"This principle, I submit, doesn't make sense in a world in which the "effects' of all actions are felt instantaneously everywhere on the network."

I have no idea what this statement means in the context of this case. The online pharmacy has a choice to whom to sell. It can limit itself to places where the sales would be legal. These issues are already taken into account for online wine retailers. This also renders the case immediately distinguishable from the practice of law hypo, since the drug transaction requires more than just someone viewing the website--the sale requires that the consumer submit information and that the retailer accept the information and that transaction.

If you telecommute, living in Ohio, to the company you work for in New Jersey, _never_ setting foot in New Jersey, even for getting hired, and you don't have any office space allocated in New Jersey, do you work in New Jersey?

A common situation.

Cities take the view that you work where you are, even to the point of capturing salaries of baseball players in town.
I don't think that States have thought of that yet, though.

I'll offer that "subject to jurisdiction" does not automatically equal "subject to regulation". Attorneys routinely perform work for out-of-state clients and thus would be subject to jurisdiction in those states for malpractice, breach of fiduciary duties, etc., but I'm not aware of any court concluding that if a lawyer in state A drafts a contract (at his office in state A), which is sent to a client in state B, he's now guilty of practicing law without a license in state B.

IANAL, and therefore I have a different view sometimes over how the law should be implemented.

I think the Doctor would have a reasonable argument that he was practicing medicine in Colorado and that the patient traveled to him in Colorado, via the internet.

Medicine may be a bad place to argue this point, but telemedicine is a growing field. Is a Doctor practicing medicine based on his location, or the location of the patient? Remember the case a few years ago of the woman in Antartica that developed breast cancer and was diagnosed remotely using telemedicine techniques? Were the doctors that diagnosed and prescribed a course of treatment operating in Antartica, clearly outside the bounds of their medical licenses?

If this is the decision, then there is a full faith and credit challenge possible as well. California, and every other state, could be forced to give full faith and credit to the medical licenses of every other state.

There is a lot of bad behavior on the Internet that people want to control. Cases like this make prosecutors and politicians happy because they can tell the masses that they are making the Internet "safe". But it is an awful precident. What will our reaction be when China asks for the extridition of a a Chinese Dissident living in the US? The crime, posting information that defames the Chinese Government on server located in the US. This precident could be stretched to apply because the postings were targeted at and read by people in China.

Bad decision that needs to be overturned. Peoples actions should be judged based on the laws where they are physically located and where they perform those actions, not on the location of people they are in communication with.

I could go on and on, but you get my point. I know this flies in the face of a lot of current law and judicial precidents. But bad law is bad law.

Orin, I take it, will have no objections when the State of Slobovia, which has very strict rules about the unauthorized practice of law, declares him to be criminally liable for violating those rules in his postings here on the Volokh Conspiracy -- but I'll defend him in that proceeding, nonetheless.

Assuming, of course, that you've passed the Slobovian bar. I hear it's available online.

I have a VERY simple question:

If the patient in question had walked into the doctor's office in Colorado, gotten a prescription from him, then returned to California to have it filled, would the doctor be in jeopardy?

That is the proper analogy. The patient went to the doctor, not the other way around.

If the doctor would not have been in jeopardy in the afore mentioned situation, then this is a travesty of justice.

And Fub's example is even MORE perfect, if that's possible.

Seems like the Court assumed that the transaction took place in California because that is where the patient was, while the Doctor assumed that he was safe because he remained in Colorado at all times. Which result is "right" (i.e., criminal culpability or none) depends entirely on which assumption you accept. So, which is it? Does a Patient who submits medical data on-line for purposes of acquiring prescription medication submit himself to the jurisdiction of wherever the doctor is located? Or do we assume that it is the doctor who takes a vitual trip to the patient? Or is there another possibility - maybe we assume that they meet in the middle in cyberspace, and we need a whole new set of laws, both civil and criminal, for cyber transactions? Would it make a difference if it was the patient who was being prosecuted? It is a criminal offense to obtain certain highly restricted prescription medications, like morphine, codeine, etc., by fraud - suppose the patient willfully lies over the internet to obtain prescription barbituates? Can the State prosecute him where the doctor is located? Are "virtual" visits over the internet sufficient to meet the "minimum contacts" test of International Shoe &its progeny? Sounds like the beginnings of a great law school exam question.

There is a significant difference between this case and the hypothetical cases involving a visitor being treated by their home physician while visiting a different state: the visitor and his home doctor have an established doctor-patient relationship which started in the home state, whereas the colorado internet pharmacy guy had no such preexisting relationship with the customer in san mateo.

Zarthas makes this point:

The online pharmacy has a choice to whom to sell. It can limit itself to places where the sales would be legal. These issues are already taken into account for online wine retailers.

Except that 27 USC Chapter 6 (sections 121-124) specifically regulates interstate alcohol shipments. I searched, but couldn't find anything relating to the interstate practice of medicine. Actually, I probably wouldn't put too much stock in my inability to find something. I probably wouldn't have found 27 USC 6 if I had not already known it existed. It is rare that I advocate a need for more federal law, but this seems to me to be one of those rare instances where Congress has the constitutional authority to clarify the issue and perhaps should do so.

Meanwhile, visitors to California who have a regular out-of-state physician who will refill a life-saving prescription by phone on a Sunday morning, can just die if they can't find a California physician quickly enough.

That's a perfect example of the sort of policy argument I referenced. But do you really see no difference between dealing with your regular physician on the phone, versus dealing with some anonymous doctor on the Internet that you've never met?

This doctor in Colorado is managing to treat patients in all 50 states simply by working through an intermediary that doesn't tell him which state the patient happens to be in. If that's okay, then I guess we have de facto 50-state licensing.

The question of inter-state, multi-jurisdictional law practice is a pretty hot button issue. It's true that many lawyers have clients and matters around the country and most of us are of the view that unless we are making an appearance in another state's courts, we can go to other places, even where we're not admitted to practice law, and give legal advice. We certainly do not believe, most of the time, that doing so means we're engaged in the unauthorized practice of law.

The California Supreme Court, however, disagrees. In Birbrower v. Superior Court, 17 Cal. 4th 119 (1998), the Court first found that it is practicing law to give legal advice to someone and then found that it's the unauthorized practice of law to give legal advice in California if you're not licensed there and then, most cruelly, held that a lawyer cannot collect legal fees for advice given in California if he wasn't licensed in California.

I think the Court was right to define the practice of law as it has. I also think, though, that that definition would cripple the ability of many, if not most, lawyers to provide meaningful help to thousands and thousands of clients who have a need for legal help all over the country. The call for uniform federal legislation to solve this problem is a pretty serious threat to states' historic right and obligation to regulate their own legal professions, including their own ethics rules and admission requirements.

I don't know what the solution to this problem is. I do think, though, that so far the problem is so big that most people have chosen to pretend it doesn't exist rather than confront it.

Cullen

Money quotes from Birbrower (I particularly like the one that says one needn't be in California to be said to be praticing law there):

Although the Act did not define the term "practice law," case law explained it as " 'the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure.' " ( People v. Merchants Protective Corp. (1922) 189 Cal. 531, 535 [209 P. 363] (Merchants).) Merchants included in its definition legal advice and legal instrument and contract preparation, whether or not these subjects were rendered in the course of litigation. (Ibid.; see People v. Ring (1937) 26 Cal. App. 2d. Supp. 768, 772-773 [70 P.2d 281] (Ring) [holding that single incident of practicing law in state without a license violates § 6125]; see also Mickel v. Murphy (1957) 147 Cal. App. 2d 718, 721 [305 P.2d 993] [giving of legal advice on matter not pending before state court violates § 6125], disapproved on other grounds in Biakanja v. Irving (1958) 49 Cal. 2d 647, 651 [320 P.2d 16, 65 A.L.R.2d 1358].) Ring later determined that the Legislature "accepted both the definition already judicially supplied for the term and the declaration of the Supreme Court [in Merchants] that it had a sufficiently definite meaning to need no further definition. The definition . . . must be regarded as definitely establishing, for the jurisprudence of this state, the meaning of the term 'practice law.' " (Ring, supra, 26 Cal. App. 2d at p. Supp. 772.)

* * * *

In our view, the practice of law "in California" entails sufficient contact with the California client to render the nature of the legal service a clear legal representation. In addition to a quantitative analysis, we must consider the nature of the unlicensed lawyer's activities in the state. Mere fortuitous or attenuated contacts will not sustain a finding that the unlicensed lawyer practiced law "in California." The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations.

Our definition does not necessarily depend on or require the unlicensed lawyer's physical presence in the state. Physical presence here is one factor we may consider in deciding whether the unlicensed lawyer has violated section 6125, but it is by no means exclusive. For example, one may practice law in the state in violation of section 6125 although not physically present here by advising a California client on California law in connection [**6] with a [*129] California legal dispute by telephone, fax, computer, or other modern technological means. Conversely, although we decline to provide a comprehensive list of what activities constitute sufficient contact with the state, we do reject the notion that a person automatically practices law "in California" whenever that person practices California law anywhere, or "virtually" enters the state by telephone, fax, e-mail, or satellite. (See e.g., Baron v. City of Los Angeles (1970) 2 Cal. 3d 535, 543 [86 Cal. Rptr. 673, 469 P.2d 353, 42 A.L.R.3d 1036] (Baron) ["practice law" does not encompass all professional activities].) Indeed, we disapprove Ring, supra, 26 Cal. App. 2d Supp. 768, and its progeny to the extent the cases are inconsistent with our discussion. We must decide each case on its individual facts.

This interpretation acknowledges the tension that exists between interjurisdictional practice and the need to have a state-regulated bar. As stated in the American Bar Association Model Code of Professional Responsibility, Ethical Consideration EC 3-9, "Regulation of the practice of law is accomplished principally by the respective states. Authority to engage in the practice of law conferred in any jurisdiction is not per se a grant of the right to practice elsewhere, and it is improper for a lawyer to engage in practice where he is not permitted by law or by court order to do so. However, the demands of business and the mobility of our society pose distinct problems in the regulation of the practice of law by the states. In furtherance of the public interest, the legal profession should discourage regulation that unreasonably imposes territorial limitations upon the right of a lawyer to handle the legal affairs of his client or upon the opportunity of a client to obtain the services of a lawyer of his choice in all matters including the presentation of a contested matter in a tribunal before which the lawyer is not permanently admitted to practice." (Fns. omitted.) Baron implicitly agrees with this canon. (Baron, supra, 2 Cal. 3d at p. 543.)

I don't see any difference in the context of whether the act constitutes practicing medicine without a license. It seems either both do or neither do.

Well, one obvious difference is that in one case, a doctor-patient relationship is being formed, and in the other, it isn't.

Another obvious difference is that in one case, the patient is a resident of the state in question, and in the other, he isn't.

Consider the analogous context of securities brokers, who must be licensed in every jurisdiction where they propose to sell securities. If a broker who isn't licensed in California calls up a California resident and tries to sell them some stocks, they're going to be in trouble. On the other hand, if the broker has an account relationship with a customer who lives in a state where the broker is licensed, and the customer happens to go to California on vacation, the broker can certainly call him up and solicit him to buy securities.

Every securities regulator in the nation would be baffled if you claimed you were unable to see any difference between the two scenarios. No reasonable person contends that your doctor, lawyer, and stockbroker all have to cut off contact with you if you happen to be traveling in a jurisdiction where they're not licensed. But that has absolutely nothing to do with the online pharmacy situation we're discussing.

I haven't read the opinion, but it would seem to me that the more applicable legal principle is the "purposely avail" standard. That test for personal jurisdiction finds jurisdiction where a defendant takes affirmative actions directed to the venue.

In this case, prescribing medicine to a California resident is meets such a standard.

It would also provide protection for Orin in the case of Slobovia.

Philistine wrote at 5.22.2007 1:28pm:

If California's contention is that an out-of-state doctor's prescription for an in-state patient is (by defintion) the unlicensed practice of medicine, why on earth do they allow pharmacies to fill such prescriptions?

In this case the prescription was filled by a pharmacy in Mississippi and sent to California.

Steve wrote at 5.22.2007 3:32pm:

Consider the analogous context of securities brokers, who must be licensed in every jurisdiction where they propose to sell securities. If a broker who isn't licensed in California calls up a California resident and tries to sell them some stocks, they're going to be in trouble. On the other hand, if the broker has an account relationship with a customer who lives in a state where the broker is licensed, and the customer happens to go to California on vacation, the broker can certainly call him up and solicit him to buy securities.

In this case the patient contacted the physician first. The physician did not contact the patient first. The patient gave the physician a medical history and other information relevant to diagnosis and prescription. Neither the 2nd DCA nor the Superior Court (represented by the San Mateo County DA and the State AG) argued that the physician did not have a doctor-patient relationship with the patient, at least not as recorded in the decision. If anything, they argued that for the physician and patient to even form a doctor-patient relationship was the essence of the crime, because the physician was not licensed in California.

I think commenter hey, above at 5.22.2007 3:39pm, has the best assessment of the actual interests behind this case: "...restrictionist guilds, for which California is notorious."

Post: This principle, I submit, doesn't make sense in a world in which the "effects' of all actions are felt instantaneously everywhere on the network; applying that principle leads to the conclusion that everyone is subject to everybody's criminal jurisdiction simultaneously, and I don't think that is a sensible conclusion for a global legal system.

Online poker is an even better example of this. Depending on the game, there can be as many as ten players at a virtual table at any given time, often from ten different legal jurisdictions. The jurisdiction of the host site itself makes it eleven. By Mr. Kerr's reasoning, that's eleven different jurisdictions that may claim authority to sanction, regulate, or shut down the game at any given time. And that's just at one table, among literally thousands that are in play somewhere in cyberspace at any given time, on dozens of poker sites across the globe.

Actually, it occurs to me that the creeping acceptance of international law norms in the U.S. may be, in part, an acknowledgment of this very sort of jurisdictional ambiguity, which is becoming ever harder to avoid as the world becomes ever more interconnected. Whatever else might be said about international law norms, it is a much simpler matter to make something legal in both of any two given jurisdictions, or illegal in both, than to have to repeatedly untangle such conflicts between jurisdictions on a case-by-case basis.

"Online poker is an even better example of this. Depending on the game, there can be as many as ten players at a virtual table at any given time, often from ten different legal jurisdictions. The jurisdiction of the host site itself makes it eleven. By Mr. Kerr's reasoning, that's eleven different jurisdictions that may claim authority to sanction, regulate, or shut down the game at any given time. And that's just at one table, among literally thousands that are in play somewhere in cyberspace at any given time, on dozens of poker sites across the globe."

Eleven different jurisdictions that may claim authority to sanction, regulate, or shut down the game at any time is not necessarily the problem.

"Orin, I take it, agrees; he thinks this is a reasonable -- perhaps even an obvious -- resolution. "Next time," he writes, tongue presumably in cheek, "maybe the defendant should argue that if you commit a crime in cyberspace rather than real space, you only have to go to cyber jail instead of real jail."

This comment is actually very insightful.

The first comment above, is typical of those too steeped in the *traditional* way of thinking to really analyze logically what cyberspace means. The reasoning flaw is in complaining about the multijuridictional reach of the internet electronic virtual world or cyberspace, while believing somehow the same internet is not capable of eliminating the physical need to travel to each of those multiple jurisdictions' physical location courthouses or agency buildings.

Orin's comment, though it seems laughable, is quite logical, and this cyberspace line of thinking should make obvious that the technology exists (e.g., Sec. 508, Rehabilitation Act of 1973, as amended, access) to enable the virtual courthouse or agency in all eleven jurisdictions to operate via web cam, internet, email, videoconference, etc., without the travails of a person actually having to geographically travel to each of the eleven jurisdictions while incurring the extraordinary expense to do so.

In some small part, the federal district courts CM/ECF filing system and PACER accomplish a significant part of this, since someone authorized to use this internet electronic cyberspace system can file or view pleadings in pretty much any federal district court anywhere in the United States. More and more, the federal district courts are using the videoconferencing in the prisoner context to enhance judicial security, but the technology demonstrates also the possibilities of cyberspace in a virtual courthouse world where entrance to the courthouse is only a click away, not several mountain ranges and rivers away.

I noticed in reading the US Courts Design Guide, the federal district courts are supposed to be architecturally compliant with the Americans With Disabilities Act Title II ADAAG, which apparently has resulted (as detailed in the US courts Design Guide) in the federal courthouses being wired for internet access throughout the courthouse. Thus, architectural access is internet access, since the cyberspace infrustructure is being built into place.

One uniform federal virtual courthouse is but a mere click (and a few policy changes) away. So why the big deal about the "purposeful availment" conundrum?

And the 50 states' have nothing to gripe about. Once a State court avails itself of an internet web site, the State court has purposely availed itself of the virtual world known as cyberspace, must be disability e-AT accessible, i.e., becomes a virtual courthouse. At least in the Americans With Disabilities Act context, the Act required National uniformity, hence there is a dormant commerce clause concern with those states that remain balkanized disrupting the internet superhighway. See 42 USC Sec. 12101(b).

Another consideration, is global warming is a National Security concern, and Florida, for eg., is the No. 2 contributor in the Nation to global warming, no small doubt because of too many tree cutting papermills and court induced vehicle trips. The solution, so obviously, is to go to a total virtual courthouse, paperlesss, requiring no vehicle trips.

But that, in my personal experience & oddysey through the California and Florida State and Federal Courts and United States Supreme Court cert pool is about as well received as trying to tell a very old codger who still practices law with a manual typewriter and triplicate carbon copy paper to use a laptop and wireless card. But, the reinvention of the uses of the *traditional* spitoons next to the Justices on the Supreme Court Bench show there are in the world of inventions, in fact, many possibilties ...

And the whole multijurisdictional practice issue, bar admission issue, and the great northern migration from Florida as the sea levels rise -- requiring attorney reciprocity now -- is an extended analysis of the same problem.

Interesting arguments all around! Here's another scenario:

If selling hats is illegal in California and I sell a hat to a Californian while in Florida have I committed a crime? I think the question here isn't a matter of location as it is a matter of citizenship. As in, do the laws of California apply to Californians no matter where they are? Or is it that the laws of California apply to anyone who deals with Californians... While they're in California or not.

If the latter is the question, should "the Internet" be considered its own separate jurisdiction? It would certainly be useful to have an "Internet circuit court" to cover such matters. It seems only logical that the lowest common denominator of law apply to any given situation. If it is a matter between states, only federal laws can apply. If it is a matter between countries, only laws that apply internationally may apply.

-Riskable
http://riskable.com
"A government that operates in secrecy is a government that operates inefficiently."