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The Committee on Cyberspace Law explores a wide range of rapidly changing legal disciplines including electronic commerce and contracts, consumer protection, intellectual property, cyber security & privacy, jurisdiction, internet governance, and online financial activities. This CCL eNewsletter provides our members with an opportunity to help advance members' awareness and understanding of these evolving and dynamic legal issues. Our goal is to make it a useful addition to your practice by helping to make you aware of some of the developments impacting your practice and your clients' businesses, and what these developments mean. Please contact me if you are interested in submitting short articles for publication in this eNewsletter, or if you have any constructive comments or suggestions concerning this newsletter.

Thanks to our contributors for this issue: Jeff Aresty, Amy Boss, Kristine Fordahl Dorrain, Michael Fleming, and Christina Kunz.

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On October 19, 2008, we lost our dear friend and dedicated colleague, Prof. Donald F. Clifford, Jr. As you sit at your computers searching for the perfect gift for holidays, birthdays, and other special occasions, please remember Don and one of the most significant and visible works created for the Cyberspace Committee under his leadership: the 2005 overhaul of SafeShopping.org. SafeShopping.org offers tips and information for consumers who choose to shop online, and it has been a valuable resource for consumers as they adapted to the new commercial environment.

As many of us in the Committee helped our business clients move commercial transactions online, Don contributed his knowledge of consumer protection law to our efforts. Don's advocacy challenged us to consider issues that could have been easily overlooked or ignored, and in doing so, Don helped make the Committee's projects richer and more accessible to a wider audience. Don will be especially missed in the Committee because few consumer advocates are both willing and able to participate regularly in Business Law Section activities. As we continue to lead the way in the combination of business law and emerging technology, we should follow Don's example and consider how our work will impact the rights and responsibilities of individual consumers. The result will be a more solid legal foundation to support those new business opportunities.

While many of us know Don through his work with the Cyberspace Committee, Don was a long-standing active member of the UCC Committee as well. Don was a key member of the team of ABA Observers to the UCC Article 2 redraft process, run by the National Conference of Commissioners on Uniform State Law (NCCUSL). Over the eight-year period in which the NCCUSL Drafting Committee met 3-4 times per year, he attended almost every meeting and made extensive written and oral comments to the Drafting Committee. His knowledge and insight into the Article 2 warranties were especially valuable, and, among the ABA Observers, he became the "go-to guy" on warranty issues. He also joined his fellow ABA Observers on yearly panel presentations that updated practitioners on the redraft process. His scholarly observations about Article 2 were always carefully supported by his vast knowledge of the case law and the full range of commercial and consumer applications.

Don's contributions were far more than substantive. Don was a wonderful mentor and role model for all with whom he worked. Truly dedicated to the improvement of the law and the protection of those who could not protect themselves, Don was a model of integrity and at the same time humility.

Don taught at the University of North Carolina - Chapel Hill School of Law, beginning in 1964, where he was the Aubrey L. Brooks Professor Emeritus. Don's classes included business associations, sales, secured transactions, consumer law, and a seminar on State Laws of Unfair and Deceptive Acts and Practices. In recent years, as a result of his work in the Cyberspace Committee, Don consulted with the American delegation on consumer protection proposals in an Organization of American States project involving Brazil, Canada and the United States.

Don is survived by his wife Louise, five daughters, and many grandchildren. Please keep Don's family in your thoughts and prayers.

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The Internet Bar Organization ("IBO") is pleased to announce the receipt of a grant from the American Bar Association Fund for Justice and Education, through the World Justice Project, for its PeaceTones Initiative. The PeaceTones Initiative addresses the isolation of individuals in conflict zones and zones recently freed from conflict. Prolonged conflict serves as an anchor, holding back populations that are vandalized and deprived of resources, populations living at or below the international poverty line, and populations that are overlooked or exploited by local governments. PeaceTones aims to assist musicians and their communities in conflict and post-conflict zones with access to Internet technology, legal assistance in establishing and maintaining intellectual property rights, alternative dispute resolution assistance to ensure successful ongoing development, and business assistance to bring remote market prices to local developing markets. IBO will ensure that the proceeds from these sales go directly to the musicians and/or their cooperatives, but retains a portion of the money received pursuant to the draft of the PeaceTones Artist Agreement. The legal community's role in PeaceTones is to design and build-out an international legal empowerment network, including a user interface, comprised of lawyers from all over the world who donate their time and expertise to help advise artistic individuals who otherwise would not have access to rule of law due to monetary or location based restriction. For more information see: www.peacetones.org.

The Liberty Alliance, a standards organization with a global membership that provides a holistic approach to identity, is collaborating with the legal community to develop a system of legal assurance for identity within the legal empowerment network - The PeaceTones Initiative will be but one place their work will be used. The vision of Liberty Alliance is to enable a networked world based on open standards where consumers, citizens, businesses and governments can more easily conduct online transactions while protecting the privacy and security of identity information. For more information see: www.projectliberty.org.

The launch of the PeaceTones legal empowerment network will take place at the Winter Working Meeting of the Cyberspace Law Committee of the ABA Business Law Section from January 30-31, 2009 at Santa Clara University.

About The Author: Jeff Aresty is the President of The Internet Bar Organization.

Every time you visit an Internet site you most likely are agreeing to be bound by the terms and conditions associated with that website, including subsequent revisions. Or are you?

Most sophisticated websites include a "terms and conditions" page accessible by hyperlink from the home page and from nearly all of the other pages of the website. This is particularly true if the website offers goods and/or services. However, there are many other websites that include (or should include) terms and conditions as an integral part of the site: health care providers, education, newspapers, libraries and other public institutions, professional organizations, trade associations, and government entities, to name a few.


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Does a state court have jurisdiction to seize domain names registered by non-United States individuals simply because the domain name registrants have websites that are freely accessible throughout the world? Should domain name registrants be expected to face lawsuits in any locale where their website might be accessed? Which laws apply to a domain name registrant as they set up their website? These questions have been touched on, skirted, and addressed by a variety of United States courts, but none with quite so much audacity as a circuit court in Kentucky.

In September 2008, Judge Wingate for the Franklin Circuit Court in the Commonwealth of Kentucky, in Commonwealth of Kentucky ex rel. Brown v. 141 Internet Domain Names, No. 08-CI-1409, (KY Cir. Ct. 2008), took unprecedented steps to enforce Kentucky's statewide gambling ban. In an ex parte hearing, the Commonwealth requested that the Court seize 141 Internet Domain Names for alleged connections to online gambling services available to the residents of Kentucky. The Court agreed to the Commonwealth's request on September 18; the "seizure" consisted of an order to transfer registrations for the 141 Internet Domain Names to the Commonwealth's accounts. After additional amici entered the litigation, further hearings were held. The court then issued its Opinion and Order on October 16, 2008, allowing the seizure.


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In Quon vs. Arch Wireless Operating Company, Inc., et al., (June, 2008), the United States Court of Appeals, 9th Circuit, sounds another warning to employers and highlights the risks of a disconnect between conditions stated in an employer's "Computer usage, Internet and E-mail policy" (the "Policy") and the actual practices of the employer.

The Quon case involved several police officers (the Appellants) who were issued pagers by their employer, the Ontario (California) Police Department ("OPD"), and who used the pagers for personal text message communications. OPD had contracted with Arch Wireless Operating Company, Inc. ("Arch Wireless") to provide text messaging service. As part of OPD's auditing of the bills for the text messaging service, OPD requested that Arch Wireless provide OPD copies of the text messages sent by the Appellants, some of which messages were "personal in nature and often sexually explicit." The Court first addressed whether Arch Wireless violated the Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701-2711 (1986), and concluded Arch Wireless did violate the SCA, and then addressed whether the Appellants' rights under the 4th Amendment were violated, and concluded that the employer did violate the employees' 4th Amendment rights.


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