Showing papers in "Albany law review in 1996"

Libel in Cyberspace: A Framework for Addressing Liability and Jurisdictional Issues in This New Frontier

Abstract: I. INTRODUCTION II. THE FIRST AMENDMENT AND ITS IMPACT ON VARYING TECHNOLOGIES III. LIABILITY IN CYBERSPACE--WHO IS AT RISK? WHO ARE THE PLAYERS? A. Creating A Constitutional Framework For Assessing Liability B. Outside Cyberspace: Familiar Principles and Defenses in Libel Law 1. The Graffiti Principle 2. The Wire Service Defense 3. The Fault Requirement C. The Impact of Recent Legislative Action IV. JURISDICTIONAL ISSUES: WHERE CAN A CYBERSPACE TRAVELER BE SUBJECT TO SUIT? A. Familiar Jurisdictional Principles B. The Basic Framework C. Jurisdictional Analysis in Libel Cases D. Jurisdiction in Cyberspace 1. The First Prong of Constitutional Analysis--Minimum Contacts 2. Second Prong--Fair Play and Substantial Justice: The Reasonableness Factors V. CONCLUSION [D]ifferences in the characteristics of new media justify differences in the First Amendment standards applied to them.(1) [I]f the substance of a transaction has not changed, new technology does not require a new legal rule merely because of its novelty.(2) I. INTRODUCTION Society has long recognized the power of the pen. For centuries that power has been contingent on getting one's words published and ultimately received by an audience. It has been said that "freedom of the press is guaranteed only to those who own one,"(3) and with the cost of newsprint spiraling upward, even those who own a press pay dearly for every line of type they publish. Conversely, the power of the keyboard is rapidly becoming a force with which to reckon. As a nation, we are on the brink of a new era that will equalize access for anyone with a desire to express an idea. This will open cheaper and faster avenues of publication, and that has the potential to breathe new life into the First Amendment. The electronic superhighway has made possible an egalitarian marketplace of ideas. As one commentator explained: [Online systems] serve a valuable First Amendment function in acting as clearinghouses of information uploaded by their callers. They crucially promote the First Amendment goal of free expression of diverse viewpoints. There are 60,000 or more privately run online systems, and many thousands more university and institutional systems, each with its own point(s) of view, as well as the far greater number of individuals who use those online systems to distribute their own speech and viewpoints to others.(4) Today, "cyberspace"(5) creates a forum in which everyone can distribute their ideas worldwide(6) with only a few keystrokes and a few dollars per month.(7) Individuals may gain access to areas on cyberspace, such as the World Wide Web,(8) na commercial online services.(9) These users can access a myriad of services, including electronic mail ("E-mail"),(10) discussion groups,(11) interactive classes, interactive magazines, and newspapers. People also can access private electronic bulletin board services (BBS).(12) An individual needs only a computer and modem to begin accessing this cornucopia. Unlike the printed forms of communication, in which space constraints limit the "news hole," no external forces in cyberspace limit volume.(13) Not only is access to communication afforded to more individuals, but traditional publishers, such as newspapers, have the freedom to publish more extensive and thorough articles online than in print. This increased volume, however, may invite problems. More room for communication creates more room for error, and the task of reviewing the material becomes more onerous. Moreover, the possibilities of the information explosion may cause alarm to some who believe that the marketplace of ideas is laudable in theory, but dangerous in practice. …

Transnational Litigation and Personal Jurisdiction over Foreign Defendants

Abstract: I. THE PROBLEM II. THE HISTORICAL SETTING: PRE-ASAHI LITIGATION A. Traditional Analysis B. Modern Analysis: Implications of the Due Process Clause C. World-Wide and the Growth of Due Process 1. Minimum Contacts, Foreseeability, and Stream of Commerce 2. Reasonableness: "Traditional Notions of Fair Play and Substantial Justice" 3. Problems for the Transnational Litigator III. ASAHI, SHIFTING BURDENS, AND THE STREAM OF COMMERCE DILEMMA A. Purposeful Availment: What Is a Constitutionally Cognizable Contact? 1. Justice O'Connor: "Stream of Commerce Plus" Theory--Receives Four Votes: Rehnquist, Powell, O'Connor, and Scalia 2. Justice Brennan: "Stream of Commerce" Theory--Receives Four Votes: Brennan, White, Marshall, and Blackmun 3. Justice Stevens: Receives Three Votes--White, Blackmun, and Stevens B. Reasonableness 1. The Defendant's Burden 2. The Plaintiff's and Forum State's Interests 3. The International Context C. The Holding: A Prima Facie Case IV. ASAHI'S AFTERMATH A. The "Doctrine of Merger" 1. How to Cite an Incomprehensible Case 2. The Forum Court's Own Jurisdictional Test Based on the Two Opinions B. O'Connor's Standard 1. How Courts Adopt the Plurality Opinion in Asahi 2. Confusion Reinforced: The National Contacts Issue a. Technically Correct: Ways to Authorize National Contacts (i) A Federal Statute Authorizes Their Use (ii) National and Worldwide Service of Process Provisions (iii) Use of a State Long-arm Statute b. Lower Courts and National Contacts C. Staying with World-Wide 1. World-Wide Applies, but Asahi Is Out There 2. World-Wide Applies, Asahi Is Not Binding D. Following Justice Stevens E. Conclusion on Minimum Contacts F. Reasonableness, V. CONCLUSION Considered in an international point of view, jurisdiction, to be rightfully exercised, must be founded either upon the person being within the territory, or the thing being within the territory; for, otherwise, there can be no sovereignty exerted . . . no sovereignty can extend its process beyond its own territorial limits, to subject either persons or property to its judicial decisions.(1) I. THE PROBLEM In 1878, the United States Supreme Court formulated a two-prong test in determining whether a court has the power to hear a case.(2) The court developed this test in Pennoyer v. Neff,(3) and articulated the limitations on the judicial jurisdiction(4) of United States courts.(5) The Court borrowed two principles from public international law:(6) "every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory . . . [and] no State can exercise direct jurisdiction and authority over persons or property without its territory."(7) With the advancement of technology, the nature and number of communications and business relations has changed considerably.(8) The Supreme Court recognized this societal evolution and modified the Pennoyer jurisdictional principles by its decisions in International Shoe Co. v. Washington(9) and World-Wide Volkswagen Corp. v. Woodson.(10) With the two-prong test(11) transformed, courts now examine whether the defendant has a minimum amount of contacts with the forum state, and whether the exercise of that jurisdiction offends the "`traditional notions of fair play and substantial justice.'"(12) The decisions in International Shoe and World-Wide, however, only resulted in confusion among the lower courts. …

The Fortification of an Emergency Regime

Abstract: INTRODUCTION Emergency powers have a long and tainted history in the United Kingdom, particularly in Northern Ireland, where their use and abuse have been especially troublesome. Emergency is no new phenomena to Northern Ireland; it predates the current period of political instability in the jurisdiction and finds its foundation in the very creation of the state.(1) The state's existence as a separate political entity stems from the partition of the island of Ireland in the early 1920s.(2) This partition was precipitated by Northern Ireland's Protestant majority, who were militarily and ideologically opposed to being subsumed into the new Irish Catholic state then emerging from a colonial war of independence with Britain.(3) From the time of the state's creation, the use of emergency powers became synonymous with the maintenance of security and the political status quo. The primary emergency laws currently in force in the jurisdiction are the Northern Ireland (Emergency Provisions) Act 1991(4) (EPA), and its counterpart, the Prevention of Terrorism (Temporary Provisions) Act 1989(5) (PTA). The EPA operates only in Northern Ireland, while the PTA operates throughout the entire United Kingdom, but both statutes "are designed to obtain convictions in cases involving those suspected of paramilitary activity, based on confessions obtained through prolonged detention and intense interrogation."(6) The EPA evolved from legislation initially passed in 1973.(7) The 1973 legislation repealed the Special Powers Act,(8) an act perceived by the Catholic minority as symbolic of the dominance and undemocratic nature of the state, but it also paradoxically reenacted many of the same provisions that the Special Powers Act had contained.(9) A 1975 review of the EPA by the government-sponsored Gardiner Committee(10) saw some minor adjustments in the legislation, which by 1978 was consolidated with its 1973 parent act into one piece of legislation, the 1978 EPA.(11) In 1984, another government-sponsored review recommended significant adjustment and expansion of the emergency powers.(12) In 1987, the EPA was further expanded by the incorporation of the Northern Ireland (Emergency Provisions) Act 1987,(13) which operated in conjunction with the EPA of 1978.(14) The most recent version of the EPA, introduced in 1991, consolidated earlier legislation, created new offenses, and brought into the EPA's domain provisions of the PTA, which were applied only in Northern Ireland.(15) In June 1995, the United Kingdom renewed the EPA, despite the unequivocal movement of paramilitary organizations to non-violent for-me of political activism.(16) Then, in December 1995, the government brought forward the renewal date of the EPA by three months.(17) By bringing the legislation quietly before the House of Commons for its first reading in the week before Christmas vacation, the bill was ensured minimal publicity and debate (as many members of parliament had already departed for the holidays). No nongovernmental human rights organizations were informed of its impending early appearance on the legislative calendar in the month of January.(18) In January 1996, the Secretary of State for Northern Ireland announced that the EPA would be renewed for two more years, with the extension commencing in August 1996.(19) In addition, the legislation moved a significant number of wide-ranging provisions concerning racketeering into the ordinary criminal law.(20) The PTA was enacted in 1974, following the killing of twenty-one people in bombings in Birmingham pubs during November 1974.(21) It was derived from two earlier pieces of legislation: the 1973 EPA legislation(22) and the Prevention of Violence (Temporary Provisions) Act 1939,(23) which had been enacted for use against an earlier campaign by the Irish Republican Army (IRA).(24) Although the PTA was originally intended to expire after only six months, it has endured to the present. …