Professor Harpaz                           
Internet Law - Section 1                       
Final Examination
May 4, 2007

Question I
(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 and 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  MM registered the domain name through, 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 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, 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 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, 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 Pennsylvania.

(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?    

Question II
(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 mobile phones.
(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 profile webpages.
(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.