[Nettime-bold] fwd: love@cptech.org: Jurisdiction and the Voteauction.com case

[t byfield <tbyfield@panix.com>]

----- Forwarded

Subject: Voteauction.com
Date: Fri, 23 Feb 2001 15:50:28 -0500
From: James Love <love@cptech.org>
Organization: http://www.cptech.org
To: "ncdnhc-discuss@lyris.isoc.org" <ncdnhc-discuss@lyris.isoc.org>

WIPO FORUM ON PRIVATE INTERNATIONAL LAW
AND INTELLECTUAL PROPERTY
Geneva, January 30 and 31, 2001


ELECTRONIC COMMERCE:  ISSUES IN PRIVATE INTERNATIONAL LAW AND THE ROLE
OF ALTERNATIVE DISPUTE RESOLUTION
by Dean Henry H. Perritt, Jr.
Vice President and Professor of Law
Illinois Institute of Technology
Chicago-Kent College of Law
Chicago (United States of America)

B.	Voteauction.com

1.	In October, 2000, the Chicago Board of Election Commissioners became
concerned that a Web site located in Austria, voteauction.com, had the
potential to corrupt or, at least, to undermine confidence in the
general election subsequently held on 7 November 2000 in Chicago and
elsewhere in the United States.  voteauction.com solicited voters in the
then forthcoming election to offer to sell their votes, and also
solicited persons interested in buying those votes.  The Web site was
constructed so that offers to sell and offers to buy were made by
filling out a form that included the address, with a pull down list
including Illinois as an option.  Moreover, the Web site also included a
summary of outstanding offers with Illinois as a specific listing. 
There was, thus, little difficulty in concluding that Illinois courts
could exercise jurisdiction over the Web site under the Zippo Continuum 
and the targeting concept of Millennium Enterprises. 

2.	Accordingly, the Board of Election Commissioners filed a civil
lawsuit in the Circuit Court of Cook County against voteauction.com and
its individual organizers and managers.  

3.	But the existence of theoretical jurisdiction was not enough; any
judgment also must be enforced, and the procedures for transnational
enforcement of judgments not only are uncertain, they would take
months.  The election was scheduled in weeks.

4.	So, the Election Commissioners thought about practicable enforcement
measures that might be taken against property located in the
jurisdiction, or at least in the United States.  One possibility was to
target the domain name, "voteauction.com."  Such an approach had been
suggested by the author of this article in "Will the Judgment Proof Own
Cyberspace."  The offending domain name was present in Illinois-and
hundreds or thousands of domain name servers supporting hundreds or
thousands of Internet service providers in the vicinity of Chicago.  But
litigating against all those ISPs quickly was ruled out.  Instead,
voteauction.com's domain name registrar, Domain Bank,  was named as a
defendant in the lawsuit, and the draft injunction attached to the
complaint included a paragraph ordering that the domain name be
withdrawn or cancelled.  In October 2000, Judge Murphy of the Circuit
Court of Cook County Illinois signed the injunction after a hearing.  

5.	Domain Bank had been notified of the lawsuit, and had engaged in
extensive telephonic discussions with counsel for the Election
Commissioners.  Domain Bank had, in its standard domain name
registration agreement, a provision prohibiting the use of domain names
for "illegal purposes."  After the injunction was issued, signifying a
judicial determination that the domain name was being used illegally,
Domain Bank cancelled the voteauction.com domain name, shutting down
voteauction.com all over the world.

6.	But celebrations of victory in Chicago were tentative, and sure
enough, about a week later voteauction.com opened up under a new domain
name, "vote-auction.com," and this domain name was registered in
Switzerland with CORE.  But CORE had a similar prohibition against
illegal use in its standard domain name registration agreement.  After
extensive telephonic and email discussions between counsel for the
Election Commissioners and counsel for CORE, CORE also cancelled the
vote-auction.com domain name, once again shutting the site down. 
Subsequently, voteauction.com sought to publicize its IP address, the
use of which would avoid the domain name system all together, but by
then, the election had been held.

7.	The voteauction.com litigation illustrates an interplay between
public and private regulation different from walmart.  The lawsuit and
the injunction obviously were traditional adjudicatory processes by a
court-a paradigmatic public institution.  But an important part of the
overall result turned on the private rule, promulgated by a private
institution-the domain name registrars-that prohibited illegal use of
the domain name.  Based on the determination of illegality by the public
institution, the private institution used its power over an asset-the
domain name-to achieve the result desired by the complainant. 
Voteauction.com can be understood to be an interesting case about
judicial jurisdiction, but it also is about enforcement of a very broad
rule by a private intermediary.

8.	Voteauction.com involved the inverse of the usual relationship
between public and private institutions. In voteauction.com, the public
courts in Illinois performed the adjudicatory function, and the private
domain name registrars decided whether to enforce the judicial decision.
Because no injunction clearly supported by personal jurisdiction bound
either of the domain name registrars, their actions in revoking
voteauction's domain name privileges is best understood as purely
private action, informed by the public determination by the Circuit
Court of Cook County.

9.	Voteauction.com also showed the importance and practicability in
working out the boundary between public and private regulation.  In some
theoretical sense, it would have been better to have enforced the
injunction against domain name translation in or near Chicago.  That
would have kept the enforcement action within the sovereign whose laws
were being enforced.  It also would have comported more comfortably with
geographic limits on the jurisdiction of the court issuing the
injunction.  But doing that was impracticable, given the large number of
ISPs and uncertain patterns of use.  It was much easier under tight time
deadlines imposed by the proximity of the election, to focus enforcement
efforts on a single intermediary, the first located in another state but
within the United States, and the second located in a foreign country. 
The theoretical jurisdictional grounds were shakier, but enforcement at
this level was practicable.

-- 
James Love
Consumer Project on Technology
P.O. Box 19367, Washington, DC 20036
http://www.cptech.org
love@cptech.org
1.202.387.8030 fax 1.202.234.5176

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