[Orin Kerr, May 22, 2007 at 3:06pm] Trackbacks
Cyberspace Jurisdiction and the Dormant Commerce Clause:
In response to my initial post on Hageseth v. Superior Court, my co-blogger David P. writes:
  The court is probably correct that the "traditionally applicable legal principles" permit it to assert jurisdiction over the defendant; the harder question is whether those "traditionally applicable legal principles" become utter nonsense in a networked world.
  The "traditionally applicable legal principle" here is what the court calls the "detrimental effects theory" of extraterritorial jurisdiction: if your actions outside the jurisdiction have harmful effects inside the jurisdiction, you're subject to the jurisdiction's criminal laws.
  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.
  I disagree. In my view, the "traditionally applicable legal principle" here isn't the "detrimental effects theory," but rather an argument Hageseth did not make: the dormant commerce clause.

  Existing dormant commerce clause doctrine largely traces David's policy concerns, as it looks at the effect of one state's regulation on other states and considers the need for a single consistent regulatory scheme. If a state statute that regulates computer usage is read to have such broad extraterritorial scope, it may be invalided on dormant commerce clause grounds. See, e.g., American Libraries Ass'n. v. Pataki, 969 F.Supp. 160 (S.D.N.Y.1997). Notably, several defendants in Californian state computer crime cases have used such arguments. Examples testing the extraterritorial scope of California state Internet luring statutes include People v. Hsu, 82 Cal. App.4th 976 (Cal. App. 2000) and Hatch v. Superior Court, 94 Cal. Rptr. 2d 453 (Cal. Ct. App. 2000).

  In my view, the real issue in Hageseth isn't whether traditional legal principles become "utter nonsense" when applied to conduct "in cyberspace." The issue is identifying the right traditional legal principle, which in this case is the dormant commerce clause. My sense is that this body of law applies quite sensibly to online conduct just as it does to offline conduct.

Related Posts (on one page):

  1. Cyberspace Jurisdiction and the Dormant Commerce Clause:
  2. Jurisdiction in Cyberspace; A Different View
  3. Hageseth v. Superior Court:
Dilan Esper (mail) (www):
The only problem with the Dormant Commerce Clause is that, as Justice Thomas notes, it isn't actually in the Constitution.

Minor detail. As Dustin Hoffman would have said in "Wag the Dog", "that's nothing".
5.22.2007 5:24pm
New World Dan (www):
Also, my understanding of DCC doctrine is that California would have to discriminate against out of state transactions. The complaint is that Hageseth wasn't licensed in CA. Now, if CA refused Hageseth a license because he wasn't physically practicing medicine in CA, then we'd have a DCC violation. At least, that was the impression I got from reading Granholm v Heald. If I'm wrong on this, someone please correct me.
5.22.2007 5:46pm
John (mail):
Doesn't the law of libel provide a rich set of analogues for this? If I'm in New York and libel someone on my NBC show who is in California, where the show is broadcast, am I not liable? And that is so, notwithstanding that my words "are felt instantaneously everywhere on the network..." The argument that "applying that principle leads to the conclusion that everyone is subject to everybody's criminal jurisdiction simultaneously" doesn't seem to hold water.
5.22.2007 7:41pm
John (mail):
Heh. Make that slander.
5.22.2007 7:42pm
New World Dan (www):
I've had time to go back and read through ALA v. Pataki now and I see the point OK was trying to make. I think there are a few key elements that differentiate ALA from Hageseth. ALA was a case where someone was likely to unwittingly break the law by not knowing where packets from their server were being sent. Hageseth could very well have determined in which state he was serving patitents. Also, in most (all?) states, medical practitioners are state licensed. Hageseth would have been aware of this.

When I saw the first blog post on this case, the DCC was one of the first things that popped into my mind. But I'm not convinced it's appropriate. I mean, my sister is a Mortgage broker in Wisconsin. She's licensed as a loan officer in MN and WI. Yet, if she were to give someone a mortgage on a property in Illionis, I don't think anyone would dispute that she broke a law, even if it was all done at her office in Wisconsin. What I see as a differentiator there is that the transaction would unquestionably be tied to a real property in Illionis where she doesn't have a license. The only hard link in Hageseth is the perscription sent from the pharmacy.

Well, I've spent over an hour revising this post (my 3rd on the subject) and I still haven't figured out what exactly it is I'm trying to say. Any angle I look at this case from it just seems wrong. I think maybe the CA court took the right approach and got the wrong answer. I'm just going to log out and have a beer. Bye!
5.22.2007 8:48pm
Stuart Buck (mail) (www):
As the Second Circuit said in striking down a Vermont law affecting the showing of sexual material to minors, “Because the internet does not recognize geographic boundaries, it is difficult, if not impossible, for a state to regulate internet activities without projecting its legislation into other States. . . . We think it likely that the internet will soon be seen as falling within the class of subjects that are protected from State regulation because they imperatively demand[] a single uniform rule.” Am. Booksellers Found. v. Dean, 342 F.3d 96, 103-04 (2d Cir. 2003) (internal quotation marks omitted).

Or as the Tenth Circuit said in striking down a similar law, the law “violates the Commerce Clause [because] it subjects the use of the Internet to inconsistent regulations. As we observed, supra, certain types of commerce have been recognized as requiring national regulation. . . . The Internet is surely such a medium.” ACLU v. Johnson, 194 F.3d 1149, 1162 (10th Cir. 1999).
5.22.2007 10:13pm
M. Simon (mail) (www):
If the Commerce Clause is dormant (and it is see Raich) why would it apply?
5.23.2007 3:34am
markm (mail):
Simon, the "dormancy" is that this doctrine applies where Congress has not specifically legislated in matters that are clearly in interstate commerce. Grossly oversimplified, it holds that a state can't regulate interstate commerce because that power is reserved to Congress, even if Congress has not acted in regards to the particular issue. That is, the default legal position is that states cannot regulate in-state markets to discriminate against out of state vendors or enforce laws that overly affect commerce between other states. Congress could override this with legislation that allows such discrimination (but AFAIK never has, aside from putting state alcohol regulations in a special position via the Constitutional Amendment that ended Prohibition), and Congress can and often has mandated more uniformity than the dormant commerce clause requires, but it provides a default position where Congress was silent.

(I do find it remarkable that there are still any issues where Congress was silent!)
5.23.2007 11:05am