White. Of all the thorny legal problems presented by the Web, geography may be the most perplexing. Where is the Web, anyway? Or rather, when do a jurisdiction's laws apply to a Web transaction?
Brown. But aren't there other technologies that are similar enough to the Web for the law to make an analogy, White? You know that's how legal rules are shaped and extended to new situations. In fact, for the law there's never a new situation; we just find the closest similar situation from the past and apply that, more or less.
White. I agree, Brown, but you build a lot into that phrase "more or less." And there are similar situations. Take interstate gambling, for instance. Gambling on professional sports games is legal in Nevada but not in this state. Obviously if I take a plane to Las Vegas and head to the nearest casino, I can place a bet, legally, on my favorite team, watch the game and (hopefully) collect my winnings. But it's not legal to place the bet by telephone.
Green. That's because there are specific laws to cover this situation, White. Our state makes the cross-border transmission of gambling information illegal.
Brown. And in White's example there is a very specific exchange of information for a particular purpose. But I must confess that the state's attempt to regulate gambling in this way really just seems like a type of discrimination against those who are too busy or too broke to purchase a plane ticket.
Green. As usual, Brown, you are overstating the case for rhetorical purposes. The state recognizes that it can't stop you from gambling and perhaps it doesn't even care to try; however, it can stop you from gambling here and that is a pretty well accepted principle of our law. The same could be said about the flap over pornography on the Internet. The state can't stop you from traveling to Denmark or some other country to pursue your prurient interests; but it can try to make it more difficult for you to pursue them here, within the limits defined by the First Amendment.
White. But this just restates the problem, Green. Let's look at it from the point of view of an information provider (Jones, for instance). Let's assume that Jones has some sort of information that is legal to use, distribute and sell in his jurisdiction. Let's also assume that in our state, the use and distribution of that information is illegal. If I call Jones on the telephone to obtain the information, I may be violating the laws of our state. And Jones may be as well. Of course, the authorities in our state may not have any practical means of sanctioning Jones, but that is a different question. Maybe he'll visit here someday and be arrested at the airport.
Brown. What if Jones sets up an automatic system to distribute the information to anyone who calls his number, White? Clearly he has the right to do this for his customers within his own state. Must he set up a screening device to ensure that he does not receive calls from our state?
Green. What if it is impossible for him to tell whether the calls come from our state or from some other state in which the transfer of the information is in fact legal? Is the solution just that Jones must not accept any call unless he can determine its geographic origin with certainty?
White. That might present an insuperable obstacle for Jones to conduct his business. And from the perspective of our state, I suppose that would be a Good Thing.
Brown. I am reminded of an interesting Supreme Court case from 1959, Bibb v. Navajo Freight Lines. The issue before the Court was whether the pattern of state regulation of mud flaps on trucks unduly interfered with interstate commerce. As you know, the Constitution gives the federal government the power to regulate interstate commerce and the Supreme Court has given itself the power to strike down state regulations which "unduly interfere" with this commerce.
Green. But the states do have some power to make safety rules for their roads, don't they? And these rules might include regulations on the size and type of mud flaps on trucks, even if the trucks are carrying goods between states.
Brown. This is true, Green, which is why the standard is whether the state rules "unduly" interfere with interstate commerce. Almost any form of state regulation will interfere, to some extent, with interstate commerce. But in the Bibb case, the burden on interstate commerce was high and, in the Court's opinion, undue. Some states favored a flat flap, and some favored a rounded flap. The real problem arose because flaps that were required in some states were actually prohibited in other states. Therefore, a truck driver moving cargo between these states would have no choice but to stop and change flaps in transit. A flap change required two to four hours, plus welding in many cases. This was viewed as too great a burden on the free flow of goods between states, and the Court struck the state regulations.
White. So you think our imaginary Mr. Jones might do well to consider Bibb for his own purposes? Maybe the real issue is how much the conflicting state regulations interfere with the free flow of "information commerce."
Green. Perhaps. But I wish you wouldn't refer to him as the "imaginary" Mr. Jones. Brown is a little sensitive on the subject of imaginary characters.
Brown. We all should be sensitive on that point, Green, if you catch my drift.
Edmund B. (Peter) Burke practices intellectual property and information technology law in Atlanta with Sutherland, Asbill & Brennan, a law firm with offices in Atlanta, Austin, New York and Washington, D.C. [email protected]