Date sent:         Mon, 09 Jun 2003 14:16:01 -0400
To:                politech{at}politechbot.com
From:              Declan McCullagh 
Subject:           FC: Michael Geist on "The Internet law theory of
everything"
Send reply to:     declan{at}well.com

---

Date: Mon, 9 Jun 2003 08:30:56 -0400
To: declan{at}well.com
From: Michael Geist 
Subject: The Internet Law Theory of Everything

Declan,

Your readers may be interested in my latest column which I dub "The 
Internet Law Theory of Everything."  It picks up on a recent Thomas 
Friedman NY Times column titled the Theory of Everything which sought 
to explain growing resentment toward the U.S.   It argues that many of 
Friedman's observations may apply in an Internet law context as well.  
It points to Internet governance, domain name disputes, copyright, privacy 
law, and free speech, to suggest that much of the world is grappling with 
Internet policies that are established in one jurisdiction but applied 
worldwide, leaving many frustrated with their lack of influence over their 
own national policies.  The original Friedman column is at
http://www.nytimes.com/2003/06/01/opinion/01FRIE.html

This new column is at
http://shorl.com/jegijotejivo> [Toronto Star]


U.S. extends its hegemony over the Net

Michael Geist
Law Bytes

New York Times columnist Thomas Friedman last week wrote an intriguing 
column titled "The Theory of Everything," in which he sought to explain 
the escalating global resentment toward the United States. Friedman 
suggested that throughout the 1990s the U.S. became exponentially more 
powerful economically, militarily, and technologically than the rest of 
the world.

As a result, U.S. global power over economics and culture has become so 
great that it deeply affects the lives of citizens worldwide - even more 
so than the policies of their own national governments.

Friedman concluded that the world is gradually awakening to its lack of 
influence over the power and policies that shape its citizens' lives, 
thereby leading to the divide between a single have and the rest of the 
world's have nots.

A similar theory may well apply to many of the policy conflicts surrounding 
Internet law issues. In recent years, the world has begun to grapple with 
Internet policies that are established in one jurisdiction (typically, 
though not solely, the U.S.), but applied worldwide. That policy imbalance 
has left many countries resentful of foreign dominance of the Internet.

Internet governance and the domain name system effectively illustrate this 
phenomenon. Recent battles over who governs the Internet's domain name 
system - the root server that ensures email travels to its intended 
destination and that Web sites remain accessible to a global Internet 
audience - often boil down to the U.S. on one side and the rest of the 
world on the other since the root server resides in Virginia and the U.S. 
government has left little doubt that it will not surrender control over 
it to the global community anytime soon.

Other countries therefore face a dilemma. While most acknowledge that the 
U.S. has done an admirable job of maintaining the stability of the domain 
name system, many also lament that the U.S. enjoys greater control over the 
Internet than does their national government, even within their own country.

A similar set of concerns has arisen within the context of domain name 
disputes. The U.S. Anticybersquatting Consumer Protection Act, enacted in 
1999 to deal with cases of domain name cybersquatting, contains a provision 
that allows trademark holders to sue domain name registrants in U.S. courts 
regardless of where the domain name was registered.

That provision recently led one U.S. court to order the cancellation of a 
domain name owned by a Korean registrant despite the existence of a Korean 
court order prohibiting the cancellation. The U.S. court simply ruled that 
its decision trumped that of the Korean court, suggesting that U.S. law may 
enjoy greater control over domain name disputes in foreign countries than 
does local law.

Beyond domain names, copyright law has also led to policy clashes between 
countries. The U.S. Digital Millennium Copyright Act, which contains a 
"notice and takedown" system that shelters Internet service providers from 
liability for copyright infringement provided they promptly take down 
allegedly infringing content once notified of its existence on their 
systems, has been widely criticized for its broad reach.

ISPs in Canada and Australia have both reported that they regularly receive 
notice and takedown notifications from U.S. companies despite the fact that 
the U.S. law does not apply in those countries. ISPs ignore the requests at 
their own legal peril, since some are left with the sense that U.S. 
copyright law is fast becoming the global standard.

Despite the fact that countries such as Canada have enacted their own 
privacy legislation, privacy is yet another area where the influence of 
the U.S. and the European Union is felt locally. The U.S. Children's Online 
Privacy Protection Act, which applies to the collection of personal 
information from children under the age of 13, sits alongside Canadian 
privacy law since it provides that any Web site that targets U.S. children 
is subject to the law, regardless of the site's location.

The European Union has been similarly aggressive on privacy matters, 
enacting regulations that prohibit the transfer of personal data to any 
country that does not meet its standard for privacy protection. While 
Canada's statute obtained a favourable ruling in 2002, the E.U. has not 
hesitated to express reservations about the legal frameworks of many other 
countries.

Even the U.S. is not immune to policy influence from outside its borders. 
Free speech on the Internet, which typically enjoys greater protection in 
the U.S. than in most other jurisdictions, is viewed by some in the U.S. as 
coming under attack by foreign courts and regulators. For example, courts 
in France and Australia have asserted jurisdiction over U.S. publishers 
such as Yahoo! and Dow Jones, which both claimed that the speech in 
question would have been protected under U.S. law.

In the wake of these Internet policy conflicts, countries are left with 
three alternatives:
First, they may accept the status quo, resigned to a world in which 
national policy plays second fiddle to foreign policies that may not be in 
the national interest.
Second, they may follow the examples set by China and Saudi Arabia by 
diminishing the conflicts through the use of filters to block out 
controversial issues and Web sites, creating, in effect, an
"Internet-lite" 
for their citizens.
Third, they may seek to navigate through the policy conflicts by adopting 
an approach that respects the sovereign choices of other countries and 
tries to limit differences through global consensus mechanisms.
Although the third alternative is clearly the most challenging, it may also 
represent the best hope for an Internet that embraces different cultural 
and social choices, rather than forcing a single, often unpopular, solution 
on an unsuspecting world.

Michael Geist is the Canada Research Chair in Internet and E-commerce Law 
at the University of Ottawa and technology counsel with the law firm Osler 
Hoskin & Harcourt LLP. He is on-line at http://www.lawbytes.ca and 
http://www.osler.com (mgeist{at}uottawa.ca).
-- 
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
Technology Counsel, Osler, Hoskin & Harcourt LLP
57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist{at}pobox.com              http://www.lawbytes.ca

BNA's Internet Law News - http://www.bna.com/ilaw
Toronto Star Law Bytes columns at http://shorl.com/derakoprutapu
Internet Law Text - http://www.captus.com/Information/inetlaw-flyer.htm
Canadian Privacy Law at: http://www.privacyinfo.ca
ICANN UDRP Info at http://www.udrpinfo.com
ccTLD Governance Project at http://www.cctldinfo.com

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Cheers, Steve..

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