Understanding Internet Laws:
Internet Law Attorneys Enrico Schaefer and Brian A. Hall discuss the specialized area of law known as internet law, and how traditional law legal principles and technology apply to the web.
- internet law is more than simply applying traditional laws and legal principles to the web and cyber law issues on the web.
- Internet law is any legal issue which deals with the web, either because there are special statutes, case law interpretation of existing law, or technology related skills required of the internet lawyer in order to meet the client’s goals.
- It’s really about navigating the technologies that underlie these legal issues, understanding the new and ever-changing legislation that every internet law attorney should know, and educating judges, adverse counsel and others about these web laws.
Internet law lawyers are special because they have taken the time to understand how the internet works. Brian, telling people that you’re an internet law attorney is always interesting. Even other lawyers are confused about this area of specialized law. It’s a growing area of law, so let’s talk about its definition and how it might apply to your online issue or your litigation case. Every attorney that represents a brick and mortar company has the potential to face an internet law issue. Brian, can you give us some examples of the types of issues that come up, even for traditional brick and mortar companies in the internet space.
Enrico Schaefer: Yeah, that’s great, Brian. Here is my definition of internet law, and I’ve developed it over the years as I’ve taken a look at this issue and have had to answer the question for other internet attorneys and law firms and clients alike. So, here goes. My definition is:
Any legal issue which deals with the web, either because there are special statutes, case law interpretation of existing law, or technology related skills required of the lawyer in order to meet the client’s goals.
So, let me break those down. There are three areas. The first is special statutes, which have been passed at both the state and federal level which govern an internet or technology issue. So, for instance, one statute that you and I deal with all the time is the Anti Piracy Statue, the Anticybersquatting Piracy Statute or the ACPA. That particular statute deals with trademarks and domain names. There’s also the Digital Millennium Copyright Act, which has this whole area of law dealing with DMCA takedown notices, and what happens when a copyright owner wants content removed from a website. So, there are a number of different statutes which apply only to the internet space and technology issues.
There’s also the second category case law interpretation of existing law, so in many instances, there are large bodies of law that are already developed such as defamation and libel, personal jurisdiction or tortuous interference with contract, and any number of different issues. And there’s a whole body of law out there where judges have decided and analyzed issues and written opinions about those issues. Well, applying those written opinions, those statutes, that precedent, to the internet space, is often extremely challenging for attorneys and courts alike. Understanding how to take a particular traditional legal principle and apply it in the internet space is very challenging. Let’s just take personal jurisdiction, for instance. If a company has an e-commerce site, and they’re taking orders from California customers, but the company itself is located only in Florida, and perhaps it’s incorporated in Delaware. Does the fact that the company takes orders from California consumers subject it to personal jurisdictions so that the company could be sued in California? These are all very interesting issues that an internet law attorney is going to know how to handle right out of the gate.
This third area that I mentioned is one that you already talked about, which is understanding the back-end technology of the internet so that you know how to meet the client’s goals. So, for instance, an anonymous blogger posts on a website a defamatory or libelous statement. How do you figure out who that anonymous person is? How do you track that person through their IP address back to an account at an ISP, and then attach it to a credit card or a home or a location? How do you understand how to identify a cybersquatter who might otherwise be concealing their identity because of a proxy or privacy service? There are all kinds of technical skills required of an internet lawyer day in and day out. Again, any legal issue which deals with the web, either because it requires a special statute, a special case law interpretation or requiring technology skills in order to meet the client’s goals. That’s my definition of internet law, also known as cyber law or web law. Brian, tell us, why should companies, referral counsel or individuals be looking for an internet law attorney when they are facing an issue arising on the internet?
Brian A. Hall: Enrico, I think there are really three reasons and all three of them are inherent in the definition you just gave. The first reason is knowledge of web law. Just like someone with a heart condition wants a cardiologist rather than a general practitioner to help save their life, internet lawyers know the lay of the land. They know the statutes involved, be it federal or state. They know how to get the things done consistent with what you were just talking about.
The second reason is experience. An internet lawyer can actually save time and money, since they probably have already solved the problem that’s similar to the one faced by the particular client. Let me give you an example, and you touched upon it a bit already, Enrico. If someone defames you online, you want to know who that poster is, but more often than not, they’re anonymous online. Internet lawyers know how to identify the IP address, identify who that ISP is and if necessary, file a lawsuit and issue a subpoena to get that anonymous poster’s identity so that you can move forward with an action against them. That’s not something that an everyday attorney knows how to do. And why would you want to spend the time and money on an attorney that’s not an internet lawyer to try and figure out how to do it when an internet lawyer has done it multiple times and knows what pitfalls to avoid.
Finally, the third reason, it’s a specialized area of law, Enrico. You know this as much as anyone. Issues come up every day in this practice that requires an internet lawyer. Let me give you a couple of examples. How to make sure you’re not subjecting yourself to claims of defamation because of the web postings of users? Well, there’s a statute for that. It’s known as the Communications Decency Act. How to avoid the FTC from investigating and penalizing you for the testimonials and endorsements made by people on your site about your products and services? The FTC has guidelines on those. An internet lawyer has probably reviewed them and knows them. How do you stop cybersquatting on your trademark protected domain name? There are options available. It’s the ACPA pr the UDRP. An internet lawyer has dealt with both and knows the costs included in both, how long it takes to resolve, and all the issues procedurally and practically speaking that go along with it. Finally, how to comply with COPPA, Children’s Online Privacy Protection Act, or record keeping requirements of pornography industry website operators under 18 U.S.C. 2257. All of these are particularized issues that an internet lawyer has dealt with and can provide guidance on.
Enrico Schaefer: Yeah, It seems that we work as often with other lawyers as we do with prospective clients in dealing with these online legal issues. We get contacted by other law firms and attorneys that have clients who have these specialized problems, those lawyers are looking for information and resources in order to help their clients along, and we respect that relationship between the referral attorney and our firm. We just handle that narrow issue. We seek to enhance the relationship between the referral counsel and their client, and we keep our specialization, our effort, very focused so that we’re handling just the issue at hand and leaving that lawyer-client relationship intact. That is all we have time for today. Brian, Thank you very much for joining me on Internet Lawyer Radio and we’ll see you next time.
Brian A. Hall: Thanks, Enrico.