Internet Lawyer

Internet Lawyer Thoughts

As an Internet lawyer, I'll be commenting here on the state of the web and some of the more interesting or compelling ethical, legal and moral issues I run into, or think about. Join in the discussion. Prior to becoming a full time Internet lawyer in 2001, I was the founder and CEO of a venture backed E-commerce business. I was also the chief architect and technologist of e-commerce applications for American Express, Citicorp, and Sears in the 1990s. Prior to my Internet lawyer days I was a trial lawyer beginning in 1981. So if there is something I say that piques your interest, let me know.

Internet Lawyer: August Heats Up

Is it me, or just the Internet lawyer in me feeling the heat as summer comes to a close? Facebook has been sued in Texas for data privacy breaches in a case that looks like a big deal. Google lost its fight in NYC to protect a blogger's identity. Banks are sued in Virginia for not helping the anti-spam movement. And Oprah files suit going against websites for unauthorized use of her name and likeness in their advertising and on their sites. All allegations and not proven facts, of course.

But that's a lot of legal action in a week or so. Particularly in mid-August, when almost everything in a trial lawyer's business life shuts down. Is this a sign that people are just fed up with all the nonsense going on out there and aren't going to take anymore? Hard to say, but in my book, Google Bomb, I reveal the inside tricks of online attackers and scofflaws. Maybe we are just starting to catch up with what is really going on. As an Internet lawyer interested in creating and supporting a more civil, law abiding online society, that is good to see. 

Internet Lawyer: The Need For New Laws

As an Internet lawyer I have the task of not only staying abreast of the latest technological and business changes in the online world but also tracking many of the key Internet law cases working their way through the courts. 

Every Internet lawyer must deal with a very rapid pace of change and evolution. Sometimes change happens at an imperceptably slow pace. And so, given that fifteen years have passed since the Internet came into public use, how is it that, according to the Judge in the MySpace suicide case, we don't have criminal laws to protect ourselves from online malicious attacks, even if mere words are spoken? In a world in which mere words can get you in a lot of trouble...threatening the President, or phoning in a bomb threat, or using the telephone lines to harass, why don't we have a functional equivalent for online misconduct? When will we begin to hold accountable the scofflaw who yells "fire" in a crowded theatre? That's the question an Internet lawyer interested in seeing a robust and healthy online society ought to be asking. Congress and state legislatures need to take notice.

Internet Lawyer View On State Affiliate Sales Tax

What's an Internet Lawyer to do? Move to a state that appears pro-Internet? Is that what this whole Internet sales tax problem is starting? State "safe havens" for Internet businesses?

Let's review. First New York, and now California, Hawaii, North Carolina, and Rhode Island, are all clamping down on major online retailers by requiring they collect and remit state sales taxes if the affiliate marketer that earned the commission for the sale is located, or has minimum contacts, with a state. 

Perhaps you were under the mistaken belief that Congress passed a moratorium of sorts on "Internet taxation". Well, no, that is not what Congress did. It prohibited the assessment of taxes on "Internet service". So you won't see a sales tax on top of your monthly bill for Internet access through your ISP. That's it.

Web businesses are now being subjected to state laws that really are impacting in a negative way the free flow of commerce online. So, does Congress or the Courts try to impinge on the sovereign rights of states? And that is the question that as an Internet Lawyer I consider central to defining who, ultimately, will control the web. And can the same question be asked on a global basis? When countries start passing laws that impact global online commerce, what do we do then? Tell our clients to not leave the country for fear of dire consequences? 

Internet Lawyer: Ownership of Virtual World Property

As an Internet lawyer I struggle with ownership of various forms of new virtual property because, well, the courts do. A California court recently followed a Virginia appellate decision in finding that domain names are not personal property but a form of contract right. This carries with it some pretty big implications. I recently saw a comment on the main Internet Law blog  asking about the ownership of accounts in virtual worlds. Of course, they are covered by the contract between the site and the member. So most would conclude that those contracts that prohibit the transfer, sale or other claim of ownership right in an account would be enforceable. And up to now they have been.

But as an Internet lawyer the question comes to my mind...under what circumstances might the future dictate a different outcome? Could states pass laws prohibiting the waiver of rights in virtual property as a per se "unconscionable" provision. Will courts pursue this path? As the value of the work, effort and creative endeavors of members of virtual worlds grow, will the day come when "improvements" to an online virtual property creates legal enforceable rights in the member? It's surely to be tested in the Courts in the coming years. More than one Internet lawyer will be staying busy trying to figure out where this type of issue should end up, and then finding the road to that end. 

Internet Lawyer: Global Free Speech

As an Internet Lawyer I am often involved in helping to define the scope of online "free speech". We have been following the attacks on free speech in Iran, the new law that has just passed in Kazakhstan and the efforts ongoing in China to curtail and further control online speech. Are we so provincial in the United States to think that all because we controlled the web in its early days, we are still the epicenter of web commerce and technology, and we passed the first laws to govern the Internet - that our fundamental belief system should be exported and willingly embraced by the rest of the world?

This will be one of the biggest challenges for the governance of the web...who will write the rules by which all play? Can we really expect a country to live up (or down?) to whatever standards we as Americans embrace? And if so, should there be an expectation, then, that those countries should be able to impose their own moral high ground on us in the US? This is an issue that is beginning to come to prominence. The debate about how to govern a world in which everyone might ideally play by the same rules is just beginning. 

If we in the US would never allow a country to impose its own unique, seemingly healthy, but clearly objectionable rules on us, why should we expect other countries to do so?

Internet Lawyer: Libel Tourism

Internet Lawyer thoughts for today. As an Internet Lawyer, I can't help but wonder about all of the laws being filed that will outlaw the enforcement of monetary judgments for defamation taken in foreign countries. This is not really just an Internet Lawyer issue or one of interest to internet lawyers. 

Think about it. If we can pass laws that basically invalidate a court judgment taken in another country because that country does not respect the doctrine of free speech as expansively as we do, then what can other countries do to us? And who says that when you go to another country you should not have to abide by their laws? Even if you stay in the US, if you publish lies about someone in Germany, you should expect if that person is harmed by your lies that you will be held accountable under German law. If your child is injuried in an auto accident by a wealthy citizen of Germany, you file suit, take a judgment, and then try to collect in Germany, you are going to be awfully upset to find that they passed a law prohibiting you from recovering. I know many will try and distinguish this situation. But I think the analogy is legitimate. When we in the US thumb our noses at foreign governments and foreign laws, we can expect them to return the favor. In spades. Just wait and get ready for the unintended, and unanticipated, consequences to come.