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Caselaw :: No "Location" on the Internet
The Court of Appeals, however, concluded that this Court's prior community standards jurisprudence "has no applicability to the Internet and the Web" because "Web publishers are currently without the ability to control the geographic scope of the recipients of their communications." 217 F.3d, at 180. We therefore must decide whether this technological limitation renders COPA's reliance on community standards constitutionally infirm. [6]
[6] While petitioner contends that a speaker on the Web possesses the ability to communicate only with individuals located in targeted geographic communities, Brief for Petitioner 29, n. 3, he stipulated below that "[o]nce a provider posts its content on the Internet and chooses to make it available to all, it generally cannot prevent that content from entering any geographic community." App. 187. The District Court adopted this stipulation as a finding of fact, see American Civil Liberties Union v. Reno, 31 F.Supp.2d 473, 484 (E.D.Pa.1999), and petitioner points to no evidence in the record suggesting that this finding is clearly erroneous.
Ashcroft v. American Civil Liberties Union, 122 S.Ct. 1700, 1708 (2002).
Sec. B
We noted that “the ‘community standards’ criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.” Reno, 521 U.S., at 877—878. The Court of Appeals below relied heavily on this observation, stating that it was “not persuaded that the Supreme Court’s concern with respect to the ‘community standards’ criterion has been sufficiently remedied by Congress in COPA.” 217 F.3d, at 174.
The CDA’s use of community standards to identify patently offensive material, however, was particularly problematic in light of that statute’s unprecedented breadth and vagueness. The statute covered communications depicting or describing “sexual or excretory activities or organs” that were “patently offensive as measured by contemporary community standards”–a standard somewhat similar to the second prong of Miller’s three-prong test. But the CDA did not include any limiting terms resembling Miller’s additional two prongs. See Reno, 521 U.S., at 873. It neither contained any requirement that restricted material appeal to the prurient interest nor excluded from the scope of its coverage works with serious literary, artistic, political, or scientific value. Ibid. The tremendous breadth of the CDA magnified the impact caused by differences in community standards across the country, restricting Web publishers from openly displaying a significant amount of material that would have constituted protected speech in some communities across the country but run afoul of community standards in others.
COPA, by contrast, does not appear to suffer from the same flaw because it applies to significantly less material than did the CDA and defines the harmful-to-minors material restricted by the statute in a manner parallel to the Miller definition of obscenity. See supra, at 5—6, 10. To fall within the scope of COPA, works must not only “depic[t], describ[e], or represen[t], in a manner patently offensive with respect to minors,” particular sexual acts or parts of the anatomy, 8 they must also be designed to appeal to the prurient interest of minors and “taken as a whole, lac[k] serious literary, artistic, political, or scientific value for minors.” 47 U.S.C. § 231(e)(6).
These additional two restrictions substantially limit the amount of material covered by the statute. Material appeals to the prurient interest, for instance, only if it is in some sense erotic. Cf. Erznoznik v. Jacksonville, 422 U.S. 205, 213, and n. 10 (1975). 9 Of even more significance, however, is COPA’s exclusion of material with serious value for minors. See 47 U.S.C. § 231(e)(6)(C). In Reno, we emphasized that the serious value “requirement is particularly important because, unlike the ‘patently offensive’ and ‘prurient interest’ criteria, it is not judged by contemporary community standards.” 521 U.S., at 873 (citing Pope v. Illinois, 481 U.S. 497, 500 (1987)). This is because “the value of [a] work [does not] vary from community to community based on the degree of local acceptance it has won.” Id., at 500. Rather, the relevant question is “whether a reasonable person would find … value in the material, taken as a whole.” Id., at 501. Thus, the serious value requirement “allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value.” Reno, supra, at 873 (emphasis added), a safeguard nowhere present in the CDA. 10
Sec. C
When the scope of an obscenity statute’s coverage is sufficiently narrowed by a “serious value” prong and a “prurient interest” prong, we have held that requiring a speaker disseminating material to a national audience to observe varying community standards does not violate the First Amendment. In Hamling v. United States, 418 U.S. 87 (1974), this Court considered the constitutionality of applying community standards to the determination of whether material is obscene under 18 U.S.C. § 1461 the federal statute prohibiting the mailing of obscene material. Although this statute does not define obscenity, the petitioners in Hamling were tried and convicted under the definition of obscenity set forth in Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Mass.,383 U.S. 413 (1966), which included both a “prurient interest” requirement and a requirement that prohibited material be “ ‘utterly without redeeming social value.’ ” Hamling, supra, at 99 (quoting Memoirs, supra, at 418).
. . .
The Court of Appeals below concluded that Hamling and Sable “are easily distinguished from the present case” because in both of those cases “the defendants had the ability to control the distribution of controversial material with respect to the geographic communities into which they released it” whereas “Web publishers have no such comparable control.” 217 F.3d, at 175—176. In neither Hamling nor Sable, however, was the speaker’s ability to target the release of material into particular geographic areas integral to the legal analysis. In Hamling, the ability to limit the distribution of material to targeted communities was not mentioned, let alone relied upon, 12 and in Sable, a dial-a-porn operator’s ability to screen incoming calls from particular areas was referenced only as a supplemental point, see 492 U.S., at 125. 13 In the latter case, this Court made no effort to evaluate how burdensome it would have been for dial-a-porn operators to tailor their messages to callers from thousands of different communities across the Nation, instead concluding that the burden of complying with the statute rested with those companies. See id., at 126.
Ashcroft v. ACLU, 535 US 564 (2002) http://supct.law.cornell.edu/supct/html/00-1293.ZO.html
“Taken together, these tools constitute a unique medium--known to its users as "cyberspace"--located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet.”
“Moreover, the "community standards" criterion as applied to the Internet means that any communication available to a nation wide audience will be judged by the standards of the community most likely to be offended by the message.”
-- Reno v. ACLU, 521 US 844 (1997)
Because the internet does not recognize geographic boundaries, it is difficult, if not impossible, for a state to regulate internet activities without "project[ing] its legislation into other States." Id. at 334, 109 S.Ct. 2491.
- American Booksellers Foundation v. Dean, 342 F.3d 96, 103 (2nd Cir. 2003).
As the Supreme Court has now explained, community standards by itself did not suffice to render COPA substantially overbroad. Justice Kennedy’s concurring opinion, however, explained that community standards, in conjunction with other provisions of the statute, might render the statute substantially overbroad. See Ashcroft, 122 S. Ct. at 1720 (Kennedy, J., concurring) (“We cannot know whether variation in community standards renders the Act substantially overbroad without first assessing the extent of the speech covered and the variations in community standards with respect to that speech.”).
As we have just discussed earlier, the expansive definitions of “material harmful to minors” and “for commercial purposes,” as well as the burdensome affirmative defenses, likely render the statute substantially overbroad. COPA’s application of “community standards” exacerbates these constitutional problems in that it further widens the spectrum of protected speech that COPA affects. As we said in our original decision, “COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state’s community standards in order to avoid criminal liability.” Reno III, 217 F.3d at 166; see also Ashcroft, 122 S. Ct. at 1719 (Kennedy, J., concurring) (“if an eavesdropper in a more traditional, rural community chooses to listen in, there is nothing the publisher can do. As a practical matter, COPA makes the eavesdropper the arbiter of propriety on the Web.”).
The “community standards” requirement, when viewed in conjunction with the other provisions of the statute — the “material harmful to minors” provision and the “commercial purposes” provisions, as well as the affirmative defenses — adds to the already wide range of speech swept in by COPA. Because the community standards inquiry further broadens the scope of speech covered by the statute, the limitations that COPA purports to place on its own reach are that much more ineffective.
Ashcroft v. ACLU, Sec. II.B.5. Community Standards (3rd Cir. Mar. 2003)
Because material posted on the Web is accessible by all Internet users worldwide, and because current technology does not permit a Web publisher to restrict access to its site based on the geographic locale of each particular Internet user, COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state's community standards in order to avoid criminal liability. Thus, because the standard by which COPA gauges whether material is "harmful to minors" is based on identifying"contemporary community standards" the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech.
-- Intro
. . . . .
Indeed, the Internet "negates geometry. . . it is fundamentally and profoundly anti-spatial. You cannot say where it is or describe its memorable shape and proportions or tell a stranger how to get there. But you can find things in it without knowing where they are. The [Internet] is ambient -- nowhere in particular and everywhere at once." Doe v. Roe, 955 P.2d 951, 956 ( Ariz. 1998).
It is essential to note that under current technology, Web publishers cannot "prevent [their site's] content from entering any geographic community." Reno III, 31 F.Supp.2d at 484. As such, Web publishers cannot prevent Internet users in certain geographic locales from accessing their site; and in fact the Web publisher will not even know the geographic location of visitors to its site. See American Libraries, 969 F.Supp. at 171. Similarly, a Web publisher cannot modify the content of its site so as to restrict different geographic communities to access of only certain portions of their site. Thus, once published on the Web, existing technology does not permit the published material to be restricted to particular states or jurisdictions.
-- Sec. I.C., Slip at 13
. . . . .
One concern noted by the Supreme Court was that, as a part of the wholly unprecedented broad coverage of the CDA, "the `community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." Reno II, 521 U.S. at 877-78.
-- Sec. II.A. slip at 21
. . . . .
Unlike a "brick and mortar outlet" with a specific geographic locale, and unlike the voluntary physical mailing of material from one geographic location to another, as in Miller, the uncontroverted facts indicate that the Web is not geographically constrained. See Reno III, 31 F.Supp.2d at 482- 92; American Libraries, 969 F.Supp. at 169 ("geography, however, is a virtually meaningless construct on the Internet"). Indeed, and of extreme significance, is the fact, as found by the District Court, that Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users. As soon as information is published on a Web site, it is accessible to all other Web visitors. See American Libraries, 969 F.Supp. at 166; Reno III, 31 F.Supp.2d at 483. Current technology prevents Web publishers from circumventing particular jurisdictions or limiting their site's content "from entering any [specific] geographic community." Reno III, 31 F.Supp.2d at 484. This key difference necessarily affects our analysis in attempting to define what contemporary community standards should or could mean in a medium without geographic boundaries.
In expressing its concern over the wholly unprecedented broad coverage of the CDA's scope, the Supreme Court has already noted that because of the peculiar geography-free nature of cyberspace, a "community standards" test would essentially require every Web communication to abide by the most restrictive community's standards. See Reno II, 521 U.S. at 877-78. Similarly, to avoid liability under COPA, affected Web publishers would either need to severely censor their publications or implement an age or credit card verification system whereby any material that might be deemed harmful by the most puritan of communities in any state is shielded behind such a verification system. Shielding such vast amounts of material behind verification systems would prevent access to protected material by any adult seventeen or over without the necessary age verification credentials. Moreover, it would completely bar access to those materials to all minors under seventeen -- even if the material would not otherwise have been deemed "harmful" to them in their respective geographic communities.
-- Sec. II.A. slip at 22
- American Civil Liberties Union v. Reno, 217 F.3d 162, 169 & 175 (3rd Cir. 2000).
Unlike a "brick and mortar outlet" with a specific geographic locale, and unlike the voluntary physical mailing from one geographic location to another, as in Miller, the ... Web is not geographically constrained.... Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users. Id. at 175.
- Gucci America, Inc. v. Hall & Associates, 135 F.Supp.2d 409, 421 (S.D.N.Y. 2001).
What is at issue here is whether it is consistent with the Constitution and laws 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. In a world in which ideas and infomration transcend borders and the Internet in particular renders the physical distance between speaker and audience virtually meaningless, the implications of this question go far beyond the facts of this case. The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt that Internet users in the United States routinely engage in speech that violates, for example, China's laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom;s restrictions on freedom of the press.
. . . . .
In light of the Court's conclusion that enforcement of the French order by a United States court would be inconsistent with the First Amendment, the factual question of whether Yahoo! possesses the technology to comply with the order is immaterial. Even assuming for purposes of the present motion that Yahoo! does possess such technology, compliance still would involve an impermissible restriction on speech.
Yahoo! v. La Ligue Contre Le Racisme et L'Antisemitisme, Case Number C-00-21275, slip at 8 & 22 (NDCa Nov. 7, 2001).
Regardless of the aspect of the Internet they are using, Internet users have no way to determine the characteristics of their audience that are salient under the New York Act -- age and geographic location. In fact, in online communications through newsgroups, mailing lists, chat rooms, and the Web, the user has no way to determine with certainty that any particular person has accessed the user's speech. "Once a provider posts content on the Internet, it is available to all other Internet users worldwide." Id. at 844. A speaker thus has no way of knowing the location of the recipient of his or her communication. As the poet said, "I shot an arrow into the air; it fell to the earth I know not where."
ALA v. Pataki, Background
Typically, states' jurisdictional limits are related to geography; geography, however, is a virtually meaningless construct on the Internet. . . . . .
The conclusion that the Act must apply to interstate as well as intrastate communications receives perhaps its strongest support from the nature of the Internet itself. The Internet is wholly insensitive to geographic distinctions. In almost every case, users of the Internet neither know nor care about the physical location of the Internet resources they access. Internet protocols were designed to ignore rather than document geographic location; while computers on the network do have "addresses," they are logical addresses on the network rather than geographic addresses in real space. The majority of Internet addresses contain no geographic clues and, even where an Internet address provides such a clue, it may be misleading. For example, in his article, Federalism in Cyberspace, 28 Conn. L.Rev. 1095, 1112 (1996), Professor Dan Burk described how he uses Seton Hall University's computer system to access the Internet, providing anyone who communicates with him (and is aware of Seton Hall's locale) a hint that he is in New Jersey. However, Professor Burk also has a guest account at a university in California which he continues to use even when he is in New Jersey; any clue derived from the California university's name within the Internet address would therefore be deceptive. In a similar vein, Ms. Kovacs testified that as she was using her computer to give an in-court demonstration of various Internet applications, she received an e-mail from a colleague who believed she was sending the message to Cincinnati, Ohio (where Ms. Kovacs is normally located); in fact, Ms. Kovacs was in New York and received the message here. (4/4/97 Tr., p. 61).
Moreover, no aspect of the Internet can feasibly be closed off to users from another state. An internet user who posts a Web page cannot prevent New Yorkers or Oklahomans or Iowans from accessing that page and will not even know from what state visitors to that site hail. Nor can a participant in a chat room prevent other participants from a particular state from joining the conversation. Someone who uses a mail exploder is similarly unaware of the precise contours of the mailing list that will ultimately determine the recipients of his or her message, because users can add or remove their names from a mailing list automatically. Thus, a person could choose a list believed not to include any New Yorkers, but an after-added New Yorker would still receive the message.[6]
[6] Judge Stein recently concluded that these realities meant that one whose only contact with the forum occurs via the Internet is not susceptible to suit there. Bensusan Restaurant Corp. v. King, 937 F.Supp. 295 (S.D.N.Y.1996).
. . . . .
[A]n Internet user cannot foreclose access to her work from certain states or send differing versions of her communication to different jurisdictions. In this sense, the Internet user is in a worse position than the truck driver or train engineer who can steer around Illinois or Arizona, or change the mudguard or train configuration at the state line; the Internet user has no ability to bypass any particular state. The user must thus comply with the regulation imposed by the state with the most stringent standard or forego Internet communication of the message that might or might not subject her to prosecution.
. . . . .
The New York Act, therefore, cannot effectively be limited to purely intrastate communications over the Internet because no such communications exist. No user could reliably restrict her communications only to New York recipients. Moreover, no user could avoid liability under the New York Act simply by directing his or her communications elsewhere, given that there is no feasible way to preclude New Yorkers from accessing a Web site, receiving a mail exploder message or a newsgroup posting, or participating in a chat room. Similarly, a user has no way to ensure that an e-mail does not pass through New York even if the ultimate recipient is not located there, or that a message never leaves New York even if both sender and recipient are located there.
- American Libraries Ass'n v. Pataki, 969 F.Supp. 160, 170-71 & 183 (S.D.N.Y. 1997)
Unlike other media, there is no technologically feasible way for an Internet speaker to limit the geographical scope of his speech (even if he wanted to), or to "implement[ ] a system for screening the locale of incoming" requests.
- American Civil Liberties Union v. Reno, 929 F.Supp. 824, 878 (E.D.Pa. 1996) (J. Dalzell).
“This conflict inevitably leaves the reader of the CDA unable to discern the relevant "community standard," and will undoubtedly cause Internet users to "steer far wider of the unlawful zone" than if the community standard to be applied were clearly defined.”ACLU v. Reno , District Court case J. Buckwalter Sec. III B
“Because the creation and posting of a Web site allows users anywhere in the country to see that site, many speakers will no doubt censor their speech so that it is palatable in every community. Other speakers will decline to enter the medium at all.” ACLU v. Reno, District Court case J. Dalzell Sec. D.3
“The Internet is not a physical or tangible entity” ACLU v. Reno, District Court case, Finding of Facts II.1.
“Foreign content is otherwise indistinguishable from domestic content (as long as it is in English), since foreign speech is created, named, and posted in the same manner as domestic speech. There is no requirement that foreign speech contain a country code in its URL. It is undisputed that some foreign speech that travels over the Internet is sexually explicit.” ACLU v. Reno, District Court case, Finding of Facts II.1.
Dan Burk, Federalism in Cyberspace, 28 Conn. L.Rev. 1095, 1112 (1996)
No "Location" But No Analysis of Location Tools
" In addition, speakers who publish on the Web generally make their materials publicly available to users around the world, regardless of age, and lack any practical or reliable means for preventing minors from gaining access to the information on their sites or for verifying the true age of users of their Web sites. The Internet also is wholly insensitive to geographic distinctions, and Internet protocols were designed to ignore rather than to document geographic location. While computers on the Internet do have "addresses," they are addresses on the network rather than geographic addresses in real space. Most Internet addresses contain no geographic information at all. An Internet user who posts a Web page in one state cannot readily prevent residents of other states from viewing that page, or even discern in which state visitors to the site reside. Participants in online chat rooms and discussion groups have no way to tell when participants from another state join the conversation. There is no practical way for an Internet speaker to prevent a message from reaching residents of his own or any particular state. " -- Psinet, Inc. v. Chapman, 317 F.3d 413, 421 (4th Cir. 2003)
It is also a well-known fact, and cannot honestly be disputed, that individuals often access their email and/or internet from both work and home. Here, the IP address in the customer transaction records from Video-2000 and Dark Feeling reflect that said IP address was assigned to Wagers during the same period in which he accessed the suspect websites. Unfortunately, web IP addresses do not directly reflect the geographic street address of the office, residence, or building from which an individual accesses his email and/or the internet. Instead, law enforcement officials must conduct research and rely upon the addresses and data provided by internet providers, such as AOL and Insight Communications, as well as billing addresses for those service providers and/or credit card companies.
- U.S. v. Wagers, 339 F.Supp.2d 934, 939 ( E.D.Ky. 2004).
28. The Internet is wholly insensitive to geographic distinctions, and Internet protocols were designed to ignore rather than document geographic location. Pataki, 969 F.Supp. at 167, 170; Johnson, 4 F.Supp.2d at 1032.
29. While computers on the network do have "addresses," they are digital addresses on the network rather than geographic addresses in real space. The majority of Internet addresses contain no geographic indicators. Pataki, 969 F.Supp. at 170.- Cyberspace, Communications, Inc. v. Engler, 55 F.Supp.2d 737, 744 (E.D.Mich. 1999)
It is impossible for speakers using electronic mail, mail exploders, Internet Relay Chat, USENET newsgroups, Web-based discussion groups, and the World Wide Web to determine the geographic location of persons who access their speech.
- American Civil Liberties Union v. Johnson, 4 F.Supp.2d 1029, 1032 (D.N.M. 1998)
IP Number Location Unreliable
ITAA: Ecommerce Taxation and the Limitations of Geolocation Tools http://www.itaa.org/taxfinance/docs/geolocationpaper.pdf
Amici argue, however, that personal jurisdiction is lacking because research techniques available to plaintiffs prior to this litigation show the likelihood that the majority of the Doe defendants are not New York residents. (Am.Cur.Mem.11). A supporting declaration by Seth Schoen, staff technologist with amicus curiae Electronic Frontier Foundation, explains the process by which defendants' IP addresses can be matched up with specific geographic designations, using a publicly available database operated by the American Registry for Internet Numbers. (See Schoen Decl.). These geographic designations indicate the "likely" locations of the residences or other venues where defendants used their Internet-connected computers. (Id. ¶¶ 5-9). Amici maintain that as many as thirty-six of the forty Doe defendants are "likely" to be found outside of New York. (Id. ¶ 16).
Plaintiffs, however, dispute the accuracy of the methods described in the Schoen Declaration. (Pl. Opp. 18 n. 11; Whitehead Decl. II ¶ 9). According to plaintiffs, the geographical designations fall "far short" of 100 percent accuracy and are "often extremely inaccurate." (Whitehead Decl. II ¶ 9).
Assuming personal jurisdiction were proper to consider at this juncture, the techniques suggested by amici, at best, suggest the mere "likelihood" that a number of defendants are located outside of New York. This, however, does not resolve whether personal jurisdiction would be proper.
Accordingly, I decline to rule on personal jurisdiction at this time and deny Jane Doe's motion to quash based on lack of personal jurisdiction.-- Sony Music Entertainment Inc. v. Does 1-40, 326 F.Supp.2d 556, 567-68 (S.D.N.Y. 2004).
IP Number / Location Determined
Third, Vonage claims that the impossibility doctrine and the FCC's mixed use rule preempt state regulation of VoIP services such as those provided by Vonage. The impossibility doctrine holds that state jurisdiction over intrastate communications is preserved unless it is impossible to separate the interstate and intrastate aspects of a service, and state regulation would negate the FCC’s lawful exercise of its authority over interstate communications.28 The FCC has the burden of showing that its rules preempt only state rules that actually interfere with its goals.29 It has made no such declaration. Moreover, Vonage's claim that it is technically impossible to separate intrastate and interstate regulation of its services is incorrect. The company's "Unlimited Local Plan"30 allows customers unlimited local and regional calling and up to 500 minutes of long distance calls. By implementing this plan, the company has shown that it can distinguish local calls from long distance calls. Consequently, it is not impossible to separate intrastate and interstate calls.
The FCC's mixed use rule also does not apply to Vonage. The FCC established the mixed use rule as a way to establish the appropriate jurisdiction over special access lines where it was impractical to determine the jurisdictional status of the traffic.31 It was not used by the FCC for any purpose other than allocating special access jurisdiction32 and, therefore, is inapposite to Vonage's service.
-- Complaint of Frontier Telephone of Rochester, Inc. Against Vonage Holdings Corporation Concerning Provision of Local Exchange and InterExchange Telephone Service in New York State in Violation of the Public Service Law, CASE 03-C-1285, Order Establishing Balanced Regulatory Framework for Vonage Holding Corporation, p. 11-15 (New York PUC May 21, 2004)
20. Indeed, on January 17, 2000, John Trickey of iCraveTV reported to Cox that roughly "45 percent of the traffic impressions on the iCraveTV website' had come from Internet users based in the United States . Trickey said that he knew this from iCraveTV's " log books." Cox. Dep., pp. 37-39. A January 25, 2000 breakdown of "impressions" and "clicks" onto the iCraveTV website, generated by a private ad serving system (DART) utilized by Cox, reported 1.6 million impressions (page views) from United States visitors on the iCraveTV website. This figure was second only to the figure for Canada , which was 2.0 million. Hearing Ex. 64.
21. Defendants also use a "Real Video" server to stream video programming through their website. This server maintains "logs" of the Internet Protocol addresses of computers that contact defendants' server to obtain access to video programming. An analysis of the Real Video server logs shows that substantial numbers of persons in the United States received the streaming of programming, including programming in which plaintiffs own copyrights. Declaration of Ben Edelman; Shamos Test., pp. 41-49.
22. The evidence set forth above and other evidence in the record shows that plaintiffs are likely to succeed in showing that defendants are unlawfully publicly performing plaintiffs' copyrighted works in the United States.-- Twentieth Century Fox Film Corporation, V. IcraveTV, 2000 WL 255989 (W.D.Pa.), 2000 Copr.L.Dec. P 28,030, 53 U.S.P.Q.2d 1831 (WDPA 2000)
An Internet Protocol address consists of four numbers, each between 0 and 255, separated by periods. See PGMedia, Inc. v. Network Solutions, No. 97 Civ. 1946 RPP, slip op. at 3, 1999 WL 144494 (S.D.N.Y. Mar. 16, 1999); see also Josh A. Goldfoot, Note, Antitrust Implications of Internet Administration, 84 VA. L. REV. 909, 913 (1998). The first number signifies the computer's geographic region; the second number a specific Internet Service Provider; the third a specific group of computers; and the fourth a specific computer within that group. See G. Peter Albert, Jr., Eminent Domain Names: The Struggle to Gain Control of the Internet Domain Name System, 16 J. MARSHALL J. COMPUTERS & INFO. L. 781, 784 (1998).
- Thomas v. Network Solutions, Inc., 176 F.3d 500 n. 1 (C.A.D.C. 1999)
Whereas YAHOO is aware that it is addressing French parties because upon making a connection to its auctions site from a terminal located in France it responds by transmitting advertising banners written in the French language;
. . . . .
IP addresses are represented by four series of bytes converted into decimal numbers in the range 0 to 255.
This representation is not very convenient to use and a system was devised to associate a name with an address. These names, each of which corresponds to an address, are referred to as domain names. Conversion of domain names into their numerical IP addresses is performed by an array of databases distributed across the Internet (DNS). These DNS servers operate on the basis of a tree structure and are
specialised according to the nature of the services offered (.COM, .ORG, .EDU, .GOV, etc...) and according to country (.FR, .UK, .SF, etc...).However, it is necessary to understand that there is no hard and fast correspondence between the country appearing in the domain name and the numerical IP address. For example, www.yahoo.fr does not orrespond to an IP address of a French network.
Therefore, the domain name extension cannot be used to determine which network a numerical IP address belongs to.
However, the IP address allocation originally made by MANA, and subsequently by ICANN, to Internet Service Providers (ISPs) follows a tree structure, for example, from the main network, to the sub-network, to the access provider, and finally to the local user.
It is possible to work backwards from a given IP address to the access provider, to the sub-network, to the main network.
This being so, certain organisations and certain providers maintain databases which are used to determine the identity of a network, sub-network, router or site from its IP address.
The DNS system gives access providers, sites, etc... the ability to associate their reference address with their geographical location in the form of latitude and longitude coordinates. This is not an obligatory requirement.
The ability to use information about the geographical location of IP address holders is extremely useful, however, not only for the purposes of targeted advertising but also in order to ensure harmonious development of the Web.
Several providers have technology and databases capable of identifying the geographical location of fixed addresses or even of dynamically allocated addresses. A number of these made submissions to the panel of experts to the effect that they had at their disposal the technical means to enable YAHOO! to fulfil the obligations placed upon it by the Court.
The problem
In order to satisfy the terms of the court order requiring it to prevent access to auction services for Nazi objects, YAHOO! has to :
1) know the geographical origin and nationality of surfers wishing to access its auctions site
2) prevent French surfers or surfers connecting from French territory from perusing the description of Nazi objects posted for auction, and even more importantly to prevent them from bidding.
On geographical origin and nationality
General case
In order for a website to be viewed by members of the public, it is necessary for a user workstation (PC or other) to be linked to a destination site.
This operation involves the participation of various categories of intermediaries: the access provider, routers, one more destination sites.
It may be useful to recall at this point that the user's workstation, access provider, routers and destination sites are all identified on the network by an address which conforms to the Internet Protocol (IP) standard.
Whereas the IP addresses of the sites operated by the access providers, routers and destination sites are fixed, in the sense that there is a permanent reciprocal link between the IP address and its holder, this does not apply to the address allocated to the user's workstation. This address is allocated dynamically, on a nonpermanent basis, by the access provider at the time of connection.
However, access providers are only able to assign the IP addresses which have been allocated to them by the Internet authorities. These addresses follow a tree structure as mentioned above. A surfer's PC receives an IP address allocated to an access provider who belongs to a sub-network which belongs to a network.
The panel of experts consulted the AFA, the French association of access and internet service providers, to find out the proportion of internet connections made by access providers who do not assign IP addresses capable of being identified as French.
The answer was 20.57% at 30th September 2000.
The panel also asked the AFA to what extent were its members representative of access providers operating in French territory.
The answer, according to a Mediamétrie survey carried out in March 2000, was that "87% of surfers connecting from their home use access providers who are AFA members".
It may be added that, given the level of telephone charges involved, French surfers for the most part use the services of access providers present in their country.
It may therefore be estimated that 70% of the IP addresses assigned to French surfers can be matched with certainty to a service provider located in France, and can be filtered.
Further, it is this fact that enables YAHOO Inc. to display French advertising banners in French on its auctions site.
Appendix B to this report illustrates the connection pathway from a surfer to the destination site via the access provider Club-Internet (Grolier) using the PING and WHOIS functions of the Internet.
The exceptions
There are numerous exceptions.
A large number of these, in the order of 20%, stem from the multinational character of the access provider or from the fact that they use the services of an international ISP or a private communications network.
The case of AOL is significant in this regard. AOL uses the services of the UUNET network. The dynamic IP addresses assigned by AOL appear as being located in Virginia where UUNET has its headquarters.
In this situation, the workstations of users residing in French territory appear on the Web as if they are not located in French territory.
The same applies to a number of private networks operated by large corporations (intranets) in which the real addresses are encapsulated and transported in a manner such that the address seen by Internet sites is that appearing at the tunnel exit.
Other exceptions stem from the desire on the part of certain users to hide their real address on the net. Thus, so-called anonymizer sites have been developed whose purpose is to replace the user's real IP address by another address. It is not possible in this case to know the geographical location of the access provider's customer because the user's address can no longer be identified. The only location which can be known is that of the anonymizer site, but this is of no value in this case.
Examination of solutions proposed by specialised providers
All of the proposed solutions are based on using geographical information about sites which have one or more permanent addresses. These approaches rely partly on information obtained from DNS servers and partly on information provided by the access providers themselves.
Infosplit
The consultants found that Infosplit was incapable of identifying the geographical location of users of AOL France whose server is sited in the United States, for the reasons stated earlier.
NetGeo
This system, which is based on principles similar to those of Infosplit, is also unable to determine the location of surfers using a network in which the access provider assigns dynamic IP addresses that do not match the user's actual geographical location.
. . . . .
According to the French association of access providers (AFA), it may be estimated that 80% of the addresses assigned dynamically by the members of that association are identified as French. On the other hand, 20% are not so identified.
Of the information carried on the Internet, only senders' IP addresses can be used to determine the geographical origin of calls. 80% of the addresses assigned dynamically by AFA member access providers can be identified as being French.
It should be noted, however, that the geographical origin referred to is that of the access provider's site called by the surfer. There is nothing to prevent a user from placing a call from France, by telephone, to an access provider with a foreign telephone number. In this case, there is every chance that the dynamically
assigned IP address will be identified as being foreign. It is equally feasible for a foreigner to call an access provider located in France and thus be assigned a French IP address.However, it may be estimated in practice that over 70% of the IP addresses of surfers residing in French territory can be identified as being French.
The consultants stress that there is no evidence to suggest that the same will apply in the future. Encapsulation is becoming more widespread, service and access providers are becoming more international, and surfers are increasingly intent on protecting their rights to privacy.
LICRA v. Yahoo!, Interim Court Order, (County Court Paris Nov. 20, 2000) (as translated) (Court concluding that Yahoo! could correctly identify that individuals online were coming from France 70% of the time, that Yahoo! displays ads to individuals from France in french having identified them as from France, and that about 30% of IP addresses could not be correctly identified, ordering Yahoo! to block access of French citizens to Nazi objects for sale at Yahoo auctions)
In order to determine the physical location where an email address is based, the most relaible technique is to plug the IP locator for the email address into the "IP Tracker" such as www.discovervip/ipaddress.htm which will then provide the physical location of a computer using a particular email address. In the case of MaryCLE, the IP address of the computer that was used when MaryCLE "opted-in" was 66.171.38.224, which is located in Reston, Virginia, not Maryland.
- MaryCLE, LLC, v. First Choice Internet, Inc., cv No 248514, slip op. at 4 (Cir. Ct. Mont. County, MD Dec. 9, 2004) (concluding that Maryland anti-spam law was unconstitutional as violation of Commerce Clause).
Geolocation information is frequently embedded in metadata. Geolocation can be embedded into photos that are uploaded.
IETF has the GEOPRIV Working Group. W3C has P3P.
Benefits
- Customization of user experience
- Serving content relevant to user location
- Fraud detection
- Enforcement of access restrictions
- example: geographic broadcast limits where a hockey game can be shown in Canada but not in the USA pursuant to licensing agreements
- Traffic Analysis
Privacy Risks
- Stalking
- Domestic Violence
- Women
- Child Safety
- Child Predetors
- Bullying
- Profiling
- Commercial
- Government / Political
- Tracking
- 4th Amendment
- 1st Amendment Freedom of Association
- Political meetings, union meetings
- Medical Privacy
- Court Visits
- Repressive Governments
- Employers
Reputation See sites like DirtyPhoneBook Crime Robbery of empty house See Robmenow.com , Please Rob Me.com ID Theft Unwanted Advertising / Marketing Laws
15 U.S.C. § 7701(a)(11) (CAN-SPAM Act: "Many States have enacted legislation intended to regulate or reduce unsolicited commercial electronic mail, but these statutes impose different standards and requirements. As a result, they do not appear to have been successful in addressing the problems associated with unsolicited commercial electronic mail, in part because, since an electronic mail address does not specify a geographic location, it can be extremely difficult for law-abiding businesses to know with which of these disparate statutes they are required to comply.") 18 U.S.C. § 2258A(b)(3)(A) (" Geographic location information.- (A) In general.- Information relating to the geographic location of the involved individual or website, which may include the Internet Protocol address or verified billing address, or, if not reasonably available, at least 1 form of geographic identifying information, including area code or zip code. ") 47 C.F.R. § 10.320(d) (" (d) Geographic Targeting. The CMS provider gateway must determine whether the provider has elected to transmit an Alert Message within a specified alert area and, if so, map the Alert Message to an associated set of transmission sites. ") "CALEA provides that a pen register or trap and trace order16 cannot be used to obtain location information, but that statute is silent on what the standard should be." Regulatory Action
In Re Revision of the Commission's Rules To Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102, RM-8143, Report and Order and Further Notice of Proposed Rulemaking Released: July 26, 1996 (requiring mobile phones to have geolocation capabilities built in)
Hearings
"Protecting Mobile Privacy: Your Smartphones, Tablets, Cell Phones and Your Privacy," Before the Senate Judiciary Committee, Subcommittee on Privacy, Technology and the Law, May 10, 2011, FCC w FTC Location Based Services Forum, June 28, 2011
"Protecting Mobile Privacy: Your Smartphones, Tablets, Cell Phones and Your Privacy," Before the Senate Judiciary Committee, Subcommittee on Privacy, Technology and the Law, May 10, 2011 ECPA Reform and the Revolution in Location Based Technologies and Services, Hearing Before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, of the House Committee of the Judiciary, June 24, 2010 House Commerce Committee Hearing, The Collection and Use of Location Information for Commercial Purposes, February 24, 2010 Testimony of Lorrie Cranor Testimony of Mike Altschul Testimony of John B. Morris Testimony of Anne Collier Testimony of Jerry King Testimony of Tony Bernard Papers
Top Paid Mobile Applications Developers, Future of Privacy 2011 (FPF Finds Nearly Three-Quarters of Most Downloaded Mobile Apps Lack A Privacy Policy) The Development of Location Based Services in Mobile Commerce, Charles Steinfield, Department of Telecommunication, Michigan State University Katrin Verclas, Patricia Mechael, A Mobile Voice: the Use of Mobile Phones in Citizens Media , Mobileactive.org for USAID (November 2008),
Location Based Services Paolo Bellavista, Axel Küpper, and Sumi Helal, [http://ieeexplore.ieee.org/stamp/stamp.jsp?tp=&arnumber=4487093 Location-Based Services: Back to the Future], IEEE Pervasive Computing April-June 2008 IETF's geographic location privacy (Geopriv) working group HanneTschofenig, Geolocation Privacy, International Working Group on Data PRotections and Telecommunications 2008 [PPT] I. Krontiris, A. Albers, and K. Rannenberg, W3C Geolocation API calls for Better User Privacy Protection (n.d. est 2010) Kevin F. King, Geolocation and Federalism on the Internet: Cutting Internet Gambling?s Gordian Knot, 11 COLUM. SCI. & TECH. L. REV. 41, 59 (2010) N Doty, D Mulligan. E Wilde, Privacy Issues of the W3C Geolocation API, UC Berkeley School of Information Reports 2010-038, February 2010 ("Out of 22 instances, not a single web site informed users of their privacy practices with respect to collected location data up front, that is, before they were presented with a prompt for their location.") Over-sharing and Location Awareness, CDT Feb. 2010 On Locational Privacy, and How to Avoid Losing it Forever, EFF 2009 Richard Barnes et al., An Architecture for Location and Location Privacy in Internet Applications, IETF (Oct. 26, 2009) Dan Jerker B. Svantesson, Geo-location Technologies and Other Means of Placing Borders on the "Borderless' Internet, 23 J. MARSHALL J. COMPUTER & INFO. L. 101, 109-10 (2004). News
Kevin Kwang,Shared user info increases geolocation risks, ZDNET August 16, 2010 (" it is "fine" to tell people the duration of your holiday, it becomes a security issue when that information is combined with the location of your house and your real-time whereabouts in a foreign land. ") Daniel Ionescu, Geolocation 101: How It Works, The Apps, and Your Privacy PC World (nd) (" When you leave your home, you inevitably sacrifice some of your privacy; and by sharing your location on social networks, you could put yourself at some increased level of risk. ") Darren Allan, Geolocation apps raise security concerns, TechWatch July 14, 2010 (" Women are more worried than men about the personal dangers geolocation can bring, with 49% of them concerned about the potential stalker risks coming with the technology, as opposed to 32% of men ") MG Siegler, Just In Time For The Location Wars, Twitter Turns On Geolocation On Its Website Techcrunch March 2010 Stranger Danger, Geolocation Features and Internet Safety, Feb 2010 Brock Meeks, Privacy Battle over Cell Phone Tracking Data Hits Appeals Court, CDT Feb. 12, 2010 Caroline McCarthy, The dark side of geo: PleaseRobMe.com, CNET Feb 2010 The Dangers of Geolocation, InfoMaven's Desktop Feb 2010 Ken Yeung, Exposing Yourself Using Location Based Services - What Are Your Risks?, Network Solutions, July 2010 Damon Poeter, Is Twitter's Geolocation Tool a Privacy Landmine, CRN (Aug 21, 2009) (" But even if such services are opt-in, privacy advocates remain concerned about the prospect of delivering such intimate information across the Internet. ")
Wifi Location Devices
- Cisco
- Cisco Combines RFID Location Tools With Wi-Fi
May 4, 2005 - Herecast
- An open infrastructure for location based services using Wifi
- Intel
- Michael Kanellos, Intel Experiments with Wi-Fi as GPS substitute, CNET ( July 12, 2005 ) http://news.com.com/Intel+experiments+with+Wi-Fi+as+GPS+substitute/2100-7351_3-5785565.html?tag=st.rc.targ_mb
- Skyhook
- Skyhook Wireless Geolocation information for wireless networks and E911 solution
- Skype Plug in
- Skyhook Wireless http://www.skyhookwireless.com/; Skyhook Wireless Press Release, TeleCommunications Systems & Skyhook Wireless Collaborate for E-911 July 7, 2005 http://www.skyhookwireless.com/news/press_rel_8.pdf
News
- Marguerite Reardon, Wi-Fi used for location service, CNET ( Jun. 20, 2005 ) http://news.com.com/Wi-Fi+used+for+location+services/2100-7351_3-5754288.html
- WiFi location system launched in US FT.Com June 20 2005 (Skyhook)
Cooperative vs. Oppositional
Geolocation tech slices, dices the Web, Mercury News (Jul. 9, 2004) (" ``This service isn't meant (for) people are who trying to be evasive,'' said Andy Champagne, Akamai's director of network analytics. ``It's meant for the 99 percent of the general public who are just at home surfing.'' ") Accuracy of Products
Geolocation tech slices, dices the Web, Mercury News (Jul. 9, 2004) (" The major geolocation companies claim accuracy of 80 percent or more for city-level data and 99 percent for country targeting, though the figures are misleading because they generally exclude the addresses known to cause trouble. ")
17. How many countries are included in the database? What is the accuracy?
The database has over 95% of accuracy in country and ISP level, 70% in region level and 65% in city level, which is higher than any of our competitors. The country-level inaccuracy is due to dynamic IP address allocation by large ISPs such as AOL and MSN TV. Because AOL uses a network that routes all of the company's Internet traffic through Reston, Virginia. All IP-based geo-location services, including IP2Location, are unable to determine the state and city for people who dial into the AOL network. The region-level and country-level inaccuracy is due to the flexibility given to each ISP to re-assign dynamic IP address within their service area.
ITAA "Ecommerce Taxation And The Limitations of Geolocation Tools"
Geolocation technologies do provide valuable non-tax commercial functionalities (i.e., marketing data, etc.) where a high degree of accuracy regarding a user's jurisdiction is not required at a transaction level. However, given the current inability of such technologies to overcome obstacles presented by corporate networks, anonymizers, AOL users, IPv6, and the other issues discussed above, coupled with their lack of complete certainty as to customer location, they cannot be relied upon for consumption tax purposes.
AP, Geolocation: Don't Fence Web In, WIRED July 12, 2004
The major geolocation companies claim accuracy of 80 percent or more for city-level data and 99 percent for country targeting, though the figures are misleading because they generally exclude the addresses known to cause trouble.
AOL still poses problems, as do anonymizing services designed specifically to hide a user's true identity and location. Dial-up users also can call another state or country to connect.
"This service isn't meant (for) people are who trying to be evasive," said Andy Champagne, Akamai's director of network analytics. "It's meant for the 99 percent of the general public who are just at home surfing."
Geolocation Products Used
George Bush Website Restricted Access to those in the United States.
Open Net Initiative survey confirming that access was denied from outside US and Canada. Bush campaign Web site blocks overseas visits, NWFusion Oct. 2004 (confirming restricted access and noting "U.K. analysis firm Netcraft said the Bush site appears to be using network management technology from Akamai Technologies to restrict access.") New Zealanders not welcomed at Bush website Computer World Oct. 28, 2004 (" Net surfers outside the US interested in US President George Bush's re-election strategy aren't currently able to learn about it from his campaign website. ") Bush web site blocks foreigners in cyber fear the Inquirer (Oct. 28, 2004) Bush website blocked outside US, BBC News (Oct. 27, 2004) (" Surfers outside the US have been unable to visit the official re-election site of President George W Bush. ") Use of Geolocation information by search engines to produce results relevant to searcher
Geolocation data - Good for Internet or Satan incarnate?, Tom Keatings VoIP Blog July 13, 2004 ("Google and other search engines are getting more creative with the way their search engines work. Many are now using geolocation data (based on IP address) to determine your approximate whereabouts to tailor search results to your location. For example, if you do a search on “dentist” on Google, you’ll probably see some ad results that are tailored to your location. ") Geolocation tech slices, dices the Web, Mercury News (Jul. 9, 2004) (" Type ``dentist'' into Google from New York, and you'll get ads for dentists in the city. ") The Great China Firewall
Goggle's China Filtering Draws Fire, TechNewsWorld (Dec. 1, 4) (" "China is censoring Google News to force Internet users to use the Chinese version of the site which has been purged of the most critical news reports," said a statement from Reporters Without Borders. "By agreeing to launch a news service that excludes publications disliked by the government, Google has let itself be used by Beijing." ... "It is actually a form of geolocation filtering since users who access Chinese Language Google News from anywhere but China are not subjected to the filtering and receive full search results," Villeneuve told TechNewsWorld. ") Sporting Events Blackouts
Geolocation tech slices, dices the Web, Mercury News (Jul. 9, 2004) (" Try watching a Cubs baseball game from a computer in Chicago, and you'll be stymied. Pre-existing local TV rights block the webcast. ") Geolocation tech slices, dices the Web, Mercury News (Jul. 9, 2004) (" In the past few months, RealNetworks Inc. began offering soccer games and movies restricted to specific countries ") Gambling
Geolocation tech slices, dices the Web, Mercury News (Jul. 9, 2004) (" The same technology is also being used by a British casino to keep out the Dutch") Intellectual Property
Geolocation tech slices, dices the Web, Mercury News (Jul. 9, 2004) (" The same technology is also being used by ... online movie distributors to limit viewing to where it's permitted by license, namely the United States. ") Ecommerce
Geolocation tech slices, dices the Web, Mercury News (Jul. 9, 2004) (" Art.com coded its Web site so Americans automatically see prices in dollars, Germans in euros. ") Problems Geolocation Products
Products and Services that Hide IP Numbers
VPNs
IPv6
ITAA: Ecommerce Taxation and the Limitations of Geolocation Tools p. 7 ("The process for IP address reassignments is rather cumbersome under IPv4 due to the need to reconfigure routers and servers, and therefore they do not happen with anywhere near the frequency that is expected under IPv6, which will make the reassignment of IP address far easier to accomplish. With no actual geographic constraint, under IPv6 these IP address blocks could be reassigned to a new area at any time that demand shifts. As the Internet continues to expand and the need for renumbering grows, blocks of IP addresses will be shifted geographically with increasing regularity. Keeping track of all the growing number of reassignments of IP addresses may overwhelm geolocation software’s capabilities. Moreover, during the multi-year global transition to Ipv6, dual sets of router table data will have to be maintained for both Ipv4 and Ipv6 IP addresses. The need to translate and correlate between tables may also introduce latency that negatively impacts the ability to conduct real time analysis.")
Geolocation for Wireless Networks
CuWIN Mapping Your Network
Wireless Geolocation Resources Links to many papers
GPS
Wireless 911
- Lucent Press Release, Bell Labs geolocation technology pinpoints wireless 911 calls within 15 feet , June 30, 1999
, McKinsey & Company (June 2011). Ge Zhong, Ian Goldberg, and Urs Hengartner David R. Cheriton School of Computer Science University of Waterloo, ON, Canada , Version 5.0, September 1, 2010, IEEE ICC 2008, Bejing, ,
School of Computer Science, Carleton University (2006)
RFC
1876, Davis, C., Vixie, P., Goodwin, and T. Dickinson, "A Means for Expressing
Location Information in the Domain Name System", January 1996