INTERNET LAW DENNIS CROUCH MIDTERM STUDY GUIDE - SPRING 2023

Yahoo Nazi case

A landmark legal battle involving Yahoo's liability for allowing the sale of Nazi memorabilia on its platform, raising questions about free speech, hate speech, and e-commerce regulation on the internet. This case is significant for its implications on online content moderation and the limits of internet freedom.

Federal & State Court System

State: State court systems handle cases that involve state laws, regulations, and issues that arise within the boundaries of a particular state. State courts are organized hierarchically, with trial courts at the bottom (often called district or superior courts), followed by intermediate appellate courts (in some states), and ultimately the state supreme court, which serves as the highest authority within the state's judicial system. Each state has its own court structure and procedures, which may vary in detail from state to state.
Federal: The federal court system deals with cases involving federal laws, the U.S. Constitution, disputes between states, and cases in which the United States is a party. Federal courts have jurisdiction over issues such as bankruptcy, patents, copyright, maritime law, violations of federal laws, and cases involving diversity of citizenship (where parties are from different states and the amount in controversy exceeds a certain threshold).
The federal court system is organized into three main levels:
a. U.S. District Courts: These are the trial courts where most federal cases begin. They have original jurisdiction over most federal cases, both civil and criminal.
b. U.S. Courts of Appeals (Circuit Courts): These courts hear appeals from the district courts and some specialized federal courts. There are 13 federal appellate courts, each covering a specific geographic area known as a circuit.
c. U.S. Supreme Court: The highest court in the federal judiciary. It has discretionary jurisdiction, meaning it can choose which cases to hear. The Supreme Court's decisions are binding on all other courts in the United States.

South Dakota v. Wayfair

A recent Supreme Court case concerning online sales tax and interstate commerce, where the court ruled that states can require online retailers to collect sales tax even if they lack a physical presence in the state. This case has significant implications for e-commerce taxation and state revenue collection

Packingham v. North Carolina (Free Speech vs Protecting against Potential Predators)

A landmark Supreme Court case addressing the balance between free speech rights and protecting against potential predators on the internet. The court ruled that a North Carolina law prohibiting sex offenders from accessing social media platforms violated the First Amendment. This case has important implications for online speech and internet regulation

Campbell v. Reisch (Free Speech rights on Twitter)

A case involving the extent of free speech rights on social media platforms like Twitter, potentially exploring issues of defamation, harassment, and platform moderation policies. This case could be important for understanding the legal boundaries of online expression and platform liability.

TEXAS V. JOHNSON (what counts as speech)

A landmark Supreme Court case addressing the question of what constitutes protected speech, particularly regarding flag burning as a form of symbolic expression. The court ruled that flag burning is protected under the First Amendment, emphasizing the importance of safeguarding even unpopular forms of expression.

BLAND V. ROBERTS (liking on FB as speech)

Addresses whether 'liking' content on Facebook qualifies as protected speech under the First Amendment. The court ruled that liking a Facebook post constitutes protected expression, underscoring the significance of online interactions in modern free speech jurisprudence.

Olmstead (1928); Katz (1967); Kyllo (2001); Jones (2012)

Fourth Amendment cases dealing with issues of privacy, likely related to electronic surveillance and search and seizure.

Riley v. California

A Supreme Court case addressing the privacy rights concerning digital devices and police search authority. The court ruled that warrantless searches of cell phones during arrests are unconstitutional, recognizing the unique privacy interests implicated by modern technology.

CARPENTER V. UNITED STATES

A recent Supreme Court case discussing the privacy rights regarding cell phone location data. The court held that warrantless acquisition of cell phone location records by law enforcement constitutes a violation of the Fourth Amendment's protection against unreasonable searches and seizures, highlighting the need to adapt privacy laws to technological advancements.

Rights of Anonymity

A legal discussion or case regarding the protection of individuals' anonymity rights, exploring the tension between privacy interests and the public's right to information.

IP Address

A unique numerical label assigned to each device connected to a computer network using the Internet Protocol for communication.

US Const Art III: Jurisdiction

Establishes the jurisdiction of the federal judiciary, outlining the types of cases federal courts can hear and the extent of their authority.

US Const: Supremacy Clause

Establishes that the Constitution, federal laws, and treaties are the supreme law of the land, preempting conflicting state laws or regulations.

Subject Matter Jurisdiction

Refers to a court's authority to hear cases of a particular type or category, typically based on the subject matter or legal issues involved.

General jurisdiction

Refers to a court's authority to hear a wide range of cases, without limitation as to the type or category of legal issues involved.

Attachment Jurisdiction

A court's authority to assert jurisdiction over a defendant's property within its boundaries as security for a potential judgment.

Specific jurisdiction

A court's authority to hear a case based on the defendant's contacts or activities within the forum state, relating to the specific claims or legal issues raised in the lawsuit.

Minimum Contacts

The constitutional requirement that a defendant must have sufficient connections with a state for that state's courts to exercise jurisdiction over the defendant without violating due process.

Protected Computer under the CFAA

A computer system subject to federal cybersecurity laws, used in interstate or foreign commerce, or communication with the United States government.

Artificial Intelligence

The simulation of human intelligence processes by computer systems, including learning, reasoning, problem-solving, perception, and language understanding.

US Const: 4th Amendment Requirements

Protects against unreasonable searches and seizures, requiring actions by government authorities to be supported by probable cause and conducted with a warrant.

Search (under the 4th Amendment)

Government intrusion into an individual's reasonable expectation of privacy, typically requiring a warrant supported by probable cause or a recognized exception.

US Const: 1st Amendment: Speech

Protects freedom of speech, encompassing the right to express opinions, ideas, and beliefs without government censorship or restraint.

Strict Scrutiny

The highest level of judicial review requiring the government to demonstrate a compelling interest and narrowly tailored means for laws implicating fundamental rights or suspect classifications.

Compelling government interest

A significant public interest justifying government action or regulation, typically invoked to justify restrictions on constitutional rights subject to strict scrutiny.

Cyberspace

The virtual environment created by interconnected computer networks, encompassing online communication, transactions, and activities conducted over the internet.

Privacy

The right of individuals to control their personal information and be free from unwarranted intrusion into their personal lives, including autonomy, confidentiality, and security.

Speech (what is it?)

The expression of ideas, opinions, or information communicated through verbal, written, or symbolic means, protected under the First Amendment.

US Const: 4th Amendment: Search incident to arrest

Allows law enforcement to conduct warrantless searches of an arrestee and the immediate surrounding area based on the exigencies of the arrest.

14th Amendment incorporation

Applies certain provisions of the Bill of Rights to the states, ensuring that state governments must respect fundamental constitutional rights protected by the federal Constitution.

Civil versus Criminal Action

Civil actions involve disputes between private parties seeking monetary damages or equitable relief, while criminal actions involve government prosecutions for violations of criminal laws.

Appellate

Refers to the jurisdiction and proceedings of an appellate court, which reviews decisions of lower courts for legal errors or procedural irregularities.

Originalism

A judicial philosophy that interprets the Constitution's meaning based on the original understanding of its framers or ratifiers at the time of adoption.

Textualism

A method of statutory interpretation that focuses on the plain meaning of the text of a law, without consideration of legislative history, intent, or policy.

Commercial speech

Speech proposing a commercial transaction or relating to a commercial activity, receiving limited protection under the First Amendment subject to intermediate scrutiny.

Anonymity

The condition of being anonymous or unidentified, particularly in the context of online communication or activities where individuals conceal their identity.

Presence

An individual's virtual or digital presence within cyberspace, determined by their actions, interactions, or connections on digital platforms or networks.

Remand

Sending a case back to a lower court for further proceedings or reconsideration after an appellate court reverses or vacates the lower court's decision.

Choice of law

Legal principles for determining which jurisdiction's laws should apply to resolve disputes in cases with connections to multiple jurisdictions.

Malware

Software designed to infiltrate, damage, or disrupt computer systems or networks for unauthorized access, data theft, or other malicious purposes.

Tax

Compulsory financial charge imposed by a government on individuals, businesses, or property to fund public expenditures and government operations.

Reasonable expectation of privacy

Legal standard to determine whether an individual's privacy rights are implicated by government actions or intrusion, based on societal norms and expectations of privacy.

Probable cause

Legal standard requiring a reasonable belief that a crime has been or is being committed, justifying law enforcement action such as arrest, search, or seizure.

Consent

Voluntary agreement or permission given by an individual for a particular action, typically based on informed and voluntary decision-making.

Plain view rule

Allows law enforcement officers to seize evidence discovered in plain view during a lawful observation, without requiring a separate warrant, provided the officer has a lawful right of access to the object.

Exigent circumstances

Situations requiring immediate action by law enforcement officers to prevent imminent harm, preserve evidence, or address emergency situations, justifying exceptions to normal legal procedures.

Clear and convincing evidence

A higher standard of proof than preponderance of the evidence, requiring that the evidence presented in a legal proceeding be highly probable or substantially more likely true than not.

Beyond a reasonable doubt

The highest standard of proof in criminal cases, requiring the prosecution to prove the defendant's guilt to such a degree that no reasonable doubts remain in the minds of the jurors.

Preponderance of the Evidence

The standard of proof used in most civil cases, requiring that the evidence presented by one party be more convincing or persuasive than the evidence presented by the opposing party.

Jury Trial

A legal proceeding in which a case is decided by a jury of peers who evaluate the evidence presented and reach a verdict based on the facts and applicable law.

Testimonial

Evidence or statements given by a witness under oath or affirmation in a legal proceeding, typically subject to cross-examination by opposing counsel.

Privacy Invasion

Violation of an individual's right to privacy.

Seclusion Intrusion

Unauthorized physical or observational intrusion into someone's private space.

Appropriation

Using someone's name or likeness without permission for personal gain.

Publicity of Private Life

Sharing private details about someone without their consent, which would be offensive to a reasonable person.

Defamation

Damaging someone's reputation through false statements.

Negligence

Failing to act with the care that a reasonably prudent person would under similar circumstances.

Actual Malice

Publishing false information about someone with knowledge of its falsity or a reckless disregard for the truth.

Communications Decency Act (including Section 230)

A United States federal law providing immunity to online platforms from liability for user-posted content, while allowing them to moderate content in good faith.

Privacy from Government

Protection of individuals' personal information and activities from unwarranted surveillance or interference by government authorities, grounded in constitutional principles and statutory protections.

Electronic Communications Privacy Act

United States federal law governing the interception, access, and disclosure of electronic communications, providing privacy protections for email, phone calls, and electronic data transmissions.

Stored Communications Act

Component of the Electronic Communications Privacy Act regulating government access to stored electronic communications and records held by service providers.

Internet Service Providers

Companies providing individuals and organizations with access to the internet, typically through broadband or wireless connections, and offering related services such as email, web hosting, and content delivery.

Content Moderation

Process of monitoring, reviewing, and regulating user-generated content on online platforms to enforce community guidelines, terms of service, and legal requirements.

Kennison v. Daire

A pivotal landlord-tenant case where the court ruled in favor of the tenant, establishing legal precedent for landlords' responsibility to maintain habitable living conditions. This case highlights the importance of tenant rights and landlord obligations in ensuring safe and livable housing conditions.

Barlow - Declaration of Independence

John Perry Barlow was a visionary American poet, essayist, and cyber-libertarian. He is best known for his seminal work "A Declaration of the Independence of Cyberspace," which he published on February 8, 1996. In this declaration, Barlow asserted the autonomy of the internet from the governance of any nation-state, advocating for a realm of digital freedom where traditional laws and regulations hold no sway. He argued for the self-regulation of cyberspace by its users, promoting ideals of openness, individual sovereignty, and resistance against governmental interference. Barlow's declaration became a foundational text for internet activism and cyber-libertarianism, influencing subsequent debates and movements surrounding online freedom and governance.

Kerr - Internal/External Perspective

The internal perspective, also known as the participant's perspective, views the law from within the legal system itself. It looks at the law as a set of rules and norms that are accepted and followed by legal officials, judges, lawyers, and other participants in the legal system. The internal perspective seeks to understand the law as it is interpreted and applied by those who are part of the system and who have a duty or obligation to uphold the law.
The external perspective, also known as the observer's perspective, views the law from outside the legal system. It looks at the law as a social phenomenon or as a set of practices and behaviors that can be studied and analyzed using various theoretical frameworks and empirical methods.

JOHNSON AND POST: Law & Borders

An academic work examining the intersection of law and digital borders, addressing the challenges and implications of regulating online behavior across geographic boundaries. This case may shed light on the complexities of jurisdiction and sovereignty in the digital age.

Franks - Unwilling Avatars

Mary Anne Franks is a law professor and scholar who has written extensively on the topic of online harassment, revenge porn, and the non-consensual distribution of intimate images. Her concept of "unwilling avatars" refers to the use of someone's image or likeness online without their consent, in a way that causes harm or distress. The basic idea behind unwilling avatars is that in the digital age, our images and personal information can be easily copied, manipulated, and distributed without our knowledge or consent. This can lead to situations where individuals become "avatars" or digital representations of themselves that they did not create or endorse, and which can be used in ways that are harmful, harassing, or violating of their privacy and autonomy. Franks argues that the non-consensual use of someone's image or likeness online can constitute a form of digital exploitation, akin to identity theft or impersonation. It can lead to various harms, such as reputational damage, emotional distress, harassment, and even physical safety risks, particularly in cases where intimate or explicit images are shared without consent (often referred to as "revenge porn").

State v. Decker

Daniel Decker was convicted of fifth-degree criminal sexual conduct and indecent exposure for sending a picture of his genitals to a minor via Facebook Messenger. He appeals, arguing that he did not meet the "presence" requirement of either crime because he and the victim were in different physical locations, and because he only sent a likeness of his genitals, rather than exposing his actual genitals. We hold that Decker's simultaneous electronic communications with a minor are sufficient to support his convictions. We therefore affirm the decision of the court of appeals

Rights of Privacy under the Second Restatement of Torts

A legal analysis or case study regarding privacy rights under the Second Restatement of Torts, which provides a framework for determining liability for invasion of privacy. This topic is significant for understanding the scope and limitations of privacy protections in civil law.
The Second Restatement of Torts, published by the American Law Institute in 1977, recognizes four distinct types of privacy invasions, which are:
Intrusion upon Seclusion: This occurs when there is an intentional intrusion, physical or otherwise, upon the solitude or seclusion of another, in a manner that would be highly offensive to a reasonable person.
Public Disclosure of Private Facts: This involves the public disclosure of private facts about an individual that are not of legitimate public concern, and which would be highly offensive to a reasonable person.
False Light: This occurs when publicity is given to an individual that places them in a false light before the public, in a manner that would be highly offensive to a reasonable person.
Appropriation of Name or Likeness: This involves the appropriation, for the defendant's advantage, of another individual's name or likeness without their consent.

MEYERKORD, v. ZIPATONI

In this 2008 Missouri case, plaintiff Greg Meyerkord sued his former employer Zipatoni Company for false light invasion of privacy, alleging Zipatoni wrongfully listed him as the registrant for a website he had no involvement with, which led to online criticism that harmed his reputation. The key issue was whether Missouri recognizes the tort of false light invasion of privacy distinct from defamation claims.

Trap/Trace Device

A surveillance tool used by law enforcement agencies to intercept and record communications, typically in the context of investigating criminal activities.

Personal Jurisdiction

Refers to a court's authority over the parties involved in a legal dispute, typically based on their physical presence or contacts within the court's jurisdictional boundaries.

Transient jurisdiction

Refers to a court's temporary authority to hear a case based on the presence of the parties or property within its jurisdictional boundaries.

Jurisdiction by consent

When parties voluntarily submit to a court's authority, typically through contractual agreements or explicit consent.

Extradition

The legal process of transferring an individual accused or convicted of a crime from one jurisdiction to another for trial or sentence.

Case holding

The legal principle or decision reached by a court in a particular case, serving as binding precedent for future similar cases.

US Const: Commerce clause (Interstate commerce)

Grants Congress the authority to regulate economic activities and transactions that cross state lines.

Intermediate Scrutiny

A level of judicial review requiring the government to demonstrate that the challenged law or policy is substantially related to an important government objective.

Statute

A formal written law enacted by a legislative body, governing conduct, rights, and obligations within a particular jurisdiction.

Bill

A proposed law introduced in a legislative body for consideration and potential enactment, typically undergoing review, debate, and amendment.

1983 Action against Government Official

A civil lawsuit brought under 42 U.S.C. § 1983 against government officials or entities for violating an individual's constitutional or federally protected rights.

Narrowly tailored

A legal standard requiring government actions or restrictions to be narrowly tailored to serve a compelling government interest, avoiding unnecessary infringement on constitutional rights.

Content-neutral restriction

A regulation or law that does not target the content of speech, but rather regulates the time, place, or manner of expression, subject to intermediate scrutiny under the First Amendment.

Incidental speech restrictions

Limitations on speech arising as a consequence of regulating conduct or activities unrelated to expression, subject to scrutiny based on the nature of the underlying regulation.

Natural rights

Fundamental rights inherent to human beings, typically encompassing rights to life, liberty, and property that are not contingent on government recognition or enactment.

Computer Fraud and Abuse Act (CFAA)

A federal statute prohibiting various forms of computer-related activities, including unauthorized access, data theft, and computer-related fraud.

Search warrant

Legal document authorizing law enforcement officers to conduct a search of specified premises or property for evidence of a crime, based on probable cause.

Exclusionary rule

Legal doctrine prohibiting the use of evidence obtained in violation of the Fourth Amendment's protection against unreasonable searches and seizures, typically by excluding such evidence from court proceedings.

False Light

Misrepresenting someone in a way that could be highly offensive or embarrassing.

Reckless Disregard

Acting with a conscious disregard or indifference to the rights or safety of others.

Intellectual Property

Creations of the mind protected by law through patents, copyrights, trademarks, and trade secrets.

Social Media Censorship

Regulating or restricting user-generated content on online platforms based on community guidelines, terms of service, or legal obligations.

Digital Surveillance

Monitoring, tracking, or observation of individuals' online activities, communications, and behaviors using electronic devices, software, or networks.

Wiretap Act

United States federal law prohibiting the interception of wire, oral, or electronic communications without consent, authorization, or a court order.

Digital Anonymity

State of being anonymous or unidentifiable online, often achieved through pseudonyms, encryption, and other techniques to conceal one's identity and activities.