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Stand Your Ground Laws

0 comments By . April 11th, 2012

(See also this Issue Backgrounder for bibliographic references.)

I had not heard the term “stand your ground” since I was a youngster. The phase sounds like something my parents would have said to me as a child when I felt another child was giving me a hard time. But as the past few weeks have demonstrated, stand your ground is not child’s play. In the form of  state law, it can have random and deadly consequences.

For weeks now, television hosts, religious and civil rights leaders, students, and other concerned citizens have protested the absence of an arrest in the Trayvon Martin/George Zimmerman case. Florida’s stand your ground law (Florida Statute 776.013(3)) is the reason given to explain the police handling of the shooting and the crime scene. The statute went into effect in 2005 and reports of  justifiable homicides nearly tripled, according to the Florida Department of Law Enforcement. A 2010 article on Tampabay.com summarized the changes from the former law:

“The old law gave you the right to protect yourself with deadly force inside your home. The 2005 law gives you the right to protect yourself in a part, outside a Chili’s, on a highway — just about anywhere. . . You need only to ‘reasonably believe’ that pulling the trigger or plunging the knife or swinging the bat is necessary to stop the other person from hurting you.”

Florida was the first of more than 20 states to adopt such laws. A University of Miami Law Review (63 U. Miami L. Rev. 395 (2008-09) [Hein Online] article by Zachary L. Weaver, discusses how the law was developed and implemented. Weaver’s article, “Florida’s ‘Stand Your Ground’ Law: The Actual Effect and the Need for Clarification,” lists the states that had by then passed similar legislation: Alabama, Alaska, Arizona, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, and Texas.

Within weeks of Florida’s deadly event, Tulsa, Oklahoma was terrorized by two men allegedly motivated by the killing of the father of one of the men in a stand your ground confrontation.

These shootings also turn out to have a link to “stand your ground” self-defense laws. Two years ago, Carl England, the father of now 19-year-old Jake England, was killed after attacking another man he accused of breaking into his daughter’s apartment. His killer was not charged for the shooting. Jake England witnessed the fight and shooting death of his father. On Friday, April 6, Jake England and another man began a shooting spree that would end two days later with three men dead and two wounded. The shootings may have been racially-motivated (England’s father was shot by a black man, and the victims of his spree were black), but the individual victims are believed to have been targeted randomly within a predominantly-black neighborhood. Jake England and his friend have confessed to the shootings and murders.

Tracking the Affordable Care Act in the Supreme Court

0 comments By . March 21st, 2012

For three days beginning Monday, March 26, six hours of opposing arguments on the historic Patient Protection and Affordable Care Act will be heard by the justices on the U. S. Supreme Court.  There are a number of options for reading the briefs and listening to the arguments in the days to come.

Supreme Court of the United States Website –  The court has provided links to the the case filings for six cases, including the three petitions involved in the Supreme Court case.  The three cases at issue before the Court are National Federation of Independent Business, et al., v. Kathleen Sebelius, Secretary of Health and Human Services, et al. (11-393), United States Department of Health and Human Services, et al., v. Florida, et al. (11-398) and, Florida, et al., v. Department of Health and Human Services, et al. (11-400).

Although other websites provide access to the filings in the cases, only the Supreme Court  will have same day audio recordings available on its website.   The Court has announced that audio will be posted as soon is it is available following the conclusion of each session.  Transcrips of the arguments will be made available at the same time.  Morning session recordings and transcripts should be available no later than 2pm. and the afternoon session on March 28 should be available no later than 4pm.

American Bar Association Preview of U.S. Supreme Court Cases:  Comprehensive Coverage of the U.S. Supreme Court –  The ABA  has gathered merit and  amicus briefs for both sides.  They consolidate Docket Numbers 11-393 & 11-400 under the question of severability.  The ABA summarizes, “the question presented is whether the Affordable Care Act must be invalidated in its entirety because it is non-severable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.”  Docket Number 11-398, Department of Health and Human Services v. Florida,  is the question of the minimum coverage provision.  The question here is:  “whether Congress had the power under Article 1 of the Constitution to enact the minimum coverage provision.”

Health Care Primary Sources:  Statutes, Court Opinions & Briefs:  Health Care at the High Court –  Like the American Bar Association, this Bloomberg Law website has links to all the briefs filed at the Supreme Court.  It also has links to the statutes and lower court decisions.

SCOTUSblog:  Supreme Court of the United States Blog – Another Bloomberg Law product, SCOTUSblog provides coverage of individual cases, a daily aggregation of Supreme Court writings, archives and analytic features to a broad readership.  One feature of special note is a February 16, 2012 live blog of a health care argument briefing.  Panelists are Paul Clement, counsel to the plaintiff States and, Michael Carvin, counsel to plaintiff National Federation of Independent Business.  On the opposite side are Neal Katyal, former Acting Solicitor General and Akhil Reed Amar, professor Yale Law School.

 

 

 

More on PIPA/SOPA debates

0 comments By . January 19th, 2012

Main post here.

  • The New York Times uses one of its Room for Debate features to collect several short essays for and against the legislation.
  • Jarold Lanier, in a NY Times Op-Ed, criticises the “digital orthodoxy” behind yesterday’s anti-SOPA actions.
  • Matthew Yglesias, writing in Slate, questions the overall emphasis on zero-tolerance for copyright infringement, and argues that some level of infringement is socially useful. I was interested in his arguments about dead-weight loss, and my own intuition is that he is correct that the economically optimal level of infringement is not zero. I’d like to find and may seek (though not this week!) more extended, academic, explorations of that argument.
  • Ars Technica devoted yesterday to publishing a large number of opinion and reporting pieces, many thoughtful, about (against) SOPA/PIPA. This post suggesting a different path-forward for anti-piracylegislation post-SOPA is particularly interesting.
  • Julian Sanchez, on the CATO Institute blog, questions the economic claims and arguments of the copyright industries.
  • John Gapper in the Financial Times calls for a halt to “the Silicon Valley histrionics.”

    This piece does make the little-observed point, by way of argument that SOPA-type efforts wouldn’t “break the Internet,” that Britain attempts to technologically block child pornography via ISP de-listing, in a mechanism not unrelated to the DNS-blocking that was so controversial in SOPA. On the other hand, as Milton Muller recounts in the second chapter of the book Networks and States, that British effort was not without technical glitches and collateral damage (including to Wikipedia).

  • The MPAA’s Issues blog has several responses.

SOPA, PIPA, Anti-Piracy Legislation: Issue Backgrounder

3 comments By . January 18th, 2012
  1. Politics
  2. Bill Sources and Tracking
  3. Issue Analyses
    1. Neutral
    2. In Favor
    3. In Opposition
  4. Scholarly (Law Journal) Articles
  5. Selected Other Items

The English-language Wikipedia is ‘dark’ today, in protest against a set of bills (nick-named SOPA in the House and PIPA in the Senate). These bills are intended to create new tools to address both the online commerce in copyright-infringing works and of counterfeit goods (i.e. both Copyright Act and Lanham Act violations). In particular, they aim to target the use of foreign-registered websites for “piracy,” although opponents point to several ways in which domestic websites can also be affected.

Along with Wikipedia, other websites (such as the “social news site” Reddit) are down for the day with a place-holder page urging visitors to protest the two bills. Google’s search site remains live today, but the usual “Google doodle” version of its logo is replaced by a blackout stamp “censoring” the logo. Normally clicking on a “Google doodle” performs a Google search for information about the subject or topic of the doodle. Today, it instead links to a Google-hosted advocacy page in opposition to SOPA and PIPA. Google has also taken the unusual step of slowing the Googlebot, so that sites that have gone dark today in protest of the two bills will see less negative impact on their search rankings.

While much of the technology industry is now engaging is such an unusual protest of the proposed legislation, the bills had already advanced fairly far in the legislative process with the backing of “content industry” associations (the MPAA, ASCAP, AAP, etc.), but also of a wide array of business and labor organizations motivated by the economic importance of U.S. intellectual property and a perceived need for stronger anti-piracy tools—particularly tools capable of reaching foreign sites.

As a result of the uproar in the Internet community, some news reports as of today indicate that DNS blocking may be removed from the bills.

(We provided a “quick guide” to SOPA in December, but given the rapid movement on this legislation, this additional “backgrounder” seems to be in order.)

Politics

While many contested issues have a clear partisan alignment, this graphic from ProPublica makes it very easy to visualize just how bipartisan both the support and the opposition to these bills is within Congress.

Bill Sources and Tracking

SOPA, 112 H.R.3261, the Stop Online Piracy Act is the House version of the legislation. As usual, Thomas is an excellent tool for tracking the legislation.

PIPA, 112 S. 968, the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011, is the Senate version of the legislation. The Senate legislation was reported out of the Committee on the Judiciary. S. Rep. No. 112-39 (2011), recommending passage.

For CWRU affiliates, Proquest Congressional (subscription electronic resource) is likely the best source to access the text of the several hearings related to the two bills in this Congress. Selecting the “Search by Number” tab and entering either the House or Senate bill number will display links to the hearings in each house of Congress, respectively.

S. 3804, the Combating Online Infringement and Counterfeits Act was the version of the legislation introduced in the previous (111th) Congress. It was also reported out of committee. S. Rep. No. 111-373.

A handful of Senate opponents of PIPA have introduced S. 2029, Online Protection and Enforcement of Digital Trade Act, to demonstrate an alternative approach.

Issue Analyses

Neutral

  • Information on S. 968: PIPA, at OpenCongress.org

    Includes a (very) short summary, lists supporting and opposing companies and organizations, and gathers links to news coverage. Note that this is neutral in content, but Opencongress.org, itself, is an opponent of SOPA/PIPA.

  • Declan McCollagh, How SOPA Would Affect You: FAQ, CNET.com.

In Favor

In Opposition

Scholarly (Law Journal) Articles

Selected Other Items

Much of the most fervent opposition has been related to the provisions of the bills that would create a procedure to compell removal of targeted websites from the databases of DNS and search-engine operators within the United States. Opponents argue that this would be over-broad, and impose major compliance burdens on linking sites, search engines, and any websites hosting user-created content. Opponents have have also argued the likelihood of unintended technical consequences that would “break the Internet.”

It is at the very least interesting to note that this is a move that might seem to cut against the logic of U.S. efforts (via the structure of ICANN, discussed in a previous quick guide) to keep foreign governments or transnational organizations away from political influence on at least the global level of DNS management. (Though other nations can and do manipulate DNS within their territorial jurisdiction and for their domestic users.)

ICANN and New Top-Level Domains

0 comments By . January 18th, 2012
  1. What ICANN does
  2. Documents
  3. News Accounts of the expanded gTLD launch
  4. Background
    1. Background Books on ICANN and DNS
    2. Background Articles on ICANN and DNS
  5. New gTLDs and Domain-Name/Trademark Issues
  6. ICANN Materials
  7. DNS Control and Intellectual Property

ICANN, the Internet Corporation for Assigned Names and Numbers has begun to accept applications to operate new “generic Top-Level Domains.” A “top-level” domain amounts to the right-most portion of a domain name, after the final dot. Venerable examples of “generic” top-level domains include .com, .edu, .net, and .org. Applicants are to propose new TLDs while applying to be the entity that will maintain a registry of that nominated domain. Unlike previous additions of new TLDs, the new policy does not merely envision a specific one-time expansion of the namespace, but instead creates a policy mechanism for continued, possibly rapid, expansion of the number of TLDs in use.

It is expected that hundreds of new generic Top-Level Domains will be added to the familiar batch we’ve used since the emergence of popular Internet applications. This is a major development in the system of non-state, non-national, governance centered around ICANN. While ICANN has concluded that the expansion of the available “name space” is a progressive and pro-competitive move for the Internet, the action is controversial, with major IP rights-holders and some consumer groups expressing particular qualms. At times, ICANN has also been in tension with elements in the U.S. government over its plans to extend the range of gTLDs, exposing the complicated issues around the degree of control U.S. policy-makers can or should exercise over global Internet governance.

The new generic TLDs will not only be more numerous, but will allow for domains in non-Latin language characters.

The most general portion of a domain name is the part on the right—so in a hierarchical sense you read them “from right to left.” To simplify somewhat, in resolving a domain name to a unique, machine-understood, IP address, a domain-name server first looks at the string to the right of the last dot (but before any forward slash). If it is, say, “.edu”, the name query is sent on to “name servers” that contain the list of registered domains within “.edu” and IP addresses of name-servers for those sub-domains. If the string of text back to the next period is “.case,” the “.edu” registry will point the inquiry to name servers associated with the owner of “case.edu” and that contain names and corresponding addresses within “case.edu.” You can see that, absent outside (e.g. legal) intervention, this process effectively empowers the registry operator of a TLD, such as “.edu,” to decide who is entitled to the “case.edu” URL. And that ICANN, who operates the “name root,” assigns the registry operator for each of the TLDs.

At this point domain-name resolution is likely complete, and the Internet client (in this case your web browser) will now actually “navigate to” the IP address that it determined, through the above process, corresponds to an address like “lawlibrary.case.edu.” While the system of registries apportions responsibility for maintaining the list of sub-domains at each level (and the TLD registry operators are charged with maintaining a set of authoritative name servers for their domains), the actual tables are propagated over time through a wider network of name servers, including those of individual ISPs (and are even cached locally), so that the entire recursive name-resolution process need not be completed every time you re-visit a website you frequent (like lawlibrary.case.edu!).

Text after a forward-slash character, by contrast, is not involved in the process of domain-name resolution at all. Rather than sub-domains, locations like “/blog” in “lawlibrary.case.edu/blog” are sub-directories or sub-locations within the purview of the specific “host” represented by “lawlibrary.case.edu.” Those don’t involve translation to an IP address, and the direction of traffic to these sub-locations is handled by, e.g., the actual web-servers at “lawlibrary.case.edu.”

More on DNS for Non-Experts

What ICANN does

ICANN is the body that governs Internet name-spaces—both the numeric IP addresses that uniquely identify all “hosts” on the network and the mapping of human-readable domain names to that system of network addresses. ICANN is a not-for-profit corporation formed only in 1998, and operates as the top-level governing body for coordination of names and addresses on the Internet.

The status of ICANN is complicated. It is a formally a California non-profit corporation, but seeks to build a global stake-holder network and operate as a global institution. Its functions can only be described as “governance,” yet it is a private-sector entity and is not a trans-national or multi-national organization. ICANN also represents, simultaneously, the deliberate devolution by the United States of the routine authority over Internet naming and the retention of at least potential ultimate control—the domain name system ultimately descended from systems derived under U.S. Defense Department contracts, and through a series of documented understandings with ICANN the U.S. government seems to have ceded vast amounts of control while retaining some unique leverage. Indeed, ICANN may be seen as in part the product of U.S. efforts to disentangle itself from the actual running of the Internet (and the politics involved in that) while avoiding the capture of Internet governance by an international body that would potentially share control with other governments.

While the management of country-code domains are assigned by ICANN to a registry and registrar selected by the government of a sovereign nation, the management of the ‘generic’ top-level domains can be assigned by ICANN (technically through its control of IANA) to a wider range of for-profit or non-profit operators who become responsible for the assignment and coordination of names within the “registry” for that top-level domain. These are alternately referred to as registry operators or NICs (Network Information Centers). Verisign, for instance, has long operated the registry for the .com and .net domains (it acquired Network Solutions, the early (pre-ICANN) operator of these domains, in 2000, and has retained Network Solution’s NIC business). Registrars, as opposed to the registry operators, are entities authorized to register a domain within one or more registries. Registrars must be accredited both by ICANN and by the registry operators for the top-level domains for which they operate. Major registrars who operate within multiple TLDs include GoDaddy, Network Solutions (the business that was sold off by Verisign after the 2000 acquisition), Register.com, and many others. Registrars (many of which are also in the separate web-hosting business) are the businesses with which an end-user in need of a domain for a new website will work.

The following lists point to selected resources of specific interest in light of new gTLDs and ICANN’s status to implement them. This is not a full annotated bibliography of work related to domain name regulation. (Though one of those is in the works.)

Documents

  • Letter to ICANN, Lawrence E. Strickling, U.S. Dept. of Commerce, Assistant Secretary for Communications and Information

    While disclaiming any effort to interfrere with the results of ICANN’s “six-year international multistakeholder process,” the letter urges ICANN to consider additional measures, including to minimize the need for defensive registrations.

    • News Accounts of the expanded gTLD launch

    • Bloomberg story focuses on the potential windfall for registrars.
    • Reuters reports generally on the expansion and the industry and law enforcement criticisms of it.
    • NPR stories give a solid general account of the controversy (especially concerns about increased use of defensive registrations) and a focus on the contested status of ICANN in global Internet governance (including a discussion of the upcoming International Telecommunication Union meeting).
    • The second NPR story, above, is criticized by Milton Mueller in a posting on the blog of the Internet Governance Project. In particular, Mueller argues that the NPR story badly mis-characterizes the ITU and the history of foreign and trans-national responses to the U.S. role in Internet governance.

    Background

    Background Books on ICANN and DNS

    • Mueller, Milton, Ruling the Root: Internet Governance and the Taming of Cyberspace, Cambridge, Mass: MIT Press, 2002
      TK5105.875.I57M845 2002

      The classic book-length history of the management of the system of names and number on the Internet, focused on a deep analysis of the process that gave rise to ICANN in the late 1990s.

    • Goldsmith, Jack L. and Tim Wu, Who Controls the Internet? Illusions of a Borderless World, New York: Oxford University Press, 2006.
      HM 851 .G65 2006

      Relatively little of this book is devoted to name-space issues, but its third chapter is a fascinating account of formative conflicts in early (pre-ICANN) management of Internet domain name management.

    • Mathiason, John, Internet Governance: The New Frontier of Global Institutions, London: Routledge, 2009
      TK5105.875.I57 M3678 2009

      Chapters 4 and 6, particularly, cover name-space issues (the formation of ICANN and the current operation of ICANN, respectively).

    • Mueller, Milton L., Networks and States: The Global Politics of Internet Governance, Cambridge: MIT Press, 2010
      Recent Purchase: Not Yet Cataloged.

    Background Articles on ICANN and DNS

    • Susan Crawford, The ICANN Experiment, 12 Cardozo J. of Intl. & Comp. Law 409 (2004).
    • A. Michael Froomkin, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L. J. 17 (2000).

      Includes an account of how the U.S. government came to possess the original authority over the name root in the first place, and proceeds to argue that the attempt to vest that governance role in ICANN is a delegation of rule-making authority that violates both the Administrative Procedure Act and the Constitution.

    • The Future of Internet Governance (Panel Discussion), 101 Am. Soc’y Int’l L. Proc. 201 (2007).

      Discussion, moderated by Tim Wu, between ICANN board member Esther Dyson, law professor Michael Froomkin, David Gross of the U.S. Dept. of State, and Miriam Sapiro of Summit Strategies Internation.

    • A. Michael Froomkin, Almost Free: An Analysis of ICANN’s ‘Affirmation of Commitments,’ 9 J. On Telecomm. & High Tech L. 187 (2011).

      An analysis of the 2009 revision of the arrangement between ICANN and the U.S. Department of Commerce, which aimed to further the transition of control of the DNS into the ‘privatized’ hands of ICANN. Includes a post-script addressing the recent conflict between ICANN and the Dept. of Commerce over the increase in gTLDs.

    New gTLDs and Domain-Name/Trademark Issues

    • J.D. Lipton, Bad Faith in Cyberspace: Grounding Domain Name Theory in Trademark, Property, and Restitution, 23 Harvard J. of Law & Tech. 447 (2010).

      Not strictly focused on the forthcoming namespace expansion, this is the one of the author’s several works on domain name issues recent enough to take full account of the gTLD expansion.

    • Christine Haight Fairley, Convergence and Incongruence: Trademark Law and ICANN’s Introduction of New Generic Top-Level Domains, 25 J. Marshall J. Computer & Info. L., 626 (2009)

      Focuses on (and critiques) those recommendations in the draft final report of the Generic Names Supporting Organization (ICANNs sub-group for policy work on the gTLDs) that adopt trademark-law concepts. In particular, Prof. Fairley argues that gTLDs are very different, for trademark-related purposes, than second-level domains.

    • Brian W. Borchert (student note), Imminent Domain Name: The Technological Land-Grab and ICANN’s Lifting of Domain Name Restrictions, 45 Val. U.L. Rev. 505 (2010-2011)

      Discusses the approaches to abusive domain name registration, the likely impact of ICANN’s policy of expansion of the domain name space.

    • Dennis S. Prahl and Eric Null, The New Generic Top-Level Domain Program: A New Era of Risk for Trademark Owners and the Internet, 101 Trademark Reporter 1757 (2011).

      Practical elucidation of the process that new gTLD applicants will have to navigate, and of the available options to oppose particular new gTLDs. Also includes a detailed account of the organized opposition (e.g. by the Association of National Advertisers) to the new gTLDs.

    • Look for a forthcoming post to include a bibliography and guide to the regime for managing domain name disputes and contested domain-names, for trademark and other reasons

    ICANN Materials

    ICANN web portal for new gTLDs, including materials for potential registry applicants: http://newgtlds.icann.org/en/

    DNS Control and Intellectual Property

    Look for a forthcoming post on the SOPA and PIPA anti-piracy legislation to include a short list of articles and commentary on the implications of DNS management for control of copyright and other intellectual property (beyond the trademark issues mentioned above).

    First American Financial v. Edwards heard in Supreme Court

    0 comments By . November 29th, 2011

    Following up on last week’s post, a Cleveland housing case, First American Financial v. Edwards, 10-708, was heard in the U.S. Supreme Court yesterday. Cleveland Plain Dealer’s reporter, Sabrina Eaton, briefly stated the significance of the case: “A dispute over a Cleveland homeowner’s $455.53 title insurance purchase went before the U.S. Supreme Court today in a case that could set nationwide consumer law precedents.” Ms. Edwards is suing her title insurer, First American Financial Corp., because she says it paid her title agency to steer business its way in an illegal kickback scheme. First American Financial claims that she wasn’t hurt by the deal and has no complaints about the insurance’s price or quality.

    Although attorney Jeffrey Lamken argued Edwards’ case before the Supreme Court, Edwards was originally represented by Attorney Edward G. Kramer, Director and Chief Counsel of Cleveland’s Fair Housing Law Clinic. Kramer is a 1975 graduate of Case Western Reserve University School of Law and an Adjunct Professor of Law at Cleveland-Marshall College of Law. He is also the co-founder and director of The Housing Advocates, Inc. (HAI), a not-for-profit fair housing organization established in Cleveland in 1990.  Second- and third-year law students from Cleveland State University, Case Western Reserve University, and other law schools, assist clients under the supervision of HAI attorneys.

    The U.S. Supreme Court website makes argument transcripts and docketing information available to the public.  Transcripts are posted on the same day an argument is heard by the court. The complete docket of First American Financial Corp v. Edwards, 10-708 is available online in pdf. The Supreme Court also makes audio arguments available to the public on its website at the end of each argument week.

     

     

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