too dismissive (depending on your partisanship). I thought it a relatively balanced presentation of the reasons, policy arguments, and legal analysis for and against what President Bush did and the rationale he is offering for it.

6. John Dean was a part of the White House during the Administration of President Richard M. Nixon, who was impeached, in part, because of his much more low-tech electronic spying without a warrant on those he believed to be poltical "enemies" (see 7, below). Dean is now, among other things, a columnist for FindLaw, http://www.findlaw.com, a site with which you'll become familiar this semester if you're not already. Read John W. Dean, "George W. Bush as the New Richard M. Nixon: Both Wiretapped Illegally, and Impeachably; Both Claimed That a President May Violate Congress' Laws to Protect National Security," FindLaw, December 30, 2005. The original can be found at http://writ.corporate.findlaw.com/dean/20051230.html. It is also available at https://www.nicholasjohnson.org/cls06/jdfl1230.html. Do you agree with Dean, or do you see distinctions that make what Nixon did as either worse, or much less significant, than what Bush did?

7. If you've never seen "articles of impeachment" you might want to look at those passed by the U.S. House of Representatives regarding President Richard M. Nixon on July 30, 1974, since those are the ones of relevance and the ones to which John Dean refers. (At "The History Place -- Presidential Impeachment Proceedings: Richard Nixon," http://www.historyplace.com/unitedstates/impeachments/nixon.htm, scroll down the page about half way.) Read the provisions to which John Dean refers, above: Article 2 (2). (Article 1 (6) refers to "misuse" of the CIA.)

8. This being a law school and all, would you like to see a little law? There's lots of it that's relevant, but we'll just look at a couple of statutes. Do you know how to find law on FindLaw? What you're looking for is 50 USC Secs. 1802 and 1809 (2002). Here are the steps: (a) go to http://www.findlaw.com, where you will (b) choose "For Legal Professionals," and then (c) "Research the Law" and "Cases & Codes," which will take you to (d) "US Federal Laws" and "Codes, Statutes and Regulations" and "US Code" which you'll click on and find (e) "U.S. Code" and boxes beside "Title" and "Section." Put "50" in the first and "1802" (and then "1809") in the second and it will take you to those federal statutes. What do they add to our discussion?

9. Other commentary. David F. Brown, "The President Authorized Spying? I Say Go For It," Des Moines Register, January 2, 2006, and the Washington Post's resident blogger, Emily Messner, "This Week's Debate: Domestic Surveillance," Washington Post, December 30, 2006. You don't have to read all of the documents Ms. Messner links to, but at least look to see what they are.

10. Finally, since our discussion probably would not have been scheduled and taken place but for our understandable, and even commendable, national concern about the protection of our country from "terrorism," perhaps it's worth thinking at least a little bit about what we mean by that word. Read Nicholas Johnson, "Rethinking Terrorism," National Lawyers Guild Conference, Iowa City, Iowa, March 2, 2002 -- through the section headed "Defining 'Terrorism.'"

11. Here's a last minute (Truthout, January 9, 2006) addition -- which is, therfore, not required reading -- that you might find useful and interesting, especially if you're into this stuff. Moreover, it has links to a transcript of the CBS "60 Minutes" segment we'll be watching in class, and a number of official NSA documents. Jason Leopold, "The NSA Spy Engine: Echelon," truthout | Investigative Report, January 9, 2006.