Category Archives: Law: Internet Law

One Small Ray of Sunshine in the Trade Mess

Most of what I’ve heard so far about NAFTA 2.0 is either boring (everyone hates the new acronym for the the United States-Mexico-Canada Agreement; it doesn’t change much) or mildly bad (it forces an extension of already near-endless copyright terms on Canada). But here’s a small ray of sunshine, courtesy of Eric Goldman, Good News! USMCA (a/k/a NAFTA 2.0) Embraces Section 230-Like Internet Immunity.

The key text is Article 19.17, and Eric gives a good clause-by-clause analysis in his post. In addition to extending § 230 to all of North America, this should make § 230 nearly impossible to repeal in the US–something a number of law professors have been urging in recent years. I don’t much approve of entrenching rules internationally against legislatures except in truly bilateral matters such as tariffs, but if I have to take all the bad IP stuff we keep getting, I guess it’s better to get this in the bargain than not.

Posted in Law: International Law, Law: Internet Law | Leave a comment

Yes, the CRA is a Way to Restore Net Neutrality

National treasure Harold Feld explains why the CRA really would be a means of restoring the net neutrality rule.

Strangely, it appears some folks actually doubted this as a theoretical matter. Of course the House won’t likely vote to overturn the FCC, so this is a bit academic. But then, I am an academic…

Posted in Law: Administrative Law, Law: Internet Law | Leave a comment

Net Neutrality a la King

Never in my life did I imagine I would be saying a good thing about a Burger King product, but this video explaining net neutrality is actually….good:

Posted in Law: Internet Law | Leave a comment

I Expect We’ll Get Crap Like this Daily

Donald Trump wants to ‘close up’ the Internet:

In a speech at the U.S.S. Yorktown in Mount Pleasant, South Carolina, on Monday, Trump referenced the use by ISIS of social media as a recruitment tool. He recommended a discussion with Bill Gates to shut off parts of the Internet.

“We’re losing a lot of people because of the Internet,” Trump said. “We have to go see Bill Gates and a lot of different people that really understand what’s happening. We have to talk to them about, maybe in certain areas, closing that Internet up in some way. Somebody will say, ‘Oh freedom of speech, freedom of speech.’ These are foolish people. We have a lot of foolish people.”

Well, count me as one of the foolish I guess. Although not quite so foolish as to think Bill Gates runs parts of the Internet.

PS. To those offended by the headline: what else am I supposed to call it? Bullshit?

Posted in Law: Free Speech, Law: Internet Law, Trump | 5 Comments

Why the Attempt to Enjoin the IANA Transfer is Baseless

The Attorney Generals of four right-wing states sued today to block the transfer of the US’s control over IANA to ICANN.  Here’s a link to the plaintiffs’ complaint and request for declaratory and injunctive relief.

And here’s my very quick take on the lawsuit: The APA claim is bogus.  I think they lack standing for the property claim. The property claim is also meritless, as the government is not giving away any property it “owns”.  The US is letting go of a contractual right to veto alterations to the data in a computer file (the root zone file) held on a privately owned machine.  There is no intellectual property right because the contents of the file are in the public domain, and US law would not recognize this as a compilation copyright.  What’s at issue in the IANA transfer is the loss of the US government’s right to veto authoritative changes to the file, not to own the contents.

In any case, the proposed transfer doesn’t harm the defendants in any way now, and their complaint fails to say that it does.  Plaintiffs only give extremely speculative allegations of possible future damage. Indeed, the most they can come up with in para 22 of their complaint is that “Plaintiffs will lose the predictability, certainty, and protections that currently flow from federal stewardship of the Internet and instead be subjected to ICANNs unchecked control.”  While I am more sympathetic than most about the dangers of being subject to ICANN’s unchecked control, the fact remains that in the absence of any clear threat by ICANN do something that would harm the plaintiffs in some way this is far too speculative a harm to be recognized by a US judicial system that is allergic to speculative harm. The same argument applies to the claim that ICANN might – no sign at all it will – increase fees to GSA for .gov, which might – no clear sign it would – be passed on as a cost to the plaintiffs. (para 29).

More generally, the complaint takes a surprisingly collectivist view of private property given that it was filed by some of the more right-wing state officials in the land.  My computer is not a public forum.  Yet, by claiming that “the internet” has been “established” by the US as a public forum, the plaintiffs seem to want to (in effect) nationalize every computer on the Internet, or at least all the US ones. See for example paras 32 and 35-36 of the complaint which refer to the private use of private computers, but try to turn the computers and the uses into something that requires licenses or which government could control.

Count 3 is bogus because the Commerce Department’s act isn’t a rule in either form or substance.  It might arguably be an adjudication – I wrote an article arguing that other related actions should be seen as adjudications (but the courts didn’t bite).  NTIA has always taken the view that changes to the IANA relationship are just contract negotiation, like buying paperclips, and those don’t require notice and comment and are not adjudications either; instead it’s just purchasing (I thought the $0 cost of the purchase orders was odd, but that failed to convince enough people.) In any case, not renewing the contract is even less an action than altering it.

Count 4 – the claim that the government is lacking statutory authorization for its actions – is a little more interesting.  It has two problems, however: first, the plaintiffs lack the standing to bring it.  Second, if it is correct, it likely proves too much, for if getting rid of the Root Zone File was lacking authority, so too was maintaining it.  So were this to go forward, the result would be to say the government couldn’t do any of the things it has done in the ICANN/IANA space … which is exactly the result that the plaintiffs are suing to prevent.

Count 5, the tortious interference with contractual relations claim, founders on the absence of any non-speculative damages.  US tort law requires you have damages to prevail on a tort claim.

In the long run, this claim cannot succeed.  Whether the parties might be able to scare a judge into throwing a spanner in the works while he or she figures things out, I don’t know, but even if they do I just don’t see any way for this lawsuit to prevail in the long run.

Posted in ICANN, Internet, Law: Internet Law | 1 Comment

My New Paper May Make Some of My Friends Angry

Building Privacy into the Infrastructure: Towards a New Identity Management Architecture comes to what I fear some of my friends in the privacy community will find to be an unacceptable conclusion.

I’ll be presenting it at the Privacy Law Scholars Conference in Washington next week. Hopefully, since many attendees are in fact friends, they won’t bring brickbats.

Posted in Cryptography, Econ & Money, Law: Internet Law, Law: Privacy, Surveillance, Talks & Conferences | Leave a comment