|NDCal: French Court Order
Restricting Internet Speech is Unenforceable in U.S.
|11/7. The U.S.
District Court (NDCal) issued its Order
Granting Motion for Summary Judgment [PDF] in favor of
Yahoo in the case Yahoo
v. LICRA. The case, which concerns a French
court order limiting speech on Yahoo servers located in the
U.S., involves constitutional and procedural issues raised by
Internet speech. The District Court rejected the French
defendants' procedural arguments that the U.S. District Court
should not address the merits of the motion for summary
judgment, and then held that the judgment of the French court
is rendered unenforceable in the U.S. by the First Amendment.
French Action. Last year two French groups, LICRA
obtained a judgment from a French court ordering Yahoo to
"render impossible" access by persons in France to
certain content on servers located in the United States. The
French judgment pertained to Nazi related content. The French
court issued the following order: "We order the Company
YAHOO! Inc. to take all necessary measures to dissuade and
render impossible any access via Yahoo.com to the Nazi
artifact auction service and to any other site or service that
may be construed as constituting an apology for Nazism or a
contesting of Nazi crimes."
U.S. Action. Yahoo, which is a Delaware corporation
based in San Jose, California, then filed a complaint in U.S.
District Court (NDCal)
seeking a declaratory judgment that the judgment the French
court is unenforceable in the U.S. as contrary to the U.S.
Constitution, and in particular, the First Amendment.
French Motion to Dismiss Previously Denied. The French
defendants, who asserted French jurisdiction over Yahoo in
their suit in France, asserted that the U.S. Court did not
have jurisdiction over them in Yahoo's suit against them. They
filed a Rule 12(b)(2) motion to dismiss the complaint in the
U.S. District Court for lack of personal jurisdiction. The
District Court issued its Order
Denying Motion to Dismiss [PDF] on June 7. It held that it
had personal jurisdiction over the defendants under
California's long arm jurisdiction statute, which permits a
court to exercise jurisdiction to the full extent authorized
by the Due Process Clause of the Constitution. The Court
stated that the purposeful availment requirement was met
because defendants had written a demand letter to Yahoo in
California, used U.S. Marshals in California to serve papers
on Yahoo, and sought an order of the French court directing
Yahoo's operations in California.
Substantial Controversy. Much of the District Court's
24 page November 7 opinion is devoted to the various
procedural objections raised by the French defendants. The
District Court wrote that "The threshold question in any
declaratory action thus is whether 'there is a substantial
controversy, between parties having adverse legal interests,
of sufficient immediacy and reality to warrant the issuance of
a declaratory judgment.' " (Citation omitted.) The French
defendants argued that the actual controversy requirement was
not met in this case. They argued that Yahoo could yet appeal
in French court, that the French court had not yet fixed a
penalty, and that Yahoo, by removing certain Nazi items from
its servers, was now in substantial compliance with the French
court order. The U.S. District Court rejected these arguments.
The French defendants also argued that the District Court
should decline to rule because of the abstention doctrine. The
argued that Yahoo was forum shopping, and trying to relitigate
an issue already decided by the French court. The District
Court rejected this argument. It stated that "the French
court has determined that Yahoo's auction site and website
hosting on Yahoo.com violate French law." In contrast,
"the purpose of the present action is to determine
whether a United States court may enforce the French order
without running afoul of the First Amendment. The actions
involve distinct legal issues ..." Similarly, the
District Court also rejected the argument of the French
defendants that the French court order poses no real or
immediate threat to Yahoo of violation of its First Amendment
rights. It also rejected a comity argument.
Discovery. Finally, the District Court rejected the
argument that it should delay its ruling while defendants
conducted further discovery.
Underlying Issue. The Court began by stating the legal
issue before the Court: "This is not a case about the
moral acceptability of promoting the symbols or propaganda of
Nazism. ... Nor is this case about the right of France or any
other nation to determine its own law and social policies. A
basic function of a sovereign state is to determine by law
what forms of speech and conduct are acceptable within its
borders. ... What is at issue here is whether it is consistent
with the Constitution and law of the United States for another
nation to regulate speech by a United States resident within
the United States on the basis that such speech can be
accessed by Internet users in that nation."
Holding. With little further explanation, the District
Court held that the First Amendment precludes enforcement
within the United States of a foreign court order intended to
regulate the content of speech over the Internet.
|DOJ Restricts Deliveries of
HSR Premerger Filings
|11/7. The U.S Department of Justice's Antitrust Division
announced interim restrictions on the delivery of Hart Scott
Rodino Premerger Filings. The DOJ announced that it will only
accept documents hand delivered by employees of law firms or
in house counsel. It cited security as the reason. See, notice.
|People and Appointments
|11/8. President Bush announced three nominations for the U.S. Court of Appeals for
the Sixth Circuit: David McKeague, Susan Neilson,
and Henry Saad. See, White
House release. McKeague is a U.S. District Court Judge for
the Western District of Michigan in Lansing. Nelson is a Judge
on the 3rd Circuit Court, State of Michigan, in Detroit. Saad
is a Judge on the Michigan Court of Appeals.
|FCC to Phase Out CMRS
|11/8. The Federal
Communications Commission (FCC) announced that it adopted
a Report and Order eliminating the 45 megahertz (MHz) cap on
Commercial Mobile Radio Services (CMRS) spectrum aggregation.
The cap is raised to 55 MHz immediately. The cap will be
eliminated altogether on January 1, 2003. See, FCC
release. (WT Docket No. 01-14.)
The FCC also announced that it is immediately eliminating the
cellular cross interest rule in Metropolitan Statistical Areas
(MSAs), but retaining the rule in Rural Service Areas (RSAs).
The FCC's spectrum cap rule prevents any entity from holding
an attributable interest in a total of more than 45 MHz of
licensed cellular, broadband personal communications service,
and specialized mobile radio spectrum regulated as CMRS in any
geographic area; however, there is currently an exception in
areas designated by the FCC as RSA's, where licensees may hold
attributable interests in a total of no more than 55
Michael Copps released a statement
dissenting from the decision of the majority. He wrote that
"We have not adequately analyzed spectrum exhaustion
scenarios in the short or near term. We have not adequately
evaluated the prospects for economic concentration and the
potential for wireless monopolies. We have not performed the
extensive public interest evaluation required by statute and
expected by Congress and which would include impacts upon
small business, rural consumers, ownership diversity,
efficient use of the spectrum and the encouragement of new
technologies. Instead we simply remove the cap."
Rep. Cliff Stearns
(R-FL), the Vice Chairman of the House Commerce Committee's
Telecommunications Subcommittee, responded to the FCC's
announcement. He stated in a release
that "The current 45 MHz spectrum cap hampers innovation
and competition in the wireless industry and should be
repealed. Raising the cap to 55 MHz is a tentative step in the
right direction, but the cap should be repealed now instead of
waiting until 2003."
Rep. Stearns is also the sponsor of HR
2535, the Spectrum Resource Assurance Act. It would amend 47 U.S.C.
332(c) to provide that "The Commission shall not
impose any limitation on spectrum aggregation for licenses for
commercial mobile radio services."
Rep. Stearns stated that "The cap also results in the
continued lag of U.S. companies behind Europe and Japan in
deploying Third Generation wireless technologies. I will
continue to push for repeal of the cap so industry can meet
the growing demands for existing services and can deploy
advanced services." Third Generation (3G) wireless
services are intended to bring broadband wireless access to
In contrast, on November 6, Rep. Ed Markey (D-MA),
Sen. Ernest Hollings
(D-SC), and Sen. Daniel
Inouye (D-HI) wrote a letter
[PDF] to Chairman Powell stating that "we see no pressing
need to make changes to the spectrum cap." They also
addressed 3G. They wrote that "some have argued that the
cap needs to be eliminated or adjusted upwards so that
companies can consolidate their spectrum resources within
markets in order to launch new services, such as so-called
"3G" services. As you know, in the vast majority of
markets wireless companies are not currently constrained by
the spectrum cap. Some companies are also offering advanced
wireless services using their existing spectrum. Addressing
additional spectrum needs for 3G or other services however, is
a separate policy question from proposals regarding a rule
ensuring competition in the marketplace. If additional
spectrum is made available for auction or licensing, the cap
can be adjusted without adversely affecting the current number
of competitors in the marketplace."
Tom Wheeler, P/CEO of the Cellular
Telecommunications & Internet Association (CTIA)
praised the decision. He said in a prepared
statement that "The decision to eliminate the
spectrum cap is an important down payment on overcoming the
current spectrum shortage. Unfortunately, the decision delays
that down payment by thirteen months. We salute the Bush
Administration and the over a dozen key members of Congress
who urged the FCC to eliminate the cap immediately."
|FCC Announces NPRM on Local
|11/8. The FCC announced
that it adopted a Notice of Proposed Rulemaking (NPRM) to
establish a core set of national performance measurements and
standards for incumbent local exchange carriers (ILECs). See, FCC
release and separate statements of Chairman
Powell and Commission
Copps. (CC Docket Nos. 98-56, 98-147, 98-147, 96-98, and
FCC Chairman Michael Powell stated that "With the
adoption of this important Notice, the Commission begins a
second phase in its implementation of the local competition
provisions of the Telecommunications of 1996."
See also, reaction from the USTA, CompTel,
|11/8. The Software &
Information Industry Association (SIIA) released a paper
[PDF] titled "Stretching the Fabric of the Net: Examining
the Present and Potential of Peer to Peer Technologies."
Adam Ayer and Anne Griffith are the primary authors.
11/8. The Senate
Judiciary Committee postponed until next week its
consideration of S
986, a bill to allow media coverage of court proceedings.
This bill had been scheduled for mark up on November 8.
|SEC Chairman Pitt Addresses
|11/8. Securities and Exchange
Commission (SEC) Chairman Harvey Pitt gave a speech
in New York City to the PLI 33rd Annual Institute on
Securities Regulation in which he addressed, among other
things, corporate disclosures via electronic communications.
He discussed "the order the Commission issued in
connection with a proposed variable annuity offering by
American Life. The concept proposed by American Life was that
investors could only subscribe to the new investment via the
Internet. Before being allowed to subscribe, they must agree
to take access to corporate disclosures only via the Internet,
in return for which the cost savings of eliminating paper are
passed on to investors. In accelerating the effectiveness of
this registration statement, we recognized that the passage of
a new law, commonly referred to as the E-Sign legislation,
necessitates our taking a fresh look at our prior guidance
concerning the Internet. We are anxious to undertake and
complete this fresh look very quickly. As electronic
communications become easier and more widespread, our
regulations must keep apace with investor demands."
Chairman Pitt also addressed a future CTO position at the SEC.
He stated that "The Commission also has much to do to
join the current millennium. Among other things, we are
seeking to create a new position of Chief Technology Officer,
who can assist us, and those subject to our regulations, in
making use of technology to achieve greater clarity for, and
accessibility to, corporate information."
|Friday, Nov 9
|8:30 AM - 1:30 PM. The American
Enterprise Institute (AEI) and the Brookings Institute will
jointly host a conference titled "Practical Steps to
Spectrum Markets". The price to attend is $5 (waived for
AEI supporters, government employees, and media). See, online registration
page. Location: Wohlstetter Conference Center, Twelfth
Floor, 1150 17th Street, NW, Washington DC. The agenda is a
• 8:30 AM. Breakfast address by Sen. Ron Wyden (D-OR).
• 9:00 AM. Panel I: "Enabling Bandwidth
Markets". The speakers will be Thomas Hazlett (AEI),
Gregory Rosston (Stanford), Michelle Farquhar (Hogan &
Hartson), Evan Kwerel (FCC), and John Williams (FCC).
• 10:45 AM. Panel II: "Unblocking Spectrum
Allocation". The speakers will be Mike Chartier (Intel),
Joe Mitola (Mitre), DeWayne Hendricks (Dandin Group), and
Giancarlo Ibarguen (Francisco Marroquin University).
• 12:15 PM. Luncheon address by Nancy Victory (NTIA
10:00 AM. The House Government Reform Committee's Government
Efficiency, Financial Management, and Intergovernmental
Relations Subcommittee will hold a hearing titled Have
Federal Agencies Failed to Protect Their Computer Systems?
Room 2154, Rayburn Building.
|Saturday, Nov 10
|8:00 AM. There will be a press conference titled
Deliberation, Democracy & the Internet. For more
information, contact Lorie Slass, Annenberg Public Policy
Center of the University of Pennsylvania, 202-879-6701.
Location: Murrow Room, National
Press Club, 529 14th St. NW, 13th Floor, Washington DC.
|Monday, Nov 12
Day one of a three day meeting of the ICANN titled "Security
and Stability of the Internet Naming and Address Allocation
Systems". Location: Marina Beach Marriott,
Marina del Rey, California.
10:00 AM. There will be a press conference titled "U.S.
Internet Council State of the Internet Report". For more
information, contact Mark Rhoades at 703 536-5770. Location:
Lisagor Room, National Press
Club, 529 14th St. NW, 13th Floor, Washington DC.
|Tuesday, Nov 13
|Day two of a three day meeting of the ICANN
titled "Security and Stability of the Internet Naming and
Address Allocation Systems". Location: Marina Beach Marriott,
Marina del Rey, California.
Deadline to submit applications to the Rural Utilities Service
(RUS) for grants to finance the acquisition, construction and
installation of equipment, facilities and systems to provide
dial-up Internet access services in rural areas. This is a $2
Million pilot program to encourage entities to provide
Internet service in areas where it is unavailable. See, notice
in Federal Register, August 15, 2001, Vol. 66, No. 158, at
Pages 42836 - 42838.
10:00 AM. The Senate
Judiciary Committee will hold a hearing to examine
homeland defense issues, focusing on sharing information with
local law enforcement. Location: Room 226, Dirksen Building.
|Starting on January 1, 2002, the Tech Law Journal Daily
E-Mail Alert will be a subscription based service. All persons
who have already subscribed, or who subscribe before December
31, 2001, will be kept on the subscription list until December
31, 2001. The basic rate for a subscription is $250 per year.
However, there are discounts for entities with multiple
subscribers. Free one month trial subscriptions are available.
Also, free subscriptions are available for law students,
journalists, elected officials, and employees of the Congress,
courts, executive branch. The TLJ web site will remain a free
access web site. No hyperlinks will be broken. However, copies
of the TLJ Daily E-Mail Alert and news items will not be
published in the web site until one month after writing. See, subscription
|About Tech Law Journal
|Tech Law Journal is a free access web site and e-mail alert
that provides news, records, and analysis of legislation,
litigation, and regulation affecting the computer and Internet
industry. This e-mail service is offered free of charge to
anyone who requests it. Just provide TLJ an e-mail address.
Number of subscribers: 2,244.
Contact: 202-364-8882; E-mail.
P.O. Box 4851, Washington DC, 20008.
Copyright 1998 - 2001 David Carney, dba Tech Law Journal. All