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LSTD517 Law Ethics And Cybersecurity

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Questions:

1.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:

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.

  • 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.
  • 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. 

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.

2.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).

Write a memo addressing each of these three issues.

3.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.

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.

4.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.

 5.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.

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