“Elephants and Mice Revisited:Law and Choice of Law on the

Internet” Professor Peter P. Swire

Moritz College of Law

Ohio State University

Penn Law Review Symposium

November 12, 2004

Overview

Elephants and Mice What we’ve learned since 1998 When does choice of law matter on the

Internet? Surveillance as a (controversial) tool for

increasing the enforceability of law on the Internet

I. Elephants and Mice

Metaphor for when law and choice of law most likely to be effective on the Internet

Elephants:– Powerful, thick skin, impossible to hide– Subject to jurisdiction & COL– Can lobby & influence laws– Will have to comply once laws are in force

Elephants and Mice

Mice:– Small and mobile: porn and piracy sites that

can reopen elsewhere if shut down– Breed annoyingly quickly: new sites open– Hide offshore & in crannies of network– Jurisdiction often doubtful & rarely enter the

light of open court to dispute COL

II. Since 1998

1998 article predicted or described areas for Internet COL disputes:– Areas of COL conflict: privacy; hate speech;

treasonable/political speech; defamation; taxation; gambling; pornography; intellectual property

– Areas of possible conflict: labor laws; professional licensing

– Analysis of B-to-C E-Commerce

Not Predicted in 1998

Spyware/adware: adware by large companies (elephants) and law can address that; some spyware by mice

Cybercrime was missing– Computer hacking– Computer viruses– Identity theft– Phishing

III. When does COL Matter on the Net?

The task here: COL as a dependent variable When will the COL rule matter on the

Internet?– Law works (despite tech counter-measures)?– Is there jurisdiction?– Lack of harmonization?– Lack of self-regulation?– IFF yes to all these, then COL rule matters

Technology and Law

Early romantic view that “the Internet treats censorship (or regulation) as damage, and routes around it”

In practice, have not seen much strong encryption, untraceable e-cash, & untraceable routing of communications

Tech counter-measures less than many predicted, so law more likely to be effective

Is There Jurisdiction?

For elephants, there will often be jurisdiction & ability to enforce judgments (assets in country)

Some elephants (Yahoo) defend with corporate separateness– May work legally, less desirable for “local”

companies For mice, less likely to have jurisdiction, and

enforceability of judgments is even less

Is There Harmonization?

Some harmonization, such as for privacy (Safe Harbor) & IP (TRIPS)

Major gaps, such as privacy (Safe Harbor), hate speech, treason, defamation, gambling, taxation, etc.

Big change since 1998 is COE Cybercrime Convention– Dual criminality & cooperation in

investigations

Is There Self-Regulation?

COL in E-Commerce minimized by other systems– Credit card agreements– Clicks and bricks retailers, with local law

applying– eBay, with its own legal & reputation systems

These self-regulatory systems have won in the market (my Trustwrap article)

International COL May Matter

Even when a case survives the filters, international E-Commerce less than predicted in 1998– E-Commerce growth has not matched the

expectations of the bubble– Self-regulatory systems reduce COL– Direct, transnational sales to consumers less

than expected

What’s Left?

The 1998 list against elephants:– Hate speech (Yahoo!)– Defamation (Australia case)– Privacy (future of the Safe Harbor)– Internet gambling (WTO action)

In short, important but limited categories of cases raise COL issues on the Internet

Conclusion: Surveillance?

There are numerous other actions, by mice, that cause harm over the Internet in the eyes of at least some countries,– Piracy– Spam– Child or other pornography– Hacker and virus attacks– Terrorist communications & attacks

Surveillance could “solve” these

The temptation is to increase surveillance of Internet usage so that these mice can’t hide

A key variable to how these harms get resolved among nations is likely to be the level of surveillance created over the Internet, more than decisions about COL

Conclusion

In the surveillance debates, the image of annoying-but-charming “mice” could become an image of rabid & dangerous “rats”

In the post-9/11 world, a major inquiry should be deciding in what ways and under what procedural protections surveillance of the Internet will exist.

That’s an important job (says the privacy scholar), but for another day