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Category Archives: Internet Law

Spam Reduction

Thursday, November 13, 2008

I received this news alert today from GigaLaw:

“The volume of junk e-mail sent worldwide plummeted after a Web hosting firm identified by the computer security community as a major host of organizations engaged in spam activity was taken offline.  Experts say the precipitous drop-off in spam comes from Internet providers unplugging McColo Corp., a hosting provider in Northern California that was the home base for machines responsible for coordinating the sending of roughly 75 percent of all spam each day.”

75% of spam!?  Here’s the link to The Washington Post story that prompted the GigaLaw alert.  It doesn’t answer the questions hiding in GigaLaw’s use of the passive voice, such as who took McColo Corp. offline?  On what authority?

Another Post story answers some of those questions:  two “Internet Providers”–Global Crossing and Hurricane Electric–pulled McColo’s plug on Tuesday.  Why Tuesday?  A spokesman for Hurricane Electric said “We looked into it a bit, saw the size and scope of the problem [washingtonpost.com was] reporting and said ‘Holy cow!’ Within the hour we had terminated all of our connections to them.  It appears Hurricane Electric acted unilaterally, although McColo has been on Internet security companies’ watch lists for some time. Why Tuesday and not, say, last month or last year?  The timing is unclear.  McColo reportedly was “hosting at least 40 different child pornography Web sites or sites that collect payment for the illicit content.”

Ironically, shutting down McColo may make it harder to track the illegal activity it hosts.  The Post quotes a security consultant:  “”Everything will just be more spread out and harder to mitigate . . . We rather like knowing where the bad activity is coming from, so protecting our networks is easier.”

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Virtual Acts, Real Consequences

Friday, October 24, 2008

Two stories caught my attention this week.  The first (see here and here) concerns two Dutch teenagers convicted for “virtual theft” and sentenced to a total 360 hours of community service for pressuring another teenager to transfer a virtual amulet and virtual mask to their account in the game RuneScape.  The court reasoned that the amulet and mask were goods under Dutch law, so their forced transfer is theft.  Apparently the defendants relied on more than virtual pressure to accomplish the crime–they “beat up and kicked their victim” and “threatened him with a knife.”

The second deals with a Japanese woman who, angered when her virtual husband in the game Maple Story divorced her, logged onto the game using the virtual-ex’s identity and password and killed his character.  Japanese police arrested her on suspicion of illegally accessing a computer and manipulating electronic data, crimes that carry penalties of up to 5 years in prison and $5,000 fines.  During police questioning the woman explained her actions:  “I was suddenly divorced, without a word of warning.  That made me so angry.”  The woman did not engage in real-world revenge.

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Judge Orders Transfer of Domain Names

Friday, October 24, 2008

Kentucky’s plan to seize domain names belonging to online gambling sites took a giant step forward this week when a state court judge ordered transfer of 141 domain names to the state in 30 days unless the sites block access by Kentucky residents.  The judge ruled that the domain itself is a gaming device under Kentucky law.  Kentucky has targeted the online gaming industry “because it was illegal and drained money away from Kentucky’s legitimate gambling.”

Consider what transferring the domain names to the state means.  A user anywhere in the world who types, say, wildjack.com into his web browser will be directed not to http://www.wildjack.co.uk/?bTag= but to a Kentucky .gov subdomain bearing notice that the site has been seized. It won’t matter whether online gaming is legal where the user resides–he will not be able to access the site.  If Wildjack.com does not find a way to block Kentucky residents it will be forced out of business.  Domain name seizure would become a highly effective method for local governments to force their law on the world.

That’s a bad precedent.

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Aggravated Harassment

Wednesday, October 8, 2008

Legal Blog Watch reports (via Sui Generis) that New York state is amending the crime of Aggravated Harassment to include electronic communication such as email and text messages.  Such amendments are necessary to create prosecutable cases that avoid the square-peg-in-a-round-hole nature of the government’s charge that Lori Drew violated the Computer Fraud and Abuse Act  in connection with Megan Meier’s suicide.

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Kentucky’s Domain-Name Grab

Tuesday, September 30, 2008

The governor of Kentucky, Steve Beshear, is cracking down on Internet gambling sites, which he refers to as “leeches on our communities.”  (See story.)  The governor filed a lawsuit in Kentucky state court in an attempt to force gambling sites to prevent access to Kentucky residents.   To get the sites’ attention he asked the court to transfer ownership of their respective domain names to the state.  It’s an audacious strategy that raises a number of issues about the state’s power to achieve it.  Assignment of the names to the state is not the same thing as garnishment but still this case reminds me of NSI v Umbro International–perhaps because I reread it a few days ago.   This is the Virginia case in which Umbro attempted to attach a domain name as collateral for the domain name owner’s debt to Umbro.  NSI, the domain name registrar, objected to the attachment.  The court refused to treat the domain name as property.  The court held that a domain name contract gives the name’s owner a license to use the name for a set period of time.  More specifically, it gives the name owner the right to have domain name root servers point to the owner’s website when someone enters the domain in a web browser address bar.  This contract for services does not give the owner a property right that a creditor can attach.

Blocking these sites from Kentucky residents’ access is also novel, and difficult.  Kentucky is not China or Saudi Arabia, where the government exercises significant control over what Internet traffic crosses the border.  The remedy seems futile.

The trial court judge refused to grant the governor’s motion to transfer the names, asking all parties to brief the issues so he can consider what to do.

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Web Sites and the ADA

Wednesday, September 3, 2008

As reported by Law.com last week Target Corp. settled a federal class action lawsuit brought by The National Federation of the Blind, who claimed that Target’s website was inaccessible to the blind in violation of the Americans with Disabilities Act.  At issues was Target’s failure to code its website to enable use of keyboards and software that convert websites into speech or Braille.  Target agreed to pay $6 million in damages and recode the site to accomodate those with vision disabilities.  Target was prompted to settle in part by the trial judge’s ruling that the ADA applies to a business’s website, agreeing with the plaintiffs that there is a nexus between physical Target stores and its online presence.  The article reports that other companies such as Amazon.com and RadioShack have agreed to improve their web sites to enable use by visually impaired customers.  (Source:  Evan Hill “Settlement Over Target’s Web Site Marks a Win for ADA Plaintiffs,” The Recorder, 28-Aug-08.)

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eBay 2, Luxury Retailers 1

Wednesday, August 13, 2008

The Wall Street Journal Law Blog relays news of a Belgian legal ruling that eBay is not liable for sale of counterfeit Lancome perfumes, holding “that eBay is a passive provider of ‘host’ services, as that term is defined in a European Community policy directive, and that it’s therefore entitled to more legal leeway than a brick-and-mortor auctioneer would receive if counterfeit goods were being sold on his premises.” This is the third ruling in the past month in cases brought against eBay over sales of counterfeit luxury goods. A French court ruled against eBay in one of the cases; eBay won the Belgian case and another decided in the U.S. As the Journal says, “circuit splits are nice, but country splits are even better.”

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F.C.C. Rules Against Comcast

Sunday, August 3, 2008

Last year Comcast slowed BitTorrent traffic on its network because, it said, BitTorrent file transfers consumed inordinate bandwidth.  Advocacy groups Free Press and Public Knowledge complained about the practice to the F.C.C., presenting one of the first legal challenges to violation of the principals of net neutrality, the concept that all Internet traffic should be treated the same.  Net neutrality is a core value embodied in the original architecture of the Internet, and its preservation is considered by many to be essential to maintaining the Internet’s vitality.  On Friday the F.C.C. ruled 3-2 against Comcast and ordered it to cease blocking BitTorrent traffic by the end of the year.  F.C.C. Commissioner Kevin Martin said after the ruling ““We are preserving the open character of the Internet. . . We are saying that network operators can’t block people from getting access to any content and any applications.”  Saul Hansell reported in the New York Times the dissent, among other things, argued “that Comcast’s systems were a legitimate method of managing the capacity of the network and not an attempt to disadvantage rivals.”  Comcast is expected to appeal the ruling, which may spur Congress to enact legislation protecting net neutrality.  Hansell reports that “[c]uriously, representatives from other telecommunications companies praised the decision, even though they objected to the commission meddling in how they manage their networks. They said they would prefer such rulings to legislation from Congress . . .” because legislation would likely provide the telecoms with little wriggle room.  The F.C.C. decision, on the other hand, deals only with Comcast’s specific BitTorrent blocking and does not establish broad precedent.

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eBay Wins One

Thursday, July 17, 2008

A few weeks ago a French court ordered eBay to pay about $60 million in damages to Louis Vuitton and other manufacturers of luxury bags, finding that eBay failed to take adequate steps to prevent sales of counterfeit merchandise on its site.  This week a U.S. court handed eBay a victory in a similar lawsuit brought by Tiffany and Company, holding under U.S. law that eBay had no obligation to prevent sale of counterfeit trademarked goods.  The court said “to the extent that eBay may have possessed general knowledge of infringement and dilution by sellers on its Web site, eBay did not possess knowledge or a reason to know of specific instances of trademark infringement or dilution as required under the law.”

The contrary results under European and U.S. law reflect the profound changes in Internet law over the past decade.  When I started to teach Internet law in 2001 the popular wisdom held the Internet was beyond the reach of national law, that it existed in some extra-legal dimension subject to its own unique forces.   No more.  Internet businesses must, like trans-national brick-and-mortar companies before them, decide how to structure operations to meet the unique legal environment of each country in which it operates.

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