Jurisdiction and the Information Superhighway, Continued

In allowing the lawsuit to go to trial, Judge Hamilton also dismissed the company's claim that California anti-bias policies did not apply because Adoption.com is based in Tempe, Ariz., where state laws don't bar discrimination on the basis of sexual orientation or marital status.

Back in 1995, did a legal paper Jurisdiction and the Information Superhighway, examining the scope of law on the Internet - guess what, its still not sorted out. Read more ...

Adoption.com attorney Glen Lavy said he was surprised by the judge indicating California law could decide "what an Arizona company publishes on its Web site that is based in Arizona, that someone from California cannot visit without asking for the information from an Arizona server."

The earliest example of this was porn from a California server viewed from Tennessee, where there were very different rules governing such content. What makes this an interesting case is that Adoption.com's lock on this niche market is being used as a way to pull it out of a narrowly defined jurisdiction, and pull it into the greater context addressing non discrimination.

The judge seems to say that you can't have it both ways - live in a restricted jurisdiction, but have a global business at the same time - as if the whole world works by Arizona rules.

With the "Amateur Action" case, the issue was that client jurisdiction couldn't restrict California content, since by use of the net one was intentionally "traveling to California" to obtain the materials, thus the Tennessee laws didn't apply. Here, Adoption.com expects that by its terms of use, you first agree to be bound by Arizona laws, and then can make use of the site. Any first-year law student knows that you can't bound jurisdiction by contract, anymore than you can define up to be down and have that be effective. This is confusing the contractual accepting of authority of dispute as Arizona courts, who might then need to decide which jurisdiction to be applied, with that of actual statue as well.

I think that Internet law is about to be redefined yet again. I've written before how these decisions were made in light of the technical inability to manage thousands of different jurisdictions back then. But now, given that firms like the New York Times have produced same content differently for jurisdictions, the courts may choose to force a more involved approach onto Web businesses than before.