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Amici Curiae the Chamber of
Commerce of the United States, Commercial Internet eXchange Association,
Information Technology Association of America, US Internet Industry
Association, Online Publishers Association, and United States Council for
International Business, respectfully submit this brief in support of the
plaintiff in this case, Yahoo! Inc.
INTEREST OF AMICI CURIAE
The Chamber of Commerce of the United States (the Chamber) is the
world’s largest federation of business organizations and individuals,
representing an underlying membership of nearly three million businesses and
organizations of every size and in every sector of the economy and geographic
region of the country. Chamber
members transact business in all of the United States as well as a large
number of countries around the world.
A principal function of the
Chamber is to represent the interests of its members in important matters
before the courts, Congress and the Executive Branch. To that end, the Chamber has filed amicus briefs in numerous cases
involving issues of vital concern to the nation’s business community.
The Commercial Internet eXchange Association
(http://www.cix.org) is a
non-profit
trade association of public data internetworking service providers which
promotes and encourages the development of the industry in both national and
international markets. Founded in
1991, CIX is the largest and oldest trade association of ISPs in the United
States. It provides a neutral forum
for the exchange of ideas and information and develops positions on
legislation and policy issues among suppliers of internetworking services.
The Information Technology
Association of America (ITAA) provides global public policy, business
networking, and national leadership to promote the continued rapid growth of
the information technology industry. ITAA consists of over 500 direct
corporate members throughout the U.S.
The US Internet Industry Association (USIAA) is the
North American trade association for Internet commerce, content, and
connectivity. Founded in 1994, USIAA
advocates effective public policy for the Internet and provides its members
with essential business news, information, support and services. With members of every size, engaged in
virtually every facet of the Internet, the USIAA is working to craft a
business environment in which Internet companies can thrive.
The Online Publishers
Association (OPA) is an industry trade organization founded in June 2001
by twelve of the Internet's leading content brands, whose mission is to
advance the interests of high-quality online publishers before the
advertising community, the press, the government and the public. Members of
OPA represent the highest standards in Internet publishing with respect to
editorial quality and integrity, credibility and accountability. For more
information about Online Publishers Association, visit www.online-publishers.org.
A
driving force for American business, the United
States Council for International Business (USCIB) works to
promote an open system of world trade, finance and investment in which
business can flourish and contribute to economic growth, human welfare and
protection of the environment. Its
membership includes some 300 U.S. companies, professional services firms and
associations. As the American
affiliate of the International Chamber of Commerce, the Business and Industry
Advisory Committee to the OECD and the International Organization of
Employers, USCIB provides unparalleled access to international policy makers
and regulatory authorities worldwide.
USCIB also facilitates international trade by working toward harmonization
of international commercial practices in such areas as customs and
arbitration.
INTRODUCTION
At issue in this case is
whether a foreign country can control the content that U.S. individuals,
entrepreneurs, businesses, community organizations, libraries and churches
can place on the “exponentially growing, worldwide medium that is the
Internet.” ACLU v. Reno, 929 F. Supp. 824, 830 (E.D. Pa. 1996). Amici,
which represent both Internet and online service providers (entities that
provide access to the virtually limitless range of commercial and
non-commercial material found on the Internet) and content providers
(including the individuals, large and small businesses and organizations that
provide a wide variety of the content found on the Internet) submit this
brief amici curiae to stress the
devastating impact such a result could have on the Internet and internet
commerce.
As courts have recognized,
“[i]t is no exaggeration to conclude that the content on the Internet is as
diverse as human thought.” Id. at 842. This vibrant medium has already transformed the way we as a
nation do business and access information for personal use. The decision of the French court in this
case represents one of the greatest threats to the promise of the Internet seen
to date. The French court concluded
that, because French citizens sought out and managed to located material on a
U.S. company’s website that is
offensive to French law, courts in France can assert jurisdiction over the
U.S. company, and mandate that the company restrict French citizens’ access
to that material. As U.S. courts have recognized, “the
Internet has an ‘international, geographically-borderless nature,’” and “with
the proper software every Website is accessible to all other Internet users
worldwide.” ACLU v. Reno, 217 F.3d 162, 169 (3d Cir. 2000) (citations
omitted), cert. granted, 121 S. Ct.
1997 (2001). Accordingly, if the
French court’s decision is recognized in this country, every piece of
information posted on the Internet will have to conform to the laws of every
country in which that material might be accessed – even if it is clear (as it
is in this case) that the U.S. company posting that information was targeting
U.S. citizens, and operating in a manner fully consistent with U.S. law. Plainly put, such a result would cripple
the Internet.
Technology
alone is not the issue. Regardless of whether it is technologically possible
for a website to recognize the country of origin of all visitors and block
those visitors whose home countries ban some of the content on the website
(which is technologically difficult if not impossible), this crippling effect
would occur. As courts have recognized, the
incredible diversity of information on the Internet “is possible because the
Internet provides an easy and
inexpensive way for a speaker to reach a large audience, potentially of
millions. The start-up and operating
costs entailed by communication on the Internet are significantly lower than
those associated with use of other forms of mass communication, such as
television, radio, newspapers, and magazines. This enables operation of their own Websites not only by large
companies, such as Microsoft and Time Warner, but also by small businesses
and not-for-profit groups, such as Stop Prisoner Rape and Critical Path AIDS
Project.” ACLU v. Reno, 929 F. Supp. at 843 (emphasis added). Under the French court’s jurisdictional
theory, however, each individual or company with a presence on the internet
would have to constantly monitor the laws of every country in the world,
search out content that might be prohibited by one or more of those
countries, and implement some sort of blocking software that would screen
different categories of material from users in different countries. This would be obviously too burdensome for
even enormous companies like Yahoo!, and would literally be a death knell for
smaller companies and non-profit organizations. Cf. Reno v. ACLU, 521 U.S. 844, 881 (1997) (noting “that it is
not economically feasible for most noncommercial speakers” with websites to
screen out underage users by requiring them to submit credit card
information).
For these reasons, amici urge this Court to recognize the
jurisdictional dangers posed by the French court’s action in this case. As Yahoo! explains in its Motion for
Summary Judgment, the French court’s order violates the First Amendment’s
free speech guarantees. But the mere
recognition that the First Amendment would be violated in this case is not
enough to ensure that Internet activity is not chilled by the French court’s
judgment. Amici’s activities are not limited to pure expressive activities,
but instead include a wide variety of activity on the Internet – including
political speech, commercial speech, and business activities. For amici,
clear recognition of the principle that, where a U.S. company is targeting
on-line activities at U.S. citizens, the mere fact that the Internet is
involved does not allow every other country in the world to assert
jurisdiction over that company and regulate its activity, is absolutely
critical.
ARGUMENT
I. THE
FIFTH AMENDMENT PROHIBITS ENFORCEMENT OF FOREIGN
JUDGMENTS
WHERE, AS HERE, THE FOREIGN COURT DID NOT
HAVE
PERSONAL JURISDICTION OVER THE U.S. DEFENDANT.
Amici submit this brief to highlight a
fundamental jurisdictional principle implicated by this case: United States courts may not enforce
judgments of foreign courts that lack personal jurisdiction over U.S.
defendants, because enforcement of such judgment would violate the Due
Process Clause of the Fifth Amendment.
In this case, such jurisdiction was plainly lacking. Because LICRA and UEJF have not – and
could not – demonstrate that by operating a website hosted in the U.S. and
targeted at U.S. citizens, Yahoo! purposefully availed itself of the
privilege of doing business in France, there is no basis on which to conclude
that French courts can subject Yahoo! to their jurisdiction. And even if LICRA and UEJF could somehow
demonstrate the requisite minimum contacts – and they could not – the French
court’s exercise of personal jurisdiction over Yahoo! was inconsistent with
the requirements of due process because it was neither “reasonable” nor
consistent with “fair play and substantial justice.” Indeed, under the French court’s theory of
personal jurisdiction, every American company with an Internet presence would
be subject to the personal jurisdiction of every foreign country in the
world. Such a result would not only
be inconsistent with governing law, it would be devastating to the development
of the Internet. Individuals or
companies who fear being haled into the courts of these countries will almost
certainly self-censor the material placed on the Internet, reducing it from
content as “diverse as human thought” to that which satisfies the lowest
common denominator of the most restrictive countries in the world.
Foreign judgments have no
independent legal force in the United States, and are recognized by U.S.
courts simply as a matter of “comity.” See,
e.g., Wilson v. Marchington, 127 F.3d 805, 807 (9th Cir.
1997); In re Stephanie M., 7
Cal.4th 295, 314 (1994). As the U.S.
Supreme Court explained in the seminal case on recognition of foreign
judgments:
‘Comity,’
in the legal sense, is neither a matter of absolute obligation, on the one
hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation
allows within its territory to the legislative, executive, or judicial acts
of another nation, having due regard both to international duty and convenience,
and to the rights of its own citizens, or of other persons who are under the
protection of its laws.
Hilton v.
Guyot, 159 U.S. 113,
163-64 (1895).
The law is clear, however, that
a foreign judgment may not be
enforced in U.S. courts if the foreign court lacked personal jurisdiction
over the U.S. defendant. See id. at 202-03; In re Stephanie M., 7 Cal.4th at 314
(explaining that a U.S. court should recognize a foreign judgment only where
“the foreign court had proper jurisdiction”); Bank of Montreal v. Kough, 612 F.2d 467, 470-71 (9th
Cir. 1980) (California courts will not enforce foreign judgment where the
foreign court did not have personal jurisdiction over the defendant); Restatement (Third) of Foreign Relations
Law of the United States § 482(1)(a) (1987) (“A court in the United
States may not recognize a judgment of the court of a foreign state if . . .
the court that rendered the judgment did not have jurisdiction over the
defendant in accordance with the law of the rendering state and with the
rules set forth in § 421”); Wilson, 127 F.3d at 810 n.4 & 5
(9th Cir. 1997) (same). In
short, “[i]t can hardly be gainsaid that enforcement will not be permitted
under California law if due process was lacking when the foreign judgment was
obtained.” Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1410 (9th
Cir. 1995).
In determining whether a
foreign court’s exercise of personal jurisdiction over a U.S. defendant was
consistent with U.S. due process standards, courts begin with the traditional
due process test normally used to determine personal jurisdiction within the United States. See,
e.g., Kough, 612 F.2d at 470-71
(applying “American principles of jurisdictional due process” to determine
whether Canadian court had personal jurisdiction such that its judgment
should be enforced in California);
Koster v. Automark Industries, Inc., 640 F.2d 77, 79 (7th Cir.
1981) (“Whether it be Wisconsin or the Netherlands, the standard of minimum
contacts is the same.”); de la Mata v.
American Life Ins. Co., 771 F. Supp. 1375, 1384 (D. Del. 1991) (“federal
courts have held that the issue of whether a foreign court had jurisdiction
over a United States national should be determined by our own standards of
judicial power as promulgated by the Supreme Court under the due process
clause of the Fourteenth Amendment”).
The traditional test for
determining whether the exercise of personal jurisdiction comports with due
process has two distinct components.
First, the court must ask whether the defendant “purposefully
established minimum contacts within the forum state.” Burger
King v. Rudzewicz, 471 U.S.
462, 476 (1985); International Shoe Co.
v. Washington Office of Unemployment Compensation and Placement, 326 U.S.
310, 320 (1945). Next, “these
contacts may be considered in light of other factors to determine whether the
assertion of personal jurisdiction would comport with ‘traditional notions of
fair play and substantial justice.’” Burger
King, 471 U.S. at 476 (quoting International
Shoe, 326 U.S. at 316). If a
court concludes either that the requirement of minimum contacts has not been
met, or that assertion of jurisdiction would be essentially unfair, it must
conclude that personal jurisdiction is lacking.
A. The
Maintenance by an American Company of a Website, Directed at U.S. Citizens,
Cannot as a Matter of Law Rise to the Level of Purposefully Establishing
Minimum Contacts with a Foreign Country.
As the Supreme Court has made
clear, in order to find that a defendant has sufficient contacts with a forum
to subject itself to personal jurisdiction “it is essential in each case that
there be some act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State, thus invoking the
benefits and protections of its laws.”
Burger King, 471 U.S. at
474-75(quoting Hanson v. Denckla, 357 U.S. 235, 253
(1958)); see also World-Wide Volkswagen
v. Woodson, 444 U.S. 286, 297 (1980); Cybersell,
Inc. v. Cybersell, Inc., 130 F.3d 414, 417 (9th Cir.
1997). As this Court recognized in
its Order Denying Motion to Dismiss, one way that the purposeful availment
requirement can be satisfied is by the “effects test.” Id. at 5-6. To satisfy
the effects test, a defendant must have “engaged in wrongful conduct targeted
at a plaintiff whom the defendant knows to be a resident of the forum
state.” Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1087 (9th Cir. 2000). As this Court explained, proper
application of this test requires a court to consider “whether there is
‘express aiming’ of the conduct, i.e., targeting of a forum resident.” Order
Denying Motion to Dismiss at 5.
Although the conduct at issue
in this case occurred on a website, the essential analysis remains the
same. As the Ninth Circuit has
recognized, although “[a]pplying principles of personal jurisdiction to
conduct in cyberspace is relatively new,” Panavision
International, LP v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.
1998), the same basic principles apply. Thus, the fundamental question remains
whether the defendant has “purposefully
(albeit electronically) directed his activity in a substantial way to the forum state.” Cybersell, 130 F.3d
at 418 (emphasis added). While “‘the
likelihood that personal jurisdiction can be constitutionally exercised is
directly proportionate to the nature
and quality of commercial activity that an entity conducts over the
Internet,’” Cybersell, 130 F.3d at
419 (quoting Zippo Mfg. Co. v. Zippo
Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997), the focus remains
on whether or not the activity conducted over the Internet (whatever its
volume or nature) can be said in a meaningful sense to have been directed at the forum in question.
Although the individualized
nature of the jurisdictional inquiry makes it difficult to draw hard and fast
lines between conduct that is purposefully directed at a forum in a
substantial way, and conduct that is not, courts have made clear that the
mere maintenance of a U.S. website is insufficient to confer personal
jurisdiction outside the United States.
As the Ninth Circuit explained, “‘[c]reating a site, like placing a
product into the stream of commerce, may be felt nationwide – or even
worldwide – but, without more, is not an act purposefully directed toward the
forum state.’” Cybersell, 130 F.3d at
418 (quoting Bensusan Restaurant Corp. v. King, 937 F. Supp.
295, 301 (S.D.N.Y. 1996), aff’d 126
F.3d 25 (2d Cir. 1997)). In short, an
entity must do “‘something more’” than merely “posting a website on the
Internet” to subject it to jurisdiction in any forum where someone might
happen to access the site. Panavision, 141 F.3d at 1322 (quoting Cybersell, 130 F.3d at 418); see also, e.g., GTE New Media Services
Inc. v. BellSouth Corp., 199 F.3d 1343, 1349-50 (D.C. Cir. 2000) (noting
that “personal jurisdiction surely cannot be based solely on the ability of
District [of Columbia] residents to access the defendants’ websites, for this
does not by itself show any persistent course of conduct by the defendants in
the District” and declining to adopt an “expansive theory” of personal
jurisdiction on the Internet that “would shred the[] constitutional
assurances” of “predictability . .
. that allow[] potential defendants
to structure their primary conduct with some minimum assurance as to where
that conduct will and will not render them liable to suit.”) (internal
quotation marks and citations omitted).
The fact that individuals in
other countries can access a U.S. company’s website does not alter the
analysis. As the Supreme Court has
made clear, the actions of parties other than the defendant in a foreign
forum cannot, standing alone, confer jurisdiction over a defendant in that
forum. See, e.g., Burger King, 471
U.S. at 474-75 (“[t]he unilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy the requirement of
contact with the forum state”).
Indeed, the searching out by individuals in other countries of content
deemed offensive in that country is precisely the type of “random, fortuitous
or attenuated contacts” caused by “the unilateral activity of another party
or third person” on which jurisdiction can not be based. Burger
King, 471 U.S. at 475 (internal quotation marks and citations omitted); Panavision, 141 F.3d at 1320.
This is true even if it is foreseeable to a U.S. company that its
website might be visited by persons outside the United States. As the Supreme Court has made clear,
“[a]lthough it has been argued that foreseeability of causing injury in another State should be
sufficient to establish such contacts there . . . , the Court has
consistently held that this kind of foreseeability is not a ‘sufficient
benchmark’ for exercising personal jurisdiction.” Burger King, 471 U.S.
at 474 (emphasis in original) (quoting World-Wide
Volkswagen Corp. v. Woodson,
444 U.S. at 295 (1980)). Instead, “the forseeability that is
critical to the due process analysis . . . is that the defendant’s conduct
and connection with the forum state are such that he should reasonably
anticipate being haled into court there.”
Id. (quoting World-Wide Volkswagen, 444 U.S. at
297).
For these reasons, this case
presents a paradigmatic example of conduct that is not sufficient to confer
jurisdiction in another country.
Yahoo!, Inc.’s website targets a U.S.
audience. Its websites are in
English, and its sites all carry the domain suffix “.com,” generally
indicating a U.S. company, instead of the suffix “.fr” which is used for
domains in France. Cf. Quokka Sports, Inc. v. Cup Int’l Ltd.,
99 F. Supp. 2d 1105, 1111-12 (N.D. Cal. 1999) (California court had
jurisdiction over New Zealand defendant who sought out a “.com” domain name
in the U.S. rather than a “.nz” domain to target the “lucrative American
market”). Yahoo! has not invoked the
protection of France’s laws in the conduct of its business. Indeed, to the contrary, Yahoo! has
incorporated a separate subsidiary to do business in France which has
established a French website (http://www.yahoo.fr) in French, that complies
with French law. In short, Yahoo! has
done nothing more than merely “posting a website on the Internet” in the
United States. Panavision, 141 F.3d at 1322.
Because Yahoo!, Inc. did not purposefully avail itself of the
privilege of conducting business in France and “there is no evidence that any
part of its business (let alone a continuous part of its business) was sought
or achieved in [the foreign state],”
Cybersell, 130 F.3d at 419, the French court’s exercise of personal
jurisdiction over Yahoo! violates the first prong of the minimum contacts
test.
It is particularly critical to amici that this Court recognize that
this principle – that the mere ability of foreign actors to access the
website of a U.S. company does not render the U.S. company subject to the
personal jurisdiction of the foreign company’s courts – applies with
particular force in cases such as this one.
Amici collectively represent
a wide range of U.S. entities that either engage in commerce or facilitate
commerce and other activity on the Internet.
Outside the Internet context, the legal principle that personal
jurisdiction may only arise from conduct that is purposefully targeted at a
jurisdiction “gives a degree of predictability to the legal system that
allows [amici and their members] to
structure their primary conduct with some minimum assurance as to where that
conduct will and will not render them liable to suit.” World-Wide
Volkswagen, 444 U.S. at 297 .
That need for certainty takes on even greater force in the context of
the Internet. Even the prospect of
being haled into court in far-flung countries will inevitably have a chilling
effect not only on U.S. citizens’ and companies’ exercise of their First
Amendment rights, but also their willingness and ability to “take their
businesses on the web.” For amici, the lack of certainty that
would arise if the French court’s judgment was upheld would be
debilitating.
B. The French Court’s Exercise of
Jurisdiction Does Not Comport with “Traditional Notions of Fair Play and
Substantial Justice.”
In addition to assessing
whether there have been “minimum contacts” with a forum, U.S. courts are also obliged to determine whether the
exercise of jurisdiction would be “reasonable” and comport with “fair play
and substantial justice.” See Burger King, 471 U.S. at 476
(“Once it has been decided that a defendant purposefully established minimum
contacts within the forum State, these contacts may be considered in light of
other factors to determine whether the assertion of personal jurisdiction
would comport with ‘fair play and substantial justice.’”); id. at 477-78 (“Nevertheless, minimum
requirements inherent in the concept of ‘fair play and substantial justice’
may defeat the reasonableness of jurisdiction even if the defendant has
purposefully engaged in forum activities”); Panavision Int’l, 141 F.3d at 1322 (“Even if” the requirement of
purposeful minimum contacts is met, court must still ask whether exercise of
jurisdiction is “reasonable, i.e. whether it comports with “fair
play and substantial justice”); Order Denying Motion to Dismiss at 10. As explained below, exercise of
jurisdiction in case such as this would be fundamentally unreasonable.
In the domestic context, the
inquiry into “fair play and substantial justice” requires courts to consider
several factors, including
(1) the extent of the defendant’s
purposeful interjection into the forum state; (2) the burden on the defendant
in defending in the forum; (3) the extent of the conflict with the
sovereignty of the defendant’s state; (4) the forum state’s interest in
adjudicating the dispute; (5) the most efficient judicial resolution of the
controversy; (6) the importance of the forum to the plaintiff’s interest in
convenient and effective relief; and (7) the existence of an alternative
forum.
Order Denying Motion to Dismiss
at 11 (quoting Bancroft & Masters,
223 F.3d at 1088); Burger King, 471
U.S. at 477 (courts must “evaluate the burden on the defendant, the forum
State’s interest in adjudicating the dispute, the plaintiff’s interest in
obtaining convenient and effective relief, the interstate judicial system’s
interest in obtaining the most efficient resolution of controversies, and the
shared interests of the several States in furthering fundamental substantive
social policies.”) (internal quotations and citations omitted); see also World-Wide Volkswagen, 444 U.S. at 292; Core-Vent Corp. v. Nobel Industries, AB, 11 F.3d 1482, 1487-88 (9th Cir. 1993). These factors strongly militate against
foreign courts’ assertion of personal jurisdiction in cases, like this one,
which are premised upon the mere accessibility of a website.
With respect to the first
factor, the degree of purposeful interjection, as this Court has recognized,
“‘[e]ven if there is sufficient ‘interjection’ into the state to satisfy the
purposeful availment prong, the degree of interjection is a factor to be
weighed in assessing the overall reasonableness of jurisdiction under the
reasonableness prong.’” Order Denying Motion to Dismiss at 11 (quoting Panavision, 141 F.3d at 1323). Where a U.S. company has simply created a
website that is, like all websites, accessible from around the world, the
degree of interjection into a foreign forum is minimal.
The second and third factors –
the defendant’s burden of litigating in the forum and the extent of conflict
with the sovereignty of the defendant’s state – also weigh heavily against
the assertion of personal jurisdiction by foreign courts in cases such as
this one. First, the potential burdens on Yahoo! and
companies like the Amici’s members (not to mention individuals, non-profits,
and similar organizations which post material on the web) are enormous. As an initial matter, it is far more
burdensome for a California defendant to be haled into court in France than
in, for example, Kansas or New York.
Although modern technology alleviates the burden, that is outweighed
by the fact that the potential burden is not confined to litigating in a
single foreign country. Because of
the nature of the worldwide web, a U.S. company’s website can be accessed
from almost anywhere in the world.
“Because the Internet has an ‘international, geographically-borderless
nature,’ with the proper software every Website is accessible to all other
Internet users worldwide.” ACLU, 217 F.3d at 169 (citations
omitted). Accordingly, businesses face
the crippling prospect of defending lawsuits not simply in one inconvenient
forum, but in every far-flung forum
on the globe. See id. at 168-69
(“Although estimates are difficult because of the Internet's rapid growth, it
was recently estimated that the Internet connects over 159 countries and more
than 109 million users.”).
The change of venue rules that
mitigate this concern in the domestic context do not apply to a case such as
the underlying suit that is brought in a foreign country. Although a case brought in federal
district court in Texas against a California defendant could be transferred
to a California district court “[f]or the convenience of parties and
witnesses, in the interest of justice,”
28 U.S.C. § 1404(a), this remedy is not available in the
international context. See Burger King, 471 U.S. at 477 (noting that in the domestic
context, a finding that exercise of jurisdiction violates due process could
be obviated if “a defendant claiming substantial inconvenience may seek a
change of venue.”).
Second – and critically – as
this case illustrates it is far more likely that the laws of foreign
countries will conflict with the laws and policies of California than would
the laws of a sister state. These
conflicts increase the burden on the defendant of litigating in the foreign
forum and exacerbate the conflicts with the sovereignty of the defendant’s
home state. Despite our system of
dual sovereignty, the United States is one nation with a common legal
tradition and commonly bound by the supremacy of the U.S. Constitution and
federal law. See, e.g., Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 48-49 (1867)
(“’For all the great purposes for which the Federal government was formed, we
are one people, with one common country.
We are all citizens of the United States; and . . . members of the
same community . . . .’”) (quoting The
Passenger Cases, 48 U.S. (7 How.) 283, 492 (1849)). The U.S. Constitution and federal laws
limit how wide-ranging and disparate the policies of the several states may
be with regard to commerce and speech on the Internet. For example, the First and Fourteenth
Amendments circumscribe the ability of states to regulate speech on the
Internet. See, e.g., ACLU v. Johnson,
194 F.3d 1149 (10th Cir. 1999).
Perhaps even more significantly for companies attempting to conduct
business over the Internet, the “dormant commerce clause” doctrine of federal
constitutional law prevents states from imposing inconsistent regulatory
obligations that would burden interstate commerce over the Internet. See
id. at 1162; see also American
Libraries Ass’n v. Pataki, 969 F. Supp. 160, 168-69 (S.D.N.Y. 1997)
(applying dormant commerce clause to invalidate state regulation and noting
that “[t]he unique nature of the Internet highlights the likelihood that a
single actor might be subject to haphazard, uncoordinated, and even outright
inconsistent regulation by states that the actor never intended to reach and
possibly was unaware were being accessed.”).
There is no limit, however, to
how different the laws of foreign countries may be from our own, or from each
other, and foreign courts may freely disregard the fact that their laws
substantially burden Internet commerce or conflict with the “fundamental
substantive social policies” of the United States, including the First
Amendment. Indeed, in the underlying
case LICRA and UEJF conceded that the speech at issue was protected by the
First Amendment, but nonetheless convinced a French court that Yahoo! must censor
that speech in order to comply with French law. And, of course, the choice of law principles that might
otherwise resolve these conflicts are inapplicable in this context. Although a New York court exercising
jurisdiction over a California defendant may decide under its choice-of-law
rules to apply California law to the dispute, there is no similar mechanism
that would alleviate the harm to a defendant caused by application of
foreign, rather than U.S., law in a foreign country. The burden of learning about and
attempting to comply with the laws of every foreign nation – let alone
actually going into court to defend lawsuits there – would be devastating to
large and small companies alike.
The fourth factor, the forum
state’s interest in adjudicating the dispute, is insufficient to overcome the
other factors and support the exercise of jurisdiction. Here, for example, the activity took place
in the United States, not France, and was not directed at France. Indeed, it was only the voluntary actions
of French citizens – in deliberately searching out this content on the web
and inviting it onto their computers with the volitional click of a mouse –
that caused the material to have any effect in France at all.
The fifth factor, consideration
of the most efficient judicial resolution of the controversy, also militates
against the French court’s exercise of jurisdiction in this case. If it was proper for the French court to
exert jurisdiction, it would be equally proper for every other country whose
citizens can access yahoo.com also to assert jurisdiction. The result would be well over a hundred
countries simultaneously exercising jurisdiction over Yahoo!’s U.S.-based
websites, which would not only be staggeringly inefficient from a judicial
economy perspective, but would also carry with it a grave danger of the
court’s reaching conflicting judgments.
The sixth and seventh factors –
the importance of the forum to the plaintiff’s interest in convenient and
effective relief and the existence of an alternative forum – are either
neutral or insufficient to outweigh the other factors militating against
jurisdiction.
Finally, in evaluating whether
the exercise of jurisdiction is “reasonable” and consistent with “fair play
and substantial justice” in the context of the Internet, it cannot be
emphasized enough that if persons or businesses are in danger of being haled
into court in any country in the world and subject to its laws simply because
a user can passively view the content placed on a site, the Internet will
necessarily be reduced to material that satisfies the most restrictive laws
throughout the world. See ACLU v. Reno, 217 F.3d at 175
(noting danger that regulation of the Internet could “essentially require
every Web communication to abide by the most restrictive community’s
standards.”). The People’s Republic
of China could purport to exercise jurisdiction over Yahoo! based news
reporting about the pro-democracy movement in that country accessible through
Yahoo!’s site. America Online could
be haled into court in Saudi Arabia because content posted on the personal
websites of its subscribers offends Islamic law. Barnes & Noble’s online division might be held liable in
Iran for offering for sale Salman Rushdie’s “The Satanic Verses.” A radio station in Los Angeles offering
live audio feed on its website might be prosecuted anywhere in the world
where sexually explicit lyrics are considered unlawful. Such an outcome would plainly be unreasonable.
This not mere apocalyptic
rhetoric. Threats to free expression
are widespread in today’s world. A
recent study of press freedom around the world, for example, found that 63
percent of countries restrict print and electronic media, and that some 80
percent of the world’s people live in nations with less than a free
press. See Leonard R. Sussman, Censor
Dot Gov: The Internet and Press Freedom 2000 (Freedom House 2000)
(available at www.freedomhouse.org/pfs2000/sussman.html).
Nor is censorship cabined to
countries such as China and Saudi Arabia.
Even countries like the United Kingdom - which have laws more akin
those of the United States -- often have different, and less speech-friendly,
rules on libel and defamation. See, e.g., Telnikoff v.Matusevitch, 702 A.2d 230, 347 Md. 561 (1997)
(declining to enforce British libel judgment on grounds that it conflicted
with First Amendment); Bachchan v.
India Abroad Publications Inc., 585 N.Y.S.2d 661 (1992) (same). A recent controversy involving the online
bookseller Amazon.com illustrates the potential dangers. The incident concerned a book called “A Piece
of Blue Sky,” which criticized the scientology religion founded by L. Ron
Hubbard. See K. Wimmer & J. Berman, United States Jurisdiction to Enforce Foreign Internet Libel
Judgments, in Pike &
Fischer’s Internet Law & Regulation (available at http://internetlaw.pf.com). In 1995, a British court ruled that the
book defamed Hubbard and issued an injunction prohibiting its
distribution. When Amazon learned of
the injunction in 1999, it removed the book from its catalog, making it
unavailable to customers in the United States (and all other countries served
by Amazon) as well as in the United Kingdom.
Amazon’s decision provoked a storm of controversy, with many asserting
that “Amazon’s actions had the effect of importing the British injunction
into foreign jurisdictions in which it had no proper legal effect.” Id. Although Amazon eventually changed course,
this sort of self-censorship is plainly a danger in the absence of clear
rules on the enforceability of foreign judgments in this context. Id.
For these reasons, clear rules
on the exercise of personal jurisdiction are particularly necessary. Absent the certainty that comes with a
clear rule that American entities will not be subject to the jurisdiction of
myriad foreign courts whose substantive rules are different from our own (and
from each other) every time something is posted on a U.S. website, the
vibrancy of the Internet as a forum for speech and commerce will be
destroyed. “The unique burdens placed
upon one who must defend oneself in a foreign legal system” and the competing
demands of substantive laws render stretching the long arm of personal
jurisdiction over international borders in this context
unconstitutional. See Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S.
102 at 114. This court thus should recognize that, quite apart from the fact
that Yahoo! has not purposefully established minimum contacts with France, a
finding of personal jurisdiction against Yahoo! (or any other similarly
situated entity) would be unreasonable and inconsistent with fair play and
substantial justice.
II. THE FIFTH AMENDMENT ALSO PROHIBITS
ENFORCEMENT OF FOREIGN JUDGMENTS WHERE, AS HERE, THE FOREIGN COURT DID NOT
HAVE PRESCRIPTIVE JURISDICTION OVER THE CONDUCT AT ISSUE.
Amici also note a second jurisdictional
issue presented by this case: even if a foreign court properly exercises
personal jurisdiction over a given defendant, a foreign judgment should not
be enforced if the foreign legal system lacked prescriptive jurisdiction over
the subject matter of the conduct at issue.
See, e.g., Wilson v. Marchington,
127 F.3d 805, 811 (9th Cir. 1997); Restatement (Third) Foreign Relations Law of the United States § 482 (2) (a) (“A court in the
United States need not recognize a judgment of a court of a foreign state if
. . . the court that rendered the judgment did not have jurisdiction of the
subject matter of the action.”).
Customary international law
holds that a state only has limited jurisdiction to proscribe conduct outside
its territory. Restatement (Third) Foreign Relations Law of the United States
§ 402(c); United States v.
Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir. 1994) (under
international law, a state may assert jurisdiction over foreigners for
extraterritorial acts “that may impinge on the territorial integrity,
security, or political independence” of the state); see also Hartford Fire Ins. Co. v. California, 509 U.S. 764, 815
(1993) (Scalia, J., dissenting)
(“‘the law of nations,’ or customary international law, includes limitations
on a nation’s exercise of its jurisdiction to prescribe.”) (citing Restatement). These limits on prescriptive jurisdiction
stem from the notion of territorial sovereignty, which lies at the heart of
the current system of international law.
See, e.g., Reid v. Covert,
354 U.S. 1, 58-61 (1957) (Frankfurt, J.,
concurring) (describing historical evolution of notions of territorial
sovereignty and noting that “[t]he emergence of the nation-state in Europe
and the growth of the doctrine of absolute territorial sovereignty changed
the nature of extraterritorial rights.”); United
States v. Bevans, 16 U.S. (3 Wheat.) 336, 386_87 (1818) (holding that
“the jurisdiction of a State is coextensive with its territory”); see also Harold G. Maier,
“Jurisdictional Rules in Customary International Law”, in Extraterritorial Jurisdiction in Theory
and Practice 64 (K. Meessen, ed. 1996) (“Modern customary international
legal limitations on a nation’s exercise of extraterritorial authority have
their roots in those fundamental principles of territorial sovereignty that
still inform much of modern international law.”). The government of one country is generally not allowed to reach
out and control the conduct of persons within the borders of another country,
for to do so would infringe on the sovereignty of the regulated nation. As Chief Justice Marshall wrote:
The
jurisdiction of the nation within its own territory is necessarily exclusive
and absolute. It is susceptible of no limitation not imposed by itself. Any
restriction upon it, deriving validity from an external source, would imply a
diminution of its sovereignty to the extent of the restriction. . . . All exceptions, therefore, to the full and
complete power of a nation within its own territories, must be traced up to
the consent of the nation itself. They can flow from no other legitimate
source.
Schooner
Exch. v. McFaddon, 11 U.S. (7
Cranch) 116, 136 (1812) (Marshall, C.J.); see also United Nations Declaration on the Inadmissibility of
Intervention in the Domestic Affairs of States and the Protection of their
Independence and Sovereignty (“No State has the right to intervene directly
or indirectly, for any reason whatever, in the internal or external affairs
of any other state.”).
Not only does extraterritorial
regulation infringe upon the sovereignty of other countries, it infringes
upon the fundamental rights of that country’s citizens. It is a basic principle of due process
that governments “deriv[e] their just Powers from the Consent of the
Governed.” Declaration of Independence,
para. 2 (U.S. 1776). The government
of France, for example, has no “just power” over persons residing in the
United States because those citizens have not consented to be governed by
France. Thus, although the citizens
of France, through the government of France, are free to make the choice for themselves that it is worth
sacrificing some of their freedom of speech to protect other societal values,
they are not free to make that choice for the citizens of the United States.
These concerns are not unique
to the Internet, although they apply with particular force in this
context. International law scholars
have long recognized the serious problems posed by nations’ attempts to
enforce their laws extraterritorially.
A 1987 study commissioned by the International Chamber of Commerce,
for example, found that “extraterritorial applications of national laws and
policies impose significant costs on some sectors of international
business.” The Extraterritorial Application of National Laws 3 (D. Lange
& G. Born, eds. 1987). The
International Chamber of Commerce committee identified “a number of
situations” in which companies were subject to inconsistent obligations, that
is, where, national governments had attempted to require companies to take
actions in foreign countries that were “prohibited
by those foreign countries,” placing the companies in a dilemma where they
were forced to disobey at least one country’s laws and possibly incur
substantial fines and civil penalties.
Id. In addition, uncertainty over what
nations’ laws might be applied to a particular course of conduct was found to
“discourage[] international businesses from engaging in productive trade and
investment.” Id. The International
Chamber of Commerce found that “[t]he overall impact of the extraterritorial
application of national laws is to discourage or prevent useful economic
activity in the form of international investment, and to reduce the
profitability of existing investment.”
Id. See
also generally Kristina M.
Reed, From the Great Firewall of China
to the Berlin Firewall: The Cost of Content Regulation on Internet Commerce,
13 Transnational Lawyer 451 (2000).
These dangers are heightened in
the Internet context, where material posted anywhere in the world is
available substantially everywhere else in the world, and companies and
individuals have no reasonable way to limit the availability of material they
post on the web. See, e.g., ACLU v. Reno, 217 F.3d at 175 (“[O]f extreme significance is the
fact . . . that Web publishers are without any means to limit access to their
sites based on the geographic location of particular Internet users.”); Macquarie Bank Ltd., [1999] NSWSC 526,
¶ 12 (“Once published on the Internet material can be received anywhere,
and it does not lie within the competence of the publisher to restrict the
reach of the publication.”). And
these problems are heightened even further when the business conduct in
question involves trade in information, as so much business on the Internet
does, because the mere threat of liability may “chill” speech.
An Australian court, in an
exercise of admirable self-restraint, recently recognized these principles in
declining to issue an injunction against material posted on the Internet by a
person in the United States that was defamatory under Australian law. See
Macquarie Bank Ltd. v. Berg [1999]
NSWSC 625 (New South Wales Supreme Ct. 2 June 1999). The court first noted that the global
nature of the Internet means that “[o]nce published on the Internet material
can be received anywhere, and it does not lie within the competence of the
publisher to restrict the reach of the publication.” Id.
¶ 12. The court went on to
explain that:
The
difficulties are obvious. An
injunction to restrain defamation in NSW [New South Wales, one of the states
of Australia] is designed to ensure compliance with the laws of NSW, and to
protect the rights of plaintiffs, as those rights are defined by the law of
NSW. Such an injunction is not
designed to superimpose the law of NSW relating to defamation on every other
state, territory and country of the world.
Yet that would be the effect of an order restraining publication on
the Internet. It is not to be assumed
that the law of defamation in other countries is coextensive with that of
NSW, and indeed, one knows that it is not.
It may very well be that, according to the law of the Bahamas,
Tashakistan, or Mongolia, the defendant has an unfettered right to publish
the material. To make an order
interfering with such a right would exceed the proper limits of the use of
the injunctive power of this court.
Id. ¶ 14.
In light of the sovereignty and
fundamental rights concerns described above, however, customary international
law has narrowly circumscribed the circumstances in which a nation may
exercise extraterritorial prescriptive jurisdiction to those situations in
which the nation has a vital interest in protecting its own interests or
citizens, notably where the conduct “has or is intended to have substantial
effect within its territory.” Restatement (Third) Foreign Relations Law
of the United States § 402(1)(c).
And, in light of the disfavored nature of extraterritorial control,
even when conduct would have a substantial effect within a nation, that
nation’s power is limited by the requirement that the exercise of its
prescriptive jurisdiction not be “unreasonable.” See id. §
403(1); see also Vasquez-Velasco, 15 F.3d at 839
(citing Restatement). As explained below, these standards must
be enforced with particular strictness in the Internet context, because the
uniquely global nature of the Internet makes the hazard of inconsistent laws
and regulations particularly threatening to American individuals,
organizations, and companies.
A. The Maintenance by an American
Company of a Website, Directed at U.S. Citizens, Does Not Indicate an Intent
to Have a Substantial Effect in a Foreign Country, Nor Does it Demonstrate
the Existence of Such an Effect.
As explained above, the threshold
question in deciding whether foreign legal systems have prescriptive
jurisdiction over conduct occurring outside their boundaries is whether the
conduct was intended to, or did, have a substantial effect in the foreign
country. The first question – whether
a party’s conduct was intended to have an effect in a foreign jurisdiction –
is similar to the question whether the conduct in question was “expressly
aimed” at the jurisdiction. See pp. 12-15, supra. In the same way
that a U.S. company cannot be said to be aiming at any given foreign jurisdiction
when it merely posts a website on the Internet, it cannot be said that
posting a website demonstrates that the U.S. company intended an effect in
doing so.
Nor could a court conclude that
the mere presence of material posted on a U.S.-based website (assuming, as is
the case here, that the site is not targeted a foreign forum) causes
“substantial effects” abroad. In
determining whether extraterritorial conduct actually has substantial effects
within a territory, courts consider a variety of factors, including: whether
the entity engages in substantial business within the territory; whether a
large number of a business’ customers are residents of the territory; and
whether the entity’s activities within
the territory “materially support” the extraterritorial activity complained
of. Atlantic Richfield Co. v. Arco Globus Int’l Co., 150 F.3d 189,
193 (2d Cir. 1998); National Transp.
Safety Bd. v. Carnival Cruise Lines, Inc., 723 F.Supp. 1488, 1491 (S.D.
Fla. 1989). “Transactions with only
remote and indirect effects in the [territory] do not qualify as
substantial.” North-South Finance Corp. v. Al-Turki, 100 F.3d 1046, 1051 (2d
Cir. 1996). Thus, for example,
incidental use of the telecommunications system of a country alone does not
suffice. See Butte Mining PLC v. Smith,
76 F.3d 287, 291 (9th Cir.1996) (holding, in deciding whether U.S. law should
apply extraterritorially to conduct carried out abroad, that the mere
peripheral “use of the mail and wire in the United States” as part of course
of conduct outside the U.S. does not suffice to show substantial effects in
the U.S.). On the other hand,
conducting substantial portions of a business in a forum and intentionally
soliciting business from forum residents are sufficient. See,
e.g., People ex rel. Vacco v. World Interactive Gaming Corp.,
714 N.Y.S.2d 844, 850-51 (N.Y. Supr. Ct. 1999).
Each of the factors that courts
consider in determining whether there is a substantial effect focus on the
activities of the company within that country. In this case, Yahoo!, Inc. does not operate in France. It operates a website based in the United
States, targeted at U.S. citizens, in the English language. It has established a separate French subsidiary that operates a site from France, in
French, targeted at French citizens, that complies with French law. Presumably for this reason, there is no
mention in the French court’s decisions of “substantial effects” within
France. Indeed, the only “harm” the
court recognizes is the harm purportedly suffered by LICRA and UEJF, who
deliberately sought out and viewed Yahoo!’s U.S. site. In particular, the court noted that an
officer of the court confirmed that a French user could access the Yahoo!
site and concluded that “by permitting [Nazi] objects to be viewed in France
and allowing surfers located in France to participate in such a display of
items for sale, the Company YAHOO! Inc. is therefore committing a wrong in
the territory of France, a wrong whose unintentional character is averred but
which has caused damage to be suffered by LICRA and UEJF, both of whom are
dedicated to combating all forms of promotion of Nazism in France.” May 22, 2000 Order.
Moreover, the only allegation
of effects within the French territory at all are the result of deliberate
actions taken by LICRA and UEJF themselves.
Yahoo!, Inc. did not reach out and impose upon the citizens of France
material that the French court found objectionable. As courts have recognized,
“[c]ommunications over the Internet do not ‘invade’ an individual’s home or
appear on one’s computer screen unbidden.”
ACLU v. Reno, 929 F. Supp.
at 844. Instead, an individual must
seek out the material at issue. But
that alone cannot suffice to allow any country in the world to ban the
material that is sought out in this manner.
In the same way that “[t]he unilateral activity” of one in a foreign
state cannot show that a U.S. entity
had contacts within the foreign state such that exercise of personal
jurisdiction over the U.S. entity is appropriate, Burger King, 471 U.S. at 474-75, the unilateral activity of an
actor in a foreign state cannot demonstrate that a U.S. entity caused
substantial effects within a foreign state so that prescriptive jurisdiction
attaches. Thus, in this case, Yahoo!,
Inc. did not cause any effect at all to be felt in France. It was the actions of the French student
unions themselves that caused even the minimal effects they alleged. In such circumstances, it cannot be said
that the U.S. entity’s conduct in posting material on a U.S. site can be
subject to the prescriptive jurisdiction of a foreign court.
To hold otherwise would
literally allow every other country in the world to ban any image, any
product, any activity whatsoever found on a U.S.-based website that offends
the norms of that country. Under the
French court’s theory of jurisdiction, foreign residents (or governments) are
free to surf the Internet, diligently searching out anything they find
offensive. Once they manage to find
it, a claim could be brought in the courts of that country that the ability
of a foreign resident to search out material that is offensive confers
jurisdiction on the foreign country to ban it. Simply to state the proposition is to demonstrate why it is
untenable. Any government could
effectively impose a ban on any material it found offensive simply by
searching for, and finding, such material on the Internet, regardless of
where it is posted, or at whom it is targeted.
B. France’s Exercise of Prescriptive
Jurisdiction Is Also Unreasonable
Even where extraterritorial
conduct has a substantial effect within a nation’s territory, that nation
should not exercise prescriptive jurisdiction if it would be
“unreasonable.” Restatement (Third) of Foreign Relations Law of the United States §
403. Whether exercise of jurisdiction
is unreasonable is determined by evaluating “all relevant factors,” including
the “link of the activity to the territory of the regulating state, . . . the
connections, such as nationality, residence, or economic activity, between
the regulating state and the person principally responsible for the activity
to be regulated, . . . , the character of the activity to be regulated, . . .
the importance of the regulation to the international political, legal, or
economic system, [and] the likelihood of conflict with regulation by another
state.” Id. § 403(2).
It is abundantly clear that
France’s exercise of prescriptive jurisdiction in this case is
unreasonable. There is no question
that the U.S. has a paramount interest in the activity in question, which
occurs within its territorial boundaries and is lawful here. The activity at issue is fully protected
by the First Amendment, and the United States has an overriding interest in
protecting such activity. See,
e.g., Telnikoff v. Matusevitch,
702 A.2d 230, 347 Md. 561 (1997) (declining to enforce British libel judgment
on grounds that it conflicted with First Amendment); Bachchan v. India Abroad Publications Inc., 585 N.Y.S.2d 661
(1992) (same).
In contrast, the interest of
foreign forums in cases such as this is, at best, nominal. See Restatement (Third) of Foreign Relations Law of the United States
§ 403(2)(g). Indeed, here the
activity took place outside France, and was plainly directed at the U.S., not
France. Because Yahoo has incorporated
a separate French subsidiary to serve the French market, and that subsidiary
complies with French law, there is virtually no connection between Yahoo!
Inc. and France.
Moreover, foreign countries
have several less restrictive means of protecting their interests, without
attempting to regulate extraterritorial conduct. First, they can enforce their laws against their own citizens
and other persons within their territory, punishing them for accessing
materials deemed harmful to civil society.
Second, although it is currently impossible for a person posting
material on the Internet effectively to restrict access to the material based
on the geographic location of the reader, see,
e.g., ACLU v. Reno, 217 F.3d at
175 (“[O]f extreme significance is the fact . . . that Web publishers are
without any means to limit access to their sites based on the geographic
location of particular Internet users.”), it is much morepossible (albeit difficult and possibly politically unpopular)
for a country to limit its own citizens’ access to the Internet. Some countries – such as China and Saudi
Arabia – “maintain control through government servers that censor incoming
news and information.” Sussman, Censor Dot Gov: The Internet and Press
Freedom 2000, supra, at 2. Citizens are only allowed to access the
internet through the government servers, and “[p]enalties including
imprisonment await citizens who use faxes, cell phones, or codes to
circumvent the government ISP [Internet Service Provider].” Id. A country such as France that found
the extreme methods used by China and Saudi Arabia unpalatable could also
explore somewhat less restrictive measures, such as requiring all private
French Internet service providers or users to install blocking software that
would screen for particular words. In short, France could take substantial
steps to prevent its citizens from being exposed to materials it considers
“dangerous” without exerting extraterritorial jurisdiction over U.S.
websites.
Nor is the regulation important
to the operation of the “international political, legal, or economic system.”
See Restatement (Third) of Foreign
Relations Law of the United States § 403(2)(e). Indeed, extraterritorial regulation of the
Internet (when not supported by treaties or mutual agreement among nations)
is detrimental to the international legal, political, and economic
system. It will impede the economic
development of the Internet, stifle political discourse, and subject persons
around the world to unpredictable legal requirements. Moreover, the international political,
legal, and economic system is currently working to deal with transnational
problems like the one presented by this case through the treaty process. See Preliminary
Draft Convention on Jurisdiction and Foreign Judgments in Civil and
Commercial Matters, Hague Conference on Private International Law (Oct. 20, 1999) (available at http://www.hcch.net/e/conventions/draft36e.html).
III. CONCLUSION
For the reasons stated above, the court, in ruling on the
First Amendment issues, should also be aware of the broader context and the
critical jurisdiction issues posed by this and similar cases, and the threat
to the Internet that the lack of clear rules regarding personal and
prescriptive jurisdiction would pose.
August
6, 2001 Respectfully
Submitted,
_____________________________
JODIE
L. KELLEY
ALAYA
B. MEYERS (Cal. Bar No. 199551)
JENNIFER
S. MARTINEZ
JENNER
& BLOCK, LLC
601
13th Street, N.W.
Suite
1200
Washington,
D.C. 20005
(202)
639-6000
(202)
639-6066 (fax)
Counsel
for Amici Curiae
STEPHEN
A. BOKAT
ROBIN
S. CONRAD
JOSHUA
A. ULMAN
NATIONAL
CHAMBER LITIGATION CENTER
1615
H Street, NW
Washington,
DC 20062
(202)
463-5337
Counsel
for Amicus Curiae the Chamber of
Commerce of the United States
KENNETH A. RICHIERI
ONLINE PUBLISHERS ASSOCIATION
500 7th Avenue
8th Floor
New York, NY
10018
(646)
698-8024
Counsel
for Amicus Curiae the Online Publishers Association
15/ Amici find censorship of any sort
repugnant, and do not mean to suggest that they encourage or condone in any
way any censorship of the Internet.
Instead, amici merely point
out that countries that do engage in censorship do not have to regulate extraterritorially to do so.
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