<nettime> fwd: love@cptech.org: Jurisdiction and the Voteauction.com case

[t byfield <tbyfield@panix.com>]

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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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