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“Elephants and Mice Revisited: Law and Choice of Law on the Internet”

“Elephants and Mice Revisited: Law and Choice of Law on the Internet”. Professor Peter P. Swire Moritz College of Law Ohio State University Penn Law Review Symposium November 12, 2004. Overview. Elephants and Mice What we’ve learned since 1998

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“Elephants and Mice Revisited: Law and Choice of Law on the Internet”

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  1. “Elephants and Mice Revisited:Law and Choice of Law on the Internet” Professor Peter P. Swire Moritz College of Law Ohio State University Penn Law Review Symposium November 12, 2004

  2. Overview • Elephants and Mice • What we’ve learned since 1998 • When does choice of law matter on the Internet? • Surveillance as a (controversial) tool for increasing the enforceability of law on the Internet

  3. I. Elephants and Mice • Metaphor for when law and choice of law most likely to be effective on the Internet • Elephants: • Powerful, thick skin, impossible to hide • Subject to jurisdiction & COL • Can lobby & influence laws • Will have to comply once laws are in force

  4. Elephants and Mice • Mice: • Small and mobile: porn and piracy sites that can reopen elsewhere if shut down • Breed annoyingly quickly: new sites open • Hide offshore & in crannies of network • Jurisdiction often doubtful & rarely enter the light of open court to dispute COL

  5. II. Since 1998 • 1998 article predicted or described areas for Internet COL disputes: • Areas of COL conflict: privacy; hate speech; treasonable/political speech; defamation; taxation; gambling; pornography; intellectual property • Areas of possible conflict: labor laws; professional licensing • Analysis of B-to-C E-Commerce

  6. Not Predicted in 1998 • Spyware/adware: adware by large companies (elephants) and law can address that; some spyware by mice • Cybercrime was missing • Computer hacking • Computer viruses • Identity theft • Phishing

  7. III. When does COL Matter on the Net? • The task here: COL as a dependent variable • When will the COL rule matter on the Internet? • Law works (despite tech counter-measures)? • Is there jurisdiction? • Lack of harmonization? • Lack of self-regulation? • IFF yes to all these, then COL rule matters

  8. Technology and Law • Early romantic view that “the Internet treats censorship (or regulation) as damage, and routes around it” • In practice, have not seen much strong encryption, untraceable e-cash, & untraceable routing of communications • Tech counter-measures less than many predicted, so law more likely to be effective

  9. Is There Jurisdiction? • For elephants, there will often be jurisdiction & ability to enforce judgments (assets in country) • Some elephants (Yahoo) defend with corporate separateness • May work legally, less desirable for “local” companies • For mice, less likely to have jurisdiction, and enforceability of judgments is even less

  10. Is There Harmonization? • Some harmonization, such as for privacy (Safe Harbor) & IP (TRIPS) • Major gaps, such as privacy (Safe Harbor), hate speech, treason, defamation, gambling, taxation, etc. • Big change since 1998 is COE Cybercrime Convention • Dual criminality & cooperation in investigations

  11. Is There Self-Regulation? • COL in E-Commerce minimized by other systems • Credit card agreements • Clicks and bricks retailers, with local law applying • eBay, with its own legal & reputation systems • These self-regulatory systems have won in the market (my Trustwrap article)

  12. International COL May Matter • Even when a case survives the filters, international E-Commerce less than predicted in 1998 • E-Commerce growth has not matched the expectations of the bubble • Self-regulatory systems reduce COL • Direct, transnational sales to consumers less than expected

  13. What’s Left? • The 1998 list against elephants: • Hate speech (Yahoo!) • Defamation (Australia case) • Privacy (future of the Safe Harbor) • Internet gambling (WTO action) • In short, important but limited categories of cases raise COL issues on the Internet

  14. Conclusion: Surveillance? • There are numerous other actions, by mice, that cause harm over the Internet in the eyes of at least some countries, • Piracy • Spam • Child or other pornography • Hacker and virus attacks • Terrorist communications & attacks

  15. Surveillance could “solve” these • The temptation is to increase surveillance of Internet usage so that these mice can’t hide • A key variable to how these harms get resolved among nations is likely to be the level of surveillance created over the Internet, more than decisions about COL

  16. Conclusion • In the surveillance debates, the image of annoying-but-charming “mice” could become an image of rabid & dangerous “rats” • In the post-9/11 world, a major inquiry should be deciding in what ways and under what procedural protections surveillance of the Internet will exist. • That’s an important job (says the privacy scholar), but for another day

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