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AOL Subscribers Can Be Sued in Virginia Courts
ITR writes "Another blow against the cyber-constitutional separation of 'Internet and Geography', a Virginia court rules that an AOL user in Texas can be forced to appear in a Virginia court to answer a defamation lawsuit. 'The upshot, said the judge, is that the defendant's use of the server to facilitate the alleged libel was sufficient to warrant jurisdiction under Virginia's long-arm statute -- the state law that gives courts power over out-of-state defendants.' "
Okay [flame suit on] I have an opinion on this that differs greatly from most of what I'm seeing here. This is not flamebait, but just another perspective.
/. summary), the suit accuses the defendants of no less than that very act.
One of the major problems with the Internet, and especially the people on it, is the prevailing assumption that "freedom of speech" equates to "freedom to libel and slander other people and corporate entities".
If you call someone a pedophile in print, you'd better be ready to be sued. Why should it be any different on the Internet? For those of you who didn't actually read the article (apparently a lot of you judging from the comments that seem to have opinions formed solely off of the
I think it is high time that people be held accountable for what they say online to other people. Folks say things on the Internet that they'd dare not say in print. I've been accused of a few libelous things myself and was advised to not proceed with filing suit due to the ambiguity of how the law applies to the Internet.
Americans have enjoyed the freedom of speech for many years, but have always known that the freedom of speech does NOT mean that you can say anything about anyone and get away with it. Apparently folks have forgotten that after getting their AOL accounts.
I am a lawyer, but this is not legal advice. Sea a lawyer licensed in your jurisdictionif you need legal advice on this matter.
>1. if i were named in such a suit and refused to
>appear, wouldn't VA need an extradition order
>or something to get me into the VA court?
nope, this is a civil case, not criminal. They would would enter a default judgment against you, then have that judgment entered in your state (or wherever you had seizable assets or a paycheck).
>2. does the sovereign state of VA have standing
>in the case because the AOL server is locate in VA
It's not an issue of standing; that's for the plaintiffs. It's a question of jurisdiction. And it appears that it is not that just *any* server was in VA, but that the newsserver that *published* the statement to the rest of the world was in VA. If this had gone first to a Texas surver, when was relayed to VA in the ordinary course of Usenet distribution, this would be a different matter.
hawk, esq.
No, he's not. Rehnquist & O'Connor are conservatives, as is Kennedy on a bad day. Scalia & Thomas are "classic liberals," as liberalism was understood in the eighteenth century. Classic liberals tend to be opposed to government action in general, and will strictly hold the gov't to its defined powers, regardless of what it's trying to do. They'll join the conservative block to slap down extra-constitutional social programs and preferences (with the liberals voting to permit them), and join with the liberal blcok to slap down intrusions on personal freedom and liberty (with the conservatives voting to extend government power).
Given the cases that come up today, they vote with the conservatives more often than the liberals. Bring up free speech issues, or government surveillance issues, and expect them to vote with the liberals.
Kennedy tends to vote with this pair, except when he gets cranky, and spends time in the conservative block. And if police safety or similar issues are in issue, Scalia's knee has a tendency to jerk to the right.
The only one of the lot that you can count on to favor your rights over the government regardless of the issue is Thomas, politically incorrect as it is to say this. I used to think that he was peeking over Scalia's shoulder, but in the still rare cases that they vote opposite each other, it's Thomas voting for individual rights, and Scalia voting for government power.
Nope. That sounds more like "collateral estoppel"--which only applies between the same two parties.
However, if Santa Clara County, California, holds a criminal trial, no other county in California can try the same defendant for the same crime. Clark County, Nevada could. However, I know most of the judges there (err, those who were there 5 years ago), and most of them would be downright frosted to see such a case come before them . . .
>Well, the problem itself is not new. E.g. if you,
>a Californian, kill another Californian in
>Nevada, either California or Nevada can try you
>for murder (either, but not both, though).
Actually, both could. Double jeopardy applies to multiple trials by the same soverign, and Nevada and California are separate sovergeins (the imperial pretensions of some California agencies notwithstdanding).
Caselaw has held that this permits the federal courts to try an individual after a state fails, as well, though this, IM!HO, is an incorrect application of the principle: the federal government is *not* sovereign in its own right, but relies on delegated power from the states. In these cases, the delegated power is generally from the state that has already held a trial. Hoever, these cases tend to come up when there has been either a miscarriage of justice, or a politically unpopular result, and the maxim that, "hard cases make bad law" comes into play, and the desire to punish the wrongdoer takes precedence over a bedrock legal principle.
Disclaimer: I am a lawyer, but this is not legal advice. If you need advice on this matter, see a lawyer in your own jurisdiction.
It's fairly typical for long-arm statutes to claim jurisdition as in all matters not prohibitted by the U.S. Constitution.
While I could also see the case going the other way, I don't see the publication from virginia as all that questionable. Sending an article to usenet is done by having an initial server publish to the next servers in sequence. A deliberate act of the defendant used the virginia server to publish.
OTOH, while there are no surprises in this case, I'm not sure that it's necessarily the best policy. While the overwhelming majority of the activities of today's federal government exceed its constitutional authority, I'd tentatively agree that given that substantially all of the transmission of a usenet message is interstate, that there is at least some authority from the commerce clause to address the matter.
also, It seems to me that the case could have been first removed to federal court on grounds of diversity of citizenship (unless the plea specifically asked for less damages than required for removal), then transferred to federal court in the defendant's home jurisdiction in Texas.
How does the opinion of one judge in the United States suddenly become the opinion of all United States citizens?
I'm a resident and citizen of the USA, and I think the ruling is dangerous and ill-considered because it means that what I write electronically might be subject to the laws of faraway places even though I might not even be *aware* that my postings were being stored and read in those places.
That means, if it were applied to Usenet, that all postings on Usenet would have to meet the legal standards of all states and perhaps countries which had at least one Usenet server, or I as a Usenet poster could be subject to prosecution.
On the subject of 'merkins -- let's try to avoid sweeping generalizations, shall we? There are many things to discuss related to this topic -- and slamming other Slashdot users isn't constructive.
--
-Rich (OS/2, Linux, Mac, NT, Solaris, FreeBSD, BeOS, and OS2200 user in Bloomington MN)
Mainframe/UNIX Bit Twiddler and long time Windows/Linux Hobbyist.
The Theorem Theorem: If If, Then Then.
MAE East is located in Vienna, Virginia. Can I get hauled into a Virginia court because my network traffic passes through a national access point in Virginia? Or is storage of the message/traffic required?
All I can say is "try to find a local ISP." This, however, is harder than it sounds. The ISPs that offer the most bandwidth are likely to be multistate, exposing their users to this kind of harassment. The "local" phone company offering that coveted DSL or the cable company offering high-speed service may be headquartered thousands of miles away.
This does do damage to the notion of the Internet as something of a worldwide phenomenon, unaffected by such obsolete notions as borders. I think the latest issue of "Communications of the ACM" (June 1999) has a short article on Chinese Internet infrastructure. It is quite enlightening-- as the main purpose of ChinaNet is geared toward maintaining state control...
That's right and when they're done maybe they can go after the pornographers, the gays, the bigots, the pro-choicers and the pro-lifers, the Democrats, and whoever else isn't in power and can't stand up for themselves.
The ends do *not* justify the means, because once justified, the same means may lead to different ends. If we want to curb spam, let's do it right, let's not do it by circumventing the constitution.
--
Aaron Gaudio
"The fool finds ignorance all around him.
"Every man is a mob, a chain gang of idiots." - Jonathan Nolan, Memento Mori
Thanks 1E+08.
Let me lay out the significance for everybody: This Virginia court has declared AOL, well.. rogue. They just rang the dinner bell and yelled "fresh meat!". I'm sure somebody else can phrase this better, but that's essentially what they've done, and it's a sharp departure from what most courts would do.. that is, allow other courts to excercise control in their jurisdiction.
What does this mean? Well, in short.. spammers just got a few bruises. It isn't a pancea, but it's a step in the right direction.
I'm looking forward to somebody using this new development to go after the AOL spammer-scum out there.
disclaimer: #include
--
This could be used as an argument against applying local community decency standards to remote Internet sites - this way Bible Belt judges can't apply their standards to anything other than porn sites in the Bible Belt...
Jurisdiction is defintely an issue. And currently there is little legal precedent set where jurisdiction should lie in cases like this. The VA courts are simply applying their laws to the case, as there is a dearth of authorities currently available to seek redress of matters like this in the cyber sphere.
I'm not sure that applying laws from the physical sphere is totally appropriate to the internet, but I do think that it's probably better than letting people run around doing and saying whatever they like.
I agree with several of the poeple that have pointed out previously, that freedom of speech does not guarantee that you can say whatever you feel like, with impunity.
"Politicians are interested in people. Not that this is always a virtue. Fleas are interested in dogs." P.J. O'Rourke
COURT LIMITS STATE JURISDICTION ON WEB
In a decision with global implications, a three-judge appellate
panel from the California Court of Appeal for the Second District
has ruled that the state of California has no jurisdiction over a
Web site whose hosting servers are located in the state. The
ruling clarifies the issue of jurisdiction in lawsuits involving
Web sites and out-of-state companies. The court's decision
addresses a defamation suit filed by plaintiff Steven Rambam
against the Jewish Defense Organization (JDO). The JDO had
posted information on its Web site claiming that Rambam was a
racist Nazi sympathizer and a potential murderer. In his
lawsuit, Rambam claimed that the JDO's contracts with
California-based Web hosts GeoCities and Xoom.com provided the
state with jurisdiction in the case. The judges disagreed.
"Defendants' conduct of contracting, via computer, with Internet
service providers, which may be California corporations or which
may maintain offices or databases in California, is insufficient
to constitute 'purposeful availment,'" wrote judge Mildred
Lillie. (C|Net 06/09/99)
The C|net article is here. Seems to me that the case law is very unsettled. (Not that I have a clue about law!) Which makes the pending battles over UCI TA legislation all the more important and dangerous.http://www.infoworld.com/cgi-bin/display Story.pl?/features/990531ucita_home.htm
I know from my law class that lex loci commissi delicti is one platform of our legal system; it translates something roughly to the effect of "in the place of action" -- laws are to be tried in the last location where an action takes place, if it crosses over county/city/state lines, etc. I don't know/think that this is law, as much as it is theory, I'm no lawyer.
I did find this link, however, that talks about the varying degrees to which some states follow this theory.
So religious beliefs aren't a good reason to ban something, but your community's beliefs on pornography are? Many people's judgements about pornography come directly from their religious convictions. Many communities try to ban literature which is erotic but also has literary merit as well. Where do you draw the line? And before you say that pornography is against the law in some cases, consider that the the Satanic Verses is against the law also (in Iran, at least). It's not that I'm particularly in favor of pornography, I just don't think that the line between repressing religion and repressing pornography is as clear as you think.
Your right to not believe: Americans United for Separation of Church and
We are having a free exchange of ideas and ideals - right this very minute. No one is forcing you to look at pornography, even if those packets are mixing with my words right now. Sure, there are bad parts of the 'net, but there are also a lot of really useful parts. And you only get to the bad stuff out there if you decide to go there. I'm sorry that some parts of the 'net don't meet your high standards for free speech, but I think you have to take the positive as well as the negative consequences of free speech.
I agree that the folks opposing the dissemination of porn aren't just uptight prudes who don't "get" the Internet. Some of them are intelligent people with a lot of integrity and strong convictions, and I respect them for that. But the fact remains that I don't want anyone else to decide what information I can receive, no matter how well-intentioned they are. As soon as you let one person control your access to information, then you really can't trust what you know at all, can you? The bottom line is that I don't trust anyone else to form my perceptions of the world for me.
Your right to not believe: Americans United for Separation of Church and
I don't remember which state it was, but a Federal judge ruled just a few days ago that simply having your site hosted on a computer in a jurisdiction in which you had no other "legal" presence did not create such legal presence, and without that legal presence, you could not be requred to reply to a suit in that jurisdiction.
Sounds to me like Virginia is trying to overrule the Federal courts - or someone is up for re-election.
1. if i were named in such a suit and refused to appear, wouldn't VA need an extradition order or something to get me into the VA court? would the VA Militia invade Michigan to drag me off to a prison cell next to Manuel Noriega? how can a moronic decision in a distant state do anything more than keep me from ever vacationing there?
if enough folks became VA scofflaws, the VA tourist bureau would take notice.
2. does the sovereign state of VA have standing in the case because the AOL server is located in VA? if that's the case, then we should inform anyone running a server in VA that we can't do business with them because of this stupidity. this will encourage those running servers in VA to relocate. once AOL & a bunch of other big guys move their servers to DC or MD, the VA chamber of commerce would take notice.
What I want to know is: what can VA do to me if I never go there? what can VA do if the server is out of state?
I'm a little uneasy about this decision. First of all, this means that precedent is set for other such cases of electronic storage being at some point under the jurisdiction of the state in which servers reside. There are millions of servers out there and with routing and storage the way it is, most internet users don't have the know-how or the means to track things like usenet posts or other sorts of uploads.
It seems that suddenly we can open up a whole new world of law, where a computer crime can be tried in whatever state seems to have the laws that are most in favor of the prosecution. The entire realm of computer crimes could be slowed to a halt while courts decide where all these cases should be tried.
Finally, the second poster here had a very good point. What about other countries? What if some American libels me on a newsgroup and some usenet server in Swizerland gets ahold of it. Can I try him under Swiss Law if I live in Swizerland? What about if I'm his next door neighbor? There's a lot of issues to be sorted out with this kind of decision, and I'm not convinced that the judge in this case was internet savvy enough to think about some of the technical and community ramifications of such a judgement.
I'm a little uneasy about this decision
Lucky you, just a littly uneasy. I am downright pissed off!
It seems that suddenly we can open up a whole new world of law, where a computer crime can be tried in whatever state seems to have the laws that are most in favor of the prosecution.
Well, the problem itself is not new. E.g. if you, a Californian, kill another Californian in Nevada, either California or Nevada can try you for murder (either, but not both, though). Of course, in Internet age the problem becomes much more severe and it is not helped by clueless courts.
What if some American libels me on a newsgroup and some usenet server in Swizerland gets ahold of it. Can I try him under Swiss Law if I live in Swizerland?
You can, if you can convince the Swiss court that it has jurisdiction. I don't know about Switzerland, but various countries have different ideas about the jurisdiction of their courts. Even if you convince the court it has jurisdiction, and win the case (probably by default), your problems are not over. You have a judgement against that pesky American and what are you going to do with it? You'll probably want to enforce it, but you'll need an *American* court to enforce it and in this specific case the American court is likely to lecture you on First Amendement and tell you to go jump into the lake (living in the US does have some advantages, after all).
Kaa
Kaa
Kaa's Law: In any sufficiently large group of people most are idiots.
(1) The entire point of a long-arm statute like this one is to subject nonresidents to jurisdiction. Subject to some constitutional limitations, they are enforceable.
(2) The judge will not issue a "bench warrant" if you don't appear to defend yourself in a civil case; he'll just rule that you automatically lose.
(3) If you don't show up and therefore lose, the plaintiff can get his judgment against you entered wherever you live (except for possibly the Cayman Islands or some such) and use it to go after your assets (house, car, bank account, etc.).
[In the U.S., federal courts may hear cases to be decided under state law if the parties are "diverse", i.e., if one party is a resident and the other parties are not (here, here, the plaintiff was a Virginia resident and the defendants were Texas residents). If you are sued in a court of a state you don't live in, and you want the case to be heard in federal court, you may "remove" the case to the federal court. The case has to meet a certain size cutoff (currently, at least $75K must be in dispute).]
The judge in this case found jurisdiction under this provision on the ground that the defendants committed an "act" in Virginia by publishing on AOL's Virginia-based server. That's pretty questionable in and of itself, but what makes it even worse is that the 14th Amendment to the U.S. Constitution has been held to require that nonresidents have some certain level of "minimum contacts" with a state before they may be subject to that state's jurisdiction. It certainly seems questionable whether that standard was met here.
Incidentally, if you ignore a lawsuit against you in another jurisdiction as one poster has suggested -- "default" is the technical term -- the plaintiff can generally have the judgment entered in whatever jurisdiction you keep your wealth and use it to go after your assets there. (In particular, U.S. states are required by the Constitution to give the judgments of other state courts "full faith and credit.") A court will generally only refuse to enter the judgment where it is "repugnant to public policy" of the jurisdiction; for example, U.S. courts won't enter a British judgment if the underlying claim is a libel claim which would be barred by the First Amendment in this country.
This case is not about AOL. This case is not about the internet. I am a law student and I just studied this crap in school.
There are two separate issues, one is a constitutional due process issue of personal jurisdiction, and the other is a state long arm statute.
The state long arm statute requires that the "act or omission" that causes harm take place in Virginia in order for suit in Virginia to be proper. That is what the whole deal with the AOL server being in Virginia pertains to.
As for Personal Jurisdiction, this is a constitutional requirement imposed by the 5th AMD.
The article mentions three reasons that this satisfies the Due Process Clause. First, the plaintiff lived in VA, second the harm would occur there, and third the defendant knew the plaintiff lived in VA. Had these things not been satisfied the judge would have gone the other way.
Most of the post-apocalyptic hysteria regarding this is jumping the gun. This isn't really that big a deal. Wait until the circuit courts get their hands on it. District courts don't make the law, the appellate cts do. And in this field nothing changes until the Supreme Court says so.
Here's the problem:
;)
Current political structures are dependant upon the concept of geographical location and borders. Laws, government, etc. only apply within a set geographic region that you call your territory.
The net transcends the concept of physical location. On the net, your 'location' becomes your IP, it's really the only valid descriptor of location on the net, and it shares no ties to real physical location.
Attempts to apply legal models centered around physical geography to something entirely outside the realm of physical geography will only produce more confusion, and more instances like this.
To take it a step further, we are now moving into the information age with an alarming pace. All societal transformations of this magnitude (the industrial revolution, for example) have taken hundreds (if not thousands) of years to occur. This one will happen primarily in a few decades. One generation.
There will be growing pains.
Some of us scream about the deterioration of "society." From the old perspective, yes, many of our tried and true institutions (ways of ordering the chaos around us) are crumbling. This is because they are no longer relevant to modern day life. They must be abandoned if real progress (wtf does that mean?) is to occur.
Open your eyes
Anthony DiMarco
"I think any time you expose vulnerabilities it's a good thing." -Attorney General Janet Reno
Though the article stresses that it was the location of the server that was the deciding factor in this case, there is more to this case than that. The article stated:
"...jurisdiction was justified for three reasons: Bochan lived in Virginia; the harm, if any, would be suffered there; and the La Fontaines knew Bochan was a Virginia citizen, despite their contentions to the contrary. As a result, they could "reasonably foresee" being sued in Virginia, Judge Ellis said. "
This paragraph shows the application of standerd personal jurisdiction doctrine. Take the server away and even the fact that this happened on the Internet and you get the same result as in this case. If you commit an act that causes harm in another state you can be brought to trial there.
This ruling is nothing new. It's just the straightforward application of an _existing_ legal rule relating to intentional torts committed in interstate commerce. Some years ago, a Florida publisher published defamatory statements about a California resident in a magazine distributed in interstate commerce. The Californian haled the Florida company into a California court on the defamation suit. This case goes back at least twenty years (1972, if I am not mistaken).
Nor is this the first time it's happened on the Internet. I personally know of a woman from Minnesota who was sued by someone in Alabama (in Alabama state court) over something defamatory she put on the web. She failed to appear in Alabama and lost a default judgment and is now fighting (and losing) to keep the plaintiff from executing the judgment against her in Minnesota.
This has nothing to do with "freedom of speech" or anything like that. It's not even news (except perhaps to the woefully uneducated American public that pays no attention to legal matters 98% of the time anyway). This is a well-established legal rule, the application of which in this situation is completely unsurprising.
Now, let's correct some misconceptions:
* In theory this means that anyone who libels AOL can be sued in Virginia -- even if the libellant is without the United States. There may be problems with service of process, of course.
* "Internet Culture" (assuming there was such a thing) is utterly irrelevant.
* The theorem that the law doesn't apply to the Internet is COMPLETE AND UTTER BULLSHIT.
* AOL Subscribers probably explicitly consent to jurisdiction in Virginia as part of their subscription agreement.
* Virginia is not overriding the federal courts. They're exercising long-arm jurisdiction consistent with the constitution over an intentional tort committed against a domiliciary of the state of Virginia, consistent with well-established law. Every state has a long-arm statute of some sort; most states have one identical in effect to Virginia's. The same thing would have happened if it was Netcom or Earthlink instead of AOL except we'd be talking about a California court.
The Internet is not a haven for lawlessness. It's high time you twits figured that out.
1) If you send the guy who shares the cubicle with you an email that routes through Guam, do international long distance postage rates apply?
2) You've set foot in four states at the same time (Wyoming, Arizona, Colorado, and Utah)? Feh! I can do all fifty, AND have it legally accurate in a court of law.
3) You can tell your live-in girlfriend that having a long-distance relationship is too taxing for you.
4) You can be tax exempt for subscription fees for porn sites under "Business Expenses" because it passed through your corporate server.
5) Open up a telnet connection to a server in Cambodia, leave it active, and declare your bedroom to be an official embassy!
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