Dozier Internet Law: New Laws Are Coming

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John W. Dozier, Jr. began practicing law in 1981 and has the highest rating (AV) by Martindale-Hubbell (meaning he has reached the "height of professional excellence and is recognized for the highest levels of skill and integrity"). Mr. Dozier is a "Legal Elite for 2008" as an Intellectual Property Lawyer through a peer selection process of the Virginia Bar Association and Virginia Business Magazine, was recognized through peer review as a "Super Lawyer" in Internet Law in the "Superlawyers" Magazine, was named as one of the top attorneys nationwide for 2008 in Intellectual Property Litigation in the Law and Politics Corporate Counsel Edition, and is peer selected as preeminent in the 2008 "Bar Register of Preeminent Lawyers".

Have we now reached the point in which the web is so out of control that governmental authorities in the form of prosecutors and state Attorney General offices feel compelled to act? A federal prosecutor in LA gets a conviction of a mom for violating the terms of use of Myspace. The New Jersey AG sues for consumer protection violations based upon misrepresentations in its terms of use. A Colorado prosecutor brings criminal charges against a poster for allegedly defamatory comments on Craigslist. What's going on here?

At Dozier Internet Law we have for a long while encouraged the self regulation and self policing of the web. History has told us that if that fails, government will get involved in one way or another. What we are seeing today is action by the executive and judicial branches of state government. Absent self policing, Congress, state legislators and even city and county governments will begin passing laws that will profoundly impact the web as we know it.

Codes of ethics for search engine optimization and affiliate marketers have been around for a while. So that industry is trying, at least. But what can web developers, web hosts, ISPs, and domain registrars do to send the message to the legislators that positive steps are being taken to provide a more safe, secure and civil Internet? Each can consider establishing strict guidelines and implementing them through their User Agreements and Acceptable Use Policies. Then, they can each aggressively enforce those rules. And there is no law prohibiting a business from deciding with whom it will do business absent discrimination being visited upon a protected class. And why not do so? In a time when Dozier Internet Law is defending lawsuits filed against webhosts, ISPs, software developers, and ESPs for the conduct of their customers, why would a legitimate business not police itself? There is no reason.

Recently we have seen high profile calls by Public Citizen for web hosts to be willing to bring their financial resources to the table to defend the misconduct of their customers. We, and other lawyers in the know, call this type of a host "bullet proof hosting" or "black hat hosting". The reputation of these hosts, to say the least, is anything but stellar. No legitimate host would want those labels. And there is no business reason to do so. Is this the type of protection a web host would freely offer up to a $7 a month customer? Of course not.
So, on the one hand we have a pressing need to self regulate and self police, and efforts being made within industries and specific businesses to do so. On the other hand, there is the move afoot by the free speech and anti-business property rights groups to do everything they can to encourage misconduct. If the Public Citizen advice is followed that would be an invitation for legislation, a solicitation for more governmental intervention by the executive and judicial branches, and a recipe for disaster.

Web hosts should not only develop, implement and enforce strict guidelines aimed at returning safety, security and sanity to the online world, but undertake an industry-wide effort to establish a Code of Ethics and performance standards and good practice certifications. "Bullet proof" and "black hat" hosts need not apply because, well, you are ruining it for everyone.

Some of these free speech expansionsist public interest groups might think that high profile litigation surrounding new laws would be a good thing for fund raising. I am sure it would be. Is their advice motivated by greed? Or just a fanatical, one sided perspective nurtured by their long standing support of the scofflaws?

Here's the lesson, perhaps. Is the message for web hosts that if you freely associate with outlaws, you find yourself thinking like them? I don't know. But it could explain Public Citizen's position.

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