Date: February 12, 1997
To: CLS Class
From: Chris Gaspar
I. How should contract enforcement be handled? A) Which country’s law should apply? Which state’s law? B) Should contracts formed on the Net be considered oral or written? C) Should a set of international standards be formed? Should a new U.C.C. article address the concerns?
II. How should tort liability be imposed? A) What classes of parties (ISPs, users, consumers, etc...) should be held liable in connection with internet activity? B) What types of acts or omissions should attach liability to these parties?
III. How much intellectual property protection should exist? A) Which IP regimes should apply? 1) Copyright? 2) Patent? 3) Trademark? 4) Utility Model? B) Which country’s model of protection should be used? C) Who should determine who’s IP protection laws apply? 1) United States? 2) An separate arbitrary country? 3) A specially empowered council? a) United Nations committee? b) European Union committee?
IV. What if any internet/electronic media activities should be taxed? A) What if any classes parties (ISPs, users, consumers, advertisers, etc...) should be taxed? B) What if any activities should be taxed? C) Which country/governmental body should receive the taxation proceeds? D) Should the private sector alone pay for all internet/electronic media activities? Broad policy issues: (continued)
V. What if any internet/electronic media activities should be censored? A) Should the laws/standards of the country in which the material is viewed apply, or should the laws/standards of the country of the material’s origin govern?
VI. What if any internet/electronic media activities deserve special privacy or security protection?
VII. What amount of governmental regulation is appropriate?
VIII. What amount of internet/electronic media activity should be policed by law enforcement agencies?
IX. Should legislatures or courts decide? Should the world’s current legal doctrine be updated/replaced to reflect the changing technology (by legislative bodies), or should the current laws be interpreted, stretched (by courts) to Information Age disputes.
I. Administrative Law -- Does an existing agency monitor/regulate the internet? If not, should an agency be created to do so? If so, how should the agency be funded?
II. Antitrust Concerns -- Should governments become concerned when entertainment, news, radio stations, television stations, movie, videotape rental, film studia, music recording studio, and newspaper companies are all owned and controlled by a single conglomerate corporation? How big is too big? How much consumer protection should the government “buy” via policing potential antitrust violations?
III. Civil Procedure -- Does a corporation advertising on the internet become subject to personal jurisdiction and service of process in every state where the internet is accessible? -- When a corporation’s revenues are generated solely from sales over the internet, what is that corporation’s principle place of business for diversity jurisdiction purposes?
IV. Conflicts of Laws A) International -- Can and internet service provider be liable for allowing information to move freely on the internet when certain information is considered illegal in some countries but not in all countries? -- Which country’s laws apply to disputes created by internet/electronic media activities? -- Who decides which laws apply? -- Is any decision/ruling enforceable against a foreign citizen or resident? -- Who is the enforcer of the ruling? B) Within the United States -- When do traditional conflicts of laws rules apply? Should new rules be developed? Should a uniform body of law exist to resolve disputes when neither states’ laws are sufficiently developed? Should a uniform body of law be applied regardless of the existing state law?
V. Contract Enforcement -- Are contracts formed on the internet legally enforceable in United States courts? In foreign courts? -- Does downloading a computer program from work for home use constitute a violation of most software licensing agreements? If so, can foreign violators be subject to the jurisdiction of United States courts? Will foreign violators be bound by the ruling of a United States court? -- Should tariffs be charged for information “imported” via the internet/electronic media?
VI. Constitutional Law / Individual Rights A) Right to Privacy -- Can e-mail messages made on the job be recorded by an employer and subsequently used against an employee? Must the employer notify the employee that its e-mail transmissions will/might be monitored? -- Can cellular or cordless phone conversations be intercepted and used against the declarant? Can electronic evesdroppers be prosecuted? -- Can a cellular phone conversation be legally intercepted by a private citizen using a scanner or radio receiver? What expectation of privacy does the cellular phone user reasonable have? What rights does the evesdropper have? Does the cellular phone company have a duty to encrypt the phone call? Can the cellular phone company have the right to encrypt the phone call? B) Free Speech Rights -- Can obscene material posted on the internet be restricted to only certain users? (V-Chip equivalent for the internet) C) Governmental Regulation -- What level of state interest must be shown by the government (local, state or federal) to completely bar private citizens from using the internet? -- Under what circumstances would limiting access to the internet for a certain class of people (ex: minors, prosecuted computer law violators, hackers) constitute a violation of equal protection clause? -- Could web pages from other nations be blocked by the government (federal or state)? Could the United States government keep web pages created in the U.S. from be “broadcast” to foreign countries on the internet? -- Do internet sales transactions always constitute interstate commerce?
VII. Criminal Law -- Can foreigners be prosecuted for accessing, using, selling, or manipulating confidential or proprietary data? -- How can theft of proprietary work product stored on computer networks be policed by law enforcement agencies? -- Do dirty jokes broadcast via e-mail or voice-mail constitute sexual harassment? -- Is gambling via the internet illegal in all countries and all states? -- Is it stealing to scan artwork into a computer and use it, sell it, distribute it in hardcopy or for internet viewing? What if the artwork is altered in some way? What if artwork is changed to be a parody?
VIII. Evidence -- Are internet transmissions considered a “writing” for the purpose of the hearsay rule? -- What is the “best evidence” if the item in question is a web page or an e-mail message? -- How much foundation is required to authenticate a web page or an e-mail message? How is a chain of custody established?
IX. Insurance -- Can insurance companies use information derived from consumer surveys conducted on the internet to deny life insurance or medical coverage to applicants?
X. Property A) Intellectual Property -- What categories of information (ex: pictures, programs, music, broadcasts, documents, etc...) are dedicated to the public domain once placed on the internet? Which items should be dedicated to the public domain? How long must an item be accessible on the internet before it is dedicated to the public domain? -- Does use of an e-mail address or an internet domain name containing a trademark constitute infringment under the Lanham Act? If not, should the Act be changed to comport with today’s technology? -- Should computer software be protected by copyright? Would utility model protection be more appropriate? -- Should assignment of e-mail and internet domain names be regulated? Should the regulation be governmental or from the private sector?
XI. Tort Liability A) Direct Liability -- Can internet information providers (ex: web page makers, advertisers, etc...) be legally liable for maliciously (or recklessly, or negligently) distributing false or misleading information? -- If so, must the conduct be intentional, reckless, or negligent? -- If so, must the consumer/user/reader of the information rely on the false information to its detriment? -- Can “chat group” or “news group” discussions be used as the basis for defamation suits? Does it matter whether a fee must be paid to have access to the group discussions? Does it matter if other requirements restrict access to the group? B) Vicarious Liability -- Can the employer of a hacker be held vicariously liable for damage caused by a tortfeasor employee (ex: employee plants a virus in a competitor’s computer system)? -- How many ways can an internet service provider be held liable for acts of its customers?
Sources: (attached)