Internet Law - Section 1
May 4, 2007
(Suggested time: 75 minutes) (75 out of 150 total exam points)
Tradepost Stores, Inc. is a publicly traded company
headquartered in Arizona. It began with a single store in Arizona
in 1975 and now operates over 1000 stores located in 48 states.
The merchandise it sells includes items to furnish and decorate the
home. Tradepost imports the distinct merchandise it sells from 40
countries. The Tradepost name, including Tradepost and Tradepost
Stores, is a registered trademark. Tradepost operates websites at
www.tradepost.com and www.tradepoststores.com to advertise its products
as well as directly sell them online.
Mary Mason (MM) is a human rights and environmental
activist who resides in Pennsylvania. She uses the internet to
conduct campaigns against exploitation of the people and natural
resources of third world countries by American corporations. One
of her online campaigns is against Tradepost Stores criticizing
Tradepost for utilizing child laborers and paying substandard
wages. She has also criticized Tradepost’s use of natural
resources, such as rare species of trees, to produce some of the
products that it sells. Despite the international range of MM’s
interests, MM has never traveled outside of Pennsylvania.
To gain more attention for her campaign against
Tradepost Stores, MM created a website at
www.tradepostexploits.com. MM registered the domain name
www.tradepostexploits.com through domainregistry.com, an ICANN-approved
registrar located in Pennsylvania. The website describes the
various activities that Tradepost engages in that MM believes unfairly
exploit third world countries. It also encourages visitors to add
comments to the website and MM posts comments that support the purpose
of the site. Several visitors who regularly make comments that MM
posts describe themselves as former employees of Tradepost who worked
at the Tradepost corporate headquarters in Arizona and continue to live
in the area and keep a close watch on its activities. In keeping
with her philosophy, MM’s website does not sell any merchandise and
does not accept any advertising. The website contains a
disclaimer that makes clear that the website is not operated by or
approved of by Tradepost Stores, Inc.
Tradepost Stores, Inc. has long known about MM’s
campaign against its practices. However, the registration of
www.tradepostexploits.com has resulted in much greater awareness of her
campaign by Tradepost customers. Tradepost has received a number
of e-mails from customers informing Tradepost that they came across
MM’s website when using a search engine to search for Tradepost’s own
website. When one of the search results that appeared near the
bottom of the first page of search results was
www.tradepostexploits.com, they activated the link out of
curiosity. After reading the material posted on the website, they
wrote to inform Tradepost Stores, that they would no longer purchase
any of Tradepost’s merchandise.
Tradepost has come to you for legal advice. It
is considering legal action against MM. It has asked you a
variety of legal questions which it wants you to answer, pointing out
both the strengths and weaknesses of its position. Please provide
Tradepost Stores with answers to the following 5 questions:
(1) Tradepost would like to know whether it could succeed in suing MM
under the provisions of the Anticybersquatting Consumer Protection Act
(ACPA) because of her registration of www.tradepostexploits.com and, if
it does succeed, what remedies would be available to it.
(2) Tradepost would like to know if it brings suit under the ACPA
whether it could file the lawsuit in Arizona, its principal place
of business, or, if not, what other forums would be available to it.
(3) Tradepost would like to know whether alternatively it could utilize
the Uniform Dispute Resolution Policy (UDRP) of ICANN to complain about
MM’s registration of www.tradepostexploits.com, and what advantages or
disadvantages the UDRP would have in Tradepost’s effort to stop MM from
using the tradepostexploits domain name.
(4) Tradepost is also upset about some of the content on MM’s
website. It concedes that much of MM’s descriptions of its
activities are true, but it believes that two aspects of the site
contain defamatory material. One is a description posted by MM of
a sweatshop operated by Tradepost in Bangladesh which employs child
labor and pays very low wages. Tradepost tells you that it does
not have any operations in Bangladesh and it believes that MM is
confusing it with another company that sells similar merchandise.
Tradepost wants to know whether it can file a defamation suit against
MM in Arizona to object to these false statements describing Tradepost
operations in Bangladesh or whether it will have to file its lawsuit in
(5) Tradepost also objects to one other item on MM’s website.
This second item was not authored by MM, but is a post by a regular
contributor to her website known only as “Corporate Assassin.” In
one of Corporate Assassin’s posts to MM’s website, Corporate Assassin
falsely accused Tradepost of using ivory from the tusks of
recently-killed African elephants in some of its decorative
objects. The importation of such ivory violates U.S. law.
Tradepost informs you that it does not use ivory in any of its products
and it is confident it can prove that Corporate Assassins’s comments
are false. Tradepost wants to know whether it can hold MM
responsible for libel due to her publishing Corporate Assassin’s
comments on her website?
(Suggested time: 75 minutes) (75 out of 150 total exam points)
As a result of increasing concern about the harmful
consequences of adolescents creating webpages on social networking
sites such as MySpace and Facebook, the state of Southeast enacted the
Social Networking Owner Operator Parent Empowerment Responsibility
Statute (SNOOPERS). The statute provides as follows:
Section 1: Findings:
(1) More than half of all online American youths ages 12-17 use online
social networking sites.
(2) Online youths who create profile webpages on social networking
sites can be victimized by child predators. In 2006, the
National Center for Missing and Exploited Children conducted a survey
of online youth ages10 to 17. In the survey, 13 percent of
respondents reported a sexual solicitation. Many of the contacts
came from other teens rather than adults, but a significant minority
came from adults. The frequency with which online youths provide
personal identifying information in their profile webpages contributes
to this problem.
(3) In addition to sexual predators, social networking sites also
facilitate “cyberbullying.” “Cyberbullying” is when a child,
preteen or teen is tormented, threatened, harassed, humiliated,
embarrassed or otherwise targeted by another child, preteen or teen
using the internet, other interactive and digital technologies or
(4) While many social networking sites post safety tips for minors
using their sites, these safety tips do not take the place of parental
control of online activities.
Section 2: Substantive Provisions:
It shall be illegal for the owner or operator of a social networking
website to allow a minor under 17 years of age using a computer
anywhere in the state of Southeast to create or maintain a profile
webpage on a social networking website without the permission of the
minor’s parent or guardian and without providing such parent or
guardian access to such profile webpage. If such parent or
guardian grants permission, the minor can create or maintain a profile
webpage without any restriction as to its content.
Section 3: Definitions
(1) A profile webpage is a webpage that contains personal information
about the person creating the page, such as a name or nickname, age,
hometown, photographs, favorite lists, and entries in a blog or diary.
(2) A social networking website means a website on the internet that
contains profile webpages of the members of the website, and provides
some or all members of or visitors to the social networking website the
ability to access profile webpages, and leave messages or comments
on profile webpages or otherwise communicate with the creators of
(3) A person creates a profile webpage when he or she initially authors
such a webpage.
(4) A person maintains a profile webpage when he or she makes changes,
in the form of additions, deletions or alterations, to a profile
webpage he or she created at an earlier time.
Section 4: Defenses
It shall not be a defense under this statute that the owner or operator
of a social networking website was not aware that a person creating or
maintaining a profile webpage was under 17 years of age or that the
person was using a computer within the state of Southeast unless the
owner or operator made a good faith effort to determine the age and
location of the person.
Section 5: Penalty
Any person violating this section, upon conviction, shall:
(1) On the first offense, be guilty of a misdemeanor of a high and
aggravated nature; and
(2) On the second and subsequent offenses, be guilty of a felony and
shall be sentenced to imprisonment for not less than one nor more than
five years, and/or to pay a fine of not more than $50,000.00, or both.
Shortly after the enactment of the statute, a group
called Coalition Against Parental Snooping (CAPS) brought suit
challenging the law on several grounds. CAPS is a coalition of
owners and operators of social networking sites, adults and persons
under 17 who are members of such sites and who, in many cases, maintain
profile webpages on such sites, and the parents of persons under 17 who
maintain profile webpages on such social networking websites.
Many of the social networking sites who belong to CAPS are located
outside of Southeast, but those sites concede that they have members
who have created or maintained profile webpages from computers within
the state of Southeast. They make this concession despite the
fact that they do not require their members to provide them with
information about where they live as a requirement for membership nor
do they have any information as to where their members are located when
they create or maintain profile webpages.
In its lawsuit, CAPS argues that SNOOPERS violates
both the First Amendment and the Dormant Commerce Clause. They
also argue that the statute is inconsistent with Section 230 of the
Communications Decency Act (pages 492-93 of Casebook) and therefore
violates Section (e) (3) of that federal statute which provides that
“No cause of action may be brought and no liability may be imposed
under any State or local law that is inconsistent with this section.”
In response to the lawsuit filed by CAPS, the state
of Southeast argues that the law does not violate either the First
Amendment or the Dormant Commerce Clause and is consistent with the
provisions of Section 230 and therefore not barred by Section (e) (3)
which provides that “Nothing in this section shall be construed
to prevent any State from enforcing any State law that is consistent
with this section.”
You are a law clerk to the federal district court
judge assigned to the case. The judge informs you that she
intends to apply the strict scrutiny test to evaluate the
constitutionality of SNOOPERS under the First Amendment. However,
she has made no other decisions about how to analyze the claims raised
by CAPS. The judge asks you to write an analysis of the
constitutional arguments that CAPS can make in arguing that SNOOPERS
violates the First Amendment and the Dormant Commerce Clause and is
inconsistent with Section 230 as well as the defenses that the state of
Southeast can raise in arguing that SNOOPERS does not violate either
the First Amendment or the Dormant Commerce Clause and is consistent
with Section 230.
END OF EXAMINATION