»  Updates

Cyberspace and the ADA: The Supreme Court is considering a cert petition from Domino’s Pizza on the question of whether the Americans with Disabilities Act requires it to make its website accessible to the visually impaired, the same issue we discussed in the Target case. Slate has an interesting piece on the issue. (9/30/19)

Territorial enforcement: The European Court of Justice, Europe’s highest court, ruled last week that the “right to be forgotten” — a concept in European privacy law that we’ll discuss in Privacy, if you take that course — need not be applied outside the European Union. This is a big victory for internet companies like Google and an implicit rebuke of decisions like Equustek that seek to apply a country’s law or court decisions globally. (9/30/19)

Room change: Starting with our second class, on September 9, we will meet in the Wood Boardroom. (9/6/19)

»  Overview

This is a short survey minicourse in internet law. It is not an exaggeration to say that the internet has changed almost every area of modern life, and law is no exception. We’ll study the computer and network technologies underlying the internet, how those technologies are challenging the assumptions underlying pre-internet law, and how judges, policy makers, and private actors have responded to those technologies. It’s easy to commit malpractice today by failing to understand how the internet changes legal rules and legal strategies — a lawyer who sends a trademark threat, for instance, without advising her client of the Streisand effect is a lawyer who has failed to serve her client — but by the end of the course, you should be prepared to sort through the legal issues in a case with an eye toward how the internet changes things for your client and for the law.

»  Class meetings, office hours, and other resources

We will meet on Mondays from 3:10 to 4:50 p.m. in room 102 the Wood Boardroom (updated 9/9/19). We will meet nine times total — the first nine Mondays of the term unless something comes up, in which case we will need to have a make-up class on November 4.

Outside of class, I don’t have set office hours, but you are always welcome to stop by my office (room 210) and chat or just grab some candy. This semester, I am teaching on Mondays but otherwise am fairly flexible, though I will be traveling to a few conferences and such. If you’d like to set up a specific time to talk, please email me at roger.ford@nulllaw.unh.edu. (Do remember, though, that this is a professional environment, which means your email should be professional in formatting and tone.)

I don’t have set office hours not to discourage you from coming to talk to me, but because I want to make it as easy and flexible as possible to do so. I’m happy to meet and help if there’s something from class that’s confusing or unclear, or to go over the material we covered in class, or talk about connections between our material and other classes or legal issues you’ve come across, or discuss career plans or other courses to take — whatever’s helpful for you. One of the secrets to doing well in law school is to talk with your professors early and often, and this course is no exception.

If there is anything that is making it harder than it should be to perform well in this class or in law school generally — whether that’s an issue with your mental or physical health, challenges securing food or housing, relationships with other students or family members, anything — please get in touch with the Assistant Dean of Students or with me if you’re comfortable doing so. We can point you toward useful tools and resources and can do whatever we can to help.

»  Materials

The casebook is James Grimmelmann’s Internet Law: Cases and Problems (9th ed. 2019). It’s available in two versions: from Semaphore Press as a downloadable PDF with a suggested price of $30, and as a $65 paperback edition from Amazon. Semaphore Press uses a publishing model that differs from that used by traditional casebook publishers, which you can read about on their website. (The price for the paperback version includes the suggested $30 for the PDF edition, so if you buy the paperback version, feel free to download the PDF too without paying by using the “freeride” button at the bottom of the payment page.)

In addition to the casebook, I may post links to other readings and assignments on this site. I will not be using Canvas or a similar system.

»  Attendance, grading, and collaboration policies

Regular attendance is required, and under the standard ABA rules, you may be barred from receiving credit for the course if you miss more than 20% of class sessions. (Note that because we are only meeting nine times, this means you cannot be absent more than once.) Attendance will be taken by sign-in sheet, and signing in for someone else is, as always, academic misconduct. If you are going to be absent, please do let me know in advance.

Because I want to encourage an open and meaningful class discussion — about which more shortly — out of respect for your fellow students’ privacy, I will not be recording class sessions, and I ask that you do not do so. (New Hampshire, for what it is worth, is an all-party-consent state.)

Your course grade will be based on your class participation and a series of short writing assignments.

We are all here to learn about the law, and in general I am all for anything that helps further that goal. This means that, except where expressly told otherwise, you’re free to collaborate with each other and to consult whatever sources you wish in your work for this class. In this course, the principal exception is the writing assignments; for those, you are free to discuss the assignment with other students and consult whatever sources you wish, but the writing you submit must be entirely your own.

»  Class discussion, diversity, and inclusion

This is a course centered on discussion. Except for some technical material on the first day, I will not lecture, so it is critical that you come to class prepared. This means you need to have read and considered the assigned materials and be ready to discuss them with me and with the rest of the class. I cannot stress this enough: If you do not want to be an active participant in class discussion, do not take this course. Participation is required, and you will not receive a passing grade if you do not contribute meaningfully to the discussion. In this course, we are all here to learn from each other, and if you don’t contribute to that exchange, you are shortchanging your fellow students.

This learning process only works if the classroom is a welcoming and inclusive place that supports a diversity of thoughts, perspectives, and experiences, and honors your identities, including race, gender, class, sexuality, religion, ability, and so forth. I want you to feel comfortable in class, free to express your experiences and opinions — in a professional and respectful manner — and learn from the many diverse experiences and opinions of your classmates. If there’s anything that is making you uncomfortable, inside or outside of class, please come and talk with me about it, and I will do anything I can to help so long as it’s consistent with the goal of learning.

In an ideal world, the law would similarly reflect the full, diverse array of thoughts, perspectives, and experiences. Law, though, is a field that is historically built on a small subset of privileged voices. We will make an effort to read materials from a wide array of authors and perspectives, but we can only do so much given the way that legal doctrines and ideas have developed. I am counting on each of you to help surface these biases and limitations as we make our way through the course.

»  A note on laptop use

There has been a lot of talk in law-professor circles in recent years about whether to let students use laptops in class. I want to lay out some of the points of discussion and explain my approach to this issue so we’re all on the same page.

There are good arguments on both sides. Proponents of banning laptops generally make two arguments: (1) that laptop use by one student can distract other nearby students; and (2) that laptops hurt students’ understanding of the material. The second point is worth unpacking. Most people can type more quickly than they can write by hand, so students using laptops can be tempted to just transcribe the class in their notes. If you can only handwrite so much, though, you have to think through the material and synthesize and summarize, which — similarly to the Socratic method — promotes understanding of the material. And there are academic studies backing up these arguments (see here, here, here, and here), though the conclusions one can draw from them are limited due to methodological issues and small effect sizes.

Opponents of banning laptops have arguments of their own: (1) that using technology effectively and responsibly is a key part of legal practice; (2) that laptop bans can disproportionately hurt, or stigmatize, students with disabilities; and (3) that laptop bans differently affect students with different learning styles. For instance, some students learn better from written material than from oral delivery; some learn better by synthesizing material after the fact, rather than in the moment. Laptops can be useful tools for these students. (There are also debates about pedagogy and paternalism versus libertarianism, but we can set those to the side.)

This is a discussion-based class with no final exam, so the benefits of using a laptop are limited. Still, on balance, I find the arguments against banning laptops slightly more persuasive than the arguments in favor. So I allow their use in class, with two caveats. The first is that I encourage you to think about whether laptop use actually helps you learn the material — whether you are one of those students for whom taking notes on a laptop will work better than by hand. The second is that that use must be limited to note taking and the like. Where laptop use unequivocally hurts understanding — for both yourself and surrounding students — is when it’s unrelated to class. So laptop use for social media, email, web browsing, chat, games, and the like is prohibited.

»  Schedule and assignments

Last updated: October 22, 2019.

I will post reading and writing assignments here over the course of the term.

Assignment 0: Introduction. Before the first class, take a (reasonably professional) selfie and put it into a Word document along with your preferred name and the pronouns you use. (Mine are he/him.) Name the file assignment 0.docx (don’t add your name or anything; Dropbox takes care of that) and upload it here.

This is just to help me connect names and faces and to make sure the upload link works for everyone. If you run into trouble, please email me.

Reading assignment 1: The nature of cyberspace. Read this syllabus, the casebook introduction, and casebook sections 1.A (skip the cryptography primer for now) and 2.A through State v. Decker. The technical material is background; read it for general understanding rather than worrying about every little detail as you might in a normal law class. (We’ll come back to section 1.B next time.)

Reading assignment 2: The power of the internet; introduction to jurisdiction. Review the section 2.A readings from assignment 1. In addition, read all of section 1.B; from section 2.A, National Federation of the Blind v. Target Corp. and the Dead Aim problem; and from section 2.B, Dow Jones & Co. v. Gutnick and the Goldsmith & Wu excerpt. (In all cases, if I tell you to read a case or excerpt, that also includes the notes and questions following it.)

Writing assignment 1: Theory and application. Re-read the Dead Aim problem on pages 70–71 of the casebook. Don’t answer the questions in the problem. Instead, write a short reaction paper (aim for about 750–1,000 words) evaluating the Texas and Illinois laws under Johnson and Post’s framework for evaluating the legitimacy of a regulatory action. Prioritize clarity and thoughtfulness over formality and adherence to norms; no need for footnotes or citations or anything like that. Upload it here sometime before our third class.

Important formatting demands about which I am irrationally insistent: Submit your paper as a PDF with the filename assignment 1.pdf. In the document, please number your pages; put your name at the top of every page; include some sort of title; make your type single-spaced with empty space between paragraphs; and use 1.5-inch margins. I ask for these small courtesies because they make it easier for me to read seventeen of them, on screen or printed; every time you follow them, it will make the world a slightly happier place. Also, don’t use Times New Roman, which is a terrible font.

Reading assignment 3: Yet more jurisdiction. Read the three Equustek cases from section 2.B of the casebook, along with section 2.C through Auernheimer. And review the material from last time that we didn’t get to.

Reading assignment 4: Speech. From last time, review the Equustek cases, Burdick, and Spanski. Then, from chapter 3, skim section 3.A for background (especially if you haven’t studied the First Amendment in any of your other courses) and read sections 3.B and 3.C through 3.C.5 (invasion of privacy). No writing assignment this week.

Reading assignment 5: Speech. No new assignment; be ready to discuss the materials from reading assignment 4.

Writing assignment 2: Online trade secrets. A few years ago, Apple asked the court in a copyright case to seal portions of the parties’ summary-judgment papers because, Apple said, they contained trade secrets. The court denied the motion, finding that much of the information was already in the public domain. For instance, Apple had asked to seal the haiku “our hard work / by these words guarded / please don’t steal,” which was the decryption key used to decode some Apple software, but the court found that the key was available to anyone using a Macbook Air.

Assume the information Apple sought to protect was genuinely valuable to the company. Why do you think Apple tried to seal the record if the information was already out there? What effects would it have had if the court had granted the motion? Should the court have rejected its motion as it did, or would there have been any benefit to sealing the record? Write a short reaction paper discussing these issues and upload it here sometime before our sixth class. Use the same formatting and content guidelines as with writing assignment 1, except with the filename assignment 2.pdf. The danah boyd excerpt may also be helpful in thinking through these issues.

Reading assignment 6: Section 230. Read section 3.D of the casebook. This is a short assignment, but it is by far the most important material in the course. So spend time on it and really think through the statutes, cases, and problems.

Writing assignment 3: Section 230. Weedmaps is a website and smartphone app that lets users post reviews of marijuana dispensaries. The company got some attention a few years ago for its billboards, which promoted both marijuana legalization and its app. Marijuana is illegal federally even in states that have legalized it under state law, so basically everything discussed on the site violates federal law.

(Everything before this is true; everything after this is made up.) Say a Weedmaps user, Max, bought from a dispensary that happened to lace its product with a neurotoxin. Max died and his family learned that he found the dispensary from Weedmaps reviews. Max’s family sues Weedmaps. Weedmaps moves to dismiss the case under section 230. How should the court rule? Why? Write a short paper answering these questions and upload it here before class 7. Iterate all the previous instructions appropriately.

Reading assignment 7: Platforms. Read sections 9.A and 9.B of the casebook. Also be prepared to discuss the remaining material from the last assignment.

Reading assignment 8: Access to computers. Read sections 5.A and 5.C of the casebook. (Skip section 5.B.)

Reading assignment 9: Litigation; the Internet of Things. From section 10.D of the casebook, read Arista Records, In re Bittorrent, and the Volokh amicus brief from Hassell v. Bird. From section 10.E, read, well, everything.