Midterm Examination   MGMT 706 MW01 SP15– CyberLaw, Policy and Ethics

Choose 4 of 5 questions to answer.  Each question will be worth 25 points (maximum 100 points). IMPORTANT RULES:  If you are answering questions in a memorandum format, DO NOT CUT and PASTE answers from web sources.  The answer to an essay question is an essay or memorandum.  Automatic penalties range from a 50% reduction to a zero for credit if you use external sources, lists, or short answers.

 

Question 1. (Chapter2)

The Commonwealth of Massachusetts is considering passing a law to control the availability of obscene materials on the Internet to its residents.  The proposed law, S. 1117, would provide:

Section 1.  Preventing Access to Obscene Matter.  An Internet service provider shall prevent the access of persons residing within this commonwealth to obscene matter available on or accessible through its service.

(a)    Compliance through Technical Measures. An Internet service provider that implements appropriate technical measures that block or filter access to obscene matter shall be deemed to comply with this statute.

(b)   Order to Remove or Disable Access to Items. If the Attorney General of this Commonwealth finds that obscene matter is available or is accessible through the service of an Internet service provider in a manner accessible to persons within this Commonwealth, the Attorney General shall apply to the court of the county wherein the items have been discovered for an order directing the Internet service provider to remove or disable access to the obscene matter. Such application shall identify the Uniform Resource Locator or other address from which such matter is accessible.  Upon an ex parte determination that the material constitutes obscene matter within the meaning of section 2(b), the court shall direct the Internet service provider to remove or disable access to the material.  An Internet service provider’s compliance with such an order shall be deemed to be in compliance with this statute with respect to the material covered by the order.  An application for an order to remove or disable access to obscene matter, and the further application necessary to ensure compliance with that order, shall constitute the sole means of enforcing this statute.

 

Section 2.  Definitions.

 

(a)    The term “Internet service provider” means an entity that provides a service that enables users to access content, information, electronic mail, or other services offered over the internet.

(b)   “Obscene matter” is matter that:

(i)                  The average person, applying contemporary community standards of this Commonwealth, would find, taken as a whole, is designed to appeal to, or is designed to pander to, the prurient interest;

(ii)                Depicts or describes, in a patently offensive manner, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or lewd exhibition of the genitals, or post-pubescent female breast; and

(iii)               Taken as a whole, lacks serious literary, artistic, political, or scientific value.

© An “appropriate technical measure” is a specific technology that blocks or filters access to obscene matter.

 

You serve as a legislative aide to a Massachusetts state senator.  The senator has heard that several groups, including providers of Internet content and Internet users from Massachusetts, are prepared to file an immediate challenge in federal court to the constitutionality of S. 1117 if it is enacted.  The senator considers you an expert on Internet issues, and has asked you to:

 

Write a memorandum discussing the federal constitutional claims that are likely to be raised in such litigation and analyze how a court might resolve them.

 

For purposes of your analysis, you may assume that there are two open factual questions that the state legislature is wrestling with: (1) whether an Internet service provider that filters out or disables access to certain sites can preserve access to those sites for subscribers residing outside of Massachusetts; and (2) whether any of the “technical measures” that an Internet service provider could implement to block obscene matter will lead to overblocking or underblocking.  To be very clear, the senator does not expect or want you to attempt to resolve these factual issues.  Rather, he would like you to discuss how different possible resolutions of these factual issues would be relevant to a court’s analysis of constitutional issues.

 

Because the senator is only interested in the substantive merits of the S. 1117, he asks you to assume for purposes of your analysis that any constitutional claims are raised by parties with standing and that the case would otherwise be justifiable.  In addition, because he relies on other aides for analysis of non-Internet issues, he asks you to confine your analysis of S. 1117 to matters pertinent to your CyberLaw class.

 

Question 2.  (Chapter 3)

 

Zhenyu Jang is a Chinese citizen residing in California.  Ms. Jang is a well known critic of the policies of the Chinese government, and she operates a website, where among other things, she posts short essays to her blog and provides links to other dissident websites and related material concerning actions by the Chinese government and Chinese cultural affairs.  Her website, which is available at the URL <www.chinacritic.net>, is actually hosted by Myweb, Inc., which holds the files on one of its web servers located in Dayton, Ohio.

 

In 2004, Jang puts up a blog posting listing “The 10 Greatest Threats To Chinese Peace and Security In The Modern World”  One of the people listed is Sergey Brin, President and CEO of Google, Inc.  Jang makes a number of charges against Brin, including that he accepted bribes from the Chinese government to make Google search engine block certain sites deemed offensive to the government, that he is known to be a binge drinker and a heroin addict while he was at Stanford, and that that he personally fired several Asian-American employees who had links to the Chinese dissident community.  She has a hypertext link in her story to another website (a blog operated by a California computer programmer, Ed Cox) where Cox makes the same accusations against Brin (and has several other charges of personal and professional misconduct as well).

 

(A)    You work in the general counsel’s office at Myweb, Inc.  Myweb has received a letter from an attorney representing Mr. Brin, asserting that the charges made against his client are false and defamatory, demanding that you disable Ms. Jang’s website immediately.  The general counsel has asked you for advice about what the company should do.

(B)   It has also come to your attention that the entry in Ed Cox’s blog (to which Jang’s link directed users) contains an extended excerpt from Brin’s soon-to-be-published memoirs (“Life at the Top of the World”).  You have reason to believe (and you may assume for purposes of this question) that Cox’s actions constitute infringement of Brin’s copyright.  The general counsel of Myweb would like to know whether this exposes Myweb to copyright infringement liability and what the company should do.

(C)   Myweb has also received a letter from the State Prosecutor in Shanghai, China, informing you that (a) Jang’s postings constitute a violation of the Chinese criminal code (as “writings detrimental to the safety and security of the Chinese state”), and (b) Myweb itself is also in violation of a related provision of the Chinese criminal code (making it unlawful to make such writings available to Chinese residents over the internet).  The letter indicates that the Prosecutor’s office is preparing to file criminal charges against both Jang and Myweb.  The general counsel asks for your advice concerning the company’s potential liability on these charges and recommendations regarding actions the company should or should not take.

 

Write a memo addressing each of these three issues.

 

Question 3. (Chapter 2, 4 and 5)

 

You are a new associate at the law firm of Jefferson & Whitman.  A senior partner from the litigation group—we’ll call her “Janet”—calls you in to her office one morning, and says the following:

 

We have represented JF Shea, Co. Inc. a large construction company headquartered in Bethesda, MD, for a long time—in fact, Shea was the first client I ever brought to the firm, and we’ve done a lot of business with them since then.  Mostly it’s commercial litigation—contractor-subcontractor problems, some employee lawsuits, some ordinary tort stuff—that’s what I work on for them.  We also do a lot of their financing work as well.

 

I got a call this morning from John, Shea’s general counsel.  In passing, he mentioned that the firm tried to get the www.shea.com site on the Internet, but couldn’t, because it is already in use (by a law firm, no less—some firm named Shea & Shea).  He asked me what they could do about that, and I had to admit to him that I hadn’t the faintest idea.

Write a memo on this subject.  Keep in mind that “Janet” really knows next-to-nothing about this whole “Internet domain name” thing—it would be nice if you could give her some background on what these are and how the whole system operates, along with some idea of what kind of recourse Shea might have, and how they might get the www.shea.com site.

 

Question 4. (Chapter 2, 3 and 5)

 

You are outside counsel to a company that has just been chosen to manage and operate a new .XXX Top Level Domain, just established by ICANN.  Congressman Albert Jenkins (D-FL) has recently introduced legislation providing that:

 

(1)    Any person who “knowingly, and by means of the World Wide Web or other Internet application, displays, transmits, or enables others to display, transmit, or otherwise makes available to any person, material that is pornographic (as defined below)  …. Must make that material available only from within the .XXX Top-Level Domain.”

(2)    “Pornographic material” is defined as anything that (A) “depicts, describes, or represents, in a patently offensive manner, an actual or simulated sexual act, or an actual or simulated depiction of human genitals,” and that (B) “the average adult, applying contemporary nationwide community standards, would find appeals solely to the prurient interest.”

(3)    In addition, the statues require all persons making available any such material to “take reasonable measures to prevent access to such material by persons under the age of 17.”

Violation of the statute carries with it civil (fines up to $25,000.00) and criminal (up to 1 year in prison) penalties.

 

Write a memo for your client assessing the issues that would be raised by Congressman Jenkins’s bill if it were to be enacted into law, and recommending actions that your client should or should not take in that event.

 

 

 

 

 

 

 

 

Question 5 (Chapter 3 and 4)

 

You are staff counsel in the Office of the Attorney General of New York.  NY has just enacted a new law that requires all Internet Service Providers serving NY customers to block any access by its NY customers to websites, or other communications over the internet, that sell gambling services or “games of chance” (other than those expressly licensed by New York State’s Bureau of Online Gambling), whether or not such gambling services or games of chance involve the exchange of money.  The ACLU and the American Gaming Association have sued to enjoin enforcement of the new law. 

 

 

Write a memo to the AG regarding the merits or demerits of the law.