Hacking Hacker Computer - Free photo on Pixabay

Kristin J. Rempe

The Active Cyber Defense Certainty Act—colloquially known as the “Hack Back” bill— was first introduced in 2017[1] and reintroduced in 2019.[2]  The bipartisan bill seeks to amend the Computer Fraud and Abuse Act (“CFAA”).[3]  Under the CFAA, it is illegal to knowingly or intentionally access another computer without authorization or to exceed authorized access.[4]  Although there is some uncertainty as to whether the CFAA overtly prohibits active cyber defense measures,[5] it seems clear that under the CFAA “a victim organization should not unilaterally respond to a cyber incident by accessing, modifying, or damaging a computer it does not own or operate, even if the computer appears to have been involved in an attack or intrusion.”[6]  The proposed Hack Back bill would change all that.

The proposed Hack Back bill recognizes that “[c]yber fraud and related cyber-enabled crimes pose a severe threat to the national security and economic vitality of the United States.”[7]  While the bill itself seems to have stagnated in Congress, the threat it recognizes continues to exacerbate.  This “threat to the national security and economic vitality of the United States” is most recently exemplified by the prolific SolarWinds Orion hack perpetrated by a Russian entity against private sector organizations and U.S. government agencies,[8] including the U.S. Departments of Commerce, Treasury, Homeland Security and Defense, and the Energy Department’s Nuclear Security Administration.[9]  A significant, unique threat such as this merits its own method of defense, and the Hack Back bill seeks to provide the means.

The bill essentially provides a “defender”—“a person or an entity that is a victim of a persistent unauthorized intrusion of the individual entity’s computer”[10]—a defense to criminal prosecution under the CFAA when the defender takes active measures against an attacker.  These active measures can come in the form of “beacons,” a defense measure allowing the defender to place hidden code on a hacker’s computer which, once activated, record the hacker’s identifying information.[11]  However, prior to taking any active defense measures, a defender would be required to notify the FBI National Cyber Investigative Joint Task Force and receive authorization for the counter measure.[12]

Although the Hack Back bill may provide a much-needed means of defense for hacker targets, the debate over the efficacy of hack back measures continues to rage on.[13]  Those in favor of “hacking back” argue those measures are necessary to empower private sector organizations to “take a more active approach to their cyber defense,”[14] to provide a means of deterrence for potential hackers, and to monitor the behavior of an attacker.[15]  Currently, private sector organizations and individuals are advised to focus their efforts on precautionary, preventative measures with response to cyber attacks considered subordinate.  When a cyber attack does occur, responsive actions are focused on identifying how the hack occurred, collecting information on compromised files and systems, implementing measures to minimize continued damage (such as “null routing” and dropping the originating IP address[16]), and notifying law enforcement.  Any “active defense” comes in the form of post-hack litigation.[17]  Yet, unlike the ex post facto cyber attack responses revolving around litigation and enforcement of the CFAA, “hacking back has the crucial ability to prevent future attacks.”[18]

However, those warning against authorizing “hacking back” caution that sanctioning this behavior will “merely serve as a vehicle for more attacks and greater chaos.”[19]  “Hacking back” could lead to retaliation, escalation, and the potential for “private actors to inadvertently wade into the realm of cyberwarfare and foreign relations.”[20]  For example, consider the SolarWinds Orion attack. Microsoft Corporation was one private sector organization that fell victim to the SolarWinds Orion hack.[21]  Microsoft’s cybersecurity team was able to detect unusual activity in its internal accounts which allowed the company to identify that it had downloaded malicious software from SolarWinds, but the investigation ended without further action.[22]  If the Hack Back bill were enacted and Microsoft had requested and received authorization from the FBI to begin active counter measures back when the attack began in October 2019—before the hack was linked to Russia—Microsoft could have engaged in its own cyber attack, potentially against a foreign nation.  The ramifications of a U.S.-based corporation hacking the computer systems of a Russian-backed infrastructure monitoring and management software company are potentially cataclysmic.

Although the likelihood that the Hack Back bill will pass continues to diminish the longer it remains unaddressed in Congress, the certainty that the private defense measures it would provide will be needed in the future will continue to increase.  While “hacking back” remains controversial and the potential for abuse abounds, the reality of the benefits that come with “hacking back” cannot be put to the wayside.  Particularly in light of the international transition of activities to online platforms of all types as a result of COVID-19, private companies are in need of an actionable means of immediate, proactive defense against detrimental cyber attacks.  Whether that actionable means of immediate defense comes in the form of a federal law authorizing “hacking back,” or some other means, remains to be seen.  Until then, to all private sector and U.S. government agencies alike, the advice remains the same: stay vigilant, enact preventative measures, and hope for the best.

[1] Active Cyber Defense Certainty Act, H.R. 4036, 115th Cong. (1st Sess. 2017).

[2] Active Cyber Defense Certainty Act, H.R. 3270, 116th Cong. (1st Sess. 2019).

[3] 18 U.S.C. § 1030.

[4] Id.

[5] See, e.g., Alexander Berengaut & Tarek Austin, Litigation Options for Post-Cyberattack ‘Active Defense,Law360 (Oct. 29, 2018), https://www.law360.com/articles/1093740/litigation-options-for-post-cyberattack-active-defense-.

[6] Comput. Crime & Intell. Prop. Section, U.S. Dep’t of Just., Best Practices for Victim Response and Reporting of Cyber Incidents 23 (2018), https://www.justice.gov/criminal-ccips/file/1096971/download.

[7] H.R. 3270 § 2(1).

[8] Joint Statement by the Federal Bureau of Investigation (FBI), the Cybersecurity and Infrastructure Security Agency (CISA), the Office of the Director of National Intelligence (ODNI), and the National Security Agency (NSA) (Jan. 5, 2021), https://www.cisa.gov/news/2021/01/05/joint-statement-federal-bureau-investigation-fbi-cybersecurity-and-infrastructure.

[9] Ben Kochman, US Officials Say Government Hack ‘Likely Russian in Origin, Law360 (Jan. 5, 2021), https://www.law360.com/articles/1341976/us-officials-say-government-hack-likely-russian-in-origin-.  

[10] H.R. 3270 § 4.

[11] Hacking Back with the Active Cyber Defense Certainty Act, Acalvio (Sept. 15, 2020), https://www.acalvio.com/hacking-back-with-the-active-cyber-defense-certainty-act/#:~:text=%E2%80%A6also%20known%20as%20the%20Active,which%20subsequently%20died%20in%20committee.  

[12] H.R. 3270 § 5.

[13] Peter G. Berris, Cong. Rsch. Serv., R46536, Cybercrime and the Law: Computer Fraud and Abuse Act (CFAA) and the 116th Congress 29 (2020).

[14] Press Release, Congressman Josh Gottheimer, Graves, Gottheimer Introduce the Active Cyber Defense Certainty Act (June 13, 2019), https://gottheimer.house.gov/news/documentsingle.aspx?DocumentID=1349.

[15] Berris, supra note 13, at 30.

[16] Comput. Crime & Intell. Prop. Section, supra note 6, at 23.

[17] See, e.g., Berengaut & Austin, supra note 5.

[18] Sara Sun Beale & Peter Berris, Hacking the Internet of Things: Vulnerabilities, Dangers, and Legal Responses, 16 Duke L. & Tech. Rev. 161, 191 (2017-2018).

[19] Josephine Wolff, When Companies Get Hacked, Should They Be Allowed to Hack Back?, The Atlantic (July 14, 2017), https://www.theatlantic.com/business/archive/2017/07/hacking-back-active-defense/533679/.

[20] Berris, supra note 13, at 29.

[21] Robert McMillan, Microsoft Hacked in Russia-Linked SolarWinds Cyberattack, Wall St. J. (Dec. 31, 2020), https://www.wsj.com/articles/microsoft-hacked-in-russia-linked-solarwinds-cyberattack-11609437601?tpl=cybersecurity.

[22] Id.

By: Matthew J. Wilson*


The global influences that pervade the typical modern-day existence are sweeping both in scope and function.  Products and services provided by organizations and individuals from different parts of the world are everywhere.  Take the United States for example: automobiles and electronics on U.S. streets are designed and manufactured in Asia; gasoline stations sell gasoline exported from the Middle East and South America; stores sell clothing sewn in China, Southeast Asia, and Europe; grocery stores stock food and fruit shipped in from Africa and South America; financial services affecting U.S. interests are rendered in Tokyo, Hong Kong, London, and elsewhere; and a number of entities even provide customer service from call centers in India.  Similarly, the list of foreign products and services available to domestic consumers in most countries is seemingly endless.  This global reality has advanced further due to the explosion of electronic commerce.  In cyberspace, a cross-border transaction is no further than one click away and really no more difficult than conducting a transaction with a cross-town entity.  In recent years, the interconnected nature of the global economy has been highlighted by various events including the transnational fallout from the U.S. housing market subprime mortgage debacle in 2007[1] and the Japanese tsunami in March 2011 that crippled manufacturers around the world after they were unable to readily obtain valuable parts manufactured in Japan.[2]

With the proliferation of globalization and international commercial interaction, an increasing number of entities have entered into contractual relationships or faced legal issues that transcend ordinary domestic norms.  Activities or relationships that traverse international boundaries can give rise to a host of legal uncertainties, starting with the governing law.  In fact, many situations arise in which the laws of multiple nations can govern the same conduct or relationships.  For example, the laws of several nations might apply when a party ships goods that are damaged en route from Europe to the United States on a Swedish ship, owned and operated by a Panamanian corporation, due to negligent repairs to the ship in South Korea.  Other situations may compel domestic courts to interpret and apply the laws of another sovereign or “foreign law,” such as when a commercial contract contains a stipulation about the application of foreign law or when a court exercises jurisdiction over tortious conduct committed overseas.  There are even domestic statutes that expressly incorporate the laws of foreign sovereigns.[3]

The increasing interaction among parties from different countries in both conventional and cyber settings has naturally resulted in more civil disputes on an international scale.  In resolving such disputes, it is generally accepted that a nation may prescribe law and adjudicate disputes involving the conduct of: (i) anyone acting within its territory; (ii) its citizens, regardless of the location of their conduct; (iii) non-nationals acting outside of its borders if such conduct has significant and intended effects within the nation; (iv) those threatening its sovereignty or security; and (v) those engaging in universal crime such as genocide.[4]  If a national court exercises jurisdiction over a dispute, it must then determine which substantive law applies.

Without question, the application of a certain body of substantive law in a lawsuit can be outcome determinative.[5]  Accordingly, it is important to correctly determine the applicable substantive law.  National courts and arbitration bodies frequently find it necessary to apply foreign law due to the explosion of international disputes.  In the words of Jonathan Lippman, Chief Judge of the New York State Court of Appeals, “[D]omestic courts are increasingly called upon to decide cases that involve cross-border issues and require the determination and application of foreign law.”[6]  Global commerce depends on a stable, predictable, and fair system of dispute resolution.  The proper functioning of private international law in a domestic system is based on the appropriate application of law.  In fact, a national court’s adjudication of a foreign law claim can provide such stability and fairness.  Moreover, adjudication of substantive foreign law claims in domestic courts is possible without infringing on the interests of another sovereign.  Also, the resolution of foreign law claims in national courts is generally consistent with comity and amicable commercial relations between nations.  It is akin to recognizing the legitimacy and application of the foreign state’s law.

The application of foreign law is generally based on mutual agreement or domestic rules.  In international contractual settings, parties typically negotiate for the laws of a certain jurisdiction to govern their relationship and may even designate a specific court to handle any future disputes.[7]  Predetermination of the applicable law not only molds conduct, but it also can reduce or eliminate the uncertainties associated with the underlying transaction.  In the case of the United States, domestic and foreign parties may elect to explicitly stipulate to the use of foreign law in U.S. courts.[8]  Alternatively, said parties may choose only to apply foreign law without designating an exclusive forum and essentially end up in a U.S. court having jurisdiction over the parties.  If the transactions underlying the international contract have some relationship to the law of the selected forum, then courts will typically honor such an agreement.[9]  In other cases, though, international contracts may be silent on choice-of-law issues.  In cases involving such silence or when international dealings involve noncontractual matters (for example, torts, intellectual property, employment law, or property), the parties must rely on choice-of-law rules in the forum handling the lawsuit.[10]  If a lawsuit is filed in either U.S. federal or state court, a variety of different tests have arisen to facilitate a choice-of-law determination.[11]  These tests can result in the application of foreign law in U.S. court as a court does not need to decide a legal issue, claim, or dispute according to its own law.

U.S. courts commonly encounter claims and issues that are governed by the laws of another sovereign either by virtue of mutual agreement or choice-of-law rules.[12]  Although many courts employing modern choice-of-law rules tend to favor the selection of their own forum’s law,[13] they continue to apply foreign law to resolve conflicts arising out of contractual relationships, tortious conduct, employment matters, intellectual property rights, treaties, and domestic statutes incorporating foreign law, as well as other legal foundations.[14]

In the United States, courts are presumed competent to apply foreign law.[15]  However, many are hesitant to delve into territory comprised of unfamiliar legal rules and norms.[16]  Most judges have neither intensively studied nor practiced foreign law; thus, their expertise in the law of another country is much lower in comparison with domestic law.  Moreover, adjudicators trained in common law jurisprudence are likely to be less comfortable looking at the application of law formulated in a civil law system.  In light of these challenges, U.S. judges who are not trained in or familiar with foreign law systems may fear that cases involving foreign law are extraordinarily difficult and time consuming to resolve.[17]  Based on such fear, the judges may directly or indirectly look for ways to dismiss cases involving foreign law on the grounds that the forum selected by the plaintiff is inconvenient or otherwise unsuitable.  Oftentimes, these fears and resulting dismissals are not justified.

When U.S. federal and state courts face cases involving foreign law, they have a broad range of tools available to compensate for actual or perceived fear of inadequacy.  Courts can turn to expert witnesses who have studied or practiced the foreign law for guidance and direction.  They may also rely on English-language or translated books, treatises, statutes, cases, legal aids, and online legal materials to determine the applicable foreign law.

Serious concerns, however, can arise when the litigants or legal materials available to the court paint conflicting pictures of the relevant foreign law.  U.S. courts have a keen recognition that foreign law needs to be precisely applied and that a mistaken application could influence the final outcome of the lawsuit.  Unlike purely domestic cases, a court might be hesitant to rely on its own resources to resolve the conflict.  Attempting to capitalize on such hesitation, a litigant seeking to avoid the use of foreign law may purposefully seek to “muddy the waters” by painting an overly complicated picture of foreign law, even if the law is simple and fairly straightforward.  The litigant’s primary goal is frustrating the court to the point of dismissal or resignation to domestic law.  In addition, some courts and academics have openly questioned the reliability of expert testimony on foreign law.[18]  The legal practitioners or professors serving as foreign-law experts are paid for their testimony, and, consequently, their neutrality has been questioned on the premise that a litigant would never select an expert absent a willingness to advance interpretations only consistent with said litigant’s position.[19]

In light of these concerns and the continuing hesitation to apply foreign law, there must be additional ways for U.S. courts to accurately determine foreign law.  In fact, given the proliferation of international commercial disputes and integration of our global society, the number of disputes involving foreign law should continue to rise.  Court systems and parties alike benefit from the fair, objective, and expert resolution of questions of foreign law.  Accordingly, it is time for U.S. court systems to explore more precise, efficient, and effective ways of determining and applying foreign law.  In the U.S. context, federal and state courts also need to improve predictability and promote efficiency in private international litigation by willingly adjudicating cases involving foreign law, instead of seeking to avoid such cases.  Through the reliable and efficient application of foreign law, U.S. courts can persuade other nations to do the same by virtue of their example.

This Article explores the tools currently available to U.S. courts to determine foreign law.  In addition to taking better advantage of all of these tools, U.S. court systems should seriously consider adopting innovative mechanisms to ensure the fair, objective, and expert application of foreign law.  This Article explores the availability and advisability of such mechanisms, including the possibility of directly soliciting the assistance of foreign courts and governments when serious doubts arise or there are unsettled questions of foreign law.  In examining these important issues, Parts I and II examine the application of foreign law and techniques currently available to U.S. courts to determine foreign law.  Part III assesses the shortcomings of these techniques and related concerns addressed by judges and observers.  Part IV then sets forth the argument that now is the time to seek out and implement more effective techniques and tools to determine foreign law in U.S. courts.  It is important for U.S. courts to avoid unnecessarily shying away from the application of foreign law, particularly given the increasing prevalence of global interaction.  The remaining Parts of this Article show that innovative and enhanced techniques may not only help courts streamline the process of determining foreign law, but may also help increase the accuracy of doing so.

I.  Application of Foreign Law in the United States

U.S. federal and state courts regularly apply the law of other sovereigns.  Most lawsuits in the United States that involve foreign law are handled by federal courts, based on the diversity of the parties or desire of parties engaged in foreign commerce to resolve their disputes in a federal forum.[20]  Claims based on foreign law may also find their way into federal court pursuant to supplemental jurisdiction.[21]  Federal court diversity jurisdiction promotes global commerce by theoretically providing an impartial forum comparatively isolated from potential local biases.[22]  As such, lawsuits filed in state courts that involve foreign parties or foreign law are often removed to federal courts.[23]  Because of the tendency of foreign law issues to gravitate toward federal court, this Article focuses primarily on the U.S. federal court system.  However, where appropriate, references are made to state court procedure.  Also, the suggested tools and techniques made herein to more efficiently and accurately determine foreign law apply equally to U.S. state courts.

II.  Application of Foreign Law in U.S. Courts is Common and Much Easier in this Age of Globalism and Technology

U.S. federal courts have long had the authority to resolve disputes that require the application of substantive foreign law.  If state conflict-of-laws rules require the application of foreign law, then the federal courts must apply it.[24]  Federal courts are quite capable of applying foreign law[25] and have routinely applied the law of other sovereigns.  In fact, U.S. courts have evaluated and applied foreign law for over a century.[26]  The application of foreign law has become even more common with the expansion of global commerce and trade.  Private parties in international commerce regularly insert choice-of-law clauses into their contracts, specifying the application of the law of sovereigns other than the United States.[27]  U.S. federal courts typically recognize and enforce such clauses based on existing law and the mutual intent of the parties.[28]  Moreover, federal courts have adjudicated foreign law claims in a wide variety of contexts.  By way of illustration, courts have ascertained and applied foreign law in diverse matters involving contract law,[29] tort law,[30] employment law,[31] conversion law,[32] trademark law,[33] securities law,[34] family law,[35] bankruptcy law,[36] intestacy law,[37] copyright law,[38] admiralty law,[39] and various other areas.[40]  To apply foreign law, it is not necessary for courts to master foreign law.  In this age of global commerce, it is not incredibly difficult for federal courts to apply foreign law.  In fact, it is much easier now than ever before given the availability of expert witnesses as well as burgeoning print and electronic materials covering foreign law.

In the modern era, foreign law and legal systems have become much easier to research and understand, particularly with countries commonly engaged in international commerce.[41]  As the U.S. Court of Appeals for the Seventh Circuit emphasized in a 2010 decision, the law of most nations that “engage in extensive international commerce is widely available in English.”[42]  The Internet also provides wider access to sources of law that were not previously readily available to either the courts or general public.[43]  Many governmental and intergovernmental entities now have their own open-access websites complete with English language translations of statutes, regulations, and even court decisions.[44]  There has also been recognition and push for greater and freer access to electronic materials on foreign law.[45]

Japan is a prime illustration on the availability of materials.  English-language materials about Japanese law are available in various formats including articles, treatises, and law school casebooks.[46]  Many of these resources are available both in print and online through governmental, private business, legal, and academic websites.[47]  Judgments of the Supreme Court of Japan are even posted online in English.[48]  Other relevant non-English legal resources can typically be translated for use by the court.  In fact, U.S. federal courts can, and often do, refer to translated materials, in cases such as commercial disputes, criminal cases, and immigration proceedings.[49]  Although these materials may still need further explanation regarding their context, the availability of materials enhances a court’s ability to independently confirm the scope and nature of foreign law.

III.  Reluctance of U.S. Courts to Readily Apply Foreign Law Still Persists

Despite the ready accessibility of foreign law materials and expertise, U.S. courts may still struggle with the application of foreign law.  Although foreign law issues are becoming more prevalent, some courts have been accused of “ducking and running” when faced with foreign law issues.[50]  Some U.S. judges express discomfort with investigating and applying foreign law and typically discount any duty to handle transnational litigation based on the premise of global responsibility.[51]  Opposition to applying foreign law is seen in the form of liberal forum non conveniens dismissals, using domestic law if the litigants do not raise or sufficiently brief foreign law issues, or leaning heavily toward domestic law when conducting a choice-of-law analysis.[52]

There is a plethora of reasons underlying the tendency to sidestep foreign law, apart from justifiable refusals based on public policy grounds.  First, unlike the process of interpreting and applying domestic law, U.S. judges dealing with foreign law generally cannot draw on a lifetime of experience.[53]  In comparison with their American law training, U.S. judges receive limited training in applying foreign law.  State court judges are typically not formally trained in applying foreign law, and newly appointed federal judges only receive basic instruction from the U.S. States Judicial Conference about dealing with foreign law issues.[54]  In general, American legal education fails to systemically equip future judges and attorneys to conduct research on foreign law.[55]  In fact, judges and their law clerks may receive only limited exposure to international law or transnational legal matters during their law school studies, unless they have made it a point to specialize in these areas.  Although law students should devote more time to the study of comparative and foreign law,[56] U.S. law schools generally offer courses on international, comparative, and foreign law only on an “elective” basis.  Moreover, these courses typically are not emphasized by most academic administrators.

Second, judges perceive that foreign law may be difficult to ascertain.  Beyond the limited foreign law offerings on LexisNexis and Westlaw, there is no central legal database that provides comprehensive materials on the law of all countries.[57]  Although Westlaw and LexisNexis maintain separate legal databases for some foreign countries, these require separate contracts and additional charges.[58]  More significantly, even if judges and attorneys could access these or other foreign law databases, any foreign language materials would likely be incomprehensible absent translation.

Third, some courts may perceive foreign law as a “mystery” that will be time intensive to discern and difficult to analyze.[59]  Pertinent statutory and case materials may originate in another language and could encompass a different legal tradition.  As such, there is a fear of the unknown posed by ascertaining and applying foreign law.[60]  Accordingly, courts are increasingly receptive to motions to dismiss based on forum non conveniens grounds when dealing with international cases that involve foreign law.[61]  With a motion to dismiss based on forum non conveniens, the “need to apply foreign law” factor is commonly raised as an argument in favor of dismissal.  Although the U.S. Supreme Court has noted that the need to apply foreign law “alone is not sufficient to warrant dismissal when a balancing of all relevant factors shows that the plaintiff’s chosen forum is appropriate,”[62] some courts continue to give undue weight to this factor.[63]  In fact, some have argued that the forum non conveniens doctrine, as formulated by the U.S. Supreme Court, actually encourages dismissal.[64]  Without question, the ability to discover and apply foreign law is much less difficult today than it was when the U.S. Supreme Court set forth its standard in Piper Aircraft Co. v. Reyno[65] nearly thirty years ago.  Accordingly, dated concerns about foreign law now lend false support to forum non conveniens dismissal based on false assumptions.[66]

Fourth, some courts have been slow to embrace anything foreign.  Some have overtly demonstrated their aversion to foreign related matters.[67]  Others have quickly dismissed or transferred cases in a more reserved fashion.[68]  Even the treatment of international treaties has been spotty.  Although the U.S. Constitution specifies that treaties are the “supreme law of the land,” the U.S. State Department’s publication of treaties is seriously lacking.[69]

Finally, the pressure for increased training of the judiciary or reform of the system to address foreign law claims is relatively low due to the comparatively large number of domestic cases handled by federal and state courts.[70]  For example, U.S. state courts handle about forty million cases annually, and federal courts handle about three hundred thousand cases.[71]  Only a fraction of these cases involve the direct application of foreign law.  However, this is of little or no consequence to private litigants embroiled in cross-border disputes or courts that handle a large number of transnational disputes.  In fact, there are certain courts, such as the U.S. District Court for the Southern District of New York, which constantly face foreign legal issues due to their handling of cases involving multinational corporations and foreign matters.

IV.  Current Techniques and Tools for Embracing and Applying Foreign Law in U.S. Federal Courts

The reasons underlying judicial aversion to foreign law are overblown.  Courts have a litany of resources, techniques, and tools to draw upon when faced with issues of foreign law.  Taking full advantage of these tools is important because there are negative consequences when foreign law is not applied or is interpreted incorrectly.  In such cases, the stability and certainty required by those engaged in global commerce are potentially undermined.[72]  Commercial parties often structure their transactions around a specific substantive law and purposefully avoid laws inappropriate for their transaction.[73]  Additionally, the application of foreign law can discourage forum shopping, promote regulatory competition, and preserve the comparative regulatory advantage of foreign jurisdictions.[74]  If cases involving foreign law are quickly dismissed, not only will the immediate litigants potentially be prejudiced, but at least one commentator has noted that “ad hoc efforts” to limit court access to parties involved in a transnational dispute could lead to retaliatory legislation in foreign countries aimed at making foreign courts more hospitable for significant claims against U.S. defendants.[75]  Accordingly, it is time for U.S. courts to embrace foreign law when appropriate and explore ways to improve upon the current system and techniques for addressing foreign law.

A.            Current Procedures Support and Facilitate the Application of Foreign Law

Procedurally, the application of foreign law is uncomplicated.  Once it has been established, through notice or hearing, that foreign law will apply, parties may present the court with foreign law materials or the court will instruct the parties to present evidence and supporting materials regarding the relevant foreign law at some point before the trial.[76]  Naturally, a court may also conduct its own research about such law.[77]  The court will then determine the meaning of the foreign law and instruct the jury on such meaning—just as it would do in the case of domestic law.[78]  However, evaluating other legal systems can present some challenges.  As such, the U.S. federal court system presents various techniques and tools to overcome such challenges.  Many U.S. state jurisdictions provide similarly broad tools and resources.[79]

In the context of federal court proceedings, Federal Rule of Civil Procedure 44.1 (“Rule 44.1”) provides procedural guidance for the application of foreign law in federal court.  Rule 44.1 states that:

[a] party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing.  In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.  The court’s determination must be treated as a ruling on a question of law.[80]

Rule 44.1 is a broad, straightforward rule that has presented few practical difficulties in its application.  In essence, it provides federal courts with a uniform mechanism for adjudicating foreign law claims when a party provides notice of its desire to apply foreign law.[81]  Rule 44.1 is based on the belief that determining questions of foreign law is not beyond the capacity of the federal courts.[82]  Of note, many U.S. states have implemented the Uniform Judicial Notice of Foreign Law Act or other rules, which function similarly to Rule 44.1.[83]  These rules likewise recognize the competency of the state courts to apply foreign law.

Rule 44.1 was implemented in 1966.[84]  In effect, this shifted the determination of foreign law from a question of fact to a question of law.[85]  When U.S. courts treated foreign law as a question of fact prior to the adoption of Rule 44.1, the jury needed to decide foreign law based on competing proofs presented by the parties at trial.[86]  This was done pursuant to the rules of evidence via the time-consuming process of soliciting expert witness testimony in open court.[87]  Also, because foreign law was considered a question of fact, it could only be set aside by an appellate court if shown to be clearly erroneous.[88]  This cumbersome system was arduous for the parties[89] and often resulted in imprecise rulings[90] that were essentially immunized from independent review by the appellate courts.[91]  With the adoption of Rule 44.1, the determination of foreign law is now a question of law, at least in principle.[92]  This means that questions of foreign law are subject to independent judicial investigation, and open for de novo appellate review.[93]

B.            Courts May Use Any Relevant Material to Determine Foreign Law

Pursuant to Rule 44.1, federal courts may consider “any” material relevant to foreign law that the parties wish to present.[94]  Upon notice of a foreign law issue, courts may look to any material or resource, whether from counsel or identified by the court’s own research, and whether admissible or inadmissible at trial.[95]  In principle, a judge can consider the testimony of expert witnesses proffered by the litigants, reports by a court-appointed expert or master, and even research independently obtained from conventional, online, or unconventional resources.[96]  In fact, a judge could even consult with foreign scholars or others well-versed in the applicable law on an ex parte basis.[97]

Although judges most often rely on experts hired by the parties for information on foreign law, they are not required to base their determination of foreign law on an expert opinion.[98]  Additionally, Rule 44.1 contemplates that courts “may” rather than “must” consider expert testimony.[99]  Moreover, it is within the court’s discretion to “reject even the uncontradicted conclusions of an expert witness and reach [its] own decisions on the basis of independent examination of foreign legal authorities.”[100]

It is the litigants’ duty to provide the court with materials that help identify issues, ascertain the foreign law, and apply such law.[101]  These materials cannot attempt to guide a court on making factual determinations.[102]  Materials demonstrating the applicable foreign law do not need to be sworn, verified, or presented in any specific form.  In fact, courts have considered unauthenticated copies and translations of foreign law,[103] and have even taken informal materials into account such as a printout from a foreign law firm’s webpage[104] and a conversation between a law clerk and the Hong Kong Trade Office in New York City.[105]  Naturally, however, litigants are best served by presenting concrete proof of foreign law in the most credible form.[106]  In weighing proofs of foreign law, courts will afford the most credibility to verifiable proofs.

The requirements associated with Rule 44.1 were deliberately left flexible and informal so that counsel and the court could have a cooperative dialogue regarding the determination of foreign law.[107]  This flexibility should dissipate any court’s inhibition about considering a wide variety of materials related to the application of foreign law.  In essence, a court’s freedom of inquiry is not “encumbered by any restraint on its research or by rules of admissibility.”[108]  Not only may a court consider “any material the parties wish to present,” but it may give materials submitted by the parties any probative value that the court thinks they deserve.[109]  This methodology provides the court with maximum flexibility.[110]  In sum, the flexible procedures in Rule 44.1 combined with the ease of communicating about foreign law and expanded learning opportunities about foreign legal systems signify that the application of foreign law should not be an obstacle.[111]

C.            Expert Testimony is the Primary Method of Establishing Foreign Law

In practice, the primary method used to establish foreign law is through an affidavit or declaration submitted by foreign-law experts hired by the litigants.[112]  This sworn statement is generally accompanied by extracts from relevant foreign codes and statutes.[113]  The value of expert testimony on foreign law is enhanced because the expert can provide the court with information about the sources of law, hierarchy of law, legal interpretation, and other matters not readily ascertainable or necessarily apparent on the face of foreign legal materials.  Without assistance from someone intimately familiar with foreign law, an American judge might miss the nuances in the law, fail to appreciate the interaction between law and foreign governmental organizations, or erroneously assume that foreign law mirrors U.S. law when it does not.[114]  There are many times when testimony from an acknowledged expert in foreign law will be helpful, or even necessary, to ensure that the U.S. judge understands the full context of a foreign law or legal principle.[115]  In some instances, expert testimony may be the only way to establish foreign law.  For example, in Saudi Arabia where Islamic law is applied, judicial decisions are generally neither published nor open for public inspection.[116]  Instead of relying on case law or written statutes, Saudi Arabian judges must navigate the Hanbali’s school of authoritative scholarly works to identify the spectrum of possible resolutions.[117]  For a judge unfamiliar with Saudi Arabian law, expert testimony is particularly crucial to correctly identifying and deciphering the law.

Based on these reasons and the judicial time saved by relying on experts for guidance and direction, foreign law expert declarations have been, and will likely continue to be, the basic mode of proving foreign law.[118]  In fact, the presentation of foreign law through expert witnesses is typically efficient and sufficient for a court.[119]  The use of an expert to provide needed precision on foreign legal issues eliminates the need for the court to start afresh and wade through secondary sources.[120]

In general, Rule 44.1 does not require any special qualifications for foreign-law experts.[121]  Because the district judge will determine foreign law, the judge essentially serves as the gatekeeper.[122]  As such, the court has significant discretion in the sources it considers.[123]  As explained by the U.S. Court of Appeals for the Second Circuit, “it is not the credibility of the experts that is at issue, it is the persuasive force of the opinions they expressed.”[124]  An expert witness’ actual knowledge will determine the weight that the judge awards to the testimony of said expert.  If an expert’s knowledge about foreign law is reliable and exceeds that of the judge, the court will likely carefully consider any submissions from said expert.  Typically, courts will give deference to materials submitted by foreign practitioners or law professors versed in the applicable foreign law.[125]  In proffering expert testimony to a court, it is crucial for litigants to utilize someone who can amply communicate the substance and nuances associated with foreign law.  In fact, “the best source of foreign law is said to be an expert who has studied the foreign law, has practiced law in the country of its origin, and can translate and interpret it in the idiom of the American attorney.”[126]  At the same time, courts will likely discount self-serving affidavits and will be more receptive to considering objective explanations of the pertinent law.

In principle, the determination of foreign law does not stray too far from the process of determining domestic law.  In fact, the adoption of Rule 44.1 was designed—to the extent possible—to make the process of determining foreign law mirror the method of ascertaining domestic law.[127]  More specifically, the litigants research and present the relevant law to the court for consideration.  Identical to domestic practice, the court then has the task of determining the relevant law.  At this point, the process may slightly diverge in that the court may need some additional assistance.  Foreign-law experts can help streamline the time necessary to research and interpret foreign law by providing fundamental information.  This can be done solely through written submissions, or the court may entertain live expert witness testimony.[128]  If necessary, the court may also compel the parties to present additional materials or information about foreign law at the risk of dismissal or other negative consequence.[129]  In contrast, judges typically do not leave the determination of domestic law to competing experts.[130]  Rather, taking into account the briefs and other proofs of law presented by the parties, the judges and court clerks independently investigate domestic law issues raised by the parties and then render a conclusion of law without the assistance of experts.

D.            Courts May Engage in Independent Research About Foreign Law

In addition to the litigants’ submissions, a court may also conduct its own research and independently investigate any foreign-law issue raised by the parties.[131]  If necessary, a court may use articles, treatises, scholarly commentary, and judicial opinions for guidance and affirmation about the correct foreign-law interpretation.[132]  Many nations have well-developed legal systems with ample primary and secondary resources in English, available both in print and online, from which courts can conduct legal research and investigation.[133]  If materials are unavailable in English, translation is certainly possible.  In fact, U.S. courts can, and often do, refer to translated materials, including in commercial disputes, criminal cases, and immigration issues.[134]  Independent research enables judges to fill gaps or doubts left by the parties’ submissions.  It also allows them to confirm the accuracy of presented materials.

In reality, many federal judges still remain reluctant to actively investigate foreign-law issues.[135]  Instead, judges heavily lean on expert testimony,[136] or lean toward dismissing a foreign-law claim based on forum non conveniens or avoiding foreign law altogether.[137]  Similarly, state court judges tend to “rely heavily on party presentation” and generally avoid conducting independent research on foreign law.[138]

V.  Shortcomings of Techniques and Tools Used to Determine Foreign Law

The primary challenge that courts face when dealing with foreign law is ensuring its correct application.  Obtaining precise information about foreign law furthers the goals of justice and fairness.  A related challenge is finding sufficient comfort with the testimony and sources of law either presented by the litigants or located by the court’s research.  In any legal system, courts may struggle to ascertain and apply foreign law.  In fact, it has been postulated that many judges fear the unknown associated with foreign law.[139]  However, in most cases, litigants present foreign law in a complete and fair manner, thereby enabling courts to wrap their arms around the relevant law.[140]  Expert affidavits, together with accompanying codes, statutes, and regulations, are typically sufficient.[141]

In contrast, if a court cannot determine foreign law to its satisfaction based on available techniques and tools, then it faces the prospect of incorrectly applying the law.  This poses a substantial risk and potentially prejudices the litigants’ interests and rights.  Moreover, the frustration associated with the inability to readily determine the applicable legal principles may cause judges to shy away from the future handling of foreign law.

There is no universally accepted solution to the dilemma of unclear or indeterminable foreign law.[142]  In some cases, a court might require supplemental briefing by the parties or independently appoint an expert on foreign law.[143]  Alternatively, the judge might give up and simply decide to either apply domestic law or dismiss the case altogether.[144]  These two options are undesirable as they potentially ignore the express intent underlying the litigants’ commercial relationship, contravene applicable choice-of-law rules, or even prejudice the litigants’ rights.  For example, if a court automatically defaults to domestic law and thereby applies incorrect legal principles, this choice could likely determine the outcome of the lawsuit.

While the current techniques and tools available to U.S. judges to address foreign-law issues are largely unrestricted, they are neither perfect nor complete.  In fact, despite the expanded options available to judges since the adoption of Rule 44.1 five decades ago, U.S. courts “have been slow to apply foreign law.”[145]  This begs the question of whether the available techniques and tools have contributed to U.S. courts’ relative reluctance to embrace the application of foreign law.  With the current caseload involving foreign law and prospect for growth, now is the time to re-examine the current system and consider potential improvements to the process of determining and applying foreign law.  Courts and litigants alike stand to benefit from enhancements.  The following Part looks at shortcomings of the current system and serves as a springboard for discussing possible improvements.

VI.  Potential Problems with Over-Reliance on Paid Experts

Experts play an invaluable role in helping courts understand, analyze, and apply foreign law.  However, trying to establish foreign law through expert testimony can be an expensive proposition.[146]  An over-reliance on private experts can pose a myriad of dangers as well.  Dependence on foreign-law experts pivots on their reliability.[147]  If an expert is not objective or reliable, then a court must turn to other sources to determine foreign law.

When courts rely heavily on foreign-law experts hired by the parties, it adds an adversarial spin to the proceedings.[148]  Charges of lack of objectivity or bias can easily arise.[149]  One expert witness hired to participate in a transnational lawsuit noted his difficulty in resisting the “subtle temptation” to join his client’s team, take his client’s side, conceal doubts, overstate the strong, and downplay the weak aspects of the case.[150]  In my own personal involvement with transnational litigation, I have similarly witnessed these temptations.  Others have gone further in characterizing foreign-law experts as partisan “guns for hire.”[151]  In Sunstar, Inc. v. Alberto-Culver Co.,[152] Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit noted that articles, treatises, and judicial opinions on foreign law are “superior sources”[153] when examining foreign law because the practitioners or professors serving as foreign-law experts are “paid for their testimony” and selected based on the “convergence of their views” with their client’s litigating position or “their willingness to fall in with the views urged upon them by the client.”[154]  Judge Posner maintained that relying on “paid witnesses to spoon feed judges” can only be justified in cases in which foreign law comes from a country with an obscure or poorly developed legal system.[155]  In such cases, a judge could be hindered from securing ample secondary materials from which she can determine the law.[156]

Expert testimony should not be automatically discounted on grounds of bias, and Judge Posner’s view of foreign-law expert testimony can be challenged as extreme.  Experts are an integral part of the U.S. litigation system in many respects, and judges function as gatekeepers in deciding whether to accept or discount an expert’s particular testimony.[157]  Knowledge that courts will screen and weigh a foreign-law expert’s testimony actually encourages experts and litigants to produce reliable assistance to the court, or risk defeat due to the lack of usable expert testimony.[158]  The prospect that the court can appoint its own expert witness also functions as a deterrent against subjective testimony or games.[159]  Moreover, courts have the authority to sanction parties or their counsel for acting in bad faith or breaching applicable disciplinary codes.[160]  If the testifying expert is a member of a U.S. bar, the court’s power to discipline or sanction the expert further encourages objectivity.  When foreign lawyers testify as foreign-law experts, their conduct may also be governed by the professional codes of conduct and ethical obligations in their respective countries.[161]  Finally, private considerations such as the maintenance of credibility or an unblemished reputation compel experts to provide accurate testimony and credible supporting materials to the court.[162]

If competing experts fail to provide a clear or uniform view of foreign law through their submissions, however, a court may experience difficulty determining the substance or scope of the applicable foreign law.  The information and interpretations provided by party-hired experts may clash, thereby leaving a court with the difficult task of parsing out the undisputed matters of law and those matters disputed in a “battle of the experts.”  If a court is unfamiliar with the foreign law in question, it will then face the task of making determinations about unfamiliar provisions of foreign law.  This process can potentially be difficult and time consuming.

Another concern in assessing foreign law is a litigant’s capacity to purposefully confuse the court.  For example, if a defendant wants to convince a court that a claim or lawsuit should be dismissed based on forum non conveniens grounds, it may strategically seek to present convoluted materials, conflicting translations of statutory provisions, or contradictory case law.  Even if the law is relatively simple and straightforward, a litigant may attempt to paint a picture of confusion by seeking out an expert that will directly contradict the foreign law as explained by the opposing party.  Even if a party does not purposefully attempt to confuse the court, it might happen anyway.  In fact, a certain degree of confusion may be inevitable.  By analogy, if a judge were to ask five American lawyers about their interpretation of a particular area of U.S. law, these lawyers might provide several different answers.  This is true in foreign settings as well.  Because foreign law may be difficult to apply in certain instances, particularly when the judge is bombarded with different interpretations of the law, a court may be forced to spend time parsing out the applicable law stipulated by the parties and then deciding the scope and nature of the dispute’s legal provisions on its own.

Finally, the “traditional mechanisms for determining questions of foreign law by means of expert evidence have been shown on many occasions to be costly, prone to delays and other difficulties, and, most significantly, just plain wrong too often.”[163]  Courts are particularly sensitive to costs and delays.  More than anything, however, courts strive for accuracy and justice.  Without confidence in the correctness of foreign law as presented by expert witnesses, judges will continue to struggle with and be slow to embrace the application of foreign law.

VII.  Problematic Issues with Relying Heavily on Independent Research by the Courts

Although Judge Posner opined that articles, treatises, and judicial opinions on foreign law are “superior sources” in comparison with expert testimony,[164] there are several challenges associated with a court conducting independent legal research.  First, some judges maintain that they do not have time to locate, decipher, or decode foreign law.[165]  If a court must start from scratch in ascertaining foreign law and related issues, this will unnecessarily cause the courts to expend extra time and resources researching an unfamiliar area.  Courts can streamline the process of determining foreign law considerably by turning to academics, practitioners, and others well-versed in the relevant foreign law for guidance and direction.

Additionally, when U.S. judges actually resort to independent research, they encounter the risk of mistakenly interpreting foreign law as being very similar to domestic law, and thereby give meanings to foreign provisions that may not exist.  In essence, a judge could easily interpret a foreign statute by giving “plain meaning” to a statutory provision and then equating the statutory provision with certain domestic terms and concepts.[166]  Although this uncomplicated path may be accurate, particularly if the foreign law is modeled after U.S. law,[167] it may not be correct in many instances.

U.S. judges are best served by considering all available resources, including expert testimony, as foreign law can often carry special nuisances, meanings, and interpretations.  For example, if a U.S. court were faced with interpreting Japanese law based on a wrongful termination claim brought by an American employee of a global Japanese company, the court would focus its inquiry on the relevant Japanese statutory law and employment contract, if any.  The Civil Code of Japan specifies that when the employment term has not been specified, either party may terminate the relationship at any time and the employment relationship will expire two weeks from the notice.[168]  Quite similar to U.S. law, there is no express limitation on an employer’s ability to terminate an employee absent an agreement otherwise.[169]  Conversely, Japan’s Labor Standards Law stipulates that an employer may terminate an employee but only upon thirty-days advance notice or thirty-days worth of wages in lieu of such notice.[170]  If a U.S. judge were faced with these two statutory provisions, some minor confusion may arise regarding the employment termination date due to the apparent statutory conflict described above.  However, there would be little doubt about an employer’s ability to terminate the employee absent an agreement to the contrary.  In reality, though, these statutory provisions only provide half of the story.  In fact, despite Japan’s civil law tradition,[171] its courts have severely curtailed the right of employers to terminate employees at will through the judicial doctrine of abusive dismissal.[172]  Pursuant to Japanese case law, an employer may not discharge a single employee or even multiple employees in the context of economic necessity without reasonable cause.[173]  In essence, before an employer can terminate the employment of one or more employees in accordance with the relevant statutory provisions, the courts have mandated certain steps that, if not taken, will constitute an actionable abuse of right.[174]

U.S. courts can also encounter difficulties when attempting to conduct independent legal research in some lesser-developed countries.  Often times, the relevant law may be difficult to readily ascertain from statutes, judicial decisions, or other objectively verifiable documents.[175]  The foreign legal systems of commercially advanced countries such as England or Japan are easier to independently research, particularly in comparison with the legal systems in more obscure countries around the globe.[176]  Also, due to inadequate resources or scarcity of commercial dealings, the laws of many lesser-developed nations may not be available in English and would require substantial translation.

VIII.  Now is the Time to Seek Out and Implement More Effective Techniques and Tools to Determine Foreign Law

U.S. courts need to embrace the application of foreign law when appropriate.  As issues involving foreign law continue to proliferate, courts should not have a “duck and run” attitude.  They have an obligation to apply the appropriate law correctly regardless of whether it is domestic or foreign, and the U.S. judicial system must be sensitive to an intertwined world with varying legal systems and cultures.[177]  In principle, the tools and procedural mechanisms are already in place for courts to accurately apply foreign law despite the shortcomings described above.  In addition to the techniques and methods currently utilized by American courts, the federal and state judiciaries should seriously consider expanding the tools available to judges.  When applying foreign law, courts require assurance that they have reliable sources of competent expertise.  Additional strides can be made in this area, not only so that courts are more comfortable in ascertaining and applying foreign law, but also such that they more willingly embrace the task at hand.

IX.  Assistance from the Courts of Other Countries

Instead of questioning expert testimony or leaving confusing questions of foreign law to independent legal research, U.S. courts should seriously consider ways of approaching foreign courts or governments for guidance on complex or ambiguous matters of foreign law.  Naturally, a sovereign entity’s interpretation of its own law is extremely persuasive.  A foreign court’s understanding of its own country’s law is “more likely to be accurate than are the warring declarations of paid experts.”[178]  To increase the accuracy of foreign law determinations and further reduce the possibility of biased expert testimony, the federal and state judiciaries should explore exchanges with foreign courts, possibly along the lines of the “certification” system used by the federal courts with respect to state law issues.  In essence, if a U.S. court encounters a difficult or novel question of foreign law or an ambiguous statutory provision subject to substantial dispute among the litigants, then such court could obtain clarification by petitioning the top court of the respective country for an answer.

On a conceptual level, the idea of seeking guidance from the top courts of other nations is both prudent and judicious.[179]  Although relatively foreign to the United States, the idea of creating a formal system of international mutual assistance to facilitate legal guidance through multilateral treaties[180] or bilateral agreements is not completely new, at least not in Europe.[181]  In principle, a “certification-like” procedure could eliminate uncertainty for a judge and save litigants substantial resources that would otherwise be exhausted in arguing about specific points of foreign law.  It could also serve as a deterrent for parties seeking to confuse the court or provide overly subjective expert testimony and materials.

On a practical level though, many logistical issues would need to be resolved before foreign law questions could be “certified” to a foreign court.  Among other things, countries willing to participate in a bilateral or multilateral exchange of legal information would need to determine exactly when questions of foreign law could be certified, who would respond to such questions, the appropriate form of response, the time frame for response, and various other logistical issues.  For such a system to succeed, judicial economy, speed, and ease of use would be key.  Excessive formalities could undermine the system and unnecessarily dissuade use of the certification mechanism.  In addition, given the time and resources necessary to respond to legal questions, it would be undesirable to “certify” all questions of foreign law to a foreign court.  Instead, some limitations would likely have to be placed on the scope of acceptable questions.

In assessing the effect that such an international certification system would have on the present arsenal of tools available to U.S. judges to ascertain and apply foreign law, it is clear that these should remain fully intact and taken advantage of whenever possible.  Litigants should still have the opportunity to present expert testimony to the court, and the court should have the option to consider any other resources or materials including statutes, case reporters, scholarly commentary, textbooks, articles, online materials, interviews, or other informally obtained materials.  Also, it would be important that the opinions rendered by the foreign court not constitute binding precedent for future matters handled by that court or judicial system.

Fundamentally, a foreign court’s guidance could enhance objectivity, fairness, and legal certainty in U.S. legal proceedings when the content of foreign law is unclear.  It could also help improve the efficiency of applying foreign law for both the parties and courts.  An additional benefit of seeking guidance from foreign courts is that an underlying bilateral or multilateral agreement would likely be necessary to facilitate judicial exchange.  Pursuant to such agreements, foreign courts could also benefit from receiving guidance on relevant U.S. law.  This would serve the interests of U.S. jurisdictions in having their law accurately applied in courts overseas.  It would also help ensure the certainty and predictability needed for global commerce and cross-border interaction.

X.  Certification System as a Model for Cases Applying Foreign Law

The concepts and principles underlying the certification model used by U.S. federal and state courts could help enhance certainty, deter potential concerns about biased expert testimony, and alleviate fears regarding the application of foreign law if applied to the process of determining foreign law in U.S. courts.  Federal courts must often interpret state law based on choice of law rules or claims that state law violates federal law.[182]  Uncertainties regarding the applicable state law may arise in such cases.  After the U.S. Supreme Court decided Erie Railroad Co. v. Tompkins,[183] federal courts did their best to “predict” how the respective state courts would decide a novel or unclear question of state law.[184]  However, predictions carry the inherent risk that the court will incorrectly resolve an important matter of law.[185]  In fact, federal courts may occasionally reach mistaken conclusions despite the fact that the state and federal courts share a common legal culture.  Judges and attorneys functioning in both systems have a common point of reference with fundamental principles of law learned at common law schools from standard textbooks, hornbooks, treatises, and other materials.  Legal practitioners are also trained to research with common resources including reporters, digests, and electronic legal databases.  Accordingly, federal judges possess the requisite legal skills to confidently research and determine the law in any American jurisdiction.  In reality, however, federal judges may still reach incorrect conclusions regarding the applicable state law.

To reduce uncertainty, federal courts adjudicating questions of state law may seek guidance and direction from the state judiciary by “certifying” a question of undecided or uncertain state law to the highest state court for an authoritative ruling.[186]  In the 1970s, state certification laws started spreading across the United States.[187]  At present, nearly every state affords discretion to its highest court to assist federal courts that face undecided questions of state law by accepting certified questions.[188]  Certification procedures vary depending on the jurisdiction.[189]  In general, however, certification is typically reserved for novel or unsettled questions of law.  It does not involve findings of fact but rather applies only to questions of law.[190]  A federal court may decide sua sponte to seek certification from a state court, or the parties may request that the federal court invoke certification.[191]

Assuming that the state legal system permits certification, the typical certification statute allows the state’s highest court to return answers to the federal court if such answers will be issue determinative and no controlling appellate decision, constitutional provision, or statute exists.[192]  Procedurally, state courts generally require the certifying court to provide a statement of facts relevant to the certified questions and describe the nature of the controversy in which the questions arose.[193]  Once the state’s highest court provides guidance, the federal court is bound to follow such guidance.[194]  In essence, this technique is employed to reduce the uncertainty and assist in the application of law that is somewhat “foreign” to the federal court.

The certification procedure facilitates judicial cooperation and obviates the danger that a federal court will reach an incorrect result or rely on an assumption contrary to how a state’s highest court would determine the matter in question.[195]  Additionally, as explained by the U.S. Supreme Court, the certification procedure “allows a federal court faced with a novel state-law question to put the question directly to the State’s highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response.”[196]  A federal court judge can rely on her own knowledge and experience ascertaining, determining, and interpreting most state law questions.  To help interpret the law, she can also draw upon the adversary process, as the lawyers for each party will perform the necessary research and present materials about the applicable law.  Notwithstanding, there are times when a federal court judge needs to acquire clarification on unsettled or important matters of law and has the tools available to do so through the certification procedure.

XI.  The Timing is Right to Expand Certification to Foreign Law Issues Facing U.S. Courts

Recent cross-border interaction among judiciaries together with the continued integration of economies across the globe presents a golden opportunity for nations to enter into serious discussions regarding judicial cooperation.  At present, there is no formal procedure by which federal courts can certify a difficult question on foreign law to the courts of another nation.[197]  However, petitioning a foreign court either formally or informally for assistance on a particularly difficult or ambiguous question of foreign law fundamentally makes sense.  Instead of predicting how a foreign court might define or apply the laws of its country, it would be more accurate to ask the foreign court directly.[198]  Recently, there has been movement toward formalizing exchange relationships between certain courts.  Additionally, U.S. courts have engaged in various international outreach activities that have effectively laid a foundation for more integrated operations, including some type of cross-border certification system.

A.            New York-South Wales Memorandum of Understanding Indicates Potential for Other Agreements

In an era when collegiality has developed among judges and judicial systems on an international level, mutual cooperation is possible to a degree that was previously unthinkable.[199]  Based on improved collegiality together with a desire to increase adjudicative certainty and reduce disputes when difficult questions of foreign law arise, the New York state judiciary has taken the first step among U.S. jurisdictions toward greater cross-border cooperation in the form of a procedure similar to certification.[200]  Not only should the New York state judiciary continue along its current path toward greater international cooperation, but other U.S. court systems should seriously examine following its lead.

On October 28, 2010, the Chief Judge Jonathan Lippman of the New York State Court of Appeals, and then-Chief Justice James Spigelman of the Supreme Court of New South Wales (“NSW”), signed a bilateral Memorandum of Understanding (“MOU”) establishing a system for reciprocal cooperation and consultation between their respective judicial systems.[201]  Citing the need and value of “trading” judicial expertise to advance the administration of justice internationally and further facilitate cross-border commerce involving New York and Sydney, the court systems executed the first agreement of its kind between a U.S. court and foreign court.[202]  In principle, the MOU enables judges in both jurisdictions to exchange legal analysis about a substantial legal issue when one court needs to apply the law of the other and the litigants consent to such an exchange.[203]

Two of the primary reasons cited for the MOU were the high cost of legal experts and confusion caused by conflicting accounts of foreign law.[204]  Chief Justice Spigelman mentioned that having each party fly legal experts to Australia to provide dueling versions of New York law simply frustrated the judicial process, as the Australian courts ended up treating matters of law essentially as matters of fact due to the conflicting views presented by the parties.[205]  Using the new system, Australia could receive an entirely neutral analysis of New York law “rendered by judges who will not have a ‘horse in the race’ of the Australian litigation in question.”[206]  In effect, this cooperative arrangement gives the New York Court of Appeals greater insight into the meaning and typical application of law in New South Wales.[207]  Even more significantly, the NSW Supreme Court will have access to more precise guidance about New York law that is frequently called into question, particularly in contract actions.[208]

Parties to legal proceedings involving foreign law are entitled to correct and authoritative applications of law.  According to the New York and NSW court systems, the new procedures established based on their MOU will enable that objective to be attained.[209]  Moreover, Chief Judge Lippman expressed his hope that this cooperative judicial arrangement is merely the first step in greater collaboration among New York courts and top courts in other foreign countries and will serve as a template for more judicial collaboration on a global basis.[210]

B.            International Outreach Activities

In addition to the certification-like procedure involving New York and Australia, other U.S. courts have drawn closer to foreign judiciaries over the years by engaging them in a variety of outreach activities.[211]  These activities have laid a strong foundation for discussions between additional court systems regarding judicial exchanges or certification-like arrangements.

In 1993, the U.S. federal judiciary created the Committee on International Judicial Relations (“CIJR”).[212]  At the time, contacts between U.S. and foreign judiciaries were starting to increase on an ad hoc basis and the U.S. federal courts wanted to devise a uniform system to facilitate judicial assistance and exchange among courts in a more orderly fashion.[213]  In addition to “rule of law” outreach activities, the CIJR has sought to “coordinate the federal judiciary’s relationship with foreign courts and judges, and with governmental and nongovernmental organizations which work in the legal reform area” over the past two decades.[214]

Many other sources of U.S.-based foundation grants and government funding aimed at “rule of law” programs have also provided opportunities for judicial cooperation and face-to-face interaction among judges.[215]  Foreign judges have similarly recognized the merit of judicial interaction and exchange.  For example, judges from European constitutional courts have met every three years since the 1980s, Worldwide Common Law Judiciary Conferences have been held yearly since 1995, and formal transnational organizations of judges have been established in various parts of the world.[216]

More recently, several U.S. federal courts have sought to forge relationships and exchanges with foreign courts.  By way of illustration, several U.S. federal courts have developed “sister-court” relationships to foster exchange.  In 2010, the U.S. District Court for the Middle District of Florida signed an agreement with the Ljubljana District Court in Slovenia with the intent of exchanging ideas and sharing innovations.[217]  In addition, U.S. judges have met with international counterparts either in the United States or overseas on numerous occasions.  For example, I personally helped  host part of U.S. Supreme Court Justice Stephen Breyer’s visit to Japan in connection with a delegation sent to Tokyo by the American Bar Association’s International Division.  The goal of Justice Breyer’s trip was to promote the “exchange of ideas on the practice of law and on cross-border legal issues and to establish relationships with a view toward cooperation.”[218]  This is simply one of many examples, as other U.S. judges have been constantly reaching out to judicial counterparts across the world.[219]  Additionally, various aid agencies, NGOs, and U.S. law schools have convened informal meetings, seminars, and conferences in the United States involving foreign judges.[220]

These outreach activities and interaction opportunities mean that the relationships among courts have become more cordial and cooperative.  Such efforts help judges understand that they function as part of a common transnational enterprise.  Also, a good number of members of foreign judiciaries and legal communities have been exposed to the U.S. legal system through a growing number of LL.M. programs, visiting scholar opportunities, and other exchanges at U.S. law schools.

On a global scale, members of the judiciary around the world have already started sharing information and exchanging ideas on many levels.  One prime example is regular judicial conferences.  In Asia, chief justices in the region regularly gather at the Conference of Chief Justices of Asia and the Pacific.[221]  At this conference, esteemed members of the judiciary present discussion papers on topics of interest such as legal reform, judicial education, court management, the relationship between courts and the public, judicial ethics, publication of judicial decisions, court practices, and court security.[222]  Ideas for more significant interaction among courts often grow out of conferences and meetings.  For example, at a recent conference, the South Korean delegate suggested that the group help foster consideration of agreements related to the recognition of judgments among countries.[223]  Despite the diversity of culture, religion, and law, members of the global judiciary tend to share a common interest in the correct application of law.[224]  There are many other similar programs that are geared toward judicial interaction and exchange.[225]

Accordingly, the hostilities and distrust that may have once existed between judiciaries has largely subsided.  The international judicial community is ready for greater cooperation in handling disputes that arise in the context of transnational litigation.  As such, not only is a certification system involving the courts of various nations not out of the question, such a system can become a viable reality assuming the proper procedural steps are taken.

XII.  Judicial Exchanges are Procedurally Possible

U.S. courts and litigants involved in disputes involving foreign law stand to benefit from the objectivity, certainty, and accuracy potentially engendered from either a formalized certification system loosely modeled after the relationship between U.S. federal and state courts or a less formal system by which foreign judiciaries exchange information.  Court systems could base a more formalized system on bilateral agreements or treaties between sovereigns.  Even if such a formalized relationship was not possible, however, an unofficial exchange of ideas could provide a court with an objective and credible source of persuasive authority.  Either system would be consistent with current federal procedural rules.  Rule 44.1 permits federal court judges to “consider any relevant material,”[226] so even an informal conversation or consultation with a foreign judge would be permissible and potentially helpful.  In any event, it could be very helpful to a domestic U.S. court applying foreign law if, upon request or certification, the highest court with conclusive authority in a foreign country could provide clarification and direction about novel, unsettled, or particularly complex legal questions.

A.            Formalized System Would Provide Reliable and Stable Sources of Credible Information

One can envision various formal models that would enable certification procedures or exchanges among courts on unsettled, novel, or particularly complex issues of foreign law.  Optimally, courts adopt formal judicial exchanges that best suit their respective needs based on principles of comity.  At minimum, however, a formal judicial exchange agreement should seek to establish a system that avoids excessive “red tape” or administrative burden, facilitates speedy exchange of information, and encourages quality responses.  The exchange agreement should provide for the exchange of legal guidance at no charge to the requesting country.  The system should also have a designated contact in the form of a specific court or governmental agency.  Designating a local embassy or consulate may be convenient for the certifying country, but it might needlessly create an extra step in the process if intermediaries can be bypassed and requests can be made directly to the responsible court or agency.

In requesting information from a foreign court, any certifying court should be required to provide enough information to facilitate a complete answer by the receiving court, including a description of the nature of the underlying dispute and statement of facts relevant to the questions certified.  Also, steps should be taken to ensure that certified questions are artfully presented or that courts can directly correspond to ensure that the questions are sufficiently understood and the right question is answered.  As cross-border communication can be problematic, measures should be taken to ensure for smooth transmission of ideas as well as translation of relevant materials.

In establishing an exchange or certification-like system, there are several other fundamental considerations that need to be addressed.  First, one factor requiring consideration is whether the litigants need to consent to a foreign court as a prerequisite of certification.  Based on the current federal rules, a court theoretically has the authority to consult with any resource, including foreign courts, so proceeding without the litigants’ consent would be consistent with the rules.[227]  However, if the litigants consented to the certification, it could eliminate future debate and discussion about a particular issue if a litigant did not agree with the result of the certification.

Second, another major consideration is how the certifying court would treat the response from the foreign court.  Unlike the federal-state certification system, U.S. courts would not necessarily be bound by the information received from foreign courts or responding agencies.  However, they naturally would pay considerable attention to conclusions issued by foreign governmental officials in their official capacities.[228]  “Substantial deference” would likely be the appropriate standard as domestic courts are generally not bound by the decisions of foreign courts.  Moreover, the advisory nature of an information exchange or certified question indicates that courts should not be bound, but should rather use the information provided as highly persuasive evidence.

Third, another possible concern is whether foreign courts would be deluged and thereby excessively burdened by a constant stream of requests from U.S. courts and vice versa.  This scenario is unlikely to emerge with the continued use of experts and widespread availability of materials on foreign law, so U.S. courts should be able to continue ascertaining and determining foreign law in most cases without having to reach out to foreign counterparts.  Also, such concerns can be dispelled by limiting the questions that are referable or certifiable to only novel, complex, or unresolved questions of law.

B.            Informal System Would Still Supply Objective and Credible Information

If a formalized certification procedure was not possible due to political pressures, logistical issues, or other concerns, there is still considerable merit in exploring and adopting an informal system for the exchange of guidance on foreign law.  The New York-NSW MOU is illustrative of the benefits of informal agreements.

At this stage, the relationship between New York and NSW is informal in nature because the New York Constitution permits the state high court to accept certified questions only from the U.S. Circuit Court of Appeals for the Second Circuit and the highest courts of other American states.[229]  Chief Judge Lippman plans on pursuing a constitutional amendment to officially formalize the reciprocal exchange arrangement and enable New York judges to officially accept certified questions from NSW courts and those of other nations.[230]  In the meantime, the New York Court of Appeals will operate on an “informal” basis that is similar to decisions rendered by referees.[231]  On the New York side of this arrangement, one volunteer judge from the New York Court of Appeals and one volunteer judge from each appellate division in the New York state courts will accept and consider any questions from NSW courts regarding New York law.[232]  These judges will volunteer their time and not receive monetary compensation for their efforts.[233]  Instead, the panel of judges will prepare a report on New York law on personal time in an effort to promote comity and cooperation between the two nations.[234]  Acting as “referees,” the volunteer judges will separate into panels of three judges, consider the question of New York law posed by the Australian court, and then provide the requesting foreign court with unofficial, nonbinding pronouncements on New York law.[235]  Because the volunteer judges will be acting outside of the scope of their official duties, their unofficial interpretations will not have any precedential authority in New York, and will not be considered official declarations of New York law.[236]  Also, the NSW Supreme Court will have the discretion to adopt, modify, or reject the report in whole or in part.[237]  With respect to questions of Australian law that arise in New York courts, the NSW Supreme Court intends to provide similar assistance on a reciprocal basis.[238]

XIII.  International Certification or Exchange System Has Additional Benefits

In addition to the benefits to judges and litigants described above, a foreign law certification mechanism will advance the interests of international comity and participating nations in the context of transnational litigation.  A court handling a foreign law issue can confidently and accurately apply such law.  Foreign nations can take comfort in their own law being applied accurately and uniformly in an overseas setting.  Also, the courts and litigants may actually conserve precious time and resources by turning to foreign courts for information on their respective laws.

A certification-like procedure geared toward national courts could also be configured to extend to international commercial arbitration proceedings.  For example, the European Convention on Information on Foreign Law (“London Convention”) has enabled the judiciaries of member states to send requests for information on foreign law in civil and commercial fields via a receiving agency specifically designated to receive reply to such requests.[239]  Through the Netherlands Arbitration Act of 1986, an arbitral panel may latch onto the London Convention by requesting that a Dutch court intervene in the proceedings and request information on foreign law from a member foreign court.[240]  Along these lines and in the interests of facilitating global trade and commerce, the United States and other states could carve out room in bilateral judicial agreements to include international commercial arbitration disputes as well.

XIV.  Increased Court Appointment of Foreign-Law Experts or Greater Use of Special Masters Would Be Beneficial

Another promising tactic that could improve current U.S. court practice in determining foreign law would be to increase the use of court-appointed experts.  Once a court has reached a point of confusion, the court should give greater consideration to appointing its own foreign law expert.  Although U.S. judges currently may appoint experts on foreign law, this tool is rarely used.[241]  Current practice notwithstanding, a knowledgeable and impartial “interpreter” of foreign law who is appointed by the courts, as opposed to experts hired by the litigants, could provide supplemental assistance to a court when close questions of foreign law exist or when the parties seriously disagree about the applicable law.  Court-appointed expert testimony would also be worthwhile when party-expert testimony appears tenuous.  Particularly in instances of doubt and confusion, the use of a court-appointed expert can help to enhance certainty, promote objectivity, and enable a court to close any gap with respect to the correctness of law.[242]

A.            Increased Use of Court-Appointed Experts on Foreign Law

Although the idea of a court-appointed expert is not novel, this tool has traditionally been underutilized by the courts.  Courts began appointing experts in the eighteenth century in response to concerns about party-hired expert witnesses.[243]  Over the years, many commentators have called for courts to appoint more expert witnesses.[244]  At the same time, attorneys have opposed the broad use of court-appointed experts based on the concern that a judge will naturally defer to its own expert on key issues in dispute, thereby depriving them of an opportunity to fully advocate their client’s position.[245]

As procedural rules have evolved, a judge’s inherent power to appoint an expert is “virtually unquestioned.”[246]  Rule 706 of the Federal Rules of Evidence (“Rule 706”) governs the appointment of experts in federal court.  Most U.S. states have similar provisions.[247]  Rule 706 provides that:

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection.[248]

Accordingly, the court may independently appoint experts to opine on foreign law.[249]  Additionally, the litigants may petition the court to appoint an expert, but they typically refrain from doing so due to the uncertainties involved.[250]

Despite a court’s ability to appoint foreign-law experts, most courts tend to be reluctant to do so.[251]  There are a variety of reasons why courts do not appoint experts more often.  Well-qualified foreign-law experts can be difficult to find.  In fact, the identification and evaluation of potential experts can entail considerable judicial effort.[252]  The potentially significant costs associated with court-appointed experts might also be problematic.  If a court appoints an expert on foreign law, the losing party will not only have to pay its own foreign-law experts, but also faces the specter of paying the fees of the court-appointed expert as well.  Pursuant to Rule 706 and similar state law rules, the litigants must pay any court-appointed expert “in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.”[253]  If a litigant does not have substantial resources, this could chill justifiable lawsuits.  Additionally, there are legitimate concerns that the adversarial system could be undermined by judges paying undue deference to their appointments.  A court-appointed expert “can undercut the adversary system, since judges may be unduly influenced by the person they appoint.”[254]  Even if the litigants’ experts have superior qualifications, a court might be susceptible to favoring its own expert’s opinion.[255]  Moreover, when a litigant disagrees with the foreign law interpretation offered by a court-appointed expert, it must carefully consider how best to refute the expert without alienating the judge, who might feel a degree of loyalty toward the appointed expert or believe that the appointed expert is neutral and therefore automatically correct.[256]

Conversely, there are many benefits to increasing the use of court-appointed expert witnesses.  First and foremost, court-appointed experts potentially provide the benefits incumbent with privately hired experts, but without the accompanying concern that the expert is a “hired gun” with her primary loyalty turned toward her client instead of the court.  With a court-appointed expert, there is little or no question about bias or lack of objectivity.[257]  Said expert can also assist the court when the parties’ submissions are unclear, inconclusive, or conflicting.[258]

Another potential benefit relates to stipulations and quick settlements.  Persuasive advice submitted by a court-appointed expert may actually prompt the litigants to stipulate to certain matters or quickly settle any foreign law issue.[259]  Moreover, if a court asks its expert to prepare a report on the relevant foreign law at the initial stages of the litigation and then allows the parties to respond, the parties could then stipulate to those aspects of the law that are not in dispute and subsequently prepare responses to interpretations on which they disagree.  The district court in Servo Kinetics, Inc. v. Tokyo Precision Instruments Co.[260] utilized this approach when it appointed a U.S. law professor specializing in comparative and Japanese law to prepare an expert report on the relevant Japanese law.  Based on the professor’s report, the parties then filed supplemental papers.[261]  This process could narrow the matters in dispute considerably.  Not only would this save the court substantial time and effort, but it could also save resources for the parties.

Alternatively, the court could reverse the process by allowing the parties to initially present their submissions on the relevant foreign law provisions.  If the submissions are conflicting or confusing interpretations of the foreign law, the court could then summon a qualified expert for another opinion from an objective viewpoint.

In theory, these benefits sound appealing.  In reality, these benefits can be obtained and may save time and resources for the court and parties alike.  If used correctly, court-appointed experts can objectively assist judges in ascertaining and applying foreign law.  However, the noted concerns give pause to court appointment of foreign-law experts.  Regardless, several improvements could be made to the use of court-appointed experts to alleviate these concerns.  Such improvements could make the use of court-appointed experts more acceptable and frequent.

B.            Making It Easier to Find Court-Appointed Experts

Making it easier to locate qualified individuals to opine on foreign law would foster the increased use of court-appointed experts.  With a concerted effort, U.S. courts could compile a database of foreign-law experts.  This database could be developed through direct applications from foreign-law experts interested in assisting, including legal practitioners, law professors, and others.  To expand the expert pool, invitations to participate could also be extended through international and foreign law organizations, comparative law institutes, and law schools.  In fact, courts might tap into the membership of the American Society of Comparative Law, the American Foreign Law Association, and others.[262]

When considering appointments, individual judges could quickly refer to the database for potential experts.  The database could contain full curricula vitae as well as brief summaries of educational background, professional experience, affiliations, and even prior experience serving as a foreign-law expert witness in international litigation or arbitration.[263]  This foreign-law expert database could also include brief evaluations of those who have served as expert witnesses in past cases.  The expert pool could be similar in structure or character to the pools of qualified mediators or arbitrators maintained by alternative dispute resolution organizations.  By providing easier access to foreign-law expert witnesses, courts should be more receptive to the idea of appointing foreign-law experts.

U.S. court systems could also seek to tap into well-established comparative law centers overseas for objective guidance.  Relationships could be established through formal agreements or informal invitations to provide information in lawsuits involving foreign law.  Although judges would need to assess the credibility and thoroughness of the information received, comparative law centers could be a solid source of information.  For example, European courts often turn to comparative law centers for guidance on foreign legal issues.  French courts have traditionally utilized the French Center of Comparative Law, and German courts have used the Max Planck Institute for Foreign and International Private Law to gather information on unfamiliar foreign laws.[264]  Although U.S. courts generally do not have a tradition or procedure to consult with private comparative law centers regarding foreign law matters,[265] such centers may openly welcome the opportunity to take an active role in transnational disputes litigated in U.S. courts.  This may encourage the development of comparative law centers in the United States as well.

C.            Compensation of Court-Appointed Experts Should Not Be a Major Obstacle

Although the costs involved with the court appointing an expert may seem significant and duplicative, the costs may be overblown.  Pursuant to Rule 706, the court “may appoint expert witnesses of its own selection” and such experts are “entitled to reasonable compensation in whatever sum the court may allow.”[266]  A court also has significant flexibility as to the payment schedule.[267]  By involving court-appointed foreign-law experts at an early stage of the litigation, it should be possible for the court to quickly obtain stipulations from the parties regarding certain aspects of the law.  This early involvement could help eliminate disputes and economize expended resources.  The issues in dispute should be pared down considerably, allowing the parties to focus their efforts and correspondingly reduce the amount of time and money spent on their own private foreign-law experts.  It could also help level the playing field if one party lacks sufficient funds for a foreign-law expert.[268]  Even if the use of court-appointed experts is reserved for later in the process and employed only when a close question of law arises, the involvement and related costs associated with said expert could be limited accordingly.

Technology has alleviated some of the fears associated with the cost of hiring foreign-law experts.  In many cases, foreign-law experts will reside in distant areas or foreign countries.  In the Internet age, the availability of inexpensive and reliable technology facilitates easy and inexpensive communication with the appointed expert.  Instead of expensive travel, an expert might appear before the courts and parties using videoconferencing or other no-cost or low-cost Internet technologies to provide for the opportunity to be questioned.

D.            Maintaining the Adversarial System Through Innovative Techniques or Increased Use of Special Masters

Determining foreign law should entail an objective and fair process in which the parties can submit any relevant materials to the court.  If concerns exist about undermining the adversarial system, a court could alleviate such concerns by allowing the litigants to vigorously cross-examine the court-appointed expert.[269]  This will enable the litigants to explore all relevant issues and fully present their positions and interpretations for consideration.  Another possible method for alleviating concerns is for the court to avoid ex parte discussions with any appointed expert.[270]  Although ex parte discussions are not prohibited by Rule 44.1 and, in fact, are consistent with a court’s ability to consider any relevant materials on foreign law,[271] a court could promote an even greater atmosphere of objectivity and fairness by engaging any expert in an open and transparent manner.

The use of a special master versed in the foreign law at issue could also temper concerns that court-appointed experts undermine the adversarial process.  Special masters can provide many of the same benefits offered by court-appointed experts.[272]  Rule 53 of the Federal Rules of Civil Procedure permits a court to refer an issue to a specially appointed master in special circumstances.  While the danger exists that a judge may unduly defer to a special master’s interpretations and findings even if the experts hired by the litigants are more knowledgeable or better qualified,[273] the litigants may have more leeway to persuade the master at a hearing based on her quasi-judicial role and ability to discuss issues with the litigants.[274]  In contrast, a court-appointed expert typically reaches conclusions independently and can only be challenged by cross-examination.[275]

Another benefit associated with appointing a special master is specialization.[276]  In many instances, a special master can bring specialized knowledge to the process and help compensate for a judge inexperienced with foreign law.[277]  If the special master has integral knowledge of the foreign law at issue, she can efficiently conduct targeted discussions with the parties and their experts.  Matters of law can be fleshed out and defined more accurately, thereby allowing any disputes between the parties to be pared down considerably and presented to the court in the form of a special master’s report for final determination.  In cases of significant dispute between the parties, the master’s report could be the best thing available under the circumstances.[278]

XV.  Different Approaches Could Lead to Additional Improvements

In addition to creating certification relationships with foreign courts and increasing the use of court-appointed experts or special masters to resolve unclear or highly contentious interpretations of foreign law, there are several other approaches that courts have tested on an ad hoc basis that might help other U.S. courts accurately and expeditiously ascertain and apply foreign law.

A.            Streamlined Battle of the Experts

In light of objectivity concerns and confusion caused by conflicting expert opinions, U.S. courts might explore methods of streamlining the “battle of the experts” through an in-court hearing.  If conflicting experts appear before a court and each expert is required to succinctly respond to the other expert’s points and interpretations, a court can potentially gain a greater understanding of the foreign law and avoid the confusion engendered by affidavits, written declarations, or scripted examinations.[279]  The process would likely not be time consuming and would enable the court and attorneys to ask follow up questions.  Points of dispute could likely be narrowed down as well.  As such, a court can obtain a better grasp not only of the substance of the foreign law but also of its intellectual underpinnings and interstices.[280]  Such an approach would also be consistent with the broad purpose and text of Rule 44.1 and analogous state rules.[281]

When this approach has actually been utilized in litigation and international arbitrations, the adjudicator has found a “jot-for-jot give and take” between the experts to be helpful.[282]  By way of illustration, in Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co.,[283] the court appointed its own foreign law expert only after the parties offered irreconcilable opinions on Saudi law.  After reviewing all expert reports, the court held an all-day hearing at which the court-appointed and party-hired experts testified and were subject to cross examination.[284]  Although, in the end, additional costs were incurred, the court hired the expert only after other options had been exhausted.[285]  Most significantly, the court was able to confidently determine the law correctly and only the losing party bore the cost of the additional expert.[286]

B.            Invitations to Submit Briefs Amicus Curiae

Another possible technique to eliminate confusion and ensure the accurate application of foreign law is inviting foreign governments to submit briefs amicus curiae on matters of disputed foreign law.[287]  In comparison with the cross-border certification system described above, the solicitation of briefs would be much more informal and courts could not rely upon foreign courts or governmental agencies for a response.  By analogy, U.S. courts already engage in this process on a domestic scale in certain instances.  For example, in Press v. Quick & Reilly, Inc.,[288] the U.S. Court of Appeals for the Second Circuit asked the Securities and Exchange Commission to submit an amicus curiae brief expressing the Commission’s views on the issues set forth in the parties’ briefs.[289]

Another problem with soliciting briefs amicus curiae is potential confusion regarding the actual authority of the submitting authority.  From time to time, foreign governmental agencies have submitted amicus briefs on issues pending before U.S. courts; however, it has been unclear whether an amicus represents the official governmental position.  For example, in Allendale Mutual Insurance Co. v. Bull Data Systems,[290] the court found that statements in a brief amicus made by the Commission de Controle des Assurances (France’s Insurance Commission) were insufficient because there was no proof that the Commission had authority to speak on behalf of the French state.[291]


As the world continues to become more globally interdependent, U.S. courts increasingly face lawsuits and issues involving foreign law.  Because the interpretation and application of law is potentially outcome-determinative in any lawsuit, it is important that U.S. courts both embrace foreign law issues and decide them accurately.  Current rules provide courts with a litany of tools to ascertain foreign law; however, there is room for many improvements ranging from international judicial cooperation to the enhanced use of court-appointed foreign-law experts.  These improvements will promote objectivity and foster the fair, efficient, and accurate application of foreign law in domestic courts.

* Professor Matthew J. Wilson is currently an Associate Professor of Law at the University of Wyoming College of Law.  He also was concurrently appointed as an international scholar at Kyung Hee University Law School in Seoul, South Korea during the 2011–12 academic year.  Financial and other support for this Article was graciously provided by Kyung Hee University Law School and the University of Wyoming College of Law.

[1]. Int’l Monetary Fund, Global Financial Stability Report: Containing Systemic Risks and Restoring Financial Soundness 1 (2008), available at http://www.imf.org/external/pubs/ft/gfsr/2008/01/pdf/text.pdf (observing that the “crisis that originated in a small segment of the U.S. mortgage market has spread to broader cross-border credit and funding markets” and put pressure on funding channels and trade linkages).

[2]. Isabel Reynolds & Hyunjoo Jin, Global Manufacturers Wrestle with Japan Supply Gaps, Reuters, Mar. 18, 2011, http://www.reuters.com/article

[3]. See, e.g., Tariff Act of 1930 § 527, 19 U.S.C. § 1527(a) (2006) (prohibiting the “taking, killing, possession, or exportation to the United States of any wild mammal or bird . . . in violation of the laws or regulations of such country, dependency, province, or other subdivision of government”).

[4]. See Restatement (Third) of Foreign Relations Law of the United States §§ 402, 404, 421, 423 (1987).  The Restatement (Third) of Foreign Relations lists the primary bases for prescriptive jurisdiction including: (i) territoriality (conduct that takes place within a state’s territory, either wholly or in substantial part, as well as the status of persons or interest of things within its territory); (ii) effects (jurisdiction with respect to activity outside the state but having or intended to have substantial effect within the state’s territory); (iii) nationality, domicile, or residence (jurisdiction over the activities, interests, status, or relations of its nationals outside its territory or those present within the territory); (iv) protection (jurisdiction over certain conduct outside its territory by non-nationals that is directed against the security of the state); and (v) universal crimes (jurisdiction over a limited class of other state interests such as those of universal concern such as piracy, slave trade, and genocide).  Id. §§ 401–04, 421–23; see also Hannah L. Buxbaum, Territory, Territoriality, and the Resolution of Judicial Conflict, 57 Am. J. Comp. L. 631 (2009).

[5]. See Carolyn B. Lamm & K. Elizabeth Tang, Rule 44.1 and Proof of Foreign Law in Federal Court, Litigation, Fall 2003, at 31, 32.

[6]. Press Release, N.Y. State Unified Court Sys., First of Its Kind Memorandum of Understanding Signed Between U.S. State Court and Australian Court (Oct. 28, 2010), http://www.courts.state.ny.us/press/pr2010_14

[7]. See Louise Ellen Teitz, The Use of Evidence in Admiralty Proceedings, 34 J. Mar. L. & Com. 97, 100 (2003).  In some cases, the parties will select diverging governing law and jurisdiction for dispute resolution.  See, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974) (upholding an agreement containing an arbitration clause that selected Paris, France as the forum for dispute resolution and Illinois state law as governing the agreement).

[8]. See Yavuz v. 61 MM, Ltd., 465 F.3d 418, 430 (10th Cir. 2006).

[9]. See Teitz, supra note 7, at 100.

[10]. See generally John R. Brown, 44.1 Ways to Prove Foreign Law, 9 Tul. Mar. L.J. 179 (1984).

[11]. The choice-of-law tests employed in the United States for contracts, torts, and consumer transactions include the lexi loci delicti, the more significant relationship test as detailed in the Restatement (Second) of Conflicts of Law, the governmental interest test, and others.  Jacques deLisle & Elizabeth Trujillo, Private International Law: Consumer Protection in Transnational Contexts, 58 Am. J. Comp. L. 135, 144–47 (2010).

[12]. See Edward K. Cheng, Scientific Evidence as Foreign Law, 75 Brook. L. Rev. 1095, 1098 (2010).

[13]. See Walter W. Heiser, Forum Non Conveniens and Choice of Law: The Impact of Applying Foreign Law in Transnational Tort Actions, 51 Wayne L. Rev. 1161, 1163 (2005).

[14]. See, e.g., Stephen Yeazell, When and How U.S. Courts Should Cite Foreign Law, 26 Const. Comment. 59, 61–63 (2009).

[15]. See Andrew N. Adler, Translating & Interpreting Foreign Statutes, 19 Mich. J. Int’l L. 37, 38 (1997).

[16]. See id.

[17]. Press Release, N.Y. State Unified Court Sys., supra note 6.

[18]. See Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 629 (7th Cir. 2010) (“Trying to establish foreign law through experts’ declarations . . . adds an adversary’s spin, which the court then must discount.”).

[19]. Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487, 495–96 (7th Cir. 2009) (“But the lawyers who testify to the meaning of foreign law, whether they are practitioners or professors, are paid for their testimony and selected on the basis of the convergence of their views with the litigating position of the client or their willingness to fall in with the views urged upon them by the client.”).

[20]. See generally Andrew W. Davis, Federalizing Foreign Relations: The Case for Expansive Federal Jurisdiction in Private International Litigation, 89 Minn. L. Rev. 1464 (2005).

[21]. 28 U.S.C. § 1367 (2006).  A court can properly exercise supplemental jurisdiction over foreign law claims so long as said claims derive from a “common nucleus of operative fact” with a claim over which the federal court has original jurisdiction so that said claims form part of the same case or controversy. § 1367(a); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966).

[22]. See Victor E. Flango, Litigant Choice Between State and Federal Courts, 46 S.C. L. Rev. 961, 966 (1995); see also Kimberly A. Moore, Xenophobia in American Courts, 97 Nw. U. L. Rev. 1497, 1503 (2003).

[23]. See Jeffrey M. Jensen, Development in the Law: Transnational Litigation: VI. Personal Jurisdiction in Federal Courts Over International E-Commerce Cases, 40 Loy. L.A. L. Rev. 1507, 1510 (2007).

[24]. See Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4–5 (1975) (looking to Texas choice-of-law rules to determine whether Cambodian law formed the basis of a substantive wrongful death claim).

[25]. See Applied Med. Distribution Corp. v. Surgical Co. BV, 587 F.3d 909, 920 (9th Cir. 2009); Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487, 495 (7th Cir. 2009); Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 345 (8th Cir. 1983).

[26]. See generally Nashua Sav. Bank v. Anglo-Am. Land, Mortg. & Agency Co., 189 U.S. 221, 227–29 (1903) (discussing methods of proving foreign law in U.S. courts, including through experts); Ennis v. Smith, 55 U.S. 400, 426 (1852) (accepting French Civil Code into evidence); APL Co. Pte. Ltd. v. UK Aerosols Ltd., 582 F.3d 947, 957 (9th Cir. 2009) (ordering the application of Singapore law); Cambridge Literary Props., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co., 295 F.3d 59, 64 (1st Cir. 2002) (observing that U.S. district court may apply U.S copyright law, German contract law, and Austrian inheritance law in a single lawsuit to resolve all of the issues in the case); Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp., 161 F.3d 314, 319 (5th Cir. 1998) (analyzing expert testimony and conducting court’s own research to determine corporate status under Chinese law); Indasu Int’l, C.A. v. Citibank, N.A., 861 F.2d 375, 379–80 (2d Cir. 1988) (determining Ecuadorian law based on the relevant civil code and then applying the code provisions to determine duties of U.S. guarantor and Panamanian corporation); Trans Container Servs. (BASEL) A.G. v. Sec. Forwarders, Inc., 752 F.2d 483, 485–87 (9th Cir. 1985) (applying U.K. lien law); CYBERsitter, LLC v. People’s Republic of China, No. CV 10-38-JST (SHx), 2010 WL 4909958, at *8 (C.D. Cal. Nov. 18, 2010) (acknowledging ability to interpret foreign claims, including claims for copyright infringement under Japanese, Chinese, and Taiwanese law); The Atlanta, 82 F. Supp. 218, 235–37 (S.D. Ga. 1948) (applying Commercial Code of Panama).

[27]. See Hague Conference on Private Int’l Law, Feasibility Study on The Choice of Law in International Contracts 5 (2007), available at http://www.hcch.net/upload/wop/genaff_pd22a2007e.pdf; see also Yeazell, supra note 14, at 61–62.

[28]. See Yeazell, supra note 14, at 61–62.

[29]. Lesley v. Spike TV, 241 Fed. App’x. 357, 358 (9th Cir. 2007) (applying Japanese contract law); Servo Kinetics, Inc. v. Tokyo Precision Instruments Co., 475 F.3d. 783, 790–98 (6th Cir. 2007) (addressing a breach of contract claim based on Japanese law in a consolidated proceeding together with trade secret misappropriation and tortious interference with contracts based on Michigan law).

[30]. Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 1234 (3d Cir. 1995) (applying Indian tort law).

[31]. Curtis v. Harry Winston, Inc., 653 F. Supp. 1504, 1509 (S.D.N.Y. 1987) (applying claim against a U.S. company for violation of Venezuelan statutory employment law).

[32]. Trans Container Servs. (BASEL) A.G. v. Sec. Forwarders, Inc., 752 F.2d 483, 486 (9th Cir. 1985) (applying English conversion law).

[33]. Universe Sales Co. v. Silver Castle, Ltd., 182 F.3d 1036, 1038 (9th Cir. 1999) (applying Japanese trademark law).

[34]. Batchelder v. Kawamoto, 147 F.3d 915, 920–22 (9th Cir. 1998) (considering Japanese securities law in relation to American Depository Receipt holders’ rights).

[35]. Kaho v. Ilchert, 765 F.2d 877, 883 (9th Cir. 1985) (applying Tongan family law).

[36]. In re Condor Ins., Ltd., 601 F.3d 319, 328–29 (5th Cir. 2010) (applying Nevis bankruptcy law); Otte v. Tokyo Shibaura Elec. Co., No. 74 Civ. 3732 (CMM), 1977 WL 1440, at *2 (S.D.N.Y. June 22, 1977) (adjudicating several Japanese law claims in a bankruptcy proceeding).

[37]. Akazawa v. Link New Tech. Int’l, Inc., 520 F.3d 1354, 1358 (Fed. Cir. 2008) (applying Japanese intestacy law).

[38]. Toho Co. v. Priority Records, LLC, No. CV01-04744SVW(RZX), 2002 WL 33840993, at *5 (C.D. Cal. Mar. 27, 2002) (applying Japanese copyright law); Armstrong v. Virgin Records, Ltd., 91 F. Supp. 2d 628, 637 (S.D.N.Y. 2000) (applying foreign copyright law).

[39]. See generally Rationis Enters. Inc. v. Hyundai Mipo Dockyard Co., 426 F.3d 580 (2d Cir. 2005) (applying Korean law in admiralty suit).

[40]. Republic of Ecuador v. Chevrontexaco Corp., 499 F. Supp. 2d 452, 460 (S.D.N.Y. 2007); see also Annotation, Raising and Determining Issue of Foreign Law Under Rule 44.1 of Federal Rules of Civil Procedure, 62 A.L.R. Fed. 521, § 7 (1983).

[41]. Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 628 (7thCir. 2010); Molly Warner Lien, The Cooperative and Integrative Models of International Judicial Comity: Two Illustrations Using Transnational Discovery and Breard Scenarios, 50 Cath. U. L. Rev. 591, 628 (2001); see also Gross v. British Broad. Corp., 386 F.3d 224, 234 (2d Cir. 2004) (asserting that the law of the United Kingdom is amenable to application in the United States).

[42]. Bodum USA, Inc., 621 F.3d at 628.

[43]. See generally Hague Conference on Private Int’l Law Permanent Bureau, Accessing the Content of Foreign Law: Compilation of Responses to the Questionnaire of October 2008 for the Meeting of Experts on Global Co-operation on the Provision of Online Legal Information on National Laws (2009), available at http://www.hcch.net/upload/wop

[44]. Teitz, supra note 7, at 112.

[45]. Hague Conference on Private Int’l Law, Accessing the Content of Foreign Law and the Need for the Development of a Global Instrument in this Area—A Possible Way Ahead 3–8 (2009), available at http://www.hcch.net

[46]. See, e.g., Sunstar, Inc., v. Alberto-Culver Co., 586 F.3d 487, 495 (7th Cir. 2009) (seeking guidance from Japanese Trademark Law textbook authored by American law professor).

[47]. Although too long to list, several illustrative examples of English-language resources on Japanese law include the following: Doing Business in Japan (Matthew Bender rev. ed. 2011); Hiroshi Oda, Japanese Law  (Oxford University Press 2d ed. 2009); Financial Instruments and Exchange Act, Fin. Servs. Agency of Japan, http://www.fsa.go.jp/en/policy/fiel/index.html (last visited Nov. 6, 2011); Rob Britt, Japanese Legal Research at the University of Washington, Gallagher Law Libr., http://lib.law.washington.edu/eald/jlr/jres
.html (last visited Nov. 6, 2011); Foreign law: I, J, Harv. Law Sch. Libr., http://www.law.harvard.edu/library/research/guides/int_foreign/web‑resources/foreign-law_i_j.html#Japan (last visited Nov. 6, 2011) (providing hyperlinks to sources on Japanese law under the heading “Japan”); Japan, Washburn Univ. Sch. of Law, http://www.washlaw.edu/forint/asia/japan.html (last visited Nov. 6, 2011); Japanese Law Translation, Ministry of Justice of Japan, http://www.japaneselawtranslation.go.jp/ (last visited Nov. 6, 2011).

[48]. Supreme Court of Japan, http://www.courts.go.jp/english/ (last visited Nov. 6, 2011).

[49]. See, e.g., Sunstar, Inc., 586 F.3d at 498–99 (describing how parties translated the relevant portions of Japanese trademark statute as there is no official English translation of Japanese laws); see also Tchacosh Co. v. Rockwell Int’l Corp., 766 F.2d 1333, 1334 n.2 (9th Cir. 1985) (noting that the court accepted translation of Iranian Temporary Director Act provided by defendant’s expert).  By way of example, I have offered in-court testimony to the U.S. District Court for the Northern District of California in Dainippon Screen Manufacturing Co. v. CFMT, Inc., No. C96-3296, 1997 U.S. Dist. LEXIS 4363 (N.D. Cal. Feb 21, 1997), related to the meaning of certain Japanese words and phrases at the heart of a patent infringement dispute.

[50]. Roger J. Miner, The Reception of Foreign Law in the U.S. Federal Courts, 43 Am. J. Comp. L. 581, 581 (1995).

[51]. Heiser, supra note 13, at 1189–90.

[52]. See Jacob Dolinger, Application, Proof, and Interpretation of Foreign Law: A Comparative Study in Private International Law, 12 Ariz. J. Int’l & Comp. L. 225, 267–70 (1995); Miner, supra note 50, at 582–83; see also Lien Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1001 (9th Cir. 2006).

[53]. Cheng, supra note 12, at 1099.

[54]. William Ewald, The Complexity of Sources of Trans-national Law: United States Report, 58 Am. J. Comp. L. (Supplement) 59, 65 (2010).

[55]. Id.

[56]. Justice Sandra Day O’Connor has noted that U.S. lawyers and law students need to study foreign law because of its application in domestic courts and the possibility of borrowing beneficial ideas from foreign law and the enhancement of cross-border cooperation.  Sandra Day O’Connor, Broadening Our Horizons: Why American Judges and Lawyers Must Learn About Foreign Law, Int’l Jud. Observer, June 1997, at 2, 2.

[57]. Silke Sahl, Finding Books and Articles on International and Foreign Law, Columbia Univ. L. Sch., http://library.law.columbia.edu/guides/Finding
_Books_and_Articles_on_International_and_Foreign_Law (last updated Apr. 2011) (“There are many ways to find information about law review and journal articles related to foreign and international law.  Unfortunately, there is no one single, comprehensive database.”).

[58]. LexisNexis and Westlaw do maintain databases of foreign law.  However, these databases are operated in foreign languages and cannot be accessed without a separate (and often expensive) subscription.

[59]. See generally Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095 (2d Cir. 1995).

[60]. Miner, supra note 50, at 582.

[61]. See Cassandra Burke Robertson, Transnational Litigation and Institutional Choice, 51 B.C. L. Rev., 1081, 1089–92 (2010) (noting that there has recently been a 400% increase in transnational forum non conveniens challenges and that courts have dismissed approximately half of the cases in which forum non conveniens has been an issue); see also Emily J. Derr, Striking a Better Public-Private Balance in Forum Non Conveniens, 93 Cornell L. Rev. 819, 824 (2008).  When faced with a motion to dismiss for forum non conveniens, federal judges must determine that an adequate alternative forum exists in which the case could be heard, and then that private and public interest factors  favor dismissal in favor of said forum.  Id.

[62]. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 260 n.29 (1981).

[63]. See Derr, supra note 61, at 829.

[64]. See Heiser, supra note 13, at 1178.

[65]. 454 U.S. 235.

[66]. Derr, supra note 61, at 829.

[67]. Republic of Bolivia v. Philip Morris Cos., 39 F. Supp. 2d 1008, 1009 (S.D. Tex. 1999), demonstrates this aversion through humor.  Judge Kent, writing for the court, sua sponte transferred a case the government of Bolivia had originally brought in Brazoria County, Texas, to the federal district court in Washington, D.C.  Id.  Judge Kent noted that:

The Court seriously doubts whether Brazoria County has ever seen a live Bolivian . . . even on the Discovery Channel. Though only here by removal, this humble Court by the sea is certainly flattered by what must be the worldwide renown of rural Texas courts for dispensing justice with unparalleled fairness and alacrity, apparently in common discussion even on the mountain peaks of Bolivia!


[68]. See, e.g., Blueye Navigation, Inc. v. Den Norske Bank, 658 N.Y.S.2d 9, 10 (N.Y. App. Div. 1997) (holding that the action was governed by English law and should be dismissed).

[69]. See Ewald, supra note 54, at 65 (noting that the official treaties website has been under construction for fifteen years and is marked with warnings about its lack of completeness).

[70]. Id. at 66.

[71]. Id.

[72]. See Robertson, supra note 61, at 1081–85.

[73]. Giesela Rühl, Methods and Approaches in Choice of Law: An Economic Perspective, 24 Berkeley J. Int’l L. 801, 808 (2006).

[74]. Id. at 808–15.

[75]. Robertson, supra note 61, at 1127–28, 1130–31.

[76]. See, e.g., Universe Sales Co. v. Silver Castle, Ltd., 182 F.3d 1036, 1038 (9th Cir. 1999) (instructing the jury on Japanese law).

[77]. See id.

[78]. See Sofie Geeroms, Foreign Law in Civil Litigation: A Comparative and Functional Analysis 123 (Oxford University Press 2004).

[79]. See Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487, 495 (7th Cir. 2009).

[80]. 9 James Wm. Moore et al., Moore’s Federal Practice ¶ 44.1.01 (3d ed. 2010).

[81]. When neither party seeks the application of foreign law, most courts will generally apply the law of the forum based on the assumption that the parties have tacitly agreed to the application of the law of the forum.  See Symeon C. Symeonides, Choice of Law in American Courts in 2009: Twenty-Third Annual Survey, 58 Am. J. Comp. L. 227, 289 (2010).

[82]. See Moore et al., supra note 80, ¶ 44.1.02.

[83]. Geeroms, supra note 78, at 123–25 (noting that most state jurisdictions have adopted the Rule 44.1 approach, although some still use the judicial notice concept or adhere to the common law method of proving foreign law); Ewald, supra note 54, at 66–67; see also Akande v. Transamerica Airlines, Inc., No. 1039-VCP, 2007 Del. Ch. LEXIS 68, at *20–34 (Del. Ch. May 25, 2007).

[84]. See Lamm & Tang, supra note 5, at 31; Arthur Miller, Federal Rule 44.1 and the “Fact” Approach to Determining Foreign Law: Death Knell for a Die-Hard Doctrine, 65 Mich. L. Rev. 613, 617 (1967); 9A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Federal Practice and Procedure § 2441 (3d ed. 2011) [hereinafter Wright & Miller].

[85]. See Wright & Miller, supra note 84; Lamm & Tang, supra note 5, at 31; Miller, supra note 84.

[86]. See Ewald, supra note 54, at 66; see also Cheng, supra note 12, at 1100–01.

[87]. See Ewald, supra note 54, at 66; see also Cheng, supra note 12, at 1100–01.

[88]. See Ewald, supra note 54, at 66.

[89]. See Brown, supra note 10, at 181.

[90]. See Lamm & Tang, supra note 5, at 31.

[91]. Comm. on Int’l Commercial Disputes, Proof of Foreign Law After Four Decades with Rule 44.1 FRCP and CPLR 4511, 61 Record 49, 50 (2006), available at http://www2.nycbar.org/Publications/record/vol_61_no_1.pdf.

[92]. From a practical, evidentiary standpoint, a good case can be made that foreign law is often proved in federal court like a “fact.”  Teitz, supra note 7, at 99.  “For example, despite defining foreign law to be a question of law, federal courts have effectively held that a failure to provide sufficient evidence of foreign law remains a valid ground for dismissal.”  Cheng, supra note 12, at 1101.

[93]. See Cheng, supra note 12, at 1101.

[94]. See Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 275 (S.D. Tex. 1997), aff’d, 161 F.3d 314 (5th Cir. 1998).

[95]. Fed. R. Civ. P. 44.1; see also Universe Sales Co. v. Silver Castle, Ltd., 182 F.3d 1036, 1038 (9th Cir. 1999); Wright & Miller, supra note 84, § 2444; Comm. on Int’l Commercial Disputes, supra note 91, at 51.

[96]. Comm. on Int’l Commercial Disputes, supra note 91, at 50.

[97]. Id.

[98]. Institut Pasteur v. Simon, 383 F. Supp. 2d 792, 795 n.2 (E.D. Pa. 2005).

[99]. Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 628 (7th Cir. 2010).

[100]. See Pazcoguin v. Radcliffe, 292 F.3d 1209, 1216 (9th Cir. 2002); HFGL Ltd. v. Alex Lyon & Son Sales Managers & Auctioneers, Inc., 264 F.R.D. 146, 148 (D.N.J. 2009); see also Peter D. Trooboff, Proving Foreign Law, Nat’l L.J. (Sept. 18, 2006), available at http://www.cov.com/files/Publication/166005e7

[101]. See Miner, supra note 50, at 585.

[102]. See Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 275 (S.D. Tex. 1997), aff’d, 161 F.3d 314 (5th Cir. 1998).

[103]. Forzley v. AVCO Corp. Elec. Div., 826 F.2d 974, 979 n.7 (11th Cir. 1987).

[104]. In re Tommy Hilfiger Sec. Litig., No. 04-civ-7678, 2007 U.S. Dist. LEXIS 55088, at *15 (S.D.N.Y. July 20, 2007).  It should be noted, however, that courts are often “reluctant to rely on sources such as newspapers, websites, or even statements issued by the U.S. Department of State” regarding foreign law.  Lamm & Tang, supra note 5, at 35.

[105]. United States v. Hing Shair Chan, 680 F. Supp. 521, 524 (E.D.N.Y. 1988).

[106]. See Lamm & Tang, supra note 5, at 33 (noting that governmental translations of statutes will be the best proof).

[107]. See Wright & Miller, supra note 84, § 2444.

[108]. See id.

[109]. See id.; see also HFGL Ltd. v. Alex Lyon & Son Sales Managers & Auctioneers, Inc., 264 F.R.D. 146, 148–49 (D.N.J. 2009).

[110]. See Wright & Miller, supra note 84, § 2444.

[111]. See id.

[112]. See Teitz, supra note 7, at 107; see also Universe Sales Co. v. Silver Castle, Ltd., 182 F.3d 1036, 1037–39 (9th Cir. 1999) (relying on Japanese attorney to determine claims based on Japanese law); Batchelder v. Kawamoto, 147 F.3d 915, 921–22 (9th Cir. 1998) (utilizing expert declarations of Japanese  and U.S. attorneys and law professors to determine Japanese securities law); Curley v. AMR Corp., 153 F.3d 5, 16 (2d Cir. 1998) (relying on affidavit of attorney licensed to practice in Mexico to determine Mexican tort law claims).  Of note, an expert report submitted by litigants pursuant to Rule 44.1 to assist a court “in its determination of foreign law is entirely different from use of an expert report, pursuant to  Rule 702, Fed.R.Evid., to aid the jury in determining the facts.”  HFGL Ltd., 264 F.R.D at 149 (quoting Lithuanian Commerce Corp. v. Sara Lee Hosiery, 177 F.R.D 245, 264 (D.N.J. 1997)).

[113]. See Teitz, supra note 7, at 106.

[114]. Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 638–39 (7th Cir. 2010) (Wood, J., concurring).

[115]. Id. at 639.

[116]. Saudi Basic Indus. Corp. v. Mobil Yanbu Petrochem. Co., 866 A.2d 1, 29 (Del. 2005) (considering appeal of a jury verdict for $416.8 million based on a tort claim under Saudi law known as usurpation or “ghasb”).

[117]. Id. at 31.

[118]. See generally Universe Sales Co. v. Silver Castle, Ltd., 182 F.3d 1036, 1037–39 (9th Cir. 1999); Batchelder v. Kawamoto, 147 F.3d 915, 921–22 (9th Cir. 1998); Transportes Aeros Pegaso v. Bell Helicopter Textron Inc., 623 F. Supp. 2d 518, 534 (D. Del. 2009).

[119]. Teitz, supra note 7, at 107.

[120]. Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 639 (7thCir. 2010).

[121]. See Wright & Miller, supra note 84, § 2444.

[122]. See id.

[123]. See id.; see generally Moore, supra note 80, § 44.1.04(2)(b) (noting that there are no special qualifications for foreign-law experts, and such experts need not even be admitted to practice law in the country about whose law they testify).

[124]. Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 92 (2d Cir. 1998) (citing Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998)).

[125]. Northrop Grumman Ship Sys., Inc. v. Ministry of Def. of Republic of Venez., No. 1:02cv785WJG-JMR, 2010 WL 2682946, *2–4 (S.D. Miss. July 2, 2010) (accepting testimony of a lawyer who was licensed to practice law in Venezuela, had published numerous legal articles involving Venezuela, and had taught courses in international and comparative law); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1125, 1173 n.50 (E.D. Pa. 1980) (accepting testimony of law professor specializing in Japanese law who was fluent in Japanese and worked in Japanese law offices for several years).

[126]. C.C. Bjorklund, Law of Foreign Jurisdiction, in 21 Am. Jur. Proof of Facts 2d 1, § 13 n.25 (2010) (citing Benjamin Busch, Outline on How to Find, Plead, and Prove Foreign Law in U.S. Courts with Sources and Materials, 2 Int’l Law. 437, 439 (1968)).

[127]. See Wright & Miller, supra note 84, § 2441; see also ID Sec. Sys. Can., Inc. v. Checkpoint Sys., 198 F. Supp. 2d 598, 623 (E.D. Pa. 2002); Doug M. Keller, Interpreting Foreign Law Through an Erie Lens: A Critical Look at United States v. McNab, 40 Tex. Int’l L.J. 157, 169 (2004).

[128]. Fed. R. Civ. P. 44.1.

[129]. See Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998) (ordering supplemental briefing of Mexican law because district court erroneously applied New York law to claim).

[130]. In re Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 61, 62–65 (S.D.N.Y. 2001).

[131]. See Fed. R. Civ. P. 44.1; Universe Sales Co. v. Silver Castle Ltd., 182 F.3d 1036, 1038 (9th Cir. 1999); Trans Chem. Ltd. v. China Nat’l Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 278–84 (S.D. Tex. 1997), aff’d, 161 F.3d 314 (5th Cir. 1998) (noting that the court independently analyzed the Chinese Constitution and Codes in addition to affidavits from three experts).

[132]. See Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 628 (7th Cir. 2010); Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487, 495 (7th Cir. 2009) (looking to treatises, law review articles, and judicial opinions to interpret Japanese trademark law).

[133]. See, e.g., Sunstar, 586 F.3d at 495 (seeking guidance from a Japanese Trademark Law textbook authored by an American law professor).

[134]. See id. at 497–98 (citing both parties’ translations of the relevant portions of Japanese trademark statute as there is no official English translation of Japanese laws); Tchacosh Co. v. Rockwell Int’l Corp., 766 F.2d 1333, 1334 n.2 (9th Cir. 1985) (accepting the translation of Iranian Temporary Director Act provided by defendant’s expert).

[135]. See Edward K. Cheng, Independent Judicial Research in the Daubert Age, 56 Duke L.J. 1263, 1304 (2007) (explaining that courts “have tended . . . to find ways to avoid the foreign law issue altogether”); see also Teitz, supra note 7, at 97–98 (noting that federal courts have demonstrated a “reluctance to address the content of foreign law”).

[136]. Cheng, supra note 12, at 1101.

[137]. Cheng, supra note 135, at 1304 (noting that courts find ways to avoid foreign law altogether); see also Heiser, supra note 13, at 1176–77 (noting that courts sometimes dismiss foreign law claims on the basis of forum non conveniens).

[138]. Cheng, supra note 12, at 1101.

[139]. See Miner, supra note 50, at 581.

[140]. See id. at 586–87 (discussing various cases in which foreign law was successfully applied).

[141]. Id. at 588.

[142]. Ewald, supra note 54, at 67.

[143]. See, e.g., Servo Kinetics, Inc. v. Tokyo Precision Instruments Co., 475 F.3d 783, 790 (6th Cir. 2007); Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 88 (2d Cir. 1998); Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998).

[144]. Ewald, supra note 54, at 67; Teitz, supra note 7, at 98.  For example, in Lou v. Otis Elevator Co., 933 N.E.2d 140 (Mass. App. Ct. 2010), the state court decided to instruct the jury pursuant to Massachusetts law because it was unable to confidently determine the applicable Chinese law.  Id. at 144.

[145]. Teitz, supra note 7, at 97.

[146]. Bodum USA, Inc. v. La Cafetière, Inc., 621 F.3d 624, 629 (7thCir. 2010).

[147]. Comm. on Int’l Commercial Disputes, supra note 91, at 49.

[148]. Bodum USA, Inc., 621 F.3d at 629.

[149]. See Kinjo v. Champion Shipping AS, No. CIV. 2:09-CV-03603 FCD/DAD, 2010 U.S. Dist LEXIS 78558, at *11 (E.D. Cal. Aug. 4, 2010) (accusing expert on foreign law of being biased and having a personal interest in the proceedings).

[150]. Hein Kötz, Civil Justice Systems in Europe and the United States, 13 Duke J. Comp. & Int’l L. 61, 64 (2003).

[151]. Comm. on Int’l Commercial Disputes, supra note 91, at 52.

[152]. 586 F.3d 487 (7th Cir. 2009).

[153]. Id. at 495.

[154]. Id. at 495–96.

[155]. Id. at 496.

[156]. Id.

[157]. Miner, supra note 50, at 588 (comparing the use of foreign-law experts to judicial acceptance of experts testifying on scientific and other related matters).

[158]. Comm. on Int’l Commercial Disputes, supra note 91, at 53 (discussing statements of Judge Helen Freedman of the New York State Supreme Court).  This is consistent with my own personal experience serving as an expert witness as well.

[159]. See Fed. R. Evid. 706 advisory committee’s note (“The ever-present possibility that the judge may appoint an expert in a given case must inevitably exert a sobering effect on the expert witness of a party and upon the person utilizing his services.”).

[160]. Teitz, supra note 7, at 111.

[161]. Id.

[162]. Id.

[163]. N.Y. State Unified Court Sys., supra note 6.

[164]. Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487, 495 (7th Cir. 2009).

[165]. Comm. on Int’l Commercial Disputes, supra note 91, at 51 (quoting Judge Milton Pollack, Proof of Foreign Law, 26 Am. J. Comp. L. 470, 471 (1978)).

[166]. See Keller, supra note 127, at 171 (quoting Adler, supra note 15, at 39).

[167]. Some provisions of foreign law are modeled after U.S. law.  In such instances, a court may benefit from looking to domestic legal principles.  One illustration is the similarity between U.S. and Japanese securities law.  Current Japanese securities laws were enacted in 1948 and modeled on the U.S. Securities Act of 1933, 15 U.S.C. section 77(a) et seq. (2006), (“Securities Act”) and the U.S. Securities Exchange Act of 1934, 15 U.S.C. section 78(a) et seq. (2006),  (“Exchange Act”).  Mitsuru Misawa, Current Business and Legal Issues in Japan’s Banking and Finance Industry 1 (World Scientific Publishing Co. Pte. Ltd., 2d ed. 2011), available at http://www.worldscibooks.com/etextbook/7535/7535_chap01.pdf; see also Outline of the Financial Instruments and Exchange Act, 3-8 Doing Business in Japan § 8.01 (Matthew Bender rev. ed. 2011).

[168]. Minpō [Minpō] [Civ. C.] art. 627, para. 1 (Japan).

[169]. See Ryuichi Yamakawa, Labor Law Reform in Japan: A Response to Recent Socio-Economic Changes, 49 Am. J. Comp. L. 627, 645 (2001).

[170]. Roudou kijunhou [Labor Standards Act] No. 49 art. 20 (Japan).

[171]. As a civil law country, Japan does not have a strict doctrine of stare decisis.  In principle, the judiciary applies the statutory law to the dispute at issue and may render a decision without analyzing and synthesizing past judicial decisions.  All judgments issued by Japanese courts bind only the parties to each respective action and inferior courts, if any, where that specific action was reviewed.  While higher court decisions may be influential on other lower courts, such decisions are technically not binding with respect to future cases.  This doctrine applies to all Japanese courts, including the Supreme Court.  See generally Carl F. Goodman, The Rule of Law in Japan 187 (2d rev. ed. 2008).

[172]. Yamakawa, supra note 169, at 645; Hiroya Nakakubo, Similarities and Differences Between Labor Contracts and Civil and Commercial Contracts: Japan Report, Italian Lab. Law Online, 2, http://www.dirittodellavoro.it/public
/current/miscellanea/atti/israele/0049-j~1.pdf (last visited Nov. 6, 2011).

[173]. Yamakawa, supra note 169, at 645.

[174]. Id.

[175]. See Comm. on Int’l Commercial Disputes, supra note 91, at 49.

[176]. See id.

[177]. Teitz, supra note 7, at 98.

[178]. Bodum USA, Inc., v. La Cafetière, Inc., 621 F.3d 624, 630–31 (7th Cir. 2010).

[179]. See Cheng, supra note 12, at 1108.

[180]. This is evidenced by the European Convention on Information on Foreign Law, also known as the “London Convention,” that was prepared by the Council of Europe and signed in London in 1968.  See John C. L. Dixon, Proof of Foreign Law: The Impact of the London Convention, 46 Int’l & Comp. L.Q. 151, 155 (1997).  The 1968 London Convention was designed so that contracting states could establish systems to request and supply information about their respective civil and commercial law, judicial organization, and civil procedure.  Id.; Geeroms, supra note 78, at 137.  The Convention provides a formal mechanism for the courts of one member state to obtain information regarding foreign law from another member state.  Raphael Perl, European Convention on Information on Foreign Law, 8 Int’l J. L. Lib. 145, 145 (1980).

[181]. Geeroms, supra note 78, at 153, 157, 160 (discussing bilateral agreements between countries aimed at facilitating the exchange of information regarding foreign law).

[182]. John C. Reitz, Standing to Raise Constitutional Issues, 50 Am. J. Comp. L. (Supplement) 437, 440 (2002).

[183]. 304 U.S. 64 (1938).

[184]. John F. Preis, Alternative State Remedies in Constitutional Torts, 40 Conn. L. Rev. 723, 764 (2008).

[185]. Id.

[186]. Keller, supra note 127, at 178.

[187]. See Preis, supra note 184, at 764.

[188]. Id. at 764–65; Jonathan Remy Nash, Examining the Power of Federal Courts to Certify Questions of State Law, 88 Cornell L. Rev. 1672, 1674 (2003).

[189]. Keller, supra note 127, at 178.

[190]. See Nash, supra note 188, at 1694.

[191]. See id. at 1690–93 (noting that the court retains discretion whether to invoke certification).

[192]. Preis, supra note 184, at 765.  For example, under article VI, section 3(b)(9) of the New York Constitution, the state high court is permitted to accept certified questions only from the Supreme Court of the United States, any U.S. Court of Appeals, and the highest courts in other American states.  N.Y. Const. art. VI, § 3(b)(9).

[193]. See generally Briefing.com v. Jones, 126 P.3d 928, 929 (Wyo. 2006) (describing the requirements for federal courts certifying questions about Wyoming’s recognition of trade secrets law).

[194]. Nash, supra note 188, at 1695.

[195]. Krishanti Vignarajah, The Political Roots of Judicial Legitimacy: Explaining the Enduring Validity of the Insular Cases, 77 U. Chi. L. Rev. 781, 842 (2010).

[196]. Arizonans for Official English v. Arizona, 520 U.S. 43, 76 (1997).

[197]. Keller, supra note 127, at 178.  To the extent that the parties are embroiled in parallel litigation, a U.S. court could wait for a foreign court to rule on the matter at hand.  Id. at 184.  However, this waiting game is inefficient and potentially detrimental to the litigants and the court.

[198]. See Cheng, supra note 12, at 1108.

[199]. N.Y. State Unified Court Sys., supra note 6.

[200]. Id.

[201]. Id.  Chief Justice Spigelman retired on May 31, 2011, after serving thirteen years as chief justice.  See generally NSW Chief Justice Spigelman Resigns, The Age, Mar. 18, 2011, http://news.theage.com.au/breaking-news

[202]. N.Y. State Unified Court Sys., supra note 6.  The MOU is the second of its kind entered into by the NSW Supreme Court and mirrors the MOU that it entered into with the Supreme Court of Singapore in June 2010.  See generally Memorandum of Understanding Between the Supreme Court of Singapore and the Supreme Court of New South Wales on References of Questions of Law, (Sept 14, 2010), [hereinafter Memorandum of Understanding] available at http://www.ipc.nsw.gov.au/practice_notes/nswsc_pc.nsf/6a64691105a54031ca256880000c25d7/33cfadb586532d46ca25779e00171f9a?OpenDocument.

[203]. N.Y. State Unified Court Sys., supra note 6; see also Joel Stashenko, N.Y. Judges to Exchange Views with New South Wales High Court, N.Y. L.J., Nov. 1, 2010, at 1.

[204]. See generally Memorandum of Understanding, supra note 202.

[205]. Stashenko, supra note 203.

[206]. Id.

[207]. Id.

[208]. Id. (stating that although New York court administrators cannot recall a New York Court of Appeals case applying Australian law, New York commercial statutes are frequently subject to interpretation by Australian courts).

[209]. N.Y. State Unified Court Sys., supra note 6.

[210]. Stashenko, supra note 203.

[211]. See Taking a Personal Commitment to Justice to the World: An Interview with Judge Charles R. Simpson III, Third Branch (U.S. Fed. Courts, D.C.), Dec. 2008, at 1, 10–11, available at http://www.uscourts.gov/uscourts

[212]. Id. at 10.

[213]. Id.

[214]. Id.  By way of illustration, one of the CIJR’s activities is coordinating the participation of federal courts with the Open World Program, operated by the Center for Russian Leadership Development at the Library of Congress.  D. Brooks Smith, Promoting the Rule of Law and Respecting the Separation of Powers: The Legitimate Role of the American Judiciary Abroad, 7 Ave Maria L. Rev. 1, 18 (2008).  As part of the Open World Program, over 250 Russian judges have traveled to Washington, D.C., for a two-day general overview of the American judiciary and then for eight days of meetings with local judges.  Id.  This is just one example of the various exchange programs offered by the CIJR and others.

[215]. Paul Schiff Berman, From International Law to Law and Globalization, 43 Colum. J. Transnat’l L. 485, 503 (2005); U.S. Federal Judge Discusses Judicial Administration and Ensuring “Speedy” Justice, Embassy of the U.S. in Malta (Apr. 6, 2011), http://malta.usembassy.gov/en-04062011.html.

[216]. Berman, supra note 215, at 503–04.

[217]. Sister Court in Slovenia, Third Branch (U.S. Fed. Courts, D.C.), Nov. 2010, available at http://www.uscourts.gov/News/TheThirdBranch/10-11
-01/Sister_Court_in_Slovenia.aspx.  Other U.S. federal courts have also entered into sister-city relationships including: the U.S. District Court for the Western District of Kentucky with the District Court of Pula, Croatia; the U.S. District Court for the Western District of Washington with the Primorsky Kray Region Russian Federation Court; the U.S. Bankruptcy Court for the Middle District of Tennessee with the Commercial Court of Zagreb, Croatia; and the U.S. District Court for the District of Minnesota with the Court of Appeals, Kirovohrad Region, Ukraine.  Id.

[218]. See Temple Law School Co-sponsors Visit of ABA International Division Delegation, Which Will Include Justice Stephen Breyer: Two International Law Seminars, Temple Univ. (July 9, 2008), http://www.tuj.ac.jp/newsite/main/law

[219]. See Berman, supra note 215, at 503 (noting that not only have U.S. Supreme Court Justices personally met with top jurists in France, Germany, England, India, and the European Court of Justice (“ECJ”) but that members of the ECJ have visited the U.S. Supreme Court several times as well); Tori Richards, ‘Tough Guy’ Judge Leads Judicial Reform Overseas, AOL News (Aug. 16, 2010), http://www.aolnews.com/2010/08/16/tough-guy-us-judge-leads
-judicial-reform-overseas/ (describing efforts of U.S. District Judge David O. Carter to reach out to judges and attorneys around the world).

[220]. Berman, supra note 215, at 504.

[221]. Robert Nicholson, Regional Work of the Conference of Chief Justices of the Asia Pacific Region, Int’l Jud. Monitor (Jan.–Feb. 2007), http://www.judicialmonitor.org/archive_0207/globaljudicialdialogue.html.  First convened in 1985, the Conference of Chief Justices of the Asia Pacific Region meets biennially and includes judges from countries with common law systems (Pakistan, India, Sri Lanka, Bangladesh, Malaysia, Singapore, Hong Kong SAR, the Philippines, Australia, and New Zealand), those with civil law traditions (Japan, Thailand, Indonesia, the Republic of Korea, and Vietnam), and others with diverse legal traditions based on Islamic or Sharia law (Afghanistan, Malaysia, and Indonesia).  Id.  Those attending the Conference are the Chief Justices of the nation states of the Lawasia region, stretching from Afghanistan in the west to Pacific Islands in the east; from Korea in the north to Australia in the south.  If a Chief Justice cannot personally attend the Conference, it is customary that another member of the court attend.  Id.

[222]. Id.

[223]. Id.

[224]. See generally id.

[225]. The programs operated by the American Society of International Law (“ASIL”) are yet another example.  Transnational Judicial Dialogue, Am. Soc’y Int’l L., http://www.asil.org/transnational-judicial-dialogue.cfm (last visited Nov. 6, 2011).  The ASIL strives to foster transnational dialogue on strengthening international judicial cooperation among judges and courts from jurisdictions around the world through formal and informal networks.  Id. It also facilitates international judicial dialogue on current challenges facing judges and judiciaries through conferences, study tours, exchanges, and other programmatic activity and resources.  Id.

[226]. Fed. R. Civ. P. 44.1 (emphasis added).

[227]. See id.

[228]. See generally Lamm & Tang, supra note 5, at 34 (discussing cases in which courts have deferred to the interpretations of foreign governments, and cases where they have not).

[229]. Stashenko, supra note 203.

[230]. Id.

[231]. Id.

[232]. N.Y. State Unified Court Sys., supra note 6.

[233]. Id.

[234]. Id.

[235]. Stashenko, supra note 203.

[236]. N.Y. State Unified Court Sys., supra note 6.

[237]. Id.

[238]. Id.

[239]. See Perl, supra note 180, at 145.

[240]. See Alan Redfern et al., Law and Practice of International Commercial Arbitration 294 (4th ed. 2004).

[241]. See Fed. R. Evid. 706; Cheng, supra note 12, at 1106; Ellen E. Deason, Court-Appointed Expert Witnesses: Scientific Positivism Meets Bias and Deference, 77 Or. L. Rev. 59, 78–79 (1998).

[242]. See Miner, supra note 50, at 588–89; see also Byrne v. Cooper, 523 P.2d 1216, 1220 (Wash. Ct. App. 1974).

[243]. See Deason, supra note 241, at 64–67, 69–72 (1998).

[244]. See id. at 61, 74.

[245]. Rachel Kent, Expert Witnesses in Arbitration and Litigation Proceedings, Transnat’l Disp. Mgmt., June 2007, available at http://www.wilmerhale.com/files/Publication/73eaccae‑951d‑4dd3‑ab8f‑24b6b1836dda/Presentation/PublicationAttachment/d6fdcd85‑16df‑44e7‑b064‑2764ac647870/expertWitness_tv43article02.pdf; see also Deason, supra note 241, at 74.

[246]. See Fed. R. Evid. 706 notes of advisory committee on rules; Deason, supra note 241, at 79.

[247]. See Cheng, supra note 135, at 1270, 1303.

[248]. Fed. R. Evid. 706(a).

[249]. See Servo Kinetics, Inc. v. Tokyo Precision Instruments Co., 475 F.3d. 783, 790 (6th Cir. 2007) (addressing district court’s appointment of a professor to provide information and answer specific questions about Japanese contract law); Institut Pasteur v. Simon, 383 F. Supp. 2d 792, 795 n.2 (E.D. Pa. 2005) (addressing court’s appointment of an expert on French law); Carbotrade S.p.A. v. Bureau Veritas, No. 92 Civ. 1459, 1998 U.S. Dist. LEXIS 10575, at *7 (S.D.N.Y. July 13, 1998) (addressing court’s appointment of an expert on Greek law).

[250]. Geeroms, supra note 78, at 145.

[251]. See Cheng, supra note 12, at 1106; Cheng, supra note 135, at 1303.

[252]. Geeroms, supra note 78, at 145.

[253]. Fed. R. Evid. 706(b).

[254]. See Comm. on Int’l Commercial Disputes, supra note 91, at 52.

[255]. Id. at 54; see also Cheng, supra note 12, at 1106.

[256]. See Kent, supra note 245.

[257]. See Deason, supra note 241, at 63.

[258]. See Teitz, supra note 7, at 108.  By way of example, in Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 88 (2d Cir. 1998), the court appointed a law professor as an expert amicus curiae in addition to soliciting supplemental briefs from the parties on questions of Russian law.

[259]. See Miner, supra note 50, at 588 (quoting John R. Schmertz, Jr., The Establishment of Foreign and International Law in American Courts: A Procedural Overview, 18 Va. J. Int’l L. 697, 713 (1978)).

[260]. 475 F.3d. 783, 790 (6th Cir. 2007).

[261]. See id.

[262]. See Miner, supra note 50, at 589.

[263]. See id.

[264]. Cheng, supra note 12, at 1107–08.

[265]. Id. at 1108.

[266]. Fed. R. Evid. 706(a)–(b).

[267]. See id. at 706(b) (“The compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.”).

[268]. See Teitz, supra note 7, at 108.

[269]. See Comm. on Int’l Commercial Disputes, supra note 91, at 54.  It should be noted, however, that the absence of ex parte discussions reduces the court’s flexibility in determining foreign law and is inconsistent with the concept that the judge can utilize any resource with or without notice to the litigants.  Id. at 54–55.

[270]. See id. at 54.

[271]. Id. at 54–55.

[272]. See id. at 55–56.

[273]. Geeroms, supra note 78, at 145–46.

[274]. Comm. on Int’l Commercial Disputes, supra note 91, at 55.

[275]. See id.

[276]. See generally Henry v. S/S Bermuda Star, 863 F.2d 1225 (5th Cir. 1989) (adopting certain portions of the master’s report); Fin. One Pub. Co. v. Lehman Bros. Special Fin., Inc., No. 00 Civ. 6739(CBM), 2003 WL 2006598 (S.D.N.Y. May 1, 2003) (adopting special master’s report in light of scarcity of materials on Thai law); Corporacion Salvadorena de Calzado, S.A. v. Injection Footwear Corp., 533 F. Supp. 290 (S.D. Fla. 1982) (noting that the appointment of the master helped facilitate an ultimate decision in the case where the parties’ experts conflicted about all material aspects of foreign law).

[277]. Comm. on Int’l Commercial Disputes, supra note 91, at 56.

[278]. Id.

[279]. See id. at 54.

[280]. See id.

[281]. See generally Wright & Miller, supra note 84, § 2444.

[282]. Comm. on Int’l Commercial Disputes, supra note 91, at 54 (noting the personal experiences of John Martin, former judge for the U.S. District for the Southern District of New York, as well as Professor Hans Smit of Columbia University).

[283]. Saudi Basic Indus. Corp. v. Mobil Yanbu Petrochem. Co., 866 A.2d 1, 31–32 (Del. 2005).

[284]. Id.

[285]. Id.

[286]. Id. at 32; Saudi Basic Indus. Corp. v. Mobil Yanbu Petrochem. Co., No. 00C-07-161-JRJ, 2003 Del. Super. LEXIS 296, at *1–2 (Del. Super. Ct. Aug. 26, 2003).

[287]. The concept of amicus curiae participation in civil litigation is long established in common law jurisdictions.  Johannes Chan, Amicus Curiae and Non-Party Intervention, 27 H.K. L.J. 391, 394 (1997).  Amicus curiae briefs likely originated in Rome as a means to aid courts when handling matters involving information outside of their knowledge.  Sylvia H. Walbolt & Joseph H. Lang, Jr., Amicus Briefs: Friend or Foe of Florida Courts?, 32 Stetson L. Rev. 269, 270 (2003). English courts utilized amicus briefs for similar purposes of providing neutral assistance in resolving issues unfamiliar to the court.  Id.  In the United States, the use of amicus curiae briefs evolved from this original, detached “friend of the court” purpose to that of more direct advocacy. Id. at 271.  Interested parties such as governmental sectors and private third parties began using amici to advocate their positions when wishing to influence the outcome of private disputes involving larger constitutional and policy issues.  Id. at 273; see also Paul M. Collins Jr., Lobbyists Before the U.S. Supreme Court: Investigating the Influence of Amicus Curiae Briefs, 60 Pol. Res. Q. 55, 58 (2007).  The use of amici for such purposes increased in the twentieth century as organizations began utilizing amici to “judicially lobby” for outcomes that aligned with their positions.  Walbolt & Lang, supra, at 287.  Also, governmental parties have long used amicus briefs to argue their positions.  Id.

[288]. 218 F.3d 121 (2d Cir. 2000).

[289]. Id. at 126 (seeking insight on the distribution and advisory fee disclosure requirements under Rule 10b-10 under the Securities Exchange Act of 1934).

[290]. Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 10 F.3d 425 (7th Cir. 1993).

[291]. Id. at 431.

By: Lydia Pallas Loren*


Copyright owners routinely obtain prompt removal of allegedly infringing materials from the Internet using takedown notices.  The Copyright Act’s takedown procedures are an attractive and powerful tool to combat infringement because they do not require filing a federal copyright infringement complaint, nor do they involve any neutral assessment of the copyright owner’s infringement assertion.  Because the takedown regime is embedded in safe harbor protections that immunize Online Service Providers (“OSPs”) from monetary liability for copyright infringement engaged in by Internet users, the statute creates an important incentive for Internet Service Providers (“ISPs”) to comply automatically with takedown requests sent by copyright owners.  Unfortunately, this prompt method for obtaining removal of material from the Internet lends itself to abuse by copyright owners seeking to silence critics or to obtain a far broader protection for their works than copyright law actually affords.

Congress attempted to provide a shield for lawful, noninfringing activity in the takedown regime itself: the statute permits individuals to send a counter-notice that can result in the allegedly infringing material being reposted.  The practices of most OSPs, however, make the counter-notice problematic and difficult to use, reducing its effectiveness as a true shield for lawful, noninfringing activity.  Congress also created a mechanism to deter abuse of the takedown regime: a federal cause of action for misrepresenting that posted material is infringing.  If taken seriously, the misrepresentation claim has the potential to shape the behavior of copyright owners who wield the powerful sword of the takedown notice.  To date, however, few misrepresentation claims have been brought, and the early interpretations of the provisions have limited their effectiveness in curbing abuse.

Because a complete understanding of the role of the misrepresentation claim within the statutory scheme should inform any judicial interpretation of its requirements, this Article first places the misrepresentation claim in the context of the takedown regime.  It then examines litigation dynamics as well as the statutory elements of a misrepresentation claim, offering suggestions on how these elements should be interpreted in light of the purpose and context of the statute.  If appropriately interpreted, the misrepresentation claim holds great promise for protecting both copyright owners and lawful users of copyrighted works.


Cheap digital computing exploded copyright’s industrial distribution model, sharply democratizing publication and dissemination.  At the urging of industrial copyright producers and distributors, Congress sought to bring some order to the digital copyright chaos of the Internet by creating a “takedown notice” regime as part of the 1998 Digital Millennium Copyright Act.  Merely by sending a proper takedown notice, a copyright owner can prompt an Internet Service Provider (“ISP”) to swiftly remove an allegedly infringing item from its servers; ISPs earn immunity from infringement liability if they provide that swift removal and thus are only too happy to comply.  At the same time, to avoid creating a runaway copyright enforcement engine that is all gas and no brakes, Congress tempered the takedown notice by conferring a misrepresentation claim on those whose Internet expression has been silenced by extravagant copyright infringement claims in groundless takedown notices.  But early testing of the misrepresentation claim brakes has shown some serious slippage.

Stories abound of individuals, companies, political campaigns, and even religious organizations using the considerable tools of the Copyright Act to seek removal of material on the Internet they find objectionable.  Diebold, Inc. sought to silence critics of its electronic voting machines prior to a major election.[1]  CBS News, Fox News, the Christian Broadcasting Network, and NBC News obtained removal of McCain-Palin campaign videos just weeks before the 2008 presidential election.[2]  The Church of Scientology attempted to silence its critics by sending out countless takedown notices.[3]  And Universal Music Group sought to have a mother’s thirty-second home video of toddlers running around the family kitchen removed from YouTube because of the copyrighted music playing in the background.[4]

In addition to the takedown notices that appear designed to censor particular speech that copyright owners find objectionable, takedown notices are also sent automatically and without verification that the entity being sent the notice in fact has engaged in any kind of activity that could remotely be considered infringement.[5]  In 2009, Joe Waz, Vice President for External Affairs and Public Policy Counsel at Comcast, acknowledged the existence of “an automated system that currently forwards between 1 to 2 million notices each year.”[6]  The use of automated detection software has resulted in takedown notices sent to individuals not engaged in any infringing activity,[7] including even notices sent to networked printers.[8]  Each year Google, which owns the video sharing service YouTube, processes three million takedown requests.[9]

Providing a means of effective enforcement of copyright owners’ rights in the digital environment, while at the same time ensuring protection for lawful Internet activity, is an undeniably difficult undertaking.  The significant magnitude of activity that constitutes prima facie infringement has led to a variety of efforts to facilitate enforcement of copyright owners’ rights.  Congress has increased the activity subject to criminal sanctions,[10] has increased the monetary penalties in civil enforcement proceedings, and has even provided legal protection for technology that copyright owners employ to protect their works.[11]  At the same time, balancing effective protection with permitting, and not discouraging, lawful activity has proved to be a daunting challenge.[12]

Takedown notices have proved to be an attractive mechanism for copyright owners to obtain the prompt removal of allegedly infringing materials from websites.  The takedown procedures are a powerful tool to combat infringement because they do not require the filing of a federal copyright infringement complaint, nor do they involve any court assessment of the copyright owner’s infringement assertion.  Because the takedown provisions are embedded in the safe harbor protections that immunize Online Service Providers (“OSPs”) from liability for copyright infringement engaged in by Internet users, the statute sets up an important incentive for ISPs to automatically comply with takedown requests sent by copyright owners.  Unfortunately, this prompt method for obtaining removal of material from the Internet lends itself to abuse by copyright owners seeking to silence critics or to obtain far broader protection for their works than copyright law actually affords them.

The Copyright Act defines many circumstances in which copyrighted material can be reproduced or used by another person without the authorization of the copyright owner.  The Act specifies that such uses shall not constitute infringement of the copyright.[13]  The Copyright Act grants a copyright owner only a set of limited rights, all of which are constrained by many different sections of the Act.[14]  For example, a fundamental constraint on the rights of a copyright owner is the fair use doctrine, codified in section 107 of the Act.[15]  This provision permits reproduction of copyrighted expression but depends on a weighing of four different factors to determine if the use is infringement or if it is “fair use.”[16]  One of the types of uses favored by the fair use doctrine is criticism.[17]  Yet it is in this context that a copyright owner might be most tempted to seek out ways to silence critics, using the Copyright Act’s powerful takedown mechanism as a tool to accomplish that censoring.

This powerful sword given to copyright owners was added to the Copyright Act by the Digital Millennium Copyright Act as part of a compromise worked out between ISPs and copyright owners.[18]  The abuse that this extrajudicial remedy can lead to has been cataloged in other articles,[19] and many have suggested reforms to the takedown procedures that would dull the edge of the sword.[20]  However, given the rampant infringement that exists on the Internet, rather than dulling the power of that sword, this Article proposes a means for providing a more effective shield for lawful activity and discouraging abuse of the takedown sword.

Congress tried to provide a shield for lawful activity in the takedown regime itself.  The statute permits individuals who believe their material has been wrongfully taken down pursuant to a copyright owner’s takedown notice to send a counter-notice.  That counter-notice may result in the allegedly infringing material being reposted.[21]  As detailed below, the practices of most OSPs make the counter-notice problematic and difficult to use, reducing its effectiveness as a true shield for lawful activity.[22]

Congress also created a mechanism to deter abuse of the takedown regime—namely, a new federal cause of action against one who misrepresents that material is infringing.[23]  This misrepresentation claim, if construed by the courts to achieve its central deterrent purpose, has the potential to shape the behavior of copyright owners as they decide whether to wield the powerful takedown sword.  To date, however, few have brought misrepresentation claims.  Worse, some courts’ initial interpretations of the misrepresentation claim provisions threaten to limit its deterrent power to curb abuse.  Because an understanding of the role of the misrepresentation claim within the statutory scheme should inform any judicial interpretation of its requirements, this Article first places the misrepresentation claim in the context of the takedown regime.  It then examines litigation dynamics as well as the statutory elements of a misrepresentation claim, offering suggestions on how these elements should be interpreted in light of the purpose and context of the statute.  If appropriately interpreted, the misrepresentation claim holds great promise for protecting both copyright owners and lawful uses of copyrighted works.

I.  Takedown Mechanics

A.            The “Safe Harbor” Provisions

The takedown provisions of the Copyright Act are codified as part of the “safe harbor” provisions of the Digital Millennium Copyright Act, passed in 1998.[24]  Congress created four separate safe harbor provisions to clarify the liability that OSPs[25] faced in the early years of widespread Internet usage and explosive growth of the World Wide Web.  Codified in section 512 of the Copyright Act, each of the safe harbors contains specific requirements that service providers must meet in order to gain and maintain the safe harbors’ protections from copyright infringement liability.[26]

The powerful takedown provisions are part of two of the four different safe harbors Congress created.[27]  If a service provider complies with the statutory requirements, the provider is protected from liability for monetary relief and, to a large extent, from equitable relief, as well.[28]  Any entity that operates an online service can avail itself of the immunities offered by section 512.  From services like Dropbox, that permit users to store personal files remotely, to blogging sites, the social network giant Facebook, and indexing sites like Google, a service provider that permits users to load content onto its equipment or provides indexes and links to other sites is eligible to obtain immunity if it complies with the requirements of the statute.  The safe harbors that do not involve takedown notices are applicable to providers of Internet connectivity, entities that are often referred to as ISPs.[29]  For clarity’s sake, the service providers that may gain safe harbor immunities involving takedown notices are often referred to as OSPs, i.e., Online Service Providers.[30]

The takedown regime employed by the safe harbor for “[i]nformation residing on systems or networks at direction of users”[31] and for “[i]nformation location tools”[32] is fundamentally designed to keep OSPs out of the middle of lawsuits between the copyright owner and the user who has posted the allegedly infringing material, i.e., the direct infringer.  To do this, the safe harbor provisions designate a specific course of conduct for the OSPs to follow.[33]  Initial qualifications for safe harbor protections require service providers to “adopt[] and reasonably implement[]” a policy that provides for the termination of the accounts of subscribers who are repeat infringers.[34]  An OSP interested in the protections afforded by the provisions that involve takedown notices must also designate an agent for receipt of such notices.[35]  This designation must be made by filing a form with the Copyright Office[36] and by making the contact information available on the provider’s website.[37]

The real meat of the safe harbor protections that involve the takedown provisions requires that the service provider not have actual or constructive knowledge[38] that material on the system uploaded by a subscriber[39] is infringing, and, “upon obtaining such knowledge or awareness,” the service provider must act “expeditiously to remove, or disable access to, the material.”[40]  When a copyright owner sends a notice of claimed infringement that meets the requirements of the statute,[41] in order to maintain the protection of the safe harbor, the service provider must “respond[] expeditiously to remove, or disable access to, the material that is claimed to be infringing.”[42]  Failing to respond expeditiously to an effective notice from a copyright owner eliminates the protection from liability that the safe harbor provisions offer.[43]  Thus, the takedown regime provides a powerful incentive for indiscriminate removal of material alleged by a copyright owner to be infringing.[44]  Courts have noted that ISP’s remove material “as a matter of course” in response to takedown notices.[45]

Congress sought to create “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment.”[46]  Congress also believed it was important to provide OSPs with certainty concerning their potential liability.[47]  The compromise between the content industry and the OSPs not only gave copyright owners a powerful tool by which to obtain prompt removal of infringing content, it also provided a clear mechanism for OSPs to stay out of the middle of an infringement lawsuit.

In addition to the removal of the material that the copyright owner asserts is infringing, a user may face additional consequences.  For example, a user’s account with that OSP may be suspended, which can result in all of that user’s content no longer being available online.[48]  The suspension of a user’s account can also be traced to the safe harbor’s requirement that an ISP implement a policy to terminate the accounts of repeat infringers.[49]  If an OSP does not have such a policy or does not “reasonably implement” such a policy, it loses the protection of the safe harbor.[50]

Whether multiple assertions of infringement by copyright owners—without court adjudication of infringement—can brand someone a “repeat infringer” is not clear.[51]  The trend toward using multiple assertions by copyright owners of infringement as means to trigger increased sanctions is known as graduated response.[52]  International intellectual property groups have been aggressively pursuing graduated response both through treaties and in privately negotiated arrangements with ISPs and OSPs.[53]  Other countries that employ a graduated response regime which results in a loss of Internet access for a “repeat infringer” have built in due process protections for individuals before termination of an individual’s Internet access.[54]

The possibility of losing access to one’s account based on mere notices of copyright infringement sent by copyright owners increases the importance of minimizing abuse of such notices.  Taking the claim of misrepresentation seriously and applying it to notices of infringement meant to trigger these graduated response systems, whether or not strictly within the takedown regime, would provide a strong incentive for copyright owners not to abuse the privilege of this extrajudicial enforcement of rights.

B.            The Takedown Notice

The statute establishes the requirements for an effective notification from a copyright owner.  The notice must be “a written communication provided to the designated agent of a service provider” and it must include “substantially”[55] the following:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.[56]

These requirements for a takedown notice apply to both of the safe harbors—the safe harbor for “[i]nformation residing on systems or networks at direction of users”[57] and the safe harbor for “[i]nformation location tools,”[58] with one exception.  If the notice is aimed at material that refers or links to an online location containing infringing material, instead of a notice concerning the infringement material itself, the takedown notice must identify “the reference or link . . . that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link” in place of the material to be identified in paragraph (iii).[59]  A compliant notice[60] triggers the obligation for the OSP to act “expeditiously to remove, or disable access to” the identified material or link.[61]

C.            The Counter-Notice

The safe harbor provisions create “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment.”[62]  At the same time, Congress sought to “balance the need for rapid response to potential infringement with the end-users[’] legitimate interests in not having material removed without recourse.”[63]  An important protection for users’ rights provided for in the statute is an ability for the user to request that the material be reposted through a “counter-notice.”[64]

Upon receipt of a takedown notice, in addition to expeditiously removing the material, the service provider is encouraged to notify the user that his or her material has been removed in response to a takedown notice from a copyright owner.[65]  The statute provides a counter-notice process by which alleged infringers can notify the service providers that they have a good faith belief that the material is not infringing.[66]

The counter-notice “must be a written communication”[67] that includes substantially the following:

(A) A physical or electronic signature of the subscriber.

(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.[68]

Upon receipt of a counter-notice, the service provider is required to promptly provide the copyright owner with a copy of the counter- notice.[69]  If the copyright owner does not file a lawsuit against the subscriber seeking to restrain the subscriber from engaging in infringing activity and provide the service provider with notice of that pending action, then the service provider is encouraged to replace the material.[70]  Under these circumstances, the service provider is to put the material back on the Internet no more than fourteen business days following receipt of the counter-notice.[71]

D.            Takedown Notice Abuse and the Porous Counter-Notice Shield

While the counter-notice is, in theory, an important mechanism to shield lawful activity from abusive or overreaching notices, or even just as a mechanism to require court involvement in close cases, the statutory implementation of the counter-notice makes it an extremely porous shield.  Just as OSPs are not required to comply with a takedown notice, they are not required to comply with a counter-notice.  The statutory incentive to comply with the former, however, is significantly more valuable than the incentive to comply with the latter.

The incentive for service providers to notify the user that his or her material has been removed and to comply with the counter-notice request to put material back up comes in the form of a safe harbor from claims that the user might assert against the service provider.[72]  If the service provider promptly notifies subscribers when taking material down and complies with counter-notice requests to put the material back up, the service provider maintains immunity from such user-initiated suits.  However, the true risk of such a suit is often minimal due to limitations on liability that most service providers insist upon in their contracts with users.[73]  Thus, while the incentive to comply with a copyright owner’s takedown notice is high, because doing so provides immunity from copyright infringement liability which can be significant,[74] the incentive for reposting material when requested by a subscriber is significantly lower.[75]

One consequence of the largely insignificant incentive for OSPs to follow through with the counter-notice aspect of the takedown regime is that users often are unaware of the ability to send a counter-notice and may even be unaware that material they posted has been removed.  Alerting the user that material has been removed is only required if the OSP desires to maintain immunity from user-initiated suits.[76]  Additionally, the safe harbor permitting takedown notices for links in an index or search database does not contain any counter-notice provisions.[77]  However, in the current digital environment, not being listed in the major search engine, Google, has a significant effect on the visibility of content. Fortunately, courts have held that the counter-notice and replacement procedures apply to a takedown pursuant to the safe harbor concerning information location tools.[78]  Even if an OSP sends a notice concerning removed material or removed links, the statute does not require the OSP to inform the user of the counter-notice possibility.[79]

Congress established the takedown regime as a way to give copyright owners what they wanted—quick removal from the Internet of infringing material and links to infringing material—and at the same time to give ISPs what they wanted: protection from copyright infringement liability and from involvement in infringement lawsuits.[80]  The counter-notice was another manifestation of the ISPs’ desire to stay out of the middle of lawsuits.  The counter-notice facilitates this in two ways.  First, sending the counter-notice requires the user to identify himself or herself,[81] if, for example, the user was previously anonymous or using a pseudonym in his or her posting.  Second, the user must identify a jurisdiction in which he or she consents to be sued for copyright infringement.[82]

These required contents for the counter-notice will cause many individuals to pause before sending one.  Even if the material is clearly not infringing, many individual users would rather forego having their material reposted than face a lawsuit.  Of course, sending the counter-notice does not trigger a lawsuit.  In fact, a copyright owner who is attempting to use the takedown notice as a way to obtain removal of material that is clearly noninfringing will likely not file suit.[83]  That likelihood, however, may be lost on an individual who faces having to reveal his or her identity and sign a document consenting to jurisdiction in order to seek reposting.

At least one court has pointed to the counter-notice as the principal means of balance in the takedown regime.[84]   In the end, the counter-notice mechanism provides a weak shield for protecting lawful activity from abusive takedown notices.  Thus, it is important for courts to fully embrace the misrepresentation claim that Congress provided to deter abuse of the powerful takedown tool.

II.  Misrepresentation Claims

Currently, the risks for abusing the takedown procedure are not that great.  Bad press can follow an overzealous takedown request,[85] but it does not create the same kind of incentive to curb abuse that would be created by clear legal liability for inappropriate takedown notices.[86]  Congress recognized the risk that copyright owners would use this extrajudicial tool in a way that might run counter to the constitutionally mandated goal of the Copyright Act to promote knowledge and learning.[87]  Providing a counterbalance against the potential for abuse, Congress created a cause of action against misuse of the takedown procedures.  This cause of action was meant to “deter knowingly false allegations to service providers in recognition that such misrepresentations are detrimental to rights holders, service providers, and Internet users.”[88]

A.            Elements of the Claim

Section 512(f) provides a critical safeguard against false accusations of online infringement[89] by creating a federal cause of action for misrepresentation.  In its entirety, that section provides:

(f) Misrepresentations.—Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.[90]
As the text of section 512(f) makes clear, either a copyright owner or a subscriber may bring a claim for misrepresentation.  Thus, the standards established for prevailing on a claim of misrepresentation should apply against either a copyright owner who engages in a misrepresentation in a takedown notice or a user who engages in a misrepresentation in a counter-notice.

If section 512(f) is to fulfill its critically important role in preventing the abuse of the takedown regime, courts must interpret these requirements with an eye toward stemming abuse.  To date, the courts’ interpretations of these requirements have provided some helpful guidance, but in these decisions there are also the seeds of misunderstanding, as well as the potential to make misrepresentation claims so difficult to prove that this cause of action will fail to achieve what Congress intended.

B.            Case Law Interpreting Section 512(f)

To date there have been only three reported decisions addressing a claim of takedown misrepresentation in any depth.[91]  These reported decisions highlight the importance of the section 512(f) safeguard and further illuminate the ways in which a copyright owner might find itself on the defending end of a lawsuit as a result of inappropriate use of a takedown notice.  These decisions also help provide a context for discussing how best to interpret the required elements of a misrepresentation claim to fulfill Congress’ deterrent purpose in creating this cause of action.

1. Online Policy Group v. Diebold, Inc.[92]

Diebold, Inc. designs and manufactures electronic voting machines.[93]  In the fall of 2003, two students at Swarthmore College obtained a collection of internal emails exchanged among Diebold employees and posted those emails on various websites.[94]  The emails “contain[ed] evidence that some employees [had] acknowledged problems associated with the machines.”[95]  Diebold sent takedown notices to Swarthmore College because it provided Internet services for its students.[96]  Swarthmore College was advised that it “would be shielded from a copyright infringement suit by Diebold if they disabled access to or removed the allegedly infringing material.”[97]  Swarthmore subsequently required the students to remove the emails from their websites.[98]

In addition to the emails posted by the Swarthmore students, Diebold also targeted an article published by IndyMedia, an online newspaper that was critical of Diebold’s voting machines and that contained a hyperlink to the emails posted by the two Swarthmore students.[99]  Diebold sent a takedown notice to IndyMedia’s ISP, Online Policy Group (“OPG”) and Hurricane Electric, presumably because of the hyperlink to the emails, as contemplated by the safe harbors for “information location tools.”[100]  OPG provided Internet connectivity to IndyMedia but had difficulty responding to the takedown notice because it was simply leasing space for IndyMedia’s webservers and permitting IndyMedia to share its Internet connection, an arrangement known as “colocation.”[101]  Hurricane Electric provided OPG with that Internet connection.[102]  Thus, the only way for either OPG or Hurricane Electric to comply with the safe harbor requirement to expeditiously remove or disable access to the alleged infringing material was to shut down IndyMedia’s server completely.[103]  The court noted the significant free speech ramifications of Diebold’s takedown request given the technological arrangement at issue.[104]

The court concluded that Diebold had violated the Copyright Act by sending the takedown notices and was liable to the students who had posted the email exchange.[105]  While the copyright in the emails written by employees within the scope of their employment may have been owned by Diebold,[106] their reproduction by critics seeking to expose the machines’ flaws was clearly a fair use of that copyrighted expression.[107]  In addition to the lack of commercial value for the email archive to Diebold, the court noted that it was “hard to imagine a subject the discussion of which could be more in the public interest.”[108]  “If Diebold’s machines in fact do tabulate voters’ preferences incorrectly, the very legitimacy of elections would be suspect.”[109]

In determining whether Diebold was liable under section 512(f), the court focused on that section’s requirement that the copyright owner “knowingly materially misrepresented” that the material constituted infringement.[110]  The court concluded that “‘[k]nowingly’ means that a party actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations.”[111]  The court’s use of “good faith” as a component of what it means to “knowingly” misrepresent material to be infringing pulls in the requirement that takedown notices must contain statements made in good faith.[112]  Turning to the second word, the court determined that “‘[m]aterial’ means that the misrepresentation affected the ISP’s response to a DMCA letter.”[113]

Applying these standards to the facts of the case, the court found:

No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold’s voting machines were protected by copyright, and there is no genuine issue of fact that Diebold knew—and indeed that it specifically intended—that its [takedown notices] would result in prevention of publication of that content.  The representations were material in that they resulted in removal of the content from websites and the initiation of the present lawsuit.  The fact that Diebold never actually brought suit against any alleged infringer suggests strongly that Diebold sought to use the DMCA’s safe harbor provisions—which were designed to protect ISPs, not copyright holders—as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.[114]

Following the court’s ruling, Diebold subsequently agreed to pay $125,000 in damages and attorney’s fees.[115]

The plaintiffs in Diebold also asserted a claim of tortious interference with contractual relations.[116]  The court found that this claim was preempted by the Copyright Act.[117]  The court concluded that the DMCA itself provides an express remedy for misuse of the DMCA’s takedown regime: “Congress carefully balanced the competing interests of copyright holders, ISPs, and the public, by providing immunity subject to relief for any misuse of the statute.”[118]

2. Rossi v. Motion Picture Association of America[119]

While the Diebold court refused to entertain the plaintiffs’ claim for tortious interference with contractual relations, the Ninth Circuit entangled such a tort claim with the standards for misrepresentation under section 512(f).[120]  Michael Rossi operated a website promising on its home page that those who signed up for monthly membership would be able to download movies.[121]  The Motion Picture Association of America (“MPAA”), after viewing these promises of access to “full-length” motion pictures that were followed by graphics for a number of MPAA members’ copyrighted motion pictures, sent several takedown notices to Mr. Rossi and his ISP.[122]  When Rossi’s hosting service provider notified him that his website would be shut down, he moved his site to a new provider and filed a lawsuit against the MPAA.[123]  Mr. Rossi then filed suit against the MPAA for a variety of state law claims, including tortious interference with contractual relations and intentional interference with prospective economic advantage.[124]

Notably, Mr. Rossi did not assert a claim of misrepresentation under section 512(f).[125]  The Ninth Circuit, however, began its analysis of Mr. Rossi’s claim with a review of the takedown provisions of the Federal Copyright Act.[126]  Mr. Rossi asserted that the MPAA did not have sufficient information to form a “good faith belief” of infringement as required by the statute because it had not attempted to download any movies from Mr. Rossi’s website.[127]  The Ninth Circuit concluded that the existence of the good faith belief required by section 512(c) should be judged by a subjective standard, not by the objective standard urged by Mr. Rossi.[128]

The website contained statements that included the following:

‘Join to download full length movies online now! new movies every month’; ‘Full Length Downloadable Movies’; and ‘NOW DOWNLOADABLE.’  These representations on the website led the MPAA employee to conclude in good faith that motion pictures owned by MPAA members were available for immediate downloading from the website.  The unequivocal language used by Rossi not only suggests that conclusion, but virtually compels it. . . . In fact, Rossi even admitted that his own customers often believed that actual movies were available for downloading on his website.[129]

In reaching its conclusion, the Ninth Circuit opined on the required state of mind for a misrepresentation claim under section 512(f): “A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake.”[130]  Noting that “‘[g]ood faith’ is ‘[a] state of mind consisting [of] . . . honesty in belief or purpose,’”[131] the court concluded that a copyright owner should not be liable if an unknowing mistake is made.[132]  “Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner.”[133]

The relevance of the court’s DMCA analysis is not revealed until many pages later in the court’s opinion: to establish a claim under state law for tortious interference with contractual relations or for intentional interference with prospective economic advantage, Mr. Rossi was required to establish the absence of justification on MPAA’s part for its actions.[134]  The MPAA’s compliance with the statutory obligations for sending the takedown notice amounted to a justification.  Thus, the Ninth Circuit affirmed the district court’s grant of summary judgment for the MPAA on Mr. Rossi’s tortious interference claim.[135]  In the process, the Ninth Circuit provided a fair amount of unfortunate dicta concerning the requirements of a section 512(f) claim.[136]

The choice of a subjective standard for measuring good faith was unnecessary.  Even applying the standard used in Diebold, the MPAA would not have knowingly misrepresented the infringing nature of the defendant’s website.  A reasonable copyright owner acting with reasonable care and diligence would not have known that the defendant’s site did not contain the infringing movies it purported to contain.  Importantly, the Ninth Circuit made its statement concerning use of a subjective standard in the context of discussing the good faith requirement for takedown notices, not the standard for “knowingly.”[137]  At least one subsequent opinion, however, has taken the discussion of a subjective standard and applied it in the context of the misrepresentation claim.

3. Lenz v. Universal Music Corp.[138]

Stephanie Lenz’s video camera captured a scene familiar to many parents of toddlers: children engaged in exuberant energy burning by racing around the family kitchen.[139]  She posted the twenty-nine second video to YouTube to share the moment with family and friends.[140]  Subsequently, agents of the musical artist Prince sent a takedown notice to YouTube alleging that the video infringed the copyright in Prince’s song “Let’s Go Crazy,” which was playing in the background of the short video for twenty-one seconds.  After conducting research and consulting counsel, Lenz sent YouTube a counter-notice.[141]  YouTube eventually reposted the video about six weeks later.[142]

Even though the video was ultimately reposted in response to her counter-notice, Lenz filed suit against Universal, asserting claims under section 512(f), as well as claiming tortious interference with her contract with YouTube.[143]  Lenz alleged that the takedown notice was issued “only to appease Prince because Prince ‘is notorious for his efforts to control all uses of his material on and off the Internet.’”[144]  Focusing on the requirements for proper notice, the court determined that the question in the case was whether a copyright owner is required “to consider the fair use doctrine in formulating a good faith belief that ‘use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.’”[145]

The court held that to proceed with a takedown request in good faith, “the owner must evaluate whether the material makes fair use of the copyright.’’[146]

The purpose of Section 512(f) is to prevent the abuse of takedown notices.  If copyright owners are immune from liability by virtue of ownership alone, then to a large extent Section 512(f) is superfluous.  As Lenz points out, the unnecessary removal of noninfringing material causes significant injury to the public where time-sensitive or controversial subjects are involved and the counter-notification remedy does not sufficiently address these harms.  A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute.  Requiring owners to consider fair use will help ‘‘ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand’’ without compromising ‘‘the movies, music, software and literary works that are the fruit of American creative genius.’’[147]

Lenz teaches that a copyright owner must consider the fair use arguments of a particular user.  A full investigation to verify the accuracy of a claim of infringement is not required, but consideration of the fair use doctrine must be part of the initial review.[148]  However, if a copyright owner engages in that consideration and still determines that the material is infringing, it is only a bad faith determination that will result in liability.  The district court in Lenz suggests that the Diebold case is an example of a case in which a copyright owner asserted infringement when the use “unequivocally qualifies as fair use, and in addition there is evidence that the copyright owner deliberately has invoked the DMCA not to protect its copyright but to prevent such use.”[149]

In the context of discussing the required fair use consideration, the Lenz court twice referenced the “subjective” standard of Rossi.  Noting Universal’s arguments concerning the fact-intensive nature of the fair use inquiry, the court opined that “there are likely to be few [cases] in which a copyright owner’s determination that a particular use is not fair use will meet the requisite standard of subjective bad faith required to prevail in an action for misrepresentation.”[150]  Addressing the sufficiency of Lenz’s complaint, the court again referenced the “the subjective bad faith required by Rossi,” and suggested that following discovery, the plaintiff’s claims might be appropriate for summary judgment.[151]  While it is understandable that the District Court for the Northern District of California would heed the ruling of the Ninth Circuit in Rossi, the context in which the Ninth Circuit selected the subjective standard[152] makes it distinguishable.

III.  Taking Misrepresentation Claims Seriously

Taking the misrepresentation claim seriously means interpreting the statute to provide a real and robust guard against abusive uses of the takedown regime.  Whether seeking to silence critics or obtain removal of other types of noninfringing material, copyright owners must understand that abusing the privilege of the extrajudicial tool of the takedown notice is not without consequences.

A.            Elements of the Claim of Misrepresentation

The statute provides the following elements a plaintiff would need to demonstrate to prevail: (1) a qualifying misrepresentation; (2) the materiality of the misrepresentation; (3) the material misrepresentation was made knowingly; and (4) an injury suffered as a result of the misrepresentation.[153]

Each of these elements should be interpreted in light of the statutory context and purpose of the misrepresentation claim: discouraging abusive use of the powerful takedown tool.[154]

1. Misrepresentation

First, the statute requires that the notice contain a qualifying misrepresentation.  Two different misrepresentations are actionable: a misrepresentation that the “material or activity is infringing,” and a misrepresentation “that material or activity was removed or disabled by mistake or misidentification.”[155]  The fundamental misrepresentation at issue for a section 512(f) claim to prevent abuse of the takedown notice is misrepresentation that the content identified constitutes infringement.[156]  The lack of infringement is what makes a copyright owner’s assertion that the activity is an infringement a misrepresentation.  While this may seem like an obvious point, it is nonetheless an important element of a misrepresentation claim.

Many different provisions of the Copyright Act permit an individual to make use of copyrighted expression, either in whole or in part.  From the first-sale doctrine, which permits owners of lawfully made copies to resell those copies without violating the copyright owner’s right to publicly distribute the work,[157] to the fair use doctrine[158] that permits uses of entire works and portions of works for a variety of reasons ranging from news reporting[159] to indexing,[160] to illustration of a point in a coffee table book,[161] the Copyright Act is loaded with limitations on copyright owners’ rights.[162]  Mere ownership of a copyright in an original work of authorship does not entitle the copyright owner to insist that all uses of the expression be removed from the web.  Thus allegation and proof of noninfringement for the material that was the target of the takedown notice is a required element to prevail on a claim of misrepresentation.

2. Materiality

Next, the statute requires allegation and proof that the misrepresentation was material.[163]  In the context of a takedown notice, a misrepresentation certainly is material when it causes the ISP to respond by expeditiously removing the identified material.  However, a misrepresentation can also be material even if it does not result in the ISP taking any action to remove or disable access to the alleged infringing material.  For example, if the misrepresentation causes the ISP to investigate the complaint, that misrepresentation is material—it caused the intended target to undertake some action.

While it is possible that misrepresentations of other elements required in the takedown notice, such as the copyright owner’s address, phone number or email address, might rise to a level of “materiality,” they would not qualify because section 512(f) expressly requires that the misrepresentation be “that [the] material or activity is infringing.”[164]  Similarly, a material misstatement could be made concerning the “good faith” nature of the copyright owner’s belief that the material is infringing, such a belief being a required statement in a takedown notice.  Even if such a misstatement concerning belief was material in some abstract sense, the statute is clear in that the material misrepresentation must concern the infringing nature of the material.[165]  Thus, it is difficult to conceive of a qualifying misrepresentation that content is infringing that would not meet the required element of materiality.

3. Knowingly

Interpreting the element of knowledge in the statute presents some difficulty.  To ensure that the statute fulfills its role as a guard against abuse of the takedown notice regime, courts should interpret the requirement that the misrepresentation be made “knowingly” to require proof that the copyright owner (a) actually knew, (b) should have known if it acted with reasonable care or diligence, or (c) would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations.  This is the standard employed by the first case to address this element of a misrepresentation claim.[166]  This standard expands the permissible ways to satisfy the requirement that the misrepresentation be made “knowingly,” beyond the sole means of demonstrating “knowingly” articulated by the Ninth Circuit in Rossi: evidence of actual subjective belief.[167]

Proof that the copyright owner had actual knowledge that the material was not infringing would clearly meet the statutory requirement.  Evidence of such actual knowledge may come in a variety of forms, including, for example, an email from the sender of the takedown notice explaining that the problem with the material is not copyright infringement, but trademark infringement.[168]  Often, however, direct evidence of a defendant’s actual knowledge may be difficult for a plaintiff to obtain given that it turns on the subjective state of mind of the copyright owner.  However, a plaintiff should be able to rely on circumstantial evidence in the form of the objectively unreasonable nature of a belief that the material in question was infringing.[169]  The use of such circumstantial evidence should be sufficient to withstand a defendant’s summary judgment motion, as it both provides sufficient evidence for a fact-finder to conclude the plaintiff has proven the element of knowledge in a civil suit[170] and, if the defendant testifies as to his or her subjective belief, the circumstantial evidence calls into question the credibility of such testimony.[171]  Nonetheless, the problems of proof inherent in requiring a misrepresentation plaintiff to demonstrate the copyright owner’s subjective belief[172] will result in the misrepresentation claim having very little deterrent effect in curbing abuse of the takedown notice regime if that is the only means by which a plaintiff can satisfy the statutory requirement of “knowingly” making a misrepresentation.  Such a requirement for proving a misrepresentation might also encourage willful blindness on the part of copyright owners concerning the nature of the content they are requesting be removed.[173]

While evidence of actual knowledge of the inaccuracy of the statement that the claimed material is infringing would certainly suffice under the statute, the statute should be interpreted more broadly.  Section 512(f) does not use the phrase “actual knowledge” while other subsections of 512 do require “actual knowledge,”[174] indicating Congress’ full awareness of the difference between a standard requiring “actual knowledge” and one requiring that an action be undertaken “knowingly.”[175]  Requiring that a plaintiff may only prove a misrepresentation was made “knowingly” by demonstrating the subjective belief of the copyright owner not only is inconsistent with the statutory language, but application of such a standard also would thwart the purpose of including the misrepresentation claim within the statutory scheme.

The poor fit of only using a subjective good faith belief standard is demonstrated by a situation in which an admittedly eccentric copyright owner in a comic book sends a takedown notice to an academic journal asserting that an article discussing black holes infringes his copyright in the comic book.  Except for the eccentric comic book copyright owner, there is no doubt in anyone’s mind that the article does not infringe.  The ISP’s incentives remain the same and, as discussed above, could lead to removal of the article.[176]  If the author of the article sued the comic book copyright owner for misrepresentation and a subjective state of mind test were employed, the comic book author would be able to defeat the lawsuit through an assertion of his subjective, albeit crazy, belief that the article infringed his comic book.  While the more objectively unreasonable his belief is the more his credibility will be in doubt, if he could convince the fact-finder of his entirely subjective belief there would be no remedy for the author of the article for the wrongful takedown that occurred.  Congress intended to provide a tool for copyright owners to obtain quick removal of infringing material, not for removal of legitimate content from the Internet because of wild assertions of infringement.  Responsible use of the powerful takedown tool is part of the regime established by Congress.  Insisting upon evidence of actual knowledge through a subjective belief standard for a misrepresentation claim threatens to permit wild assertions of infringement to go unchecked and fails to provide any incentive for copyright owners to wield the powerful takedown tool responsibly.

Instead, a standard for proving misrepresentation claims that requires the copyright owner to act in good faith with reasonable care and diligence, appropriately encompasses a large portion of the potential for abuse.[177]  Indiscriminate takedown notices sent without reasonable care or diligence should give rise to liability for the damages that they cause.[178]  Additionally, notices that are sent when a copyright owner acting in good faith would have had no substantial doubt that she was making a misstatement should result in liability.  This rule will encourage copyright owners to behave reasonably when wielding the powerful takedown tool.

4. Injury

The final element required to prevail on a misrepresentation claim is a qualifying injury.  Specifically, the statute provides that a person who knowingly makes a qualifying misrepresentation “shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer . . . who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.”[179]  Thus, the injury element has a causation component: the injury suffered must be caused by the removal of material triggered by a takedown notice.  In addition to the causation element, the plaintiff would need to demonstrate damages that he or she incurred.

Importantly, the statute requires that for a user to prevail on a claim of misrepresentation, a takedown of material actually must have occurred.[180]  Thus, when a takedown notice is sent but the notice does not result in any removal of material, a claim for misrepresentation by the user is not appropriate.[181]

Qualifying damages should include not only the financial and personal expenses associated with responding to the claim of infringement (e.g., preparing and sending a counter-notice) but also the harm to free speech rights.  Qualifying damages should not, however, include attorneys’ fees for preparing and filing a misrepresentation claim.[182]  The damages need not be substantial economic damages, as Congress made clear that liability is for “any damages.”[183]

B.            Litigation Issues

1. Availability of Attorneys’ Fees

As noted above, the Copyright Act permits a prevailing party to recover its attorney’s fees within the discretion of the court.[184]  The Supreme Court has recognized the importance of this fee-shifting provision in creating an incentive for defendants to pursue meritorious defenses against claims of infringement.[185]  Similarly, in the context of a misrepresentation claim, if a plaintiff prevails, it would be appropriate for the court to permit recovery of attorney’s fees.  Interpreting the statute to provide for recovery of attorney’s fees will encourage meritorious claims of misrepresentation which, in turn, will ultimately shape the behavior of copyright owners.  If copyright owners understand that there is a real possibility of legal liability that involves the potential for a significant monetary award, they will be far less likely to send takedown notices targeting noninfringing material.

2. Standing and Personal Jurisdiction

A takedown notice that has resulted in material being removed from the Internet should carry standing[186] and jurisdictional consequences.  An initial but significant issue concerns obtaining personal jurisdiction over a copyright owner who is abusing the takedown provisions.  As detailed above, the sending of a counter-notice requires the user to consent to personal jurisdiction either in the judicial district in which his or her residence is located or in which his or her service provider is located.[187]  Similarly, the copyright owner should understand that sending a takedown notice has jurisdictional consequences.

In an infringement case, the sending of a cease-and-desist letter into a forum is generally not considered sufficient to establish personal jurisdiction under the “effects test” for purposeful availment in tort cases.[188]  However, as one court has noted, “it may be improper to import jurisdiction principles from one specific context—the creation and regulation of property rights—to a very different context for which those principles were not designed.”[189]

Courts should view the sending of a takedown notice as the necessary minimum contacts to justify subjecting the copyright owner to personal jurisdiction in the judicial district in which the ISP is located.[190]  By sending a takedown notice, the copyright owner aims his or her conduct at the ISP, seeking to cause a particular action on the part of the ISP, i.e., removal of material from the Internet.  This express aiming at the jurisdiction where the ISP is located should be sufficient to create personal jurisdiction.[191]

A more difficult question is whether the sending of the takedown notice would subject the copyright owner to personal jurisdiction in the district in which the user resides.  One court has analogized a notice of claimed infringement (“NOCI”) sent to the California auction site eBay, pursuant to eBay’s “Verified Rights Owner” policy, as similar to a bank shot in basketball.[192]  The NOCI caused eBay to suspend the Colorado plaintiffs’ pending auction.[193]

Thus, while . . . the NOCI formally traveled only to California, it can be fairly characterized as an intended means to the further intended end of cancelling plaintiffs’ auction in Colorado.  In this way, it is something like a bank shot in basketball.  A player who shoots the ball off of the backboard intends to hit the backboard, but he does so in the service of his further intention of putting the ball into the basket.  Here, defendants intended to send the NOCI to eBay in California, but they did so with the ultimate purpose of cancelling plaintiffs’ auction in Colorado.  Their “express aim” thus can be said to have reached into Colorado in much the same way that a basketball player’s express aim in shooting off of the backboard is not simply to hit the backboard, but to make a basket.[194]

Similarly, a takedown notice sent to an ISP is the means to further the intended end of removing a user’s material from the Internet.  The harm will be suffered by the individual.  In the case of a misrepresentation that the material is infringing, the copyright owner has aimed his or her conduct at the user, intending to cause that harm to the user.  This provides a strong argument that personal jurisdiction is in the judicial forum in which the user resides.[195]

3. Preliminary Injunctions and Temporary Restraining Orders

Section 512(f) claims can provide an important mechanism for users to prevent overzealous copyright owners from obtaining even initial takedowns.  For example, in Amaretto Ranch Breedables, LLC v. Ozimals, Inc.,[196] the court issued an order temporarily restraining the takedown of Amaretto Ranch’s virtual horses in the virtual world of Second Life despite Ozimals’ notice asserting the horses infringed on Ozimals’ copyright in virtual bunnies.[197]  The court found a likelihood of success on the merits of plaintiff’s section 512(f) claim.[198]

Using a claim under section 512(f) as a basis for granting a temporary restraining order or preliminary injunction is an important procedural tool to prevent the irreparable harm that can result from repeated takedown notices.  For example, eBay sellers can experience a downgrade in their reputational ratings based on repeated assertions of infringement.  If the assertions of infringement are false, the targets of those assertions should have a mechanism for stopping the assertions in the first place.[199]  Similarly, users can experience significant consequences if their business in a virtual world is compromised based on mere assertions of copyright infringement.[200]  And, as discussed above, mere assertions of infringement can result in the termination of the accounts because the user is branded a “repeat infringer” despite a lack of any court determination concerning infringement.  It is appropriate to use the misrepresentation claim as a mechanism for obtaining a court’s assistance in stopping abuse of the takedown regime.

4. Misrepresentation Claims for Infringement Notices Outside of the Section 512 Takedown Regime

The potential for abusive notices sent under the takedown regime of section 512 of the Copyright Act will be significantly reduced if courts take misrepresentation claims seriously.  However, notice by copyright owners to a variety of ISPs occurs outside of the constraints of section 512.  Some sites have separate programs meant to assist copyright owners in identifying alleged infringement, such as eBay’s Verified Rights Owner program.[201]  Other service providers have begun cooperating with copyright owners to respond to notices of infringement outside of the formal takedown regime—for example, in peer-to-peer file sharing—that do not fall within the safe harbor for “information residing on systems or networks at direction of users.”[202]  Sometimes these notices of alleged infringement are sent to ISPs employing a three-strikes or “graduated response” policy.

If a user’s rights are affected by a misrepresentation concerning the infringing nature of the user’s content in these contexts, the results can be identical to the result of a notice within the takedown regime: removal of lawful, noninfringing material.  Or, the result can be even worse.  For example, under a graduated response system the user may find his or her entire account suspended.  Courts should recognize a claim for material misrepresentation in these contexts as well.[203]

Plaintiffs have attempted to bring other state-law based claims but have encountered problems with such claims.  For example, Rossi involved an assertion of a tortious interference with contract claim that was thwarted by the justification of the copyright owner’s compliance with the requirements of section 512.[204]  In Diebold the plaintiffs asserted, in addition to their federal misrepresentation claim under section 512(f), a claim for tortious interference with contractual relations.[205]  The court held that the Copyright Act preempted the state law claim.[206]  In the context of a takedown notice sent pursuant to section 512, the court concluded that the sole remedy was one premised on misrepresentation as provided for in that section.[207]

At a minimum, outside of the context of the formal takedown regime courts should not find that the Copyright Act preempts state law causes of action.  Those state law causes of action can provide an important check on egregious assertions of expansive copyright rights that are not supported by the Federal Copyright Act.  Additionally, courts should consider permitting assertions of misrepresentation claims that result in removal of lawful material in contexts outside of the formal takedown regime established in section 512.[208]

5. Role of Nonprofit Organizations and Law School Clinics

A tempting calculation for copyright owners may be to consider the financial wherewithal of individuals who have posted material the copyright owners would prefer to see removed.  How likely is it that those individuals will invoke the protections of section 512(f)?  In this context, one must not underestimate the willingness of nonprofit and pro bono clinics to take on cases involving overzealous use of takedown notices.  The plaintiffs in both Diebold and Lenz were represented by the Electronic Frontier Foundation (“EFF”).[209]  Any copyright owner contemplating using the Copyright Act’s takedown provisions under questionable circumstances would be wise to consider the significant leveling effect provided by these nonprofit organizations and pro bono clinics.


The takedown provisions of the Copyright Act are a powerful tool that copyright owners may use to obtain prompt removal of infringing material from the Internet without judicial assessment of the assertion of infringement.  Congress provided a mechanism to deter abuse of this extrajudicial enforcement mechanism in the form of a new cause of action for material misrepresentation.  Courts should interpret the requirements for prevailing on a claim of misrepresentation with an eye toward fulfilling congressional intent.  This means using a standard that would hold copyright owners liable not only when they had actual knowledge that the material targeted for takedown was not infringing, but also when the copyright owner should have known if it acted with reasonable care or diligence that the material was lawful.  It also means interpreting the injury requirement broadly and awarding attorney’s fees to prevailing plaintiffs.  Taking the claims of misrepresentation seriously will shape the behavior of copyright owners who seek removal of material through takedown notices.

* Professor of Law and Kay Kitagawa and Andy Johnson-Laird Faculty Scholar, Lewis & Clark Law School, Portland, Oregon.  I thank Joseph S. Miller and Tomas Gomez-Arostegui, as well as participants at the University of Oregon Lectures & Awards series for helpful comments on this Article and Andrew McGinnis for his research assistance.

[1]. See Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1198 (N.D. Cal. 2004).

[2]. See Wendy Seltzer, Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment, 24 Harv. J.L. & Tech. 171, 172 (2010).

[3]. See Joseph M. Miller, Note, Fair Use Through the Lenz of § 512(c) of the DMCA: A Preemptive Defense to a Premature Remedy?, 95 Iowa L. Rev. 1697, 1708 (2010) [hereinafter Miller, Fair Use Through the Lenz of § 512(c) of the DMCA].

[4]. See Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1151–53 (N.D. Cal. 2008).

[5]. Brad Stone, The Inexact Science Behind D.M.C.A. Takedown Notices, NY Times Bits (June 5, 2008, 11:18 AM), http://bits.blogs.nytimes.com/2008/06
/05/the‑inexact‑science‑behind‑dmca‑takedown-notices/?ref=technology.  Automated notices of infringing content are also being used outside of the Copyright Act’s takedown regime in private arrangements with major online content hosting sites such as YouTube.  See David Abrams, More Chilling Than the DMCA – Automated Takedowns, Chilling Effects Clearinghouse (Mar. 17, 2010), http://www.chillingeffects.org/weather.cgi?WeatherID=634.

[6]. Joe Waz, A Few Words About Copyright, Comcast Voices (Mar. 26, 2009), http://blog.comcast.com/2009/03/a-few-words-about-copyright.html; see also Chloe Albanesius, Comcast, Others Deny “Three Strikes” Piracy Plan, PCMAG.COM (Mar. 27, 2009), http://www.pcmag.com/article2/0,2817,2343977
,00.asp (noting that Cox has a similar policy, described by a Cox spokesperson) (“When we receive notifications from RIAA or any other copyright holders stating that their copyrighted material is being infringed by a customer, we pass that information along to the customer so they can correct the problem, or dispute the notice directly with the copyright holder if they feel the notice was sent in error.”).

[7]. See Abrams, supra note 5.

[8]. See Michael Piatek et al., Challenges and Directions for Monitoring P2P File Sharing Networks – or – Why My Printer Received a DMCA Takedown Notice at sec. 4, available at http://dmca.cs.washington.edu/dmca_hotsec08.pdf (last visited Sept. 18, 2011).

[9]. Joyce E. Cutler, Parties No Closer to Reconciling 13-Year-Old DMCA With Stakeholder Needs, 81 Pat. Trademark & Copyright J. 611, 611 (2011) (quoting Fred von Lohmann, counsel for Google).  The requests are in seventy different languages and must be handled by a staff of people who speak as many languages.  Id.

[10]. Congress passed the No Electronic Theft Act in 1997, expanding the reach of criminal infringement to include online reproduction and distribution of copyrighted works even if the defendant was not motivated by profit or commercial gain.  No Electronic Theft Act, Pub. L. No. 105-147, 111 Stat. 2678 (1997) (codified as amended in sections 17 and 18 U.S.C.) [hereinafter NET Act].  Prior to the NET Act, infringement was only criminal if there was a profit motive.  See Lydia Pallas Loren, Digitization, Commodification, Criminalization: The Evolution of Criminal Copyright Infringement and the Importance of the Willfulness Requirement, 77 Wash. U. L. Q. 835, 836–37 (1999).

[11]. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in 17 U.S.C. §§ 512, 1201–1205, 1301–1332; 28 U.S.C. § 4001).

[12]. Even the recent Anti-Counterfeiting Trade Agreement (“ACTA”) recognizes the importance of protecting lawful activity.  Section 5 of ACTA obligates signatories to ensure “enforcement procedures” for intellectual property rights in the digital environment while at the same time requiring that the “procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with [each] Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.”  Anti-Counterfeiting Trade Agreement 15 (Dec. 3, 2010), available at http://www.ustr.gov/webfm_send/2417.

[13]. For example, the section codifying fair use provides that “the fair use of a copyrighted work . . . is not an infringement of copyright”  id. § 107 (emphasis added), the section permitting libraries and archives to make certain reproductions and distribute copies states “it is not an infringement of copyright” for them to do so  id. § 108 (emphasis added), and section 110 details many different performances and displays of copyrighted works that “are not infringements of copyright.”  Id. § 110 (emphasis added).

[14]. Id. § 106 (granting rights to copyright owners “[s]ubject to sections 107 through 122”).

[15]. Id. § 107.  The Supreme Court has repeatedly recognized the fundamental importance of the fair use doctrine.  See, e.g., Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003) (pointing to fair use as an important balancing mechanism and potential fundamental contour of copyright law); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 549–60 (1985) (discussing the importance of fair use in balancing First Amendment interests).

[16]. 17 U.S.C. § 107.

[17]. Id.  See also Campbell v. Acufff-Rose Music Inc., 510 U.S. 569 (1994).

[18]. For one of the most comprehensive examinations of takedown notices see Jennifer M. Urban & Laura Quilter, Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act, 22 Santa Clara Computer & High Tech. L.J. 621 (2006) [hereinafter Urban & Quilter, Efficient Process or “Chilling Effects”?].  See also Cattleya M. Concepcion, Beyond the Lens of Lenz: Looking to Protect Fair Use During the Safe Harbor Process Under the DMCA, 18 Geo. Mason L. Rev. 219 (2010) [hereinafter Concepcion, Beyond the Lens of Lenz]; Miller, Fair Use Through the Lenz of § 512(c) of the DMCA, supra note 3.

[19]. See Concepcion, Beyond the Lens of Lenz, supra note 18, at 232; Miller, Fair Use Through the Lenz of § 512(c) of the DMCA, supra note 3, at 1707–10; Urban & Quilter, Efficient Process or “Chilling Effects”?, supra note 18, at 636.

[20]. See, e.g., Urban & Quilter, Efficient Process or “Chilling Effects”?, supra note 18, at 688–92.

[21]. As described in more detail below, such a counter-notice will not result in a reposting of the material if the copyright owner files a federal infringement lawsuit within the statutorily proscribed period.

[22]. See infra Part I.D.

[23]. 17 U.S.C. § 512(f) (2010).

[24]. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat 2860 (1998) (codified as amended in 17 U.S.C. §§ 512, 1201–1205, 1301–1332; 28 U.S.C. § 4001).

[25]. The four different safe harbors are for “[t]ransitory digital network communications,” section 512(a), “[s]ystem caching,” section 512(b), “[i]nformation residing on systems or networks at direction of users,” section 512(c), and “[i]nformation location tools,” section 512(d).

[26]. 17 U.S.C. § 512.

[27]. The takedown notices are implicated in the safe harbor for “Information residing on systems or networks at direction of users,” 17 U.S.C. § 512(c), and “Information location tools,” 17 U.S.C. § 512(d).

[28]. The limitation on equitable remedies is contained in section 512(j) and permits limited injunctions prohibiting a service provider from providing access to an identified subscriber or account holder, and injunctions restraining a service provider from permitting access to a “specific, identified, online location outside the United States.”  Id. § 512(j)(1)(B)(ii).  Without such immunity, the potential liability an OSP might face could be staggering.  See Alan E. Garfield, Calibrating Copyright Statutory Damages to Promote Speech, 38 Fla. St. U. L. Rev. 1, 16–18 (2010).

[29]. For example, the safe harbor protection involving “[t]ransitory digital network communications” defines a “service provider” as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.”  17 U.S.C. § 512(k)(1)(A).

[30]. See, e.g., Urban & Quilter, Efficient Process or “Chilling Effects”?, supra note 18, at 621 n.2.  A service provider eligible for the safe harbors that implicate the takedown provisions is defined as “a provider of online services or network access, or the operator of facilities therefor” and also includes “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.”  17 U.S.C. §§ 512(k)(1)(A)–(B).

[31]. 17 U.S.C. § 512(c).

[32]. Id. § 512(d).

[33]. For a thorough account of the lobbying process that led to the legislation, see Urban & Quilter, Efficient Process or “Chilling Effects”?, supra note 18, at 631–39.

[34]. 17 U.S.C. § 512(i)(1)(A).  This seemingly straightforward requirement contains many ambiguities with which the courts have struggled.  For example: What constitutes reasonable implementation?  See, e.g., A & M Records, Inc. v. Napster, Inc., No. C 99-05183 MHP, 2000 WL 573136, at *9 (N.D. Cal. May 12, 2000) (holding grant of summary judgment on the applicability of section 512 inappropriate because genuine issues of material fact existed regarding the defendant’s compliance with section 512(i)); Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1101–04 (W.D. Wash. 2004) (holding OSP eligible to invoke section 512).  Who is a repeat infringer?  See, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1109–15 (9th Cir. 2007), cert. denied, 552 U.S. 1062 (2007).  The statute also requires that subscribers be informed of the policy, leading to questions of what type of efforts to inform subscribers is sufficient.  See 17 U.S.C. § 512(i)(1)(A).

[35]. 17 U.S.C. § 512(c)(2).

[36]. Id. § 512(c)(2)(A); see Ellison v. Robertson, 357 F.3d 1072, 1080 (9th Cir. 2004) (holding that a delay of approximately six months in updating agent contact information and whether the OSP should have known of the infringing activity raised triable issues of material fact regarding the OSP’s eligibility for safe harbor protection).

[37]. 17 U.S.C. § 512(c)(2).

[38]. Just what constitutes constructive knowledge is still being shaped by the courts.  The statute requires that the service provider “is not aware of facts or circumstances from which infringing activity is apparent.”  7 U.S.C. § 512(c)(1)(A)(ii).  Courts have interpreted this requirement in a variety of ways.  See, e.g., Perfect 10, Inc., 488 F.3d at 1113; Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 519, 523 (S.D.N.Y. 2010); Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1148 (N.D. Cal. 2008)Full exploration of this topic is worthy of an entire article of its own.

[39]. The safe harbor only applies to infringing material stored on an OSP’s network when that ‘‘storage [is] at the direction of [the] user of material.’’  17 U.S.C. § 512(c)(1).

[40]. Id. § 512(c)(1)(A)(iii).

[41]. See infra Part I.B.

[42]. § 512(c)(1)(C).

[43]. This failure to respond does not necessarily mean that the service provider is liable for infringement; it merely means that the service provider cannot rely on the section 512 safe harbor as protection from liability.

[44]. See Alfred C. Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, 88 Geo. L.J. 1833, 1887–88 (2000).

[45]. Amaretto Ranch Breedables, LLC v. Ozimals, Inc., No. C 10-05696 CRB, 2010 WL 5387774, at *3 n.2 (N.D. Cal. Dec. 21, 2010).

[46]. S. Rep. No. 105-190, at 20 (1998).

[47]. Id. at 40.

[48]. See, e.g., Doe v. Geller, 533 F. Supp. 2d 996, 1002–03 (N.D. Cal. 2008) (stating that YouTube suspended a user’s account for more than two weeks after a takedown notice, resulting in all of the user’s videos no longer being accessible).

[49]. See 17 U.S.C. § 512(i).

[50]. Id.

[51]. See, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1109–18 (9th Cir. 2007), cert. denied, 552 U.S. 1062 (2007).

[52]. Annemarie Bridy, Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement, 89 Or. L. Rev. 81, 81–85 (2010).

[53]. Id. at 86.

[54]. See Annemarie Bridy, ACTA and the Specter of Graduated Response, 26 Am. U. Int’l L. Rev. (forthcoming 2011) (manuscript at 563), available at http://ssrn.com/abstract=1619006.  For example, in the European Union, the Internet Freedom Provisions of the 2009 EU Telecoms Reform provide:

Any of these measures regarding end-users’ access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy.  A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms.  The right to an effective and timely judicial review shall be guaranteed.

Press Release, Eur. Parl., EU Telecoms Reform: 12 reforms to pave way for stronger consumer rights, an open Internet, a single European telecoms market and high-speed Internet connections for all citizens (Nov. 20, 2009), available at http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/491.

[55]. 17 U.S.C. § 512(c)(3) (2010).  See Perfect 10, Inc., 488 F.3d at 1117–18; ALS Scan, Inc. v. RemarQ Cmtys., Inc., 239 F.3d 619, 625 (4th Cir. 2001); Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082, 1090 (C.D. Cal. 2001).

[56]. 17 U.S.C. § 512(c)(3)(A).

[57]. See id. § 512(c).

[58]. See id. § 512(d).

[59]. Id. § 512(d)(3).

[60]. Importantly, a compliant notice “includes substantially” the information identified; it does not require full, detailed compliance.  Id. § 512(c)(3)(A).

[61]. Id. §§ 512(c)(1)(C), 512(d)(1)(C).

[62]. S. Rep. No. 105-190, at 40 (1998).

[63]. Id. at 21.

[64]. See id. at 50–51.

[65]. While the statute requires the service provider to expeditiously remove or disable access to material when a copyright owner asserts it is infringing, the statute merely requires that the service provider “take[] reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material.” 17 U.S.C. § 512(g)(2)(A).

[66]. Id. § 512(g).  As quoted below, the user notifies the OSP that “the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.”  The statute does not appear to permit the user to contest the copyright owner’s assertion that the material is infringing, but rather that a “mistake” or a “misidentification” has been made. Id. § 512(g)(3)(C).  Nonetheless, courts have interpreted this as permitting an individual to notify the OSP that the material is not infringing.  See, e.g., Lenz v. Universal Music Corp., No. C 07-3783 JF, 2010 WL 702466, at *3 (N.D. Cal. Feb. 25, 2010) (noting that the user’s counter-notice included the statement that she did not “believe that the video in question violated copyright or infringed on copyright in any way”).

[67]. 17 U.S.C. § 512(g)(3).

[68]. Id. § 512(g)(3).

[69]. Id. § 512(g)(2)(B).

[70]. Id. § 512(g)(2)(C).

[71]. Id.

[72]. Id. § 512(g).

[73]. For example, YouTube’s terms of service provide that it “may at any time, without prior notice and in its sole discretion, remove” user content.  Terms of Service, YouTube.com, http://www.youtube.com/t/terms (last visited Sept. 19, 2011 ) (emphasis added); see also Urban & Quilter, Efficient Process or “Chilling Effects”?, supra note 18, at 629.

[74]. See discussion supra explaining the value of the immunity from copyright infringement liability.

[75]. User dissatisfaction is probably the more significant risk if an OSP does not at least attempt to provide some notification that material has been removed and make at least some attempt to follow through in reposting material upon receipt of a counter-notice.

[76]. See 17 U.S.C. § 512(g).

[77]. See id. § 512(d).

[78]. See, e.g., Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1179–80 (C.D. Cal. 2002).

[79]. See, for example, the typical DMCA notice that was received by University of Washington researchers Michael Piatek, Tadayoshi Kohno, and Arvind Krishnamurthy in the study Tracking the Trackers.  A sample notice is available at http://dmca.cs.washington.edu/sample.html.

[80]. It is not at all surprising that both of these parties received what they wanted: the legislation was drafted through a compromise process between them.  See Urban & Quilter, Efficient Process or “Chilling Effects”?, supra note 18, at 631–41.

[81]. 17 U.S.C. § 512(g)(3)(D).

[82]. Id.

[83]. Filing a lawsuit requires complying with the standard for federal pleading as well as the requirements of Federal Rule of Civil Procedure 11.  Sending the takedown notice does not require compliance with these standards, which are meant to deter use of legal proceeding for harassment.  Also, the key statements in the takedown notice are not subject to penalties for perjury.  See id. § 512(c)(3)(A)(vi) (requiring only that the statement indicate “under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”).  Instead, the Copyright Act requires that a copyright owner not knowingly engage in a material misrepresentation.  See infra Part II.

[84]. See Lenz v. Universal Music Corp., No. C 07-3783 JF, 2010 WL 702466, at *10 (N.D. Cal. Feb. 25, 2010).

[85]. A recent example involved Ralph Lauren’s photoshop disaster advertisement that depicted a model as impossibly skinny.  BoingBoing blogger Xeni Jardin flagged the ad by posting a copy of the image and noting that the model’s head was “bigger than her pelvis.”  Xeni Jardin, Ralph Lauren Opens New Outlet Store in the Uncanny Valley, BoingBoing (Sept. 29, 2009, 10:08 PM), http://www.boingboing.net/2009/09/29/ralph-lauren-opens-n.html.  Ralph Lauren then sent a takedown notice.  See E-mail from G. Roxanne Elings, attorney at Greenberg Traurig, to Priority Colo (Oct. 2, 2009), available at http://craphound.com/10-2-09LettertoPriorityColoinrePRLInfringement.pdf.  That notice did not have the desired effect.  Instead, renowned author and public domain defender Cory Doctorow picked up his metaphorical pen and drew far more attention to the photoshop mishap in an article entitled The Criticism that Ralph Lauren Doesn’t Want You to See!, BoingBoing (Oct. 6, 2009, 10:31 AM), http://boingboing.net/2009/10/06/the-criticism-that-r.html.  Doctorow pointedly defended the original post:

Copyright law doesn’t give you the right to threaten your critics for pointing out the problems with your offerings. You should know better. And every time you threaten to sue us over stuff like this, we will:

a) Reproduce the original criticism, making damned sure that all our readers get a good, long look at it, and;

b) Publish your spurious legal threat along with copious mockery, so that it becomes highly ranked in search engines where other people you threaten can find it and take heart; and

c) Offer nourishing soup and sandwiches to your models.

As one commentator for Forbes put it, “[w]hat had been an amusing critique instantly became an Internet cause célèbre.  Site after site reproduced the ad, portraying Ralph Lauren as a bully with bad taste.”  Virginia Postrel, Ralph Lauren: Still King of Glamour, Forbes.com (Oct. 22, 2009, 11:41 AM), http://www.forbes.com/2009/10/22/ralph‑lauren‑photoshop‑glamour‑opinions‑contributors-virginia-postrel.html.  Following the public attention, Ralph Lauren issued a press release acknowledging responsibility for the “poor imaging and retouching.”  Id.  In the end, Ralph Lauren’s desire to have copies of its advertisements removed from a blogger’s website backfired, likely leading to far more negative attention than if it had let the fair use criticism remain on the web unchallenged.

[86]. Some have suggested a “reverse three strikes policy” that would result in the company losing Internet access after three false accusations of infringement.  See Cory Doctorow, Warning to All Copyright Enforcers: Three Strikes and You’re Out, Guardian.Co.UK (July 1, 2008, 11:16 AM), http://www.guardian.co.uk/technology/2008/jul/01/Internet.copyright.

[87]. The Constitution grants Congress the power “[t]o promote the progress of science . . . by securing for limited times to authors . . . the exclusive right to their . . . writings . . . .”  U.S. Const. art. I, § 8, cl. 8.  “Science” at the time of the drafting of the Constitution meant, broadly, knowledge and learning.  Arthur H. Seidel, The Constitution and a Standard of Patentability, 48 J. Pat. Off. Soc’y 5, 12 n.14 (1966) (noting that the most authoritative dictionary at the time listed “knowledge” as the first definition of “science”); see also Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts: The Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. Intell. Prop. L. 1, 51 n.173 (1994).

[88]. S. Rep. 105-190, at 49 (1998).

[89]. Indeed, the House Report on the legislation indicates the importance of this safeguard.  H.R. Rep. 105-551, at 12 (1998).

[90]. 17 U.S.C. § 512(f) (2010).

[91]. The lack of reported decisions could mean that very little misrepresentation is occurring.  However, it may also mean that very few individuals whose work has been removed are aware that a claim of misrepresentation is possible.  It is also likely that the lack of clarity concerning the recovery of attorneys’ fees, discussed infra Part III.A.4, plays a role in reducing the number of valid claims that have been brought to date.  There are several additional cases in which a section 512(f) claim has been the basis of a request for a temporary restraining order or a preliminary injunction.  Those cases are discussed infra Part III.B.3.

[92]. 337 F. Supp. 2d 1195 (N.D. Cal. 2004).

[93]. Id. at 1197.

[94]. Id.

[95]. Id.

[96]. Id. at 1198.

[97]. Id.

[98]. Id.

[99]. Id.

[100]. 17 U.S.C. § 512(d) (2010).

[101]. Diebold, 337 F. Supp. 2d at 1198 n.2.

[102]. Id. at 1198.

[103]. Id. at 1198 n.2.

[104]. Id.

[105]. Id. at 1204.

[106]. The copyright in works made for hire is owned by the employer.  17 U.S.C. § 201(b) (2010).  The Copyright Act defines works made for hire as including those “prepared by an employee within the scope of his or her employment.”  Id. § 101.

[107]. Diebold, 337 F. Supp. 2d at 1204.

[108]. Id. at 1203.

[109]. Id.

[110]. Id. at 1204.

[111]. Id. (citing Black’s Law Dictionary (8th ed. 2004) (defining ‘‘knowledge,’’ particularly ‘‘actual’’ and ‘‘constructive’’ knowledge)).

[112]. The statute expressly contains the requirement of “good faith.”  17 U.S.C. § 512(c)(3)(A)(v) (2010).  Specifically, the statute requires the takedown notice to state “that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”  Id.

[113]. Diebold, 337 F. Supp. 2d at 1204.

[114]. Id. at 1204–05 (footnote omitted).

[115]. See Diebold Coughs Up Cash in Copyright Case, Electronic Frontier Foundation (Oct. 15, 2004), http://www.eff.org/press/archives/2004/10/15.

[116]. Diebold, 337 F. Supp. 2d at 1205–06.

[117]. Id. at 1205.

[118]. Id. at 1206.

[119]. 391 F.3d 1000 (9th Cir. 2004), cert. denied, 544 U.S. 1018 (2005).

[120]. See id. at 1006.

[121]. Id. at 1001–02.

[122]. Id. at 1002.

[123]. It was unclear for how long access to Mr. Rossi’s site was interrupted.  The Ninth Circuit noted that, according to Rossi, his website “was offline for ‘[a]pproximately 1 second to 72 hours,’ and the amount of money he lost due to the website’s shutdown was ‘unmeasureable.’”  Id.

[124]. Id.

[125]. Id.

[126]. Id. at 1003.

[127]. Id.

[128]. Id. at 1004.

[129]. Id. at 1005.

[130]. Id.

[131]. Id. at 1004 n.5 (quoting Black’s Law Dictionary 701 (7th ed. 1999)).

[132]. Id. at 1005.

[133]. Id.

[134]. Id. at 1006.

[135]. Id. at 1007.

[136]. While the court’s interpretation of the section 512(c)(3)(A) requirements for a takedown notice were a required part of its ruling on the MPAA’s defense, the interpretation of the requirements for the federal claim of misrepresentation, a claim that Rossi did not assert, were not necessary to the court’s decision.

[137]. Diebold, 337 F. Supp. 2d at 1005.

[138]. 572 F. Supp. 2d 1150 (N.D. Cal. 2008).

[139]. Id. at 1151–52.

[140]. Id. at 1152.

[141]. Id.  The section 512(g) counter-notification procedure is not without its own risks.  See supra Part I.D.

[142]. As of September 18, 2011, the video can be viewed at http://www.youtube.com/watch?v=N1KfJHFWlhQ.  The statute requires service providers to repost material within fourteen business days following receipt of the counter-notice.  17 U.S.C. § 512(g)(2)(C).  Why YouTube delayed longer is not known.  The consequence of its failure to comply with the time frame designated in the statute is potential liability for taking down the material initially.  See 17 U.S.C. § 512(g)(1) (2010).  However, as noted earlier, contractual provisions likely significantly limit such liability.  See supra note 73 and accompanying text.

[143]. Lenz, 572 F. Supp. 2d. at 1153.

[144]. Id. at 1152 (citing Petitioner’s Opposition Brief at 3, Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, No. C 07-3783 JF (N.D. Cal. 2008).

[145]. Id. at 1154 (quoting 17 U.S.C. § 512(c)(3)(A)(v)).

[146]. Id. (emphasis added).

[147]. Id. at 1156 (quoting Sen. Rep. No. 105-190, at 2 (1998)).

[148]. Id. at 1155–56.

[149]. Id. at 1155 n.5.

[150]. Id. at 1155.

[151]. Id. at 1156.

[152]. See supra note 136 and accompanying text.

[153]. 17 U.S.C. § 512(f) (2010).

[154]. See Johnathon T. Molot, The Rise and Fall of Textualism, 106 Colum. L. Rev. 1 (2006).

[155]. 17 U.S.C. § 512(f)(1)–(2).

[156]. Note, however, that section 512(f) also provides a cause of action against someone who misrepresents that material “was removed or disabled by mistake or misidentification,” assertions that must be made in a counter-notice.  17 U.S.C. § 512(f)(2) (2010).  See, e.g., Elmo Shropshire v. Canning, No. 10-CV-01941-LHK, 2011 WL 3667492 (N.D. Cal. Aug. 22, 2011) (concerning a claim by a copyright owner asserted against a user whose counter-notice resulted in material being restored to YouTube).  This Article focuses on misrepresentation claims that can be asserted against copyright owners for abuse of the takedown notices, not for the claims that can be asserted against infringers for abuse of the counter-notice procedure.

[157]. 17 U.S.C. § 109 (2010).  The first-sale doctrine is relevant for individuals posting pictures of merchandise they are selling that might be, or contain, copyrighted elements.  The resale of such items is expressly permitted under the first sale doctrine codified in section 109, but copyright owners have requested the removal of those listings from Internet sites such as eBay either through the takedown regime or through site-specific takedown procedures.  See, e.g., Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1068–69 (10th Cir. 2008); Dudnikov v. MGA Entm’t, Inc., 410 F. Supp. 2d 1010, 1015 (D. Colo. 2005).

[158]. 17 U.S.C. § 107 (2010).

[159]. See Núñez v. Caribbean Int’l News Corp., 235 F.3d 18, 20 (1st Cir. 2000).

[160]. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1155 (9th Cir. 2007).

[161]. See Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 607 (2d Cir. 2006).

[162]. Indeed, the rights granted to a copyright owner are expressly subject to limitations on those rights contained in sixteen separate statutory sections.  See 17 U.S.C. § 106 (2010) (providing that the rights granted in that section are “[s]ubject to sections 107 through 122”).

[163]. 17 U.S.C. § 512(f) (2010).

[164]. Id. § 512(f)(1).  “A material misrepresentation is one that ‘affected [the infringer or service provider’s] response to a DMCA letter.’”  Capitol Records, Inc. v. MP3tunes, LLC, 611 F. Supp. 2d 342, 346 (S.D.N.Y. 2009) (quoting Online Policy Grp., 337 F. Supp. 2d 1195, 1204 (N.D. Cal. 2004)); see also Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660(SHS), 2002 WL 1997918, at *15 (S.D.N.Y. Aug. 29, 2002) (rejecting a misrepresentation claim based on general assertions of liability for infringement).

[165]. But see Shropshire v. Canning, No. 10-CV-01941-LHK, 2011 WL 3667492, at *8 (N.D. Cal. Aug. 22, 2011) (holding that plaintiff’s allegations that defendant misrepresented his good faith belief were sufficient to state a claim under section 512(f)).

[166]. See Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1204 (N.D. Cal. 2004).  The court rejected a preliminary-injunction-like standard that the plaintiffs desired that would have required the copyright owner to have a likelihood of success on the merits of an infringement claim before sending a takedown notice because it would inappropriately chill copyright owners in protecting their rights.  Id.  At the same time, the court also rejected a frivolousness standard urged by the defendants.  Id.

[167]. In addition to the Lenz case discussed in more detail above, several lower courts in the Ninth Circuit understandably have followed the subjective good faith test articulated by the Ninth Circuit in Rossi.  See, e.g., Amaretto Ranch Breedables, LLC v. Ozimals, Inc., No. C 10-05696 CRB, 2010 WL 5387774, at *2 (N.D. Cal. Dec. 21, 2010); Design Furnishings, Inc. v. Zen Path LLC, No. CIV 2:10-02765 WBS GGH, 2010 WL 4321568 at *4 (E.D. Cal. Oct. 21, 2010), sub. opinion, No. CIV 2:10-2765 WBS GGH, 2010 WL 5418893, at *4 (E.D. Cal. Dec. 23, 2010); UMG Recordings, Inc. v. Augusto, 558 F. Supp. 2d 1055, 1065 (C.D. Cal. 2008).  One district court outside of the Ninth Circuit has also adopted the Rossi test.  See Dudnikov v. MGA Entm’t, Inc., 410 F. Supp. 2d 1010, 1012 (D. Colo. 2005).

[168]. See Smith v. Summit Entm’t LLC, No. 3:11CV348 (N.D. Ohio June 6, 2011) (denying motion to dismiss because defendant had acknowledged in email correspondence that its concern was based in trademark law not copyright law).

[169]. Others have urged that the belief of the copyright owner be judged by an objective standard.  See, e.g., Jordan Koss, Protection Free Speech for Unequivocal Fair Users: Rethinking Our Interpretation of the 512(f) Misrepresentation Clause, 28 Cardozo Arts & Ent. L.J., 149, 173 (2010) (arguing for an objective standard that would protect the speech of “unequivocal fair users”).  See also Miller, Fair Use Through the Lenz of § 512(c) of the DMCA, supra note 3 at 1725 (arguing in favor of an objective standard for judging good faith).  Others have acknowledged the problem of a good faith standard in copyright law.  See Alfred C. Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, 88 Geo. L.J. 1833, 1887–88 (2000) (“[C]opyright’s ambiguity assures that many statements of infringement can be made in good faith, even though a court may find that no infringement actually exists.”) (internal citation omitted).  It is important, however, to keep the requirements for the contents of the takedown notice separate from the statutorily specified elements of a misrepresentation claim.  Section 512(f) requires that the material misrepresentation concerning the infringing status of the work be made knowingly.  See Part III.A.2 supra, discussing the materiality requirement of section 512(f) in relation to the good faith requirement for the takedown notice.

[170]. The standard for a criminal violation that involves “knowledge” may be different.  See Susan Mandiberg, The Dilemma of Mental State in Federal Regulatory Crimes: The Environmental Example, 25 Envtl. L. 1165, 1179–81 (1995).

[171]. See Restatement (Second) Torts § 526 cmt. d:

The fact that the misrepresentation is one that a man of ordinary care and intelligence in the maker’s situation would have recognized as false . . . is evidence from which his lack of honest belief may be inferred.  So, too, it is a matter to be taken into account in determining the credibility of the defendant if he testifies that he believed his representation to be true.

See also United States v. Moran, 757 F. Supp. 1046, 1051 (D. Neb. 1991) (citing Cheek v. United States, 498 U.S. 192, 200 (1991)).

[172]. In a preliminary review of evidence for granting a temporary restraining order, one court held that “internal contradictions” in the copyright owner’s applications for copyright registration raised a “strong inference that defendant subjectively knew it did not have a copyright infringement claim when it” sent the copyright takedown notice.  Design Furnishings, Inc. v. Zen Path LLC, No. CIV 2:10-02765, 2010 WL 4321568, at *3 (E.D. Cal. Oct. 21, 2010).

[173]. But see Global-Tech Appliances, Inc. v. SEB S.A., No. 10-6, slip op. 2061, 2061 (May 31, 2011) (adopting a willful blindness standard as a way to demonstrate knowledge, noting that a defendant cannot escape liability for an offense that requires knowledge or willfulness by “deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances”).

[174]. See, e.g., 17 U.S.C. § 512(c)(1)(A)(i), (ii) (2010).

[175]. One unpublished opinion has indicated that an “actual knowledge” standard is appropriate, citing Rossi for support.  Cabell v. Simmerman, No. 09 CIV 10134(CM), 2010 WL 996007, at *4 (S.D.N.Y. 2010).

[176]. The takedown regime does not require the copyright owner to provide a copy of the copyrighted work to the ISP or even a description of the alleged copyrighted work.  One can imagine a comic book title that would be sufficient to lead a scientific journal to comply with a takedown notice.

[177]. Although the arguments articulated in this Article urge that such an interpretation is consistent with the context and text of the statute, congressional amendment to clarify this aspect of section 512(f) could be helpful.

[178]. In addition to Diebold, one other court has referenced a standard that looks to what a “reasonable copyright holder” would have believed.  See Project DOD, Inc. v. Federici, No. 09-213-P-H, 2009 WL 4910320, at *5 (D. Me. Dec. 13, 2009).

[179]. 17 U.S.C. § 512(f) (2010).

[180]. Id.

[181]. See Ground Zero Museum Workshop v. Wilson, No. DKC 09-3288, 2011 WL 3758582, at *19 (D. Md. Aug. 24, 2011) (granting judgment for defendant on section 512(f) claim because service provider did not take any action in response to defendant’s DMCA notice and thus plaintiff could not prove “that it incurred any damages as a result of the notice”).  Amaretto Ranch Breedables, LLC v. Ozimals, Inc., No. C 10-05696 CRB, 2011 WL 1753479, at *4 (N.D. Cal. Apr. 22, 2011) (granting defendant’s motion to dismiss the section 512(f) claim because no removal occurred in response to the takedown notice).

[182]. As the Lenz court has noted, if such expenses qualified then a plaintiff would be able to generate the necessary injury by bringing the misrepresentation claim.  See Lenz v. Universal Music Corp., No. C 07-3783 JF, 2010 WL 702466, at *10 (N.D. Cal. Feb. 25, 2010).  Note, however, that if a plaintiff prevails on a claim of misrepresentation, the Copyright Act permits a prevailing party to recover fees within the discretion of the court.  17 U.S.C. § 505 (2010).

[183]. See Lenz, 2010 WL 702466, at *10 (emphasis added).

[184]. 17 U.S.C. § 505 (2010).

[185]. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994).

[186]. See Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1202 (N.D. Cal. 2004).

[187]. See supra Part I.C.  For an application of this consent, see Elmo Shropshire v. Canning, No. 10-CV-01941-LHK, 2011 WL 90136, at *5–6 (N.D. Cal. Jan. 11, 2011).

[188]. See, e.g., Accessories Ltd. of Me., Inc. v. Longchamp U.S.A., 170 F. Supp. 2d 12, 15 (D. Me. 2001).  See also Project DOD, Inc. v. Federici, No. 09-213-P-H, 2009 WL 4910320, at *6 (D. Me. Dec. 13, 2009) (holding that takedown notices are “in essence cease-and-desist letters”).

[189]. Doe v. Geller, 533 F. Supp. 2d 996, 1004 (N.D. Cal. 2008) (citing Andreas P. Reindl, Choosing Law in Cyberspace: Copyright Conflicts on Global Networks, 19 Mich. J. Int’l L. 799, 823 n.84 (1998)).

[190]. See Amaretto Ranch Breedables, LLC v. Ozimals, Inc., No. C 10-05696 CRB, 2010 WL 5387774, at *1 (N.D. Cal. Dec. 21, 2010).  But see Doe, 533 F. Supp. 2d at 1010 (determining that it would be unreasonable for the district court in California to assert jurisdiction over a British citizen even though he had sent a takedown notice to YouTube, located in California).

[191]. See Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1087–88 (9th Cir. 2000) (ruling in the context of a domain name dispute that defendant’s letter, which meant not only to trigger domain name registrar’s dispute resolution procedures but also to interfere wrongfully with plaintiff’s use of its domain name and to misappropriate that name for its own use, was sufficient to show purposeful availment as to state in which alleged infringer was located, even though letter was sent to domain name registrar in a different state).

[192]. See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1075 (10th Cir. 2008).

[193]. Id. at 1067.

[194]. Id.

[195]. The argument may be weakened when it is not possible for the copyright owner to determine where the user is located.  Cf. id. at 1067 (noting that the copyright owner was able to determine the Colorado location of the user).

[196]. No. C 10-05696 CRB, 2010 WL 5387774 (N.D. Cal. Dec. 21, 2010).

[197]. Id. at *1.

[198]. Id. at *2–3.  Subsequent litigation resulted in a dismissal of the plaintiff’s section 512(f) claim because there had been no takedown.  See Amaretto Ranch Breedables, LLC v. Ozimals, Inc., No. C 10-05696 CRB, 2011 WL 1753479, at *3–4 (N.D. Cal. Apr. 22, 2011).  One court has concluded that because the only remedy identified in section 512 is damages, injunctive relief is unavailable for violations of section 512(f).  See Biosafe-One, Inc. v. Hawks, 524 F. Supp. 2d 452, 469 (S.D.N.Y. 2007).

[199]. See, e.g., Design Furnishings, Inc. v. Zen Path LLC, No. CIV 2:10-2765 WBS GGH, 2010 WL 4321568, at *5 (E.D. Cal. Oct. 21, 2010), sub. opinion, No. CIV 2:10-2765 WBS GGH, 2010 WL 5418893 (E.D. Cal. Dec. 23, 2010).

[200]. See Amaretto Ranch Breedables,, 2010 WL 5387774, at *2–3.

[201]. See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1068 (10th Cir. 2008).

[202]. See In re Charter Commc’ns, Inc. Subpoena Enforcement Matter, 393 F.3d 771, 777 (8th Cir. 2005); RIAA v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1237 (D.C. Cir. 2003), cert. denied, 543 U.S. 924 (2004).

[203]. See UMG Recordings, Inc. v. Augusto, 558 F. Supp. 2d 1055, 1065 (C.D. Cal. 2008); Dudnikov v. MGA Entm’t, Inc., 410 F. Supp. 2d 1010, 1012 (D. Colo. 2005).  YouTube’s Content ID program currently allows a user whose YouTube video has been blocked through the automated screening to insist that the copyright owner employ the formal takedown notice of section 512 to obtain removal.  See Content ID disputes, YouTube, http://www.youtube.com/t
/contentid_dispute (last visited Sept. 18, 2011).  The formal takedown notice would then clearly be subject to misrepresentation claims.

[204]. Rossi v. Motion Picture Ass’n of Am., 391 F.3d 1000, 1002–06 (9th Cir. 2004), cert. denied, 544 U.S. 1018 (2005).  See discussion supra Part II.B.2.

[205]. Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1205 (N.D. Cal. 2004).

[206]. Id. at 1205–06.

[207]. Id. at 1206; see also Amaretto Ranch Breedables, LLC v. Ozimals, Inc., No. C 10-05696 CRB, 2010 WL 5387774, at *3 n.2 (N.D. Cal. Dec. 21, 2010); Lenz v. Universal Music Corp., No. C 07-03783 JF, 2008 WL 962102, at *4 (N.D. Cal. Apr. 8, 2008).

[208]. Courts are beginning to confront claims under section 512(f) for notices sent outside of the section 512(c) takedown regime.  See, e.g., Rock River Commc’ns, Inc. v. Universal Music Grp., Inc., No. CV08-635 CAS (AJWx), 2011 WL 1598916, at *16 (C.D. Cal. Apr. 27, 2011) (claim for tortious interference not preempted because DMCA not applicable to the dispute at bar).

[209]. See Online Policy Group v. Diebold, Electronic Frontier Foundation,  http://www.eff.org/cases/online-policy-group-v-diebold (last visited June 17, 2011); Lenz v. Universal, Electronic Frontier Foundation, http://www.eff.org
/cases/lenz-v-universal (last visited Sept. 18, 2011).  Additionally, the Chilling Effects website that collects information concerning takedown notices is a joint project of the EFF and clinics at Harvard Law School’s Berkman Center, Stanford Law School’s Center for Internet & Society, Boalt Hall’s Samuelson Law, Technology and Public Policy Clinic, and other law schools across the country.  See Chilling Effects, http://www.chillingeffects.org/ (last visited Sept. 18, 2011).

Article in PDF Form

By: Naomi Harlin Goodno*


Schoolyard bullying has been around for generations, but recently it has taken on a new, menacing face¾cyberbullying.  Now adolescents use technology to deliberately and repeatedly bully, harass, hassle, and threaten peers.  No longer does the bullying end once the school day ends.  With the use of technology, groups of bullies can relentlessly and anonymously attack twenty-four hours a day for the whole world to witness.  There is simply no escape.  Cyberbullying follows victims from their schools to their homes to their personal computer screens, with fresh injuries inflicted every time a new person clicks on an Internet site to witness or join in the bullying.  Adolescents use Internet sites like YouTube, or social networking sites like Facebook and MySpace, to repeatedly mock others by creating web pages, videos, and profiles.  Adolescents use their cell phones to take photos anytime and anywhere (including  bathrooms)[1] and then instantaneously post them online for others to rate, tag, discuss, and pass along.[2]

Cyberbullying is one of the top challenges facing public schools.[3]  There are many recurring legal problems confronting public schools.  By way of example, assume there are two public middle school children, Joe and Jane.  Joe punches Jane on the school’s property between classes.  The school is well within its rights to suspend Joe.[4]  Assume instead that Joe punches Jane off of school grounds, after school ends, and as the children are walking home.  Because the assault took place off of school property and after hours, the school does not have jurisdiction to punish Joe; rather, it is a matter for the parents and law enforcement.[5]

Assume instead that Joe creates an animated video game of Jane from his personal home computer at night.  In the game, Joe shows himself and other students punching Jane.  Joe posts the game on the Internet and it is quickly passed along to over one hundred other students at the same school, many of whom join in the virtual punching of Jane.  Some students log on to the site while at school, using their personal smart phones and laptops, and other students log onto the site after school at home using their personal computers.  Jane is terrified to go to school.

Can the school punish Joe or any of the other students?  In this hypothetical, Joe created the website off-campus and after school hours, so how is it different, if at all, from Joe physically punching Jane off-campus and after school hours?  Is Joe’s website protected by free speech?  Can the school search Joe’s and the other students’ personal cell phones or laptop computers to see if and when the website was accessed?  How does the public school respond, if at all, to this situation without trampling the constitutional and legal rights of the students?

Neither the legislatures nor the courts have been able to give public schools clear and consistent guidance on how to answer these questions.  Indeed, in a recent Third Circuit opinion, the court was deeply divided on how to decide such issues.[6]  There is also a circuit split on these issues making it ripe for the Supreme Court of the United States to resolve.[7]  Cyberbullying raises issues that require a fine balance between protecting the constitutional rights of public school students while also creating a safe learning environment.

The purpose of this Article is to set forth a comprehensive model cyberbullying policy for primary and secondary public schools that meets educational goals and considers constitutional challenges.  This first Part of this Article explores the current problems caused by cyberbullying and why these problems are unique from off-line bullying.  Because of the unique problems caused by cyberbullying, some state legislatures are beginning to enact specific laws to address cyberbullying.  The current statutes are summarized in Appendix A of this Article.  Those statutes, however, provide little to no direction on how public schools should create cyberbullying policies that are constitutional while also meeting statutory requirements.  Thus, Appendix B of this Article sets forth a model cyberbullying policy for public schools.

The second and main Part of this Article considers three constitutional challenges public schools face in adopting a cyberbullying policy.  First, public schools wrestle with how to define “cyberbullying” without violating the students’ First Amendment rights to free speech.  The crux of the problem concerns speech that students make off of school grounds but that impacts other students at school (for example, creating a website at home, which is then accessed at school, that harasses another student).  This Part sets forth a novel way of approaching the conflicting legal precedents by separately considering jurisdictional and substantive issues.  The second constitutional challenge is composing a cyberbullying policy that does not violate due process rights or that is written in language that is unconstitutionally vague or overbroad.  The third constitutional challenge is formulating a way for school officials to know when they can search students’ personal electronic devices without violating the Fourth Amendment.

The final Part of this Article addresses pedagogical concerns such as reporting requirements, disciplinary matters, and educating students, parents, and school officials about cyberbullying.  All of these topics should be considered in order to construct a comprehensive cyberbullying policy.  The model cyberbullying policy for public schools set forth in Appendix B of this Article adopts language that attempts to combat cyberbullying while complying with constitutional requirements and meeting educational goals.

I.  Current Problems

Cyberbullying is a major problem causing significant harm.[8]  There is no dispute that students today use e-mail, messaging, texting, and social networking sites on almost an hourly basis to stay in touch with one another.[9]  In one survey of thirteen- to seventeen-year-olds, thirty-five percent reported being the targets of Internet harassment including “rude or nasty comments, rumors, and threatening or aggressive messages.”[10]  As one teenage victim stated: “It makes me hurt both physically and mentally.  It scares me and takes away all my confidence to make me feel sick and worthless.”[11]  Indeed, in March of 2011, the White House held a special conference that specifically focused on bullying prevention where the President concluded that cyberbullying is a serious problem facing the United States.[12]  Cyberbullying is linked to “low self-esteem, family problems, academic problems, school violence, and delinquent behavior . . . [and] suicidal thoughts.”[13]  Studies have shown that, of adolescents who have contemplated suicide, “cyberbullying victims were almost twice as likely to have attempted suicide compared to youth who had not experienced cyberbullying.”[14]


Recent cases: There have been far too many recent cyberbullying cases that have ended in such tragedy.  One case involved Tyler Clementi, a Rutgers University freshman, who leaped to his death after his roommate secretly taped and posted online a video of Clementi having a “sexual encounter” with another young man.[15]  Perhaps even more troubling are those cases that involve young school-age children, both in middle school and high school.  Such cases sadly illustrate how a child’s vulnerabilities are escalated by the use of the wider forum of technology.  There were the three middle school boys who invited fellow students to “kick a ginger” on a specific day which led to the attacks on at least seven red-haired middle school children.[16]  There were middle school boys who created a video game on a website where “they virtually ‘beat up’ one of their classmates on a regular basis and invited others to join them in the beatings.”[17]  There were other middle school children who created a website where “middle school girls were pictured on a ‘Hot or Not’ list that was e-mailed around to be voted on.”[18]

There was thirteen-year-old Megan Meier, who committed suicide after being cyberbullied by a classmate’s parent who adopted a false identity on MySpace as a boy, wooed her, and then viciously turned against her and posted that “[t]he world would be a better place without [her].”[19]  There was the fourteen-year-old boy who sent death threats on Facebook to two other classmates he believed were interested in his girlfriend.[20]  There were the three Louisiana high school students who were arrested for cyberstalking after they created competing websites with the posting of insults and graphically violent poems.[21]  There were two Florida girls, aged fifteen and sixteen, who were arrested for creating a fake Facebook page in another classmate’s name and posting a picture of the girl’s face on a “nude prepubescent girl’s body” with other disturbing images and statements.[22]

There was also Phoebe Prince, who was relentlessly cyberbullied by the students at her high school for three months before she hung herself.[23]  Classmates posted multiple threads on Facebook about how Phoebe was an “Irish slut” and a “poser.”[24]  Ultimately, six teenagers were criminally charged—including two boys charged with statutory rape of a minor—after the group of teenagers taunted, threatened, shoved, and sent demeaning text messages to Phoebe.[25]  One of the most troubling aspects of Phoebe’s case is that the school administrators were well aware of the cyberbullying[26] and, yet, the school did not take any action.[27]  “How long can the school department ignore the increasing rate of bullying before reality sets in?” two students asked in a school newspaper article.[28]


Public schools without guidance: For school-age children, incidents of cyberbullying are often ignored.[29]  Schools are ill-equipped to deal with cyberbullying.[30]  Indeed, such failures open up school districts to lawsuits.[31]  For example, a student’s family sued a New York school district for failing to protect their homosexual son from cyberbullying.[32]  There is no question that schools must be more proactive about stopping students from cyberbullying.[33]  But the blame does not lie completely with the schools.  Many schools want to help but do not know where the boundaries of discipline begin and where they end.  “Schools are finding themselves at a loss, particularly because of vague laws,”[34] or because there are no laws or policies at all, to instruct them on how to address cyberbullying.  When can a school legally punish a student for speech that occurs off-campus?  To what extent can schools search students’ personal computers and cell phones for evidence of cyberbullying without running afoul of the students’ constitutional rights?

These are the questions haunting the school districts.  School administrators know that there is a problem, but they do not know to what extent they are allowed to be a part of the solution.  Across the nation, principals have responded to student-on-student cyberbullying in “dramatically different ways.”[35]  One principal of a middle school shared his frustration about student cyberbullying incidents: “All we are doing is reacting, . . . .  We can’t seem to get ahead of the curve.”[36]  Another middle school principal said that for schools it is a lose-lose situation: “I have parents who thank me for getting involved [with cyberbullying incidents] . . . and parents who say ‘[i]t didn’t happen on school property, stay out of my life.’”[37]


Courts in conflict: Courts are conflicted in how to deal with cyberbullying and they fail to clearly specify whether (and when) a school has jurisdiction to regulate off-campus speech that bullies others.[38]  The Supreme Court has yet to rule on this issue and lower courts are all over the board.[39]  For example, one district court found that a school could not discipline a student who created a webpage entitled “Satan’s web page,” in which he listed names of students under the heading “people I wish would die.”[40]  Although the student admitted he may have used school computers, the court held that the school’s disciplinary measures violated the student’s First Amendment rights because there was “[no] proof of disruption to the school on-campus activity.”[41]  In contrast, the Supreme Court of Pennsylvania upheld as constitutional the expulsion of a student who created a website called “Teacher Sux,” in which the student made derogatory comments about a teacher—including why the teacher should die.[42]

The Third Circuit’s recent decisions are illustrative of the unclear law concerning cyberbullying.  Very recently, in June 2011, the Third Circuit revisited en banc two of its recent opinions concerning cyberbullying.  In one case, the court initially upheld as constitutional a school’s disciplinary action of a student who created a fake, offensive MySpace page of a principal—but that decision was reversed by a deeply fractured en banc court.[43]  The other en banc opinion held that a school’s disciplinary action was unconstitutional for very similar behavior.[44]  The law in the area of schools regulating cyberbullying is unmistakably in flux, which leaves schools without clear guidance as to how to address the problem.

A.            Bullying versus Cyberbullying

It is apparent that neither the courts nor the schools are clear on how legally to deal with the rampant problem of cyberbullying.  What makes the legal framework for cyberbullying so difficult?  The answer, as set forth in this Subpart, is that cyberbullying differs from off-line bullying such that current laws and school policies are often inadequate to deal with this new forum for bullying.

Cyberbullying, for the purposes of this Article, is distinguishable from off-line bullying by the use of electronic technology to deliberately and repeatedly harass or intimidate fellow students.  Off-line bullying, done face-to-face, has long been a problem in our school system.[45]  While schools and state legislatures have historically taken some steps to curtail schoolyard bullying,[46] these steps are insufficient to address cyberbullying because the scope of cyberbullying is much more immense than off-line bullying.  New technology has not only allowed for new outlets to bully—it has changed the face of bullying.  Cyberbullying presents new problems that “old-fashioned” antibullying laws and policies cannot address for at least six reasons.

First, cyberbullying, unlike off-line bullying, is ubiquitous.  Harassing statements and comments made on the Internet can be made on- and off-campus, day and night.[47]  The victim’s perception, and perhaps the reality, is that an entire school, neighborhood, and community can be involved in the bullying.[48]  With a few keystrokes, the bullying statements can be “circulated far and wide in an instant.”[49]  Therefore, antibullying policies that only address on-campus bullying cannot sufficiently address cyberbullying, yet courts and school officials are confused as to how and to what extent schools can regulate off-campus speech.

Second, cyberbullying allows for much greater anonymity than off-line bullying.[50]  Bullies can easily take on fake Internet identities or even take on the identities of other students so that “victims often do not know who the bully is, or why they are being targeted.”[51]  As one fifteen-year-old explained: “I get mean messages on Formspring,[[52]] with people telling me I’m fat and ugly and stupid.  I don’t know what I ever did to anyone.  I wish it wasn’t anonymous.”[53]  Because of anonymity, cyberbullies may not fit the profile of the typical bully.[54]  For example, three Louisiana students were recently arrested for cyberbullying, despite the fact that they were all honor students.[55]  Anonymity, therefore, not only creates problems for school officials who are investigating cyberbullying (school officials may be at a loss as to what would entail constitutional searches in their investigations) but also may impact which remedies for cyberbullying are most effective.

Third, cyberbullying gives bullies physical distance from their victims while at the same time allowing for a greater audience—which may encourage even more bullying.[56]  The audience mentality allows for others to “join in on ‘the fun’” who may not have done so in a physical confrontation.[57]  Moreover, audience members can easily perpetuate the bullying by adding online comments or by simply forwarding messages and links to others. [58]  Off-line bullying policies fail to address how cyberbullying quickly involves numerous parties.

Fourth, children are often more technologically adept than adults.  Children use and explore new technologies every day,[59] while teachers and parents remain oblivious.[60]  This allows for undetected and unregulated outlets for bullying.

Finally, cyberbullying, unlike off-line bullying, is permanent and “usually irrevocable,”[61] trailing its victims from childhood to adulthood.  Not only does cyberbullying follow students from school to their homes, but harassing statements can be accessed and relived over and over again, even years later.  As one commentator aptly put it: “The Web never stops and it never forgets.”[62]  Because of the possible life-long impact of cyberbullying, it is crucial that school officials are equipped with the legal and necessary tools to try to prevent it.

It is largely because of these differences between cyberbullying and off-line bullying that many current antibullying statutes and school policies are inadequate.  As the next Subpart addresses, even states with antibullying statutes have gaps that do not cover all aspects of cyberbullying.

B.                        Current Statutes and Policies

Appendix A of this Article sets forth a chart analyzing the current state and federal antibullying laws as well as proposed bills.  Overall, on the positive side, a large majority of state legislatures have enacted antibullying laws.  However, some of these state laws fail to address cyberbullying, and even those laws that have tried to do so often give inadequate guidance to public school administrators on how to enforce the law without violating students’ constitutional and legal rights.

Specifically, the District of Columbia and forty-five states have enacted general antibullying laws (mainly targeting off-line bullying).[63]  Only Hawaii, Michigan, Montana, North Dakota and South Dakota lack such statutes.[64]  Hawaii[65] and Michigan,[66] along with the federal government,[67] have proposed antibullying laws, which are currently pending.  While forty-three states require public schools to have a policy regarding bullying,[68] only a minority of those states have model school policies.[69]

The gaps in these laws become even more evident when looking at how cyberbullying is specifically addressed.  Again, the good news is that some states attempt to address the cyberbullying problem in antibullying statutes.  Six states expressly prohibit “cyberbullying,”[70] and twenty-eight states prohibit “electronic harassment,”[71] which likely encompasses most aspects of cyberbullying.

The problem is that, of those states with antibullying statutes, only ten states have model policies.[72]  Those ten model policies fail to fully and adequately give school officials guidance on how to deal with the unique aspects of cyberbullying, further compounding the problem.[73]  For example, neither “cyberbullying” nor “electronic harassment” is even mentioned in the California Department of Education’s “Sample Policy for Bullying Prevention.”[74]  Likewise, the model antibullying policies for Oklahoma and Rhode Island[75] also fail to include any reference to cyberbullying.  Indeed, Colorado’s model policy readily identifies its own gaps: “the [school] district should consult with its own legal counsel to determine appropriate language.”[76]  Such model policies give little guidance to school administrators about how to deal with cyberbullying.

Even those state legislatures that have created model school policies referencing “cyberbullying” fall short.  For example, the Delaware, Florida, Ohio, and South Carolina[77] model school policies define cyberbullying, but fail to give public school officials any guidance on how to apply the definition so as not to run afoul of free speech and other constitutional and legal protections.

Thus, while state legislatures, for the most part, are taking great strides by including cyberbullying in their antibullying legislation, there has been little to no guidance on how public school officials can legally implement policies to deal with cyberbullying.  The remainder of this Article attempts to set forth a constitutional model cyberbullying policy that public schools can adopt and put into action.

II.  A Constitutional Cyberbullying Policy for Primary and Secondary Public Schools: Considering First Amendment, Due Process, and Fourth Amendment Challenges

It is imperative to note at the outset that students’ civil rights must be protected.  Indeed, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”[78]  As one judge explained:

In order to maintain a thriving democracy, students cannot be unreasonably encumbered in their freedom to express moral, political, and social ideals and beliefs.  The classroom is peculiarly the “marketplace of ideas.”  The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth “out of a multitude of tongues, (rather) than through any kind of authoritative selection.” . . . Schools should foster an environment of learning that is vital to the functioning of a democratic system and the maturation of a civic body.[79]

The exercise of students’ civil rights in public school, however, has to be “applied in light of the special characteristics of the school environment.”[80]  The constitutional rights of public school students “are not automatically coextensive with the rights of adults in other settings.”[81]  Thus, in addressing the First Amendment, Due Process, and Fourth Amendment issues related to cyberbullying in public schools, there must be a balance between safeguarding students’ constitutional rights and allowing public school officials to maintain a safe and thriving learning environment.[82]  This Part of the Article attempts to set forth an analysis that strikes this balance.

A.            First Amendment Issues: Defining “Cyberbullying”

It is well established that the First Amendment right to freedom of speech extends to students in public schools.[83]  As the United States Supreme Court declared over forty years ago, public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[84]  However, the Supreme Court also recognized the need for schools to be able to exercise a certain amount of authority over the speech of their students to retain order and control of the educational environment.[85]  One of the main concerns is that school cyberbullying policies will run afoul of the First Amendment and interfere with students’ rights to free speech.[86]  Therefore, to address whether or not a specific cyberbullying policy is constitutional, the extent to which student speech is protected by the First Amendment must be carefully examined.  There is no Supreme Court case squarely on point.[87]  The split in lower courts’ decisions shows that the law is ambiguous.[88]  Even the Supreme Court has expressed confusion over how precedents apply to the burgeoning issues involving student free speech, stating that “[t]here is some uncertainty at the outer boundaries as to when courts should apply school speech precedents.”[89]

This Subpart sets forth a novel First Amendment constitutional framework to consider when analyzing public school cyberbullying polices.  The two-prong framework involves both a jurisdictional and substantive inquiry:[90] (1) The school must first decide whether it has jurisdiction over the speech.  The legal standard differs depending on whether the speech originated on- or off-campus (the harder cyberbullying cases usually involve speech originating off-campus);[91] if the school has proper jurisdiction, then (2) the school must determine whether, as a matter of substantive law, it can indeed regulate the speech.  This second inquiry will fall into two subcategories: (i) whether the school is able to categorically regulate the speech; and if not, then (ii) under the “Tinker standard,”[92] whether the speech materially disrupts class work or substantially impinges on the rights of others.[93]

1. Jurisdictional Matters

Speech Originating On-Campus: There is Supreme Court precedent dictating that schools have jurisdiction to regulate speech that originates on school campuses,[94] or at school-sanctioned activities that are equivalent to being on the school campus.[95]  Therefore, in the cyberbullying context, it appears to be within the school’s jurisdiction to regulate speech that originates on-campus whether the student uses the school’s resources or the student uses his or her own personal technology while on-campus.


Speech Originating Off-Campus: The Supreme Court has not ruled on whether schools have jurisdiction over student speech that originates off-campus or is not related to a school-sponsored activity.  There are, however, a number of cases that deal with this issue, some of which involve the Internet.[96]  Unfortunately, the holdings in these cases are inconsistent.[97]

The cases can be grouped into three general categories.  First, in a few cases, the courts skip the jurisdictional question all together.[98]  However, the Third Circuit reversed a district court decision in which the jurisdictional question was not addressed.[99]  Thus, it would behoove one, especially given that most cyberbullying originates off-campus, to thoroughly address the jurisdictional issue before attempting to regulate any off-campus speech.[100]

Second, some courts require that it must be “foreseeable” that the speech would reach the campus for the school to regulate it.  If it was “foreseeable” that the speech would reach campus, then it can be regarded as “on-campus” speech and the school would have jurisdiction over it.[101]

Third, some courts have ruled that there must be a “sufficient nexus” between the speech and the school before a school has the jurisdiction to punish the student speech.[102]  However, courts are split as to what constitutes this “sufficient nexus.”  Some courts have broadly applied the rule finding the connection is established if the speech is directed at a school-specific audience;[103] or if the speech has been brought on to the campus, even if it was not the student in question who did so.[104]  Other courts, however, have narrowly applied the rule and found no substantial nexus between the speech and the school because the student speech, “did not attempt to engage other students in any on-campus behavior.”[105]

Given that cyberbullying easily spreads (Internet links and text messages can easily be forwarded to numerous people with the click of a button), courts should adopt the broad application of the “sufficient nexus” test.  For purposes of a cyberbullying policy, schools should consider using both the “foreseeability” and the “sufficient nexus” language.[106]  Such a jurisdictional requirement will also likely protect a cyberbullying policy from a challenge that the policy is constitutionally overbroad.[107]  These legal standards are incorporated in the Model Cyberbullying Policy in Appendix B of this Article.

2. Substantive Matters

Once the school’s jurisdiction has been established, the next inquiry is whether the school can regulate the speech without violating the First Amendment.  Based on precedent, schools can do so in two instances: (i) if the speech is categorically prohibited, or (ii) if the Tinker standard is met.  Each of these rules will be taken in turn.


Categorically prohibited speech: Schools can wholly regulate two categories of speech, and a cyberbullying policy should address both.[108]  First, under Hazelwood, schools can regulate speech that “bear[s] the imprimatur of the school.”[109]  Thus, for example, if a cyberbully uses the school’s emblem on an Internet message intended to harass another student, the school can discipline the cyberbully regardless of whether the speech originated on- or off-campus.

Second, it is widely accepted that, even under the broadest reading of the First Amendment, “true threats” are not protected.[110]  Though the threshold for determining whether a statement is a “true threat” is fairly high, courts have held that, “[i]n light of the violence prevalent in schools today, school officials are justified in taking very seriously student threats against faculty or other students.”[111]  Any school cyberbullying policy that requires punishment for a student who makes a “true threat” against a teacher or another student will be constitutional.

Courts, however, often do not decide whether particular speech reaches the level of a true threat because they often do not have to.  If a court finds that the speech can be regulated by the Tinker standard (requiring a lower threshold), then the school’s actions will be constitutionally justified regardless of whether the speech constituted a true threat.[112]  This leads to the second type of speech that schools can regulate¾student speech which satisfies the Tinker standard.  This second type of speech is addressed in the next Subpart of this Article.[113]


Student Speech that can be regulated under the Tinker Standard: In the 1969 seminal case Tinker v. Des Moines, the Supreme Court held that it was unconstitutional for a high school to suspend students for wearing black armbands in silent protest of the Vietnam War.[114]  The Court recognized that a school had authority to control student speech but that “it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”[115]  The Court set out a two-part standard for when schools could constitutionally regulate student speech: “[C]onduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”[116]  Therefore, under the Tinker standard, schools can regulate student speech that either (i) materially disrupts the operation of the school, or (ii) substantially impinges upon the rights of others.[117]

Schools, therefore, should incorporate the language of the Tinker two-part standard into their cyberbullying policy.[118]  There is, however, some ambiguity in its application.  Courts have unevenly applied the first Tinker standard (that schools can regulate student speech that causes “material disruption”).[119]  Courts tend to consider speech as having materially disrupted school activities if administrators are forced to interrupt their regular duties to deal with the disruption.[120]  The disruption must be a real disturbance and something more than a “buzz” about the speech.[121]  However, when the speech is violent, threatening, or sexually explicit, courts have often found that there was a material disruption.[122]  Moreover, courts have also found that schools may discipline students for speech where “a forecast of substantial and material disruption was reasonable.”[123]

Notably, Tinker is different than most cyberbullying cases because Tinker involved political speech.  Arguably, then, the threshold for establishing a “material disruption” may be lower for purely hurtful speech.[124]  As one scholar noted, “cyberbullying incidents that occur at school—or that originate off-campus but ultimately result in a substantial disruption of the learning environment—are well within the school’s legal authority to intervene.”[125]

Though Tinker clearly set out a two-prong standard under which a school may regulate student speech, the trend has been for courts to focus on the first prong (regulating speech that causes a material disruption).  Courts have, for the most part, ignored the possibility of the second prong (regulating speech that substantially impinges on the rights of others).[126]  Although many courts have not yet embraced this second prong of Tinker, the prong may cover many instances of cyberbullying.  For example, if a cyberbully harasses a victim to the point at which the victim misses school or suffers emotional distress, then a school could arguably discipline the cyberbully on the grounds that the student substantially impinged on the rights of another student.

In sum, by combining precedent (although ambiguous at times) a school should be able to draft a cyberbullying policy that would survive First Amendment free speech challenges.  First, the policy should establish that the school will regulate any student speech within its jurisdiction, which includes (i) all speech originating on-campus and (ii) speech originating off-campus if it was “foreseeable” that the speech would reach campus or if there is a “sufficient nexus” between the off-campus speech and the school.  Once jurisdiction is established, then the cyberbullying policy should set forth that the school can (i) wholly regulate speech that “bear[s] the imprimatur of the school” or contains “true threats,” or (ii) regulate speech that “materially disrupts” school operations or “substantially impinge[s] on the rights” of others at the school.[127]

B.            Due Process Issues: Creating a Nonvague Policy with Proper Notice Requirements

In addition to First Amendment challenges, school policies may also be challenged as unconstitutionally vague.[128]  A regulation is unconstitutionally vague, and thus a violation of due process, if it does not give “fair notice of the regulation’s reach” and requires students “to guess as to the contours of its proscriptions.”[129]  Thus, there are two possible vagueness challenges to school cyberbullying policies: the policy is (1) vague as to the definition of what constitutes cyberbullying, or (2) fails to give proper notice of the regulation.  Each of these issues will be taken in turn.

1. Nonvague Explanation of “Cyberbullying”

Specificity of terms is especially important when a regulation, such as a public school cyberbullying policy, is a “content-based regulation of speech.”[130]  Although a school has “a certain degree of flexibility in its disciplinary procedures,” its regulations may still be found to be unconstitutionally vague or overbroad.[131]  The most common reason for a court to sustain a vague or overbroad challenge of a school policy is when specific terms within the policy are not defined.[132]  Therefore, a cyberbullying policy should set forth a clear definition of “cyberbullying.”

As discussed more fully in Part II.A above, this definition should include language as set forth in Hazelwood, Watts, and Tinker.[133]  For example, a cyberbullying policy can prohibit the use of electronic devices to make an electronic communication that is meant to: (1) be a “true threat” against a student or school administrator;[134] (2) “materially disrupt” school operations;[135] or (3) substantially “impinge on the rights” of others at the school.[136]  This third prohibition of “impinging on others” could include: creating “reasonable fear of harm to the student’s person or property;”[137] creating “a substantially detrimental effect on the student’s physical or mental health;”[138] “substantially interfering with a student’s academic performance . . . [or] interfering with the student’s ability to participate in or benefit from the services, activities, or privileges provided by a school;”[139] or being “so severe, persistent, or pervasive” so as to cause “substantial emotional distress.”[140]

The United States Supreme Court has found that for antidiscrimination statutes, “[e]numeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply.”[141]  Thus, another way to make the term “cyberbullying” less vague is to set forth a prohibition of cyberbullying based on enumerated characteristics, such as those describing traditionally protected groups or identity-based groups.[142]  For example, in its definition of cyberbullying, the policy should prohibit cyberbullying on the basis of race, color, national origin, gender, religion, disability, sexual orientation, or gender identity to remove any doubt that cyberbullying is prohibited regarding any of these characteristics.[143]  As one study showed, schools that have policies with enumerated categories report less bullying than schools that do not.[144]  Policies should be drafted so that inclusion of enumerated categories does not affect protection for students who do not fall into any of them.[145]

2. Providing Proper Notice

To make certain that students’ due process rights are not violated, cyberbullying policies must give students and parents notice of the details of the policy.  There are three considerations to ensure proper notice is given.  First, the cyberbullying policy must clearly set forth what conduct is forbidden.  For example, one student raised a successful due process challenge to discipline stemming from a violation of the school’s cyberbullying policy because the policy failed to “put students on notice that off-campus speech or conduct which cause[d] a disruption to school activities may subject them to discipline.”[146]  The court explained such notice was necessary so that students could “modify their conduct in conformity with the school rules.”[147]  Therefore, a cyberbullying policy should clearly set forth the what, who, and when.  In other words, the policy should not only define what constitutes “cyberbullying” and against whom it is prohibited (such as enumerated groups of individuals), but it must also explain when the school can exercise jurisdictional authority over the conduct.[148]

Second, the school must ensure that students and parents receive actual notice of the cyberbullying policy.  Students’ due process rights are implicated if they do not have adequate and actual notice of a school’s policy regarding punishment for certain acts.  To meet the actual notice requirement, one scholar suggests that schools should be required to create cyberbullying policies that require parents to receive copies of the school’s cyberbullying policy, along with information on how to prevent cyberbullying and what to do if their child is being cyberbullied.[149]  Florida’s model bullying policy does just that; it suggests that the student handbook include the bullying policy, that school officials should inform all students and parents in writing of the bullying policy at the beginning of each school year, and that there should be an annual process for discussing the policy with students in a student assembly.[150]  Another way schools can fulfill the actual notice requirement is to implement an “acceptable use policy” for the use of the school’s technology resources, which establishes that school technology cannot be used to cyberbully another student.  The “acceptable use policy” should be in the form of a contract, which parents and students must sign before students are able to use the school’s technology resources.[151]

Third, as some state statutes already require, a valid cyberbullying policy should also include a procedure for immediately notifying parents if the school discovers that their child is involved in a cyberbullying incident.  Eleven state statutes require schools to notify the parents of both the victim and the cyberbully.[152]  The West Virginia statute requires schools to notify parents of any student involved in a cyberbullying incident.[153]  Some scholars suggest that schools should notify the alleged cyberbully’s parents prior to any investigation.[154]  After the investigation, the cyberbully and his parents should be notified of the potential consequences to which they may be subjected.[155]

C.            The Fourth Amendment Issues: Allowing for Reasonable Searches and Seizures

The Fourth Amendment raises additional concerns in cyberbullying cases.  Once an incident of alleged cyberbullying is reported to school officials, how can the school investigate the allegations without violating the Fourth Amendment’s prohibition of unreasonable searches and seizures?[156]  To put the issue in context, consider the illustrative hypothetical set forth in the Introduction of this Article: Joe and Jane are middle school students.  Jane’s parents discover that Joe has posted on the Internet an animated game depicting himself and other students punching Jane.  Joe has forwarded a link to the game to many of his school friends, who have in turn forwarded it to other students.  During school hours, while on-campus, numerous students, including Joe, have logged onto the website and participated in the game.  Jane’s parents report the website to school officials.

Can school officials search Joe’s cell phone and personal laptop computer to see if he did indeed create the website?  Can school officials search other students’ personal electronic devices to see if they accessed the website?  If the school decides to search Joe’s cell phone, can school officials also search the cell phone for other instances of cyberbullying or violations of school rules?  All of these questions pose novel issues under the Fourth Amendment.  There are no Supreme Court cases on point.  Moreover, those states that have drafted model bullying policies also fail to address these issues.[157]  Schools, therefore, are once again left without any guidance.  The discussion below aims to answer these questions.

1. The T.L.O. Legal Standard

The controlling authority on the Fourth Amendment application to schools is the 1985 Supreme Court case New Jersey v. T.L.O.[158]  This case involved a teacher who found high school students smoking in the bathroom in violation of school rules.[159]  School officials searched one student’s purse for cigarettes.[160]  After finding cigarettes, the school official continued to search the purse and subsequently found drug paraphernalia.[161]  The student sought to suppress the evidence found in the purse as a violation of the Fourth Amendment.[162]  The Supreme Court first determined that, under the Fourth Amendment, students have a legitimate expectation of privacy in the private property they bring to school.[163]  The students’ interest, however, must be balanced against the interest of school officials “in maintaining discipline in the classroom and on school grounds.”[164]

The Court established a two-step inquiry for determining when it is reasonable for a public school official to search students’ personal property.[165]  First, the search must be justified at inception, meaning there must be “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.”[166]  Second, the scope of the search must be “reasonably related to the objective of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”[167]  Based on this two-prong test, the Court in T.L.O. held the search of the student’s purse did not violate the Fourth Amendment because it was based on an individualized suspicion that she had violated the school rules (first that she was smoking and second that she was using illegal drugs) and was not overly intrusive.[168]  Notably, under T.L.O., once a reasonable suspicion of wrongdoing exists, a search of a student’s personal belongings does not require the student’s consent or the consent of his parents.[169]

Although courts have not specifically dealt with the Fourth Amendment’s role in cyberbullying, two cases have applied the T.L.O. test to the possession and use of cell phones in violation of school rules.  In Klump v. Nazareth Area School District, the school had a policy prohibiting use or display of cell phones during school hours.[170]  The student, Klump, violated the rule when his cell phone fell out of his pocket during class.[171]  After his teacher confiscated his phone, the teacher, along with the principal, then used the phone to call nine other students listed in Klump’s phone directory to determine if they were violating school policy.[172]  They also accessed Klump’s text messages and e-mail, and had an instant messaging conversation with Klump’s younger brother without identifying themselves.[173]  The school officials asserted that they found a drug-related text message while searching the phone.[174]  The court held the search was unreasonable.[175]  While the teacher was justified in seizing the cell phone because it violated the school policy, the search of the phone failed the first part of the T.L.O. test because it was not justified at inception.[176]  The teacher and principal had no reason to suspect that Klump was violating any other school policy other than the possession of the cell phone, thus, seizure alone would have been acceptable.  Notably, there were no facts suggesting that Klump had used his cell phone while on-campus.[177]  Instead the school authorities were impermissibly searching the phone “as a tool to catch other students’ violations.”[178]

In the second cell phone case on point, J.W. v. Desoto County School District, the school district also had a policy prohibiting students from possessing or using cell phones at school.[179]  Student R.W. was caught violating this policy when he opened his cell phone to retrieve a text message during class.[180]  The teacher took R.W.’s phone, opened it, and viewed personal photos stored on it.[181]  R.W. was ordered into the principal’s office where the principal and police sergeant also opened the phone and examined the photographs.[182]  One photo showed another student holding a B.B. gun.[183]  Based on that photo, R.W. was expelled for having gang pictures.[184]  The court applied the T.L.O. test and upheld both the seizure and search of the phone.[185]  The court explained that upon witnessing a student violating the rule, it was reasonable for a school official to seek to determine to what end the student was improperly using the phone.[186]  The court noted the student could have been using his cell phone at school to cheat or communicate with another student who would also be subject to discipline.[187]

The court in Desoto distinguished Klump by explaining that in Klump the student unintentionally violated the school policy (the phone fell out of his pocket) and the school officials used that accident as a pretext for a “fishing expedition.”[188]  In contrast, here R.W. knowingly violated the rules by bringing the phone on school grounds and then using it.[189]  Moreover, as opposed to the “fishing expedition” that occurred in Klump (misleadingly calling other students and responding to text messages and emails using a student’s electronic identity),[190] in R.W.’s case the search by the school officials was limited to a search of the phone.[191]


Incorporating the T.L.O. Standard into a Cyberbullying Policy: the search must (1) have “reasonable grounds;” and (2) be limited in “scope.” Cyberbullying policies should incorporate the two-prong test articulated in T.L.O.[192]  First, the policy should indicate that school officials[193] can search a student’s personal electronic device for evidence of cyberbullying only when there are “reasonable grounds” that the search will lead to evidence of cyberbullying by that person (presumably a violation of a school rule).  The policy should also make clear that, unlike in Klump, school officials should not be allowed to misleadingly use the search as a ploy to try to catch other students violating the rules.

As Klump and Desoto illustrate, what constitutes “reasonable grounds” will be a fact-specific inquiry.[194]  For example, applying the first prong of the T.L.O. standard to the illustrative hypothetical set forth at the beginning of this Part of the Article, if Joe, or any other student, was impermissibly using (not just possessing)[195] his electronic device at school, then there would be reasonable grounds to search it to determine to what ends the student was improperly using the electronic device.  The analysis, however, is slightly more complex if the only fact before school officials is a call from Jane’s parents reporting alleged cyberbullying (or an allegation of cyberbullying only from Jane).  Then school officials would have to consider factors such as the perceived credibility of the person making the report[196] and whether the electronic record (e.g., a history of postings or visits to a website, emails, or bullying text messages on a cell phone) is likely to still be accessible.

A school’s cyberbullying policy should also include language incorporating the second prong of the T.L.O. standard, namely a search of a student’s electronic device should be limited in scope.[197]  If there is suspicion of only a cyberbullying text message, or accessing a website as in the hypothetical set forth above involving Joe, then photographs stored on the electronic device should be left alone.  As the Court stated in T.L.O, teachers and school administrators should use their “common sense” in determining the appropriate scope of the search.[198]  Generally, call logs and text logs will be within the scope of the search to determine who else may have received or sent the bullying message, or may have accessed or posted on the bullying website.[199]  However, as addressed in Klump, school officials should not misleadingly or anonymously contact students on these logs to dupe them into admitting further violation of school rules.[200]

2. Special Legal Concerns for Sexting

Sexting is the sending or receiving of sexually explicit messages, images, or videos between cell phones, or posting them on the Internet (such as on Facebook or MySpace).[201]  Unfortunately, sexting is becoming all too popular among high school and middle school students.[202]  These messages are often sent because of romantic interests but can quickly turn into an unforgiving and relentless form of cyberbullying.[203]  Because many child pornography laws prohibit the distribution of child pornography without exception, minors who sext each other can be, and indeed have been, criminally prosecuted.[204]  The possibility of criminal legal liability can also confront school officials.  There are currently no statutory exceptions allowing for school officials to possess or distribute nude images of minors;[205] therefore, school officials who are investigating allegations of cyberbullying that involve sexting could be subject to state and federal criminal felony charges.[206]  One Pennsylvania school board is currently under criminal investigation for improper conduct and disseminating child pornography when it was alleged that phones displaying pornographic images and video clips involving minor students were passed around and viewed by more school employees than necessary to investigate the incident.[207]

Moreover, courts have yet to address the possible civil liability of school officials who uncover and examine nude photos of students.  The American Civil Liberties Union (“ACLU”) recently pursued a private suit against a Pennsylvania district attorney (after privately settling with the school district) when explicit photos on a female student’s cell phone were discovered by the principal and turned over to the district attorney.[208]  In this case, a teacher confiscated a female student’s cell phone when the student used it during class.[209]  The teacher turned the phone over to the principal who informed the student that he had found sexually explicit photos and turned them over to law enforcement.[210]  The cell phone contained photos of the female student in various states of nudity intended to be seen only by the student’s boyfriend and herself.[211]  The ACLU alleges the student’s phone was illegally searched.[212]  Courts have historically been stricter in enforcing the Fourth Amendment when student nudity is involved.[213]

Thus, for a school district and its officials to avoid criminal or civil legal liability, if a cyberbullying investigation leads to the uncovering of images of nude minors, those images should never be distributed or shown to other school officials.[214]  The school official should promptly contact law enforcement and turn the material over to authorities without distributing it.  While school officials can discuss the nature of the material with each other for investigative and disciplinary purposes, cyberbullying policies should strictly prohibit the dissemination or showing of any nude images of children to anyone other than law enforcement.[215]

III.  A Comprehensive Cyberbullying Policy: Including Legally Valid “Policy Considerations”

While cyberbullying is a new and dangerous type of bullying that raises many novel and complex constitutional issues, the sole purpose of a cyberbullying policy—to halt cyberbullying—should not be forgotten.  There are at least three other guidelines that schools should consider in order to create a comprehensive cyberbullying policy: (1) how to set forth  procedures that properly respond to and report cyberbullying incidents; (2) how to adopt legally valid and proportionate remedies once a cyberbullying incident has occurred; and (3) how to educate students, parents, and school officials about the vices of cyberbullying.[216]  This Part of the Article will address these additional issues by incorporating the best elements of already existing statutory requirements along with some refinements to ensure that the model cyberbullying policy in Appendix B of this Article is not only constitutional, but also comprehensive.[217]

A.            Procedures for Responding to and Reporting Cyberbullying Incidents

As discussed in a previous Subpart of this Article, a school must provide notice of its cyberbullying policy to students and parents in order to survive constitutional challenges.[218]  This notice should also include information on how to identify, respond to, and report cyberbullying incidents.[219]  Because of the often sensitive nature of cyberbullying (particularly if it involves sexting), the reporting provision should specifically identify the school official[220] who will be a “safe contact” person for students who wish to report incidents of cyberbullying.[221]

In addition, because some students have “indicated that when they reported cyberbullying incidents to teachers, these conversations were not confidential and in some instances resulted in additional retaliatory harassment,”[222] the reporting provision should allow for anonymous and confidential reporting.[223]  This could be implemented in a number of ways, such as an anonymous online form on the school’s website or an anonymous drop box inside the school.  However, because the reliability and credibility of an anonymous report cannot be ascertained, school officials should neither take disciplinary action[224] nor search a student’s personal electronic devices solely based on an anonymous tip.[225]  Nevertheless, based on an anonymous tip, school officials could research the Internet on their own (to see if certain websites exist) or interview students and parents.

Finally, the reporting provision of a cyberbullying policy should put students and parents on notice that school officials may report cyberbullying incidents to law enforcement depending on the criminal nature, gravity, or repetition of the offense.[226]  Fines and imprisonment for criminal behavior are possibilities.[227]

B.            Proportionate Remedies for Cyberbullying Incidents

Schools have many options in how to respond to cyberbullying.  Such options include suspending, expelling, or counseling the student as well as contacting the appropriate authorities.[228]  While certain state statutes mandate specific remedies,[229] a majority of states leave it to schools to create remedies and punishments for cyberbullying.[230]  Courts generally defer to the school’s judgment of what level of punishment is appropriate.[231]  The court may weigh public policy interests in determining whether the punishment is too harsh, but unless the facts fall heavily on the side of harm to the student, courts will accept the form of punishment that a school chooses.[232]  As one court stated, “we are mindful that ‘[i]t is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion.’”[233]  Because of the vastly different ways schools can respond to cyberbullying, some have called for uniform policies.[234]

Schools may, for example, adopt a tiered approach to consequential remedies, which would allow schools to take into consideration the nature of the offense and the age of the student.  For a first time or minor offense, schools can mandate the cyberbully attend mandatory counseling and education sessions.  For a second or more serious offense, schools can prohibit students from participating in school activities such as sports or student government.  Prohibiting a student from participation in a school-sponsored activity is often ideal because, while it might be a stern punishment, it will not have the serious detrimental effect on the student’s academic record that school suspension would have.  Additionally, to avoid tragic school shootings like what occurred at Columbine High School,[235] it is particularly important for schools to discipline cyberbullies who are involved in student activities and purportedly serve as role models to other students.  For a serious incident of cyberbullying that includes violent speech, school suspension or expulsion may be warranted.[236]  In such cases, there may also be civil and criminal liability outside the school’s jurisdiction.[237]

In addition to consequential remedies, cyberbullying policies should also include preventive remedies.  A false accusation of cyberbullying might trigger retaliation, which would then lead to actual cyberbullying.  Thus, when considering preventive remedies, schools should also prohibit retaliation or false accusations against a target or witness of cyberbullying.[238]  In addition to delineating prohibited conduct, the cyberbullying policy should also indicate the types of behavior the school wishes to promote.[239]  For instance, the policy should reflect that schools expect students to be “good citizens—not passive bystanders—[and to report incidents] if they are aware of bullying or students who appear troubled.”[240]  Finally, after an incident of cyberbullying, schools should provide post-care counseling to both the cyberbully and victim[241] and, when necessary, “file a complaint with the Internet site or service to have the material removed.”[242]

C.            Educating Students, Parents, and School Officials

Because cyberbullying is a new phenomenon, it takes time, unfortunately, for the law to catch up to the problem.  Thus, it is imperative that a comprehensive cyberbullying policy provide for educational opportunities whenever possible.  As the Florida Department of Education has explained, education about bullying is an important tool that can help “change the social climate of the school and the social norms with regards to bullying.”[243]

Florida law mandates that schools develop “a procedure for providing instruction to students, parents, teachers, school administrators, counseling staff, and school volunteers on identifying, preventing, and responding to bullying or harassment.”[244]  The law, however, provides little guidance as to what those programs should include.[245]  Student training and education should start at a young age, since instances of cyberbullying have been reported by students as young as ten.[246]  An educational program for students should train students on: (1) the meaning of cyberbullying and the need to refrain from engaging in it—even if meant as a joke—since there are possible repercussions within the school or even within the justice system;[247] (2) how to be an ally to peers who are being bullied;[248] and (3) how to protect themselves from being cyberbullied.[249]  Schools should consider allowing students to play an active role in developing the school’s cyberbullying educational programs.[250]

In addition to providing educational opportunities for students, schools should also train parents and school officials.  Maryland law, for example, mandates such training.[251]  Part of the training program for school officials should include training specific faculty members to be “safe contacts” to whom students may report incidents of cyberbullying.[252]  Parents may be in the best position to prevent their children from “abusing available technology, or putting themselves at risk of being cyberbullied.”[253]  Parents should be educated in how to identify and prevent incidents of cyberbullying.[254]  Schools can educate and train parents by various methods including meetings and assemblies at the school, newsletters from the school or district, half-time programs at school sports events, and parent workshops.[255]  Parents should also be educated on the consequences of cyberbullying to send a clear message that schools will not tolerate cyberbullying.[256]


Cyberbullying presents a danger to schoolchildren.  Because cyberbullying involves the Internet and the use of cell phones, it is more pervasive, relentless, and cruel than off-line bullying.  There is simply no escape for victims of cyberbullying.  Indeed, cyberbullying follows a victim from their school to their home, and possibly to their adult life.  Legislatures and public schools are taking measures to combat cyberbullying.  However, with this new medium for bullying comes many new and challenging legal issues.

These new issues can be resolved.  A cyberbullying policy that carefully adopts language to deal with a public school’s jurisdiction over off-campus speech that either materially disrupts school activities or impinges on another student’s rights should address First Amendment concerns.  A cyberbullying policy that sets forth clear definitions of terms and gives proper notice to students and parents should ensure that due process is met.  And finally, a cyberbullying policy that establishes a reasonable process by which school officials can conduct searches of students’ personal electronic devices when investigating cyberbullying claims should address Fourth Amendment issues.  The model cyberbullying policy set forth in Appendix B attempts to do just that—to provide a step in the right direction so that public schools can ensure a safe environment without trampling students’ constitutional and legal rights.



Appendix A

Chart of Current State and Federal
Antibullying Statutes

State Antibullying Statute

Statute requires schools to enact bullying policy?


Statute specifically includes the terms “cyberbullying” or “electronic harassment”?

Model Antibullying School Policy provided?

Statute requires notice be given to parents?


Ala. Code §§ 16-28B-1 to -9 (2011)[257]






Alaska Stat. §§ 14.33.200-250 (2011)






Ariz. Rev. Stat. Ann. § 15-341(37) (2011)






Ark. Code Ann. § 6-18-514 (2010)






Cal. Educ. Code §§ 32282, 32261 (West 2011)






Colo. Rev. Stat. Ann § 22-32-109.1 (2010)






Conn. Gen. Stat. § 10-222d (2010)





District of Columbia

D.C. Mun. Regs. tit. 5, § 2405.5 (2011)






Del. Code Ann. tit. 14, § 4112D (2011)






Fla. Stat. § 1006.147 (2010)






Ga. Code Ann. § 20-2-751.4 (2011)






Proposed but not passed[287]


Idaho Code Ann. §§ 18-917A, 33-512 (2011)






105 Ill. Comp. Stat. 5/27-23.7 (2010)






Ind. Code § 20-33-8-0.2 (2010)






Iowa  Code § 280.28 (2010)






Kan. Stat. Ann. 72-8256 (2011)






KY Rev. Stat. Ann. §§ 158.148, .440 (West 2010)






LA Rev. Stat. Ann § 17:416.13 (2011)






ME Rev. Stat. Ann. tit. 20, § 1001(15(H)) (2010)






MD. Code Ann., Educ. §§ 7-424, -434.1 (West 2010)






Mass. Gen. Laws 71 § 37O (2011)






proposed but not passed[308]



Minn. Stat. § 121A.0695 (2010)






Miss. Code. Ann. § 37-11-67 (2010)






Mo. Rev. Stat. § 160.775 (2011)






(No Statute)






Neb. Rev. Stat. §§ 79-2, 137 (2010)






Nev. Rev. Stat. §§ 388.122 to .123, .133 (2010)





New Hampshire

N.H. Rev. Stat. Ann. §§ 193-F:1 to -6 (2011)





New Jersey

N.J. Stat. Ann. §§ 18A:37-13, -15 (West 2011)





New Mexico

N.M. Code R. § 6.12.7 (Weil 2010)





New York

N.Y. Educ. Law § 2801-a (McKinney 2009)





North Carolina

N.C.  Gen Stat. § 115C-407.15 (2010)





North Dakota

(No Statute)






Ohio Rev. Code Ann. § 3313.666 (West 2011)






Okla. Stat. tit.70, § 24-100.4 (2011)






OR. Rev. Stat. §§ 339.351 and 339.356 (2010)






24 PA. Cons. Stat. § 13-1303.1-A (2010)





Rhode Island

R.I. Gen. Laws § 16-21-26 (2011)





South Carolina

S.C. Code Ann. §§ 59-63-140, -120 (2010)





South Dakota

(No Statute)






Tenn. Code Ann. §§ 49-6-1015 to -1016 (2011)






Tex. Educ. Code Ann. § 37.001 (West 2009)






Utah Code Ann. § 53A-11A-301 (West 2011)






VT. Stat. Ann. tit. 16, § 565 (2011)






VA. Code Ann. § 22.1-279.6 (2011)






Wash. Rev. Code § 28A.300.285 (2010)





West Virginia

W. Va. Code Ann. § 18-2C-3 (West 2011)






Wis. Stat. § 118.46 (2010)






Wyo. Stat. Ann. §§ 21-4-312, -314 (2011)





Federal Antibullying Statute

Federal Laws

Proposed, but not passed[368]

Proposed, but not passed[369]


Appendix B

Model Cyberbullying Policy For Public Schools[370]
It is the policy of this school that all students and school employees enjoy a safe and secure educational setting.  The school prohibits cyberbullying, as defined herein.  Nothing in this policy is intended to infringe on the constitutional rights of students or school employees.

1. Definitions

(a)   The term “cyberbullying”[371]

(i)     means the use of any electronic communication, by individuals or groups, to

(1)   make a true threat against a student or school employee;[372]

(2)   materially disrupt school operations;[373] or

(3)   substantially impinge on the rights of another student such as, but not limited to: creating reasonable fear of harm to the student’s person or property; creating a substantially detrimental effect on the student’s physical or mental health; substantially interfering with a student’s academic performance or interfering with the student’s ability to participate in or benefit from the services, activities, or privileges provided by the school; or being so severe, persistent, or pervasive as to cause severe emotional distress.[374]

(ii)   includes conduct that is based on, but not limited to, a student’s actual or perceived[375] race, color, national origin, gender, religion, disability, sexual orientation or gender identity, distinguishing physical or personal characteristic, socioeconomic status, or association with any person identified in section 1(a)(ii).

(b)   As used in this policy, the term “electronic communications” means communications through any electronic device, including, but not limited to, computers, telephones, mobile phones, pagers, and any type of communication, including, but not limited to, emails, instant messages, text messages, picture messages, and websites.[376]

2. School Jurisdiction[377]

(a)   No student shall be subjected to cyberbullying by an electronic communication that bears the imprimatur of the school regardless of whether such electronic communication originated on or off the school’s campus.

(b)   The school shall have jurisdiction to prohibit cyberbullying that originates on the school’s campus if the electronic communication was made using the school’s technological resources or the electronic communication was made on the school’s campus using the student’s own personal technological resources.

(c)    The school shall have jurisdiction to prohibit cyberbullying that originates off the school’s campus if: [378]

(i)     it was reasonably foreseeable that the electronic communication would reach the school’s campus; or

(ii)   there is a sufficient nexus between the electronic communication and the school which includes, but is not limited to, speech that is directed at a school-specific audience, or the speech was brought onto or accessed on the school campus, even if it was not the student in question who did so.

3. Notice[379]

(a)   Parents shall receive written notice of this cyberbullying policy at the beginning of each school year.

(b)   There shall be an annual process for discussing this policy with students in a student assembly.

(c)    For access to the school’s technological resources, including but not limited to email and Internet access, students and parents shall review, sign, and return the school’s acceptable use policy which prohibits the use of the school’s technological resources for cyberbullying.[380]

(d)   This policy, along with the school’s acceptable use policy as described in section 3(c), shall be prominently posted at school on student bulletin boards and in computer labs, and on the school’s website.

4. Investigations

(a)   Parents shall be notified as soon as practicable if their child is involved in a school investigation concerning cyberbullying.[381]

(b)   School officials may search and seize a student’s personal electronic device, including but not limited to cell phones and computers, if:[382]

(i)     the student is using the electronic device at school in violation of school rules; or

(ii)   the school official

(1)   has reasonable grounds for suspecting the search will turn up evidence that the student has violated or is violating either the law or the school rules; and

(2)   the search is limited in scope by being reasonably related to the objective of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

(c)    Reasonable grounds, as set forth in section 4(b)(ii)(1), will not be established solely on anonymous reports.[383]

(d)   If the cyberbullying victim or student reporting the cyberbullying is willing, the school shall initiate an interview to determine the nature of the bullying, the name of the participants, where and how the information was being sent, and how far the images or messages have spread.[384]

(e)    Any evidence of cyberbullying discovered during an investigation should be preserved.  Such actions may include, but are not limited to, saving the victim’s cell phone, text, or email messages; and printing or copying posts or other electronic communications available on websites before removing them.[385]

(f)     If, during the course of a cyberbullying investigation, images of nude minors are discovered, those images should not be distributed or shown to other school officials.  The school official who discovered the image should promptly contact law enforcement.[386]

5. Reporting[387]

(a)   Specific faculty members [insert names here] will be the main contacts for students who wish to report incidents of cyberbullying.  Students, parents, and other school officials may also contact the principal to report incidents of cyberbullying.

(b)   Anonymous and confidential reports of cyberbullying incidents are allowed, but they will not provide the sole basis for a search of a student’s personal electronic device or for disciplinary action.

(c)    School officials may report incidents of cyberbullying to law enforcement depending on the criminal nature of the offense, or the gravity and repetition of the offense.

6. Remedies[388]

(a)   An individual student whose behavior is found to be in violation of this policy will be subject to discipline.  In determining the disciplinary action, the school will take into consideration the nature of the offense, the age of the student, and the following:

(i)     For a first-time or minor cyberbullying offense, the school may mandate that the student attend mandatory counseling and education sessions.

(ii)   For a second or more serious cyberbullying offense, the school may prohibit the student from participating in school activities or events.

(iii)  For a serious incident of cyberbullying, the school may suspend or expel the student.

(b)   No student shall retaliate or make false accusations against a target or witness of cyberbullying.

(c)    Whenever practicable, the school shall provide counseling to all students involved in a cyberbullying incident.

(d)   Whenever practicable, the school shall file a complaint with Internet sites or services containing cyberbullying material to have the material removed.

7. Education[389]

(a)   The school shall provide an annual educational program for students, parents, and school officials.  This education program shall train individuals:

(i)     on the meaning of and prohibition against cyberbullying, including the provisions of this policy;

(ii)   how students can report cyberbullying incidents;

(iii)  how students can be an ally to peers who are being cyberbullied; and

(iv)  how students can protect themselves from being cyberbullied.

(b)   The school shall encourage students to play an active role in developing the school’s cyberbullying educational programs.


* Associate Professor of Law, Pepperdine University School of Law.  I am deeply thankful to Professor Bernie James for his mentoring.  I would also like to thank Lindsey Forrester Archer, Holly Townson, and Whitney McEachran for their thorough research and a special thanks to Elizaveta Kabanova for her research and last-minute editing suggestions.

[1]. Cindy Long, Silencing Cyberbullies, NEAToday (May 2008), http://www.nea.org/home/4104.htm.  The article notes that in one cyberbullying incident “a ‘popular girl’ placed her digital camera under a bathroom partition to capture an ‘unpopular’ girl in a compromising position.”  Id.

[2]. See, e.g., Sameer Hinduja & Justin W. Patchin, Cyberbullying: Identification, Prevention, and Response, Cyberbullying Research Center, http://www.cyberbullying.us/Cyberbullying_Identification_Prevention_Response_Fact_Sheet.pdf (last visited Sept. 16, 2011).

[3]. Mary Ellen Flannery, Top Eight Challenges Teachers Face This School Year, NEAToday (Sept. 13, 2010), http://neatoday.org/2010/09/13/top-eight
-challenges-teachers-face-this-school-year/ (“[N]early one in three teens say they’ve been victimized via the Internet or cell phones.  A teacher’s role—or a school’s role—is still fuzzy in many places.  What legal rights or responsibilities do they have to silence bullies, especially when they operate from home?”).

[4]. See, e.g., Thomas v. Bd. of Educ., 607 F.2d 1043, 1052 (2d Cir. 1979).  The court explained:

When school officials are authorized only to punish speech on school property, the student is free to speak his mind when the school day ends.  In this manner, the community is not deprived of the salutary effects of expression, and educational authorities are free to establish an academic environment in which the teaching and learning process can proceed free of disruption. Indeed, our willingness to grant school officials substantial autonomy within their academic domain rests in part on the confinement of that power within the metes and bounds of the school itself.


[5]. See id.; see also Flaherty v. Keystone Oaks Sch. Dist., 247 F. Supp. 2d 698, 705 (W.D. Pa. 2003) (finding a school policy constitutionally overbroad where the policy lacked language to limit the school’s authority “to discipline expressions that occur on school premises or at school related activities, thus providing unrestricted power to school officials”).

[6]. See J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F.3d 286 (3d Cir. 2010), vacated, reh’g granted en banc, No. 08-4138, 2010 U.S. App. LEXIS 7342, at *1 (3d Cir. Apr. 9, 2010), rev’d en banc, No. 08-4138, 2011 WL 2305973, at *1 (3d Cir. June 13, 2011).  In this case, the court was deciding whether a school could discipline a student for creating, on a home computer, a vulgar and fake MySpace page of the school’s principal.  Snyder, 2011 WL 2305973, at *1.  Finding that the school could not discipline the student, the en banc court was fractured—seven judges joined the majority, five judges concurred and six judges dissented.  Id. at *8, *18, *22.

[7]. Compare id. at *27 (Fisher, J., dissenting) (stating that “[o]ur decision today causes a split with the Second Circuit”), with Wisniewski v. Bd. of Educ., 494 F.3d 34, 40 (2d Cir. 2007) (holding that the school can regulate student speech created off-campus where it was reasonably foreseeable that it would reach the school campus).

[8]. A proposed bill that would make cyberbullying a federal crime sets forth the following findings of fact:

Congress finds the following: . . .

(4) Online victimizations are associated with emotional distress and other psychological problems, including depression.

(5) Cyberbullying can cause psychological harm, including depression; negatively impact academic performance, safety, and the well-being of children in school; force children to change schools; and in some cases lead to extreme violent behavior, including murder and suicide.

(6) Sixty percent of mental health professionals who responded to the Survey of Internet Mental Health Issues report having treated at least one patient with a problematic Internet experience in the previous five years; 54 percent of these clients were 18 years of age or younger.

Cyberbullying Prevention Act, H.R. 1966, 111th Cong. (2010).

[9]. “Most teens text daily.”  Amanda Lenhart, Teens, Cell Phones and Texting: Text Messaging Becomes Centerpiece Communication, Pew Internet & Am. Life Project, http://pewresearch.org/pubs/1572/teens-cell-phones-text
-messages (last visited Sept. 19, 2011) (noting that teenagers’ use of cell phones and texting has increased from 45% to 75% since 2004, and that 72% of teens are texters); Jill Tucker, Social Networking Has Hidden Dangers For Teens, S.F. Chronicle (Aug. 9, 2009, 08:31 PM), available at http://www.sfgate.com
/cgi-bin/article.cgi?f=/c/a/2009/08/10/BA9T1954T7.DTL#ixzz1J3WA1cEI (“While teens are spending more and more time on social networking sites like Facebook and MySpace¾with 22 percent saying they check their sites more than 10 times a day¾they don’t seem to be aware of the long-term personal havoc they could create with a click of a button.”); see also id. (explaining “51 [percent of teens] check their sites more than once a day”).

[10]. Bullying/Cyberbullying Prevention Law: Model Statute and Advocacy Toolkit, Anti-Defamation League, 5 (Apr. 1, 2009), http://www.adl.org/civil
_rights/Anti-Bullying%20Law%20Toolkit_2009.pdf; see also Bullying, Berkshire Dist. Attorney’s Office, http://www.mass.gov/?pageID=berterminal
&L=3&L0=Home&L1=Crime+Awareness+%26+Prevention&L2=Parents+%26+Youth&sid=Dber&b=terminalcontent&f=parents_youth_bullying&csid=Dber (last visited Aug. 31, 2011).  The article explained:

Bullying is the most common form of violence.  Some 3.7 million youth engage in it, and more than 3.2 million are victims of bullying annually.

An estimated 160,000 children miss school every day out of fear of attack or intimidation by other students . . . .

72% of teens report ‘at least one incident’ of bullying online (name calling, insults via IM or social networking sites).

90% did NOT report the incident to an adult.


[11]. Hinduja & Patchin, supra note 2, at 1.

[12]. See Jenny Walker, White House Conference on Bullying Prevention, CyberBullyingNews.com (Mar. 10, 2011), http://www.cyberbullyingnews.com

[13]. Randy Taran, Cyberbullying: Strategies to Take Back Your Power, Huffington Post (Jan. 17, 2011, 12:12 PM), http://huffingtonpost.com/randy

[14]. Sameer Hinduja & Justin W. Patchin, Cyberbullying Research Summary: Cyberbullying and Suicide, Cyberbullying Research Center (2010), http://www.cyberbullying.us/cyberbullying_and_suicide_research_fact

[15]. Linsey Davis & Emily Friedman, NJ Gov. Wonders How Rutgers ‘Spies’ Can Sleep at Night After Clementi’s Suicide, ABC News (Sept. 30, 2010), http://abcnews.go.com/US/suicide-rutgers-university-freshman-tyler-clementi

[16]. Victoria Kim & Richard Winton, School Holds Tolerance Seminar as 3 Boys Are Arrested in ‘Ginger’ Attacks, L.A. Times, Nov. 30, 2009, http://articles.latimes.com/2009/nov/30/local/la-me-ginger-attacks1-2009dec01.

[17]. Long, supra note 1.

[18]. Id.

[19]. Christopher Maag, A Hoax Turned Fatal Draws Anger but No Charges, N.Y. Times, Nov. 28, 2007, http://www.nytimes.com/2007/11/28/us/28hoax.html?

[20]. Michelle Kim, Boy, 14, Arrested for Cyber-Bullying 12-Year-Olds, NBC N.Y., Mar. 14, 2011, http://www.nbcnewyork.com/news/local/117966829.html.

[21]. Students Arrested for Cyber Bullying, WAFB La.’s News Channel, http://www.wafb.com/global/story.asp?s=2774728& (last visited Aug. 29, 2011).

[22]. Jason Beahm, Teen Cyberbullying Arrest: Fake Facebook Page, FindLaw Blogs (Jan. 21, 2011, 12:15 PM), http://blogs.findlaw.com/blotter/2011

[23]. Russell Goldman, Teens Indicted After Allegedly Taunting Girl Who Hanged Herself, ABC News (Mar. 29, 2010), http://abcnews.go.com/Technology

[24]. Emily Bazelon, What Really Happened to Phoebe Prince? The Untold Story of Her Suicide and the Role of the Kids Who Have Been Criminally Charged For It, Slate (July 20, 2010, 10:13 PM), http://www.slate.com/id

[25]. Erik Eckholm & Katie Zezima, 6 Teenagers Are Charged After Classmate’s Suicide, N.Y. Times, Mar. 29, 2010, http://www.nytimes.com/2010

[26]. Bazelon, supra note 24.

[27]. Id.

[28]. Frank LoMonte, States Should Protect Student Journalists, Philly.Com (Aug. 11, 2010), http://articles.philly.com/2010-08-11/news/24971988_1_student

[29]. Hinduja & Patchin, supra note 2, at 2.  This study determined that:

Parents often say that they don’t have the technical skills to keep up with their kids’ online behavior; teachers are afraid to intervene in behaviors that often occur away from school; and law enforcement is hesitant to get involved unless there is clear evidence of a crime or a significant threat to someone’s physical safety.


[30]. Rick Nauert, Social Workers Struggle to Deal with Cyber Bullying, PsychCentral (Jan. 11, 2011), http://psychcentral.com/news/2011/01/11/social
-workers-struggle-to-deal-with-cyber-bullying/22507.html (“Although cyber bullying is growing in prevalence, new research suggests nearly half of elementary, middle and high school social workers feel ill-equipped to deal with such victimization.”).  The article explains:

In a survey of nearly 400 school social workers at the elementary, middle and high school levels who were members of the Midwest School Social Work Council, the researchers found that while all respondents felt that cyber bullying can cause psychological harm, including suicide, about 45 percent felt they were not equipped to handle cyber bullying, even though they recognized it as a problem.

Further, only about 20 percent thought their school had an effective cyber bullying policy.

“If there’s no policy in place to guide them, staffers are flying solo in this area, and that can be a liability,” said Singer.


[31]. If a school does not take active steps to prohibit student harassment, they face possible civil liability, under both federal and state laws, from students who have been harassed by their peers.  See, e.g., 20 U.S.C. § 1681(a) (2010) (“No person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”); Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1238 (10th Cir. 1999) (finding that a school district could be held liable under Title IX for having actual knowledge of student-on-student harassment and failing to take active steps to prevent it); Williams v. Port Huron Area Sch. Dist. Bd. of Educ., No. 06-14556, 2010 WL 1286306, at *1 (E.D. Mich. Mar. 30, 2010) (holding that a school district was liable for student-on-student harassment under the “deliberate indifference” standard of Title VI and Title IX claims, when students were harassed based on their race); L.W. v. Toms River Reg’l Schs. Bd. of Educ., 915 A.2d 535, 535 (N.J. 2007) (ruling that the New Jersey discrimination law extended a duty to schools to prevent students from being sexually harassed by fellow students); Susan H. Kosse, Student Designed Home Web Pages: Does Title IX or the First Amendment Apply?, 43 Ariz. L. Rev. 905, 905-19 (2001) (explaining the schools’ dilemma in regulating student web pages in violation of the First Amendment but also subjecting themselves to liability under Title IX for failing to prevent sexual harassment).

[32]. Eckholm & Zezima, supra note 25.

[33]. Jan Hoffman, Online Bullies Pull Schools Into the Fray, N.Y. Times, June 27, 2010, http://www.nytimes.com/2010/06/28/style/28bully.html?_r=1&sq
=hoffman&st=cse&scp=3&pagewanted=all.  The author notes:

Many principals hesitate to act because school discipline codes or state laws do not define cyberbullying.  But Bernard James, an education law scholar at Pepperdine University, said that administrators interpreted statutes too narrowly: “Educators are empowered to maintain safe schools,” Professor James said. “The timidity of educators in this context of emerging technology is working to the advantage of bullies.”


[34]. Cdnogen, Research Post: School Officials Handle Cyber Bullying, StudentWebStuff.com (Oct. 1, 2009, 10:45 AM), http://www.studentwebstuff.com/mis/showthread.php?t=8123.  The article notes:

It is time to address cyber bullying in detail, so that educational institutions can be well aware of their legal rights and responsibilities.  This requires clearly defining the scope of cyber bullying and early detection of activities. From these, schools should be able to better assess and decrease the number of cases through prevention strategies.


[35]. Hoffman, supra note 33.

[36]. Id. (internal quotation marks omitted).

[37]. Id.

[38]. See infra Part II.A.

[39]. See infra Part II.A.

[40]. Mahaffey v. Aldrich, 236 F. Supp. 2d 779, 781-82 (E.D. Mich. 2002).  The student added a disclaimer to his page, “[D]on’t go killing people and stuff.”  Id. at 782.  Although unintended, the webpage was circulated to other students at the school.  Id. at 786.

[41]. Id.

[42]. J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 851 (Pa. 2002).

[43]. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F.3d 286 (3d Cir. 2010), vacated, reh’g granted en banc, No. 08-4138, 2010 U.S. App. LEXIS 7342  (3d Cir. Apr. 9, 2010), rev’d en banc, No. 08-4138, 2011 WL 2305973 (3d Cir. June 13, 2011).  Seven judges joined the majority, five judges concurred, and six judges dissented.  See id. at *8, *18, *22.

[44]. Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587 (W.D. Pa. 2006), aff’d, 593 F.3d 249 (3d Cir. 2010), vacated, reh’g granted en banc, No. 07-4465, 2010 U.S. App. LEXIS 7362 (3d Cir. Apr. 9, 2010), aff’d on reh’g, No. 07-4465, 2011 WL 2305970 (3d Cir. June 13, 2011) (en banc).

[45]. See, e.g., Mitsuri Taki, Relations Among Bullying, Stresses, and Stressors, in Handbook of Bullying in Schools: An International Perspective 151, 151 (Shane R. Jimerson, Susan M. Swearer, & Dorothy L. Espelage eds., 2010) (describing research findings on the causes and effects of bullying from as far back as the 1970s); Ben Craw, The ‘80s Bully Megacut: Shoves, Wedgies, Putdowns, and Punches, The Huffington Post (May 14, 2010), http://www.huffingtonpost.com/2010/05/14/the-80s-bully-megacut-sho_n
_575350.html (describing the typical bully in the 1980s).

[46]. See infra Part I.B (surveying the current state laws concerning bullying and cyberbullying).  The Arizona law regulating bullying in schools gives an example of the typical language used in antibullying statutes.  See infra Part I.B.  The statute provides: “The Governing Board shall . . . [p]rescribe and enforce policies and procedures to prohibit pupils from harassing, intimidating and bullying other pupils on school grounds, on school property, on school buses, at school bus stops and at school sponsored events and activities.”  Ariz. Rev. Stat. § 15-341(A)(37) (2011).  See also Idaho Code Ann. § 33-512(6) (2006) (stating that each district shall have the duty to “prescribe rules for the disciplining of unruly or insubordinate pupils, including rules on student harassment, intimidation and bullying”); Me. Rev. Stat. tit. 20-A, § 1001(15)(H) (2009) (mandating that school boards shall “[e]stablish policies and procedures to address bullying, harassment and sexual harassment”); Neb. Rev. Stat. § 79-2,137 (2008) (establishing that each district shall establish a policy on bullying and finding that “[b]ullying disrupts a school’s ability to educate students”).

[47]. Anti-Defamation League, supra note 10, at 1 (explaining that for victims of cyberbullying “there is no refuge and victimization can be relentless”); see also David Kravets, Cyberbullying Bill Gets Chilly Reception, Threatlevel (Sept. 30, 2009, 6:37 PM), http://www.wired.com/threatlevel
/2009/09/cyberbullyingbill/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wired27b+%28Blog+‑+27B+Stroke+6+%28Threat+Level%29%29.  The article quotes Rep. Linda Sanchez (D-CA) explaining: “Bullying has gone electronic . . . This literally means kids can be bullied at any hour of the day or the night, or even in the victims’ own home.”  Id. (internal quotation marks omitted).  Representative Sanchez proposed the “Megan Meier Cyberbullying Prevention Act,” which would make cyberbullying a federal offense.  H.R. 1966, 111th Cong. (2010).

[48]. Hinduja & Patchin, supra note 2, at 2.

[49]. Anti-Defamation League, supra note 10, at 1.

[50]. Mike Hardcastle, What is Cyberbullying? Bullying Comes Home, About.Com TeenAdvice, http://teenadvice.about.com/od/schoolviolence/a
/cyberbullying1.htm (last visited Aug. 31, 2011).  The article states:

Bullying has been around forever but cyberbullying is different because it lets a bully remain anonymous.  It is easier to bully in cyberspace than it is to bully face to face.  With cyberbullying a bully can pick on people with much less risk of being caught . . . .

The detachment afforded by cyberspace makes bullies out of people who would never become involved in a real life incident.  The Internet makes bullying more convenient and since the victim’s reaction remains unseen people who wouldn’t normally bully don’t take it as seriously.


[51]. Hinduja & Patchin, supra note 2, at 2.  See also H.R. 1966, 111th Cong. (2010) (“Congress finds . . . [e]lectronic communications provide anonymity to the perpetrator and the potential for widespread public distribution, potentially making them severely dangerous and cruel to youth.”).

[52]. Formspring, http://www.formspring.me/ (last visited Aug. 29, 2011).  Formspring is a question-and-answer-based social website which allows its users to anonymously set up a profile page, from which anyone can ask them questions.  See generally id.  The questions and their given responses are then published on the user’s profile page, including links to social networking sites such as Facebook and Twitter.  The site’s anonymity has been criticized for generating hateful comments because it allows minors to ask questions and give responses related to sexual experiences and preferences for all the public to see, share, and comment on.  Tamar Lewin, Teenage Insults, Scrawled on Web, Not on Walls, N.Y. Times, May 5, 2010, http://www.nytimes.com/2010/05/06/us

[53]. Hinduja & Patchin, supra note 2, at 4; see also Anti-Defamation League, supra note 10, at 1 (explaining that cyberbullying may be more harmful than traditional bullying because of the invasive and pervasive nature of the communication and because messages are circulated far and wide and there is no refuge¾it is ubiquitous).

[54]. Hardcastle, supra note 50 (“Bullies are natural instigators and in cyberspace bullies can enlist the participation of other students who may be unwilling to bully in the real world.  Kids who stand around doing nothing in a real life bullying incident often become active participants in online harassment.”).

[55]. Students Arrested for Cyber Bullying, supra note 21 (“All of the students involved are honor students.”).

[56]. See, e.g., Long, supra note 1.  The article states:

Unlike the schoolyard bully of yesteryear, the cyberbully can hide behind online anonymity and attack around the clock, invading the privacy of a teen’s home. With young people spending most of their free time online or texting their friends, digital bullies not only have ready access to victims, but also an audience—because without witnesses, virtual bullying loses its punch.


[57]. Anti-Defamation League, supra note 10, at 1.

[58]. How Is Cyberbullying Different to Other Forms of Bullying?, TeachToday, http://www.teachtoday.eu/en/Teacher-advice/Cyberbullying/How
-is-cyberbullying-different-to-other-forms-of-bullying.aspx (last visited Aug. 29, 2011) (explaining that “bystanders can become perpetrators if they pass on emails or text/picture messages or take part in an online discussion”).

[59]. See, e.g., H.R. 1966, 111th Cong. (2009) (“Congress finds the following: (1) Four out of five of United States children aged 2 to 17 live in a home where either they or their parents access the Internet. (2) Youth who create Internet content and use social networking sites are more likely to be targets of cyberbullying.”).

[60]. Sameer & Patchin, supra note 2 (explaining that parents and teachers may not be able to keep track or even know what to do if cyberbullying is discovered).

[61]. Anti-Defamation League, supra note 10, at 1.

[62]. Rick Rojas, When Students’ Controversial Words Go Viral, What Is the University’s Role?, L.A. Times (Mar. 27, 2011), http://www.latimes.com/news/local/la‑me‑college‑speech‑20110327,0,2970965
.story (reporting on the recent story where a college student posted a YouTube video, in which she complained and mocked Asian students, leading to death threats against her and her subsequent voluntary withdrawal from school).

[63]. See infra Appendix A.

[64]. See infra Appendix A.

[65]. S.B. 2094, 25th Leg. Reg. Sess. (Haw. 2010).

[66]. Matt’s Safe School Law, H.B. 4162, 95th Leg. Reg. Sess. (Mich. 2007); H.B. 4580, 96th Leg. Reg. Sess. (Mich. 2010).

[67]. S. 3739, 111th Cong. (2010).  This proposed bill, if passed, would amend the Safe and Drug-Free Schools and Communities Act to allow federal funding for schools that have bullying prevention programs.  See also Megan Meir Cyberbullying Prevention Act, H.R. 1966, 111th Congress (2009).  This proposed bill, if passed, would make it a federal crime to cyberstalk.

[68]. See infra Appendix A.

[69]. Eighteen states have model school policies, including Alaska, California, Colorado, Delaware, Florida, Iowa, Maine, Michigan, Nebraska, New Jersey, Ohio, Oklahoma, Rhode Island, South Carolina, Vermont, Washington, Wisconsin, and West Virginia.  See infra Appendix A.

[70]. Ariz. Rev. Stat. Ann. § 15-341 (37) (2011); Kan. Stat. Ann. 72-8256 (2009); Mass. Gen. Laws ch. 71, § 37O (2011); Nev. Rev. Stat. § 388.133 (2010); N.H. Rev. Stat. Ann. § 193-F:4 (2011); Or. Rev. Stat. § 339.356 (2010).

[71]. Ala. Code § 16-28B-5 (2011); Alaska Stat. § 14.33.200 (2011); Cal. Educ. Code § 32282 (West 2011); Fla. Stat. § 1006.147 (2010); Ga. Code Ann. § 20-2-751.4 (2011); Idaho Code Ann. § 18-917A (2011); 105 Ill. Comp. Stat. 5/27-23.7 (2010); Ind. Code § 20-33-8-0.2 (2010); Iowa Code § 280.28 (2010); Kan. Stat. Ann. 72-8256 (2009); Md. Code Ann., Educ. § 7-424 (West 2010); Minn. Stat. § 121A.0695 (2010); Miss. Code. Ann. § 37-11-67 (2010); Nev. Rev. Stat. § 388.122 (2010); N.H. Rev. Stat. Ann. § 193-F:4 (2011); N.J. Stat. Ann. § 18A:37-14 (West 2011); N.M. Code R. § 6.12.7 (LexisNexis 2010); N.C. Gen. Stat. § 115C-407.15 (2010); Okla. Stat. tit. 70, § 24-100.4 (2011); Or. Rev. Stat. § 339.351 (2010) (Definitions); 24 Pa. Cons. Stat. § 13-1303.1-A (2010); R.I. Gen. Laws § 16-21-26 (2011); S.C. Code Ann. § 59-63-140 (2010); Va. Code Ann. § 22.1-279.6 (2011); Wash. Rev. Code § 28A.300.285 (2010); Wyo. Stat. Ann. § 21-4-314 (2011).

[72]. Those ten states are California, Delaware, Florida, Iowa, Oklahoma, Nebraska, New Jersey, Rhode Island, South Carolina, and Washington.  See infra Appendix A.

[73]. See supra Part I.A.

[74]. Sample Policy for Bullying Prevention, Cal. Dep’t of Educ., http://www.cde.ca.gov/ls/ss/se/samplepolicy.asp (last updated Oct. 25, 2010).

[75]. Safe Schools Guide: Selected Strategies and Resources, Okla. Dep’t of Educ. (2005), http://www.sde.state.ok.us/Schools/SafeHealthy/pdf
/SafeSchlGuide.pdf; Guidance on Developing Required Policies on Bullying, Rhode Island Dep’t of Educ., http://www.ride.ri.gov/psi/docs/child_family
/substance/bullying%20guidance%20and%20modelpolicy%2011-21-03.pdf (last visited Aug. 29, 2011).

[76]. Colorado Association of School Boards Sample Policy on Bullying Prevention and Education, Center for the Study and Prevention of Violence (2001), http://www.colorado.edu/cspv/safeschools/bullying_casbpolicy.html.

[77]. Delaware’s Model Bully Prevention Policy, Delaware Dep’t of Educ., http://www.doe.k12.de.us/infosuites/students_family/climate/files/Bully%20Prevention%20Policy%20Template.pdf (last visited Aug. 29, 2011); Model Policy Against Bullying and Harassment, Fla. Dep’t of Educ. (July 31, 2008), www.fldoe.org/safeschools/doc/modelpolicy.doc; Anti-Harassment, Anti-Intimidation and Anti-Bullying Policy,  Ohio Dep’t of Educ. Adm’r, http://www.ode.state.oh.us/GD/Templates/Pages/ODE/ODEDetail.aspx?page=3&TopicRelationID=1287&ContentID=29364&Content=109573 (last updated Aug. 4, 2011) (providing a variety of resources including an overview of the Model Policy); South Carolina—Self Control Addressing Bullying in Our Schools: A Bullying Prevention Model, S.C Dep’t of Educ. 31–36, http://www.itv.scetv.org/guides/sc2v2.pdf (last visited Sept. 24, 2011).

[78]. Shelton v. Tucker, 364 U.S. 479, 487 (1960).

[79]. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 08-4138, 2011 WL 2305973, at *23 (3d Cir. June 13, 2011) (Fisher, J., dissenting) (citations omitted) (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).

[80]. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

[81]. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986).

[82]. See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (pointing out that students’ First Amendment rights in public schools must be applied in light of the special characteristics of the school’s environment, and that a school does not need to tolerate student speech that is inconsistent with the school’s educational mission—even if the government would not be able to censor similar speech outside the school).

[83]. See e.g., Tinker, 393 U.S. at 506.

[84]. Id.

[85]. Id. at 507 (“[T]he Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.”).

[86]. See Morse v. Frederick, 551 U.S. 393, 418 (2007) (Thomas, J., concurring) (“I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t.”); Tova Wolking, Comment, School Administrators as Cyber Censors: Cyber Speech and First Amendment Rights, 23 Berkeley Tech. L.J. 1507, 1529 (2008) (“The chilling effect of punishing student speech merely because it is unpleasant or disagreeable threatens the foundations of democracy. . . . It follows that discouraging students from engaging in discourse and critical thinking, even if it is juvenile or silly, is antithetical to a healthy democracy.”).

[87]. There are four seminal Supreme Court cases concerning student free speech.  Morse, 551 U.S. at 397 (holding that schools may regulate student speech that promotes illegal drug use and that takes place during a school-sponsored event); Hazelwood, 484 U.S. at 271 (holding that schools can regulate student speech which may be perceived to “bear the imprimatur of the school,” such as a school-sponsored newspaper); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986) (holding that lewd, vulgar, or plainly offensive speech that takes place on-campus is punishable); Tinker, 393 U.S. at 513 (holding that schools can regulate speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others”).

[88]. Compare J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F.3d 286 (3d Cir. 2010), rev’d en banc, No. 08–4138, 2011 WL 2305973, at *12 (3d Cir. June 13, 2011) (holding that the school could not discipline a student for speech created off-campus) with Wisniewski v. Bd. of Educ. of the Weedsport Cent. Sch. Dist., 494 F.3d 34, 40 (2d Cir. 2007) (holding that the school can regulate student speech created off-campus where it was reasonably foreseeable that it would reach the school campus).  See also infra Part II.A(1)-(2); David Kravets, Cyberbullying Bill Gets Chilly Reception, Wired.Com (Sept. 30, 2009), http://www.wired.com/threatlevel/2009/09/cyberbullyingbill/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wired27b+%28Blog+‑+27B+Stroke+6+%28Threat+Level%29%29.  This article explains how Representative Sanchez proposed legislation, the “Megan Meier Cyberbullying Prevention Act,” which would make cyberbullying a federal offense. Id.  The legislation was criticized as being “unconstitutionally vague” and a “breach of free speech.”  Id.

[89]. Morse, 551 U.S. at 401.

[90]. Although courts do not systematically address these two inquires, as this Part will lay out, a survey of student speech precedent lends itself to this framework.

[91]. See Anti-Defamation League, supra note 10, at 5-6. The authors point out:

As a significant amount of cyberbullying is created on computers, cell phones and other devices that are not owned by the school, or are not located on school property, but still affect the school environment and the welfare of the students, it is important to ensure that schools are given adequate legal framework to address the issue.


[92]. Tinker, 393 U.S. at 513.  See infra Part II.A(2) (discussing the Tinker standard fully).

[93]. While this Part of the Article analyzes how public schools might have the right to regulate some off-campus speech, other scholars have argued that  “Tinker Stopped Itself at the Schoolhouse Gate.”  Aaron H. Caplan, Public School Discipline for Creating Uncensored Anonymous Internet Forums, 39 Willamette L. Rev. 93, 140 (2003).

[94]. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 270 (1988) (holding that schools can regulate student speech in school-sponsored newspapers); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986) (holding that lewd offensive speech given at a school assembly is punishable).

[95]. Morse, 551 U.S. at 401, 408 (explaining that a student “cannot stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not in school” and promote illegal drug use) (internal quotations omitted).

[96]. One scholar argues that Internet-speech cases might be most like underground newspaper cases.  Wolking, supra note 86, at 1516-19.  See also, e.g., Thomas v. Bd. of Educ., 607 F.2d 1043, 1049 (2d Cir. 1979) (holding that schools could not punish students who distributed the newspaper off-campus, and only minimally associated the newspaper to the school by keeping copies in a teacher’s office for storage).

[97]. Compare Doninger v. Niehoff, 527 F.3d 41, 43–44 (2d Cir. 2008) (ruling that the school had authority to take away a student’s right to participate in student government when the student posted online comments that substantially disrupted the school), Wisniewski v. Bd. of Educ., 494 F.3d 34, 40 (2d Cir. 2007) (holding that the school can regulate student speech where it was reasonably foreseeable that it would reach the school campus), J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 869 (Pa. 2002) (finding that the school can regulate speech originating off-campus, but directed at the school), and Killion v. Franklin Reg’l Sch. Dist., 136 F. Supp. 2d 446, 459 (W.D. Pa. 2001) (allowing a school to regulate speech where the school disciplined a student for creating, and sharing with his friends via email, a website which was insulting and degrading to one of the teachers), with Beussink ex rel. Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1180 (E.D. Mo. 1998) (finding that the decision to discipline a student for off-campus speech was unacceptable because it was based on the principal’s emotional reaction and not any real fear that the speech would cause material disruption), Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088, 1190 (W.D. Wash. 2000) (holding that because the speech was created off-campus, there was not enough of a connection to the school for the school to have jurisdiction over the speech), and J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1118 (C.D. Cal. 2010) (finding that the student speech originating off-campus did not substantially disrupt school activity and so the school had no authority to punish the student for that speech).

[98]. See, e.g., LaVine v. Blaine Sch. Dist., 257 F.3d 981, 991 (9th Cir. 2000) (finding school discipline constitutional, without any jurisdictional analysis, where the student wrote a violent poem off-campus but showed it to his teacher).

[99]. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F.3d 286 (3d Cir. 2010), vacated, rev’d en banc, No. 08–4138, 2011 WL 2305973, at *10 (3d Cir. June 13, 2011) (overturning the district court’s decision that stated Tinker did “not govern this case because no ‘substantial and material disruption’ occurred”).

[100]. See, e.g., Beverly Hills, 711 F. Supp. 2d at 1104 (conducting a jurisdictional analysis despite concluding that in the Ninth Circuit “the substantial weight of authority indicates that geographic boundaries generally carry little weight in the student-speech analysis”).

[101]. See, e.g., Wisniewski, 494 F.3d at 3840 (finding that the Tinker standard applied because it was reasonably foreseeable that the student speech would reach campus and because it did, in fact, reach the school campus).

[102]. See Evans v. Bayer, 684 F. Supp. 2d 1365, 1372 (S.D. Fla. 2010); Beverly Hills, 711 F. Supp. 2d at 1107; Bethlehem, 807 A.2d at 864 (holding that the threshold question is whether there was a sufficient nexus between the speech and the school campus).

[103]. Bethlehem, 807 A.2d at 847 (finding that there was a sufficient nexus between the speech and the school where a student created a website off-campus which was subsequently viewed by students on-campus); see also Wolking, supra note 86 (explaining courts’ decisions regarding off-campus speech).  However, while the intended audience may be a factor in deciding whether or not there was a sufficient nexus, it may not be enough on its own.  See Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088, 1090 (W.D. Wash. 2000) (“Although the intended audience was undoubtedly connected to Kentlake High School, the speech was entirely outside of the school’s supervision of control.”).

[104]. Killion v. Franklin Reg’l Sch. Dist., 136 F. Supp. 2d 446, 455 (W.D. Pa. 2001) (“Further, because the Bozzuto list was brought on-campus, albeit by an unknown person, Tinker applies.”); see also Bethlehem, 807 A.2d at 865 (holding that “where speech that is aimed at a specific school and/or its personnel is brought into the school campus or accessed at the school by its originator, the speech will be considered on-campus speech.”).

[105]. Evans, 684 F. Supp. 2d at 1375.  In Blue Mountain, Judge Chagares, in his dissent, points out that one factor in deciding a school’s jurisdictional reach is whether the student made the Internet site private or public.  J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 593 F.3d 286, 300 (3d Cir. 2010) (J. Chagares, dissenting), vacated, reh’g granted en banc, No. 08-4138, 2010 U.S. App. LEXIS 7342 (3d Cir. Apr. 9, 2010), rev’d en banc, No. 08-4138, 2011 WL 2305973 (3d Cir. June 13, 2011).

[106]. Some courts have looked at both whether it was “foreseeable” that the speech would reach campus and whether there was a “sufficient nexus.”  For example, after considering the many various rulings concerning student off-campus speech, the court in Beverly Hills analyzed both whether the conduct was foreseeable and whether there was a substantial nexus between the speech and the school.  Beverly Hills, 711 F. Supp. 2d at 1108.

[107]. Compare Flaherty v. Keystone Oaks Sch. Dist., 247 F. Supp. 2d 698, 705–06 (W.D. Pa. 2003) (holding school policy constitutionally overbroad where there were no “geographical limitations”), with Layshock, 496 F. Supp. 2d at 605 (upholding constitutionality of school policy over overbroad claim because policy set forth “geographical limitations”).

[108]. See infra Appendix B (setting forth a proposed Model Cyberbullying Policy for Public Schools).

[109]. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988) (allowing the school to delete school newspaper articles discussing teen pregnancy and divorce from school-sponsored newspaper).

[110]. See Watts v. United States, 394 U.S. 705, 707-08 (1969) (holding that a “true threat” is not protected by the First Amendment); see also Wisniewski v. Bd. of Educ., 494 F.3d 34, 38 (2d Cir. 2007) (stating that schools have broader authority over student speech than allowed by the “true threats” standard in Watts).

[111]. Lovell ex rel. Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 372 (9th Cir. 1996).

[112]. See, e.g., LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2000) (upholding, under the Tinker standard, the school’s emergency expulsion of a student who showed a teacher a poem, which the student had written while at home, that described the graphic killing of the student’s classmates).

[113]. It could be argued that under Fraser a school might have a third category of speech it can wholly regulate, namely lewd, vulgar, or plainly offensive speech.  In Fraser, a student gave an “elaborate, graphic, and explicit sexual metaphor” in a speech he gave at a school assembly.  Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 675 (1986).  The Court held that, as part of a school’s duty to teach “the essential lessons of civil, mature conduct,” the school could discipline the student.  Id. at 683.  In later interpreting Fraser, the Court, however, seems to limit its holding to speech that occurs only on-campus.  See Hazelwood, 484 U.S. at 266–67 (noting that under Fraser “the government could not censor similar speech outside the school”) (emphasis added); J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., No. 08-4138, 2011 WL 2305973, at *12 (3d Cir. June 13, 2011) (en banc) (“Fraser’s ‘lewdness’ standard cannot be extended to justify a school’s punishment of J.S. for use of profane language outside the school, during non-school hours.”); Saxe v. State College Area Sch. Dist., 240 F.3d 200, 213 (3d. Cir. 2001) (“According to Fraser, then, there is no First Amendment Protection for . . . plainly offensive speech in school.”) (emphasis added).

[114]. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969).

[115]. Id. at 509.

[116]. Id. at 513.  Many courts that have analyzed the issue of off-campus student speech have applied the Tinker “material disruption” standard.  See, e.g., J.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1110 (C.D. Cal. 2010); Killion v. Franklin Reg’l Sch. Dist., 136 F. Supp. 2d 446, 455 (W.D. Pa. 2001); Beussink ex rel. Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175, 1178 (E.D. Mo. 1998)Often courts have taken the phrase “in class or out of it,” to mean that Tinker gave schools the right to regulate off-campus speech.  Beverly Hills, 711 F. Supp. 2d at 1103.  Note that the Third Circuit has left open the issue of whether Tinker should apply to off-campus speech at all.  See Blue Mountain, 2011 WL 2305973, at *7 (“The Supreme Court established a basic framework for assessing student free speech claims in Tinker, and we will assume, without deciding, that Tinker applies to J.S.’s speech in this case.”) (emphasis added).  In Blue Mountain, the concurrence observed:

I write separately to address a question that the majority opinion expressly leaves open: whether Tinker applies to off-campus speech in the first place. I would hold that it does not, and that the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large.

Id. at *16 (Smith, J., concurring).

However, as set forth in this Part of the Article, except for the concurrence in Blue Mountain, scholars and other courts have collectively assumed, as did the majority in Blue Mountain, that the Tinker standard applies to all public school student speech whether originating on- or off-campus.  In addressing Blue Mountain, and a similar en banc Third Circuit case, Judge Jordan explains:

Our Court today issues en banc decisions in two cases with similar fact patterns. In both the case presently before us and in J.S. v. Blue Mountain School District . . . we are asked whether school administrators can, consistent with the First Amendment, discipline students for speech that occurs off campus. Unlike the fractured decision in J.S., we have reached a united resolution in this case, but there remains an issue of high importance on which we are evidently not agreed and which I note now, lest there be any misperception that it has been resolved by either J.S. or our decision here. The issue is whether the Supreme Court’s decision in [Tinker] can be applicable to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.

Layshock v. Hermitage Sch. Dist., No. 07–4465, 2011 WL 2305970, at *12 (3d Cir. June 13, 2011) (en banc) (Jordan, J., concurring) (footnote omitted).

[117]. Furthermore, schools do not have to wait until the disruption has occurred.  Schools can proactively regulate student speech that “might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities.”  Tinker, 393 U.S. at 514.  See, e.g., Saxe, 240 F.3d at 212 (explaining that if students in the past flew a Confederate flag causing material disruption, it would be reasonable for the school to believe there would be a material disruption if the Confederate flag was again displayed).

[118]. See infra Appendix B.

[119]. For example, in both Layshock and Bethlehem the issues revolved around whether a material disruption was caused by a fake MySpace profile of school officials.  Although both cases applied the “material disruption” Tinker standard, they came to opposite holdings.  Compare Layshock, 2011 WL 2305970, at *1, with J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 868 (Pa. 2002).

[120]. See Doninger v. Niehoff, 527 F.3d 41, 50 (2d Cir. 2008) (holding that two administrators were disrupted when called away from scheduled meetings and school activities to deal with the influx of phone calls from the community that were in response to a student’s blog post).  But see Beverly Hills, 711 F. Supp. 2d at 1117 (stating that an administrator who was charged with student discipline was not disrupted from her regular activities when dealing with the consequences of a student video posting on YouTube).

[121]. Killion, 136 F. Supp. 2d at 456 (“We cannot accept, without more, that the childish and boorish antics of a minor could impair the administrators abilities to discipline students and maintain control.”).  See also Blue Mountain, 2011 WL 2305973, at *10 (finding no substantial disruption occurred where “beyond general rumblings” there was only “a few minutes of talking in class, and some officials rearrang[ed] their schedules . . . in dealing with the [fake, vulgar MySpace] profile [of the school principal]”).

[122]. In Emmett, the court reasoned that the suspension of a student who had created a derogatory comment about a teacher was improper in part because the speech did not contain any threats.  Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088, 1090 (W.D. Wash. 2000).

[123]. Blue Mountain, 2011 WL 2305973, at *10.  In this case, the court noted many cases where courts have held that a forecast of substantial and material disruption was reasonable.  Id.  See, e.g.,  Doninger v. Niehoff, 527 F.3d 41, 50–51 (2d Cir. 2008) (holding that punishment was justified, under Tinker, where a student’s derogatory blog about the school was “purposely designed by [the student]” to “encourage others to contact the administration,” and where the blog contained “at best misleading and at worst false information” that the school “need[ed] to correct”); Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir. 2007) (holding that punishment was justified, under Tinker, where students circulated a petition to fellow football players calling for the ouster of their football coach, causing the school to have to call a team meeting to ensure “team unity,” and where not doing so “would have been a grave disservice to the other players on the team”); LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989–90 (9th Cir. 2000) (holding that the school district did not violate a student’s First Amendment rights when it expelled him on an emergency basis in order to prevent “potential violence on campus” after the student showed a poem entitled “Last Words” to his English teacher, which was “filled with imagery of violent death and suicide” and could “be interpreted as a portent of future violence, of the shooting of  . . .  fellow students”).

[124]. Recent cases show a trend of finding that hurtful speech can cause a material disruption.  For example, in Emmett, the student speech was artistic in nature: the website was created as a satire of the school’s homepage and on it were ironic mock obituaries of the student’s friends.  Emmett, 92 F. Supp. 2d at 1090.  The court, noting that the student speech was much closer to political satire than violent threats, did not allow the school to discipline the student.  Id.  Contrastingly, in Wisniewski, the court noted that the student speech was not a sophisticated satire of school administrators but merely a violent depiction of the death of a teacher on a student’s icon for instant messaging.  Accordingly, the court found that the speech was threatening and violent and posed a real threat of material disruption to the school.  Wisniewski v. Bd. of Educ., 494 F.3d 34, 35–39 (2d Cir. 2007).  These two cases illustrate that courts are more likely to find that a student’s speech is not subject to school discipline if it is political or artistic in nature.  See also Bethlehem, 807 A.2d at 86566 (distinguishing bullying speech with the type of political speech addressed by Tinker).

[125]. Hinduja & Patchin, supra note 2.

[126]. The court in Beverly Hills stated:

[L]ower [c]ourts have not often applied the ‘rights of other’ prong from Tinker . . . the Court is not aware of any authority . . . that extends the Tinker rights of others prong so far as to hold that a school may regulate any speech that may cause some emotional harm to a student.  This Court declines to be the first.

J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1122–23 (C.D. Cal. 2010).  However, the Third Circuit has suggested that the Tinker right-of-others prong could be used to justify a school’s antiharassment policy.  Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3d. Cir. 2001) (noting that while the precise scope of the rights-of-others prong is unclear, it might be applicable to a school’s defense of its policy).  The Eighth Circuit, however, has chosen only to apply the second prong of Tinker in cases where the student conduct could “result in tort liability.”  Bystrom ex rel. Bystrom v. Fridley High Sch., 822 F.2d 747, 752 (8th Cir. 1987).

[127]. See infra Appendix B.

[128]. See, e.g., Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 60406 (W.D. Pa. 2006) (cyberbullying case where plaintiff challenged school’s discipline of a student on grounds that the school policy was vague).

[129]. Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 266 (3d Cir. 2002) (internal quotation marks omitted).

[130]. Id. at 266 (citing Reno v. ACLU, 521 U.S. 844, 87172 (1997)).

[131]. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986).

[132]. See, e.g., Sypniewski, 307 F.3d at 26165 (finding that the school harassment policy was not overbroad except for the section which allowed for punishing students acting with “ill will,” where the term “ill will” was not defined); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 21517 (3d. Cir. 2001) (finding discipline stemming from school policy unconstitutional because policy’s terms were overbroad and vague); Killion v. Franklin Reg’l Sch. Dist., 136 F. Supp. 2d 446, 458–59 (W.D. Pa. 2001) (holding that because the policy did not contain a definition of “abuse” and because it did not provide further specifications or limitations, it was overbroad).

[133]. See infra Appendix B.

[134]. See Watts v. United States, 394 U.S. 705, 707–08 (1969).

[135]. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969).

[136]. Id. at 509.

[137]. Anti-Bullying/Anti-Harassment Policies, Iowa Dep’t of Educ., http://educateiowa.gov/index.php?option=com_content&view=article&id=1154:anti-bullyinganti-harassment-policies&catid=411:legal-lessons&Itemid=2656 (last visited Aug. 29, 2011).

[138]. Id.

[139]. Id.  Policies enacted in Iowa, Maine, and Vermont, as well as Michigan’s pending policy, have similar language in their model policies.  Maine School Management Association Sample Policy, Me. Dep’t of Educ., http://www.maine.gov/education/management.htm (last visited Aug. 29, 2011); Model Bullying Prevention Plan, Vt. Dep’t of Educ. http://education.vermont.gov/new/pdfdoc/pgm_safeschools/pubs/bullying_prevention_04.pdf (last visited Aug. 29, 2011); Model Anti-Bullying Act, Mich. State Bd. of Educ., http://www.michigan.gov/documents/mde/SBE_Model
_AntiBullying_Policy_Revised_9.8_172355_7.pdf (last visited Aug. 29, 2011).

[140]. Anti-Defamation League, supra note 10, at 1112; Model Policy Against Bullying and Harassment, Fla. Dep’t of Educ., 8 (July 31, 2008), www.fldoe.org/safeschools/doc/modelpolicy.doc.

[141]. Romer v. Evans, 517 U.S. 620, 628 (1996).

[142]. See, e.g., Latest Hate Crime Statistics, FBI (Nov. 22, 2010), http://www.fbi.gov/news/stories/2010/november/hate_112210/hate_112210 (listing statistics for specific groups covered by hate crime laws).

[143]. See, e.g., Safe Schools Improvement Act of 2010, S. 3739, 111th Cong., § 2(g)(1) (2010); Anti-Defamation League, supra note 10, at 11 (setting forth a model bullying statute prohibiting bullying based on enumerated grounds); Model Policy Against Bullying and Harassment, supra note 140, at 2 (stating that school districts may add “additional specific categories of students to which bullying and harassment is prohibited in excess of what is listed” such as sex, race, color, religion, national origin, age, disability, etc.).

[144]. Harris Interactive, From Teasing to Torment: School Climate in America 9 (2005), available at http://www.glsen.org/binary-data/GLSEN

[145]. For example, the cyberbullying policy can simply state that students are prohibited from cyberbullying other students “including, but not limited to [list enumerated categories].” Anti-Defamation League, supra note 10, at 11 (emphasis added).

[146]. J.C. v. Beverly Hills Unified Sch. Dist., No. CV 08-3824 SVW, at *14 (C.D. Cal. 2009), available at www.lawyersusaonline.com/wp-files/pdfs/jc-v-beverly-hills.pdf (order granting plaintiff’s summary adjudication motion on third cause of action).  In Beverly Hills, a case extensively cited in Part II.A supra, the published portion of the court’s opinion only ruled on the first two causes of action concerning the First Amendment issue and qualified immunity.  J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1097 (C.D. Cal. 2010) (“An order regarding Plaintiff’s due process claim, the Third Cause of Action, will follow shortly.”).  For plaintiff’s third cause of action, that the school cyberbullying policy violated due process, the court wrote a separate, unpublished order.  See J.C. v. Beverly Hills Unified Sch. Dist., No. CV 08-3824 SVW, at *14 (C.D. Cal. 2009), available at www.lawyersusaonline.com/wp

[147]. J.C. ex rel. R.C. v. Beverly Hills Unified Sch. Dist., No. CV 08-3824 SVW, at *14 (C.D. Cal. 2009), available at www.lawyersusaonline.com/wp

[148]. For example, New Hampshire’s bullying prevention statute allows for the school to take action if bullying or cyberbullying “[o]ccurs off of school property or outside of a school-sponsored activity or event, if the conduct interferes with a pupil’s educational opportunities or substantially disrupts the orderly operations of the school or school-sponsored activity or event.”  N.H. Rev. Stat. Ann. § 193-F:4 (2011).  See also Anti-Defamation League, supra note 10, at 13 (adopting similar language).

[149]. Darryn Cathryn Beckstrom, State Legislation Mandating School Cyberbullying Policies and the Potential Threat to Students’ Free Speech Rights, 33 Vt. L. Rev. 283, 315 (2008).

[150]. Model Policy Against Bullying and Harassment, supra note 140, at 8 (also suggesting that posters, signs, or other reminders of the policy be displayed around the school and on the school’s buses).  The Anti-Defamation League maintains that the cyberbullying policy should be broadly publicized throughout the school, and given to the students’ parents via the conduct code, student handbook on school bulletin boards, and on the school website.  See Anti-Defamation League, supra note 10, at 7 (explaining that this “notice will send a message to students, teachers, and parents that the school is taking this issue seriously and does not accept inappropriate conduct”).

[151]. The Anti-Defamation League drafted a model acceptable use policy, adapted from a U.S. Department of Justice model policy.  See Anti-Defamation League, supra note 10, at 2122.  Scholars also suggest that schools display signs or posters in the school’s computer lab, to remind students of the acceptable “use policy.”  Sameer Hinduja & Justin W. Patchin, Preventing Cyberbullying: Top Ten Tips for Educators, Cyberbullying Research Center (2009), www.cyberbullying.us/Top_Ten_Tips_Educators_Cyberbullying_Prevention.pdf (recommending that a “use policy” be drafted in contract form).

[152]. Conn. Gen. Stat. § 10-222d (2010); Del. Code Ann. tit. 14, § 4112D (b)(2)(j) (2011); Fla. Stat. § 1006.147 (2010); Ga. Code Ann. § 20-2-751.4 (2011); Mass. Gen. Laws ch. 71 § 37O(d)(viii) (2011); N.H. Rev. Stat. Ann. § 193-F:4 (2011); N.Y. Educ. Law § 2801-a (McKinney 2009); Ohio Rev. Code Ann. § 3313.666 (West 2011); Tex. Educ. Code Ann. § 37.001(a)(6) (West 2009); Utah Code Ann. 1953 § 53A-11a-301 (West 2011); W. Va. Code Ann. § 18-2C-3 (2011).

[153]. W. Va. Code Ann. § 18-2C-3(b)(5) (2011).

[154]. See, e.g., Sameer Hinduja & Justin W. Patchin, Sexting: A Brief Guide for Educators and Parents, Cyberbullying Research Center, 3 (2010), http://www.cyberbullying.us/Sexting_Fact_Sheet.pdf [hereinafter Sexting].

[155]. Cal. Sch. Bd. Ass’n, Cyberbullying: Policy Considerations for Boards, Governance and Policy Services: Policy Briefs, 5 (July 2007), www.csba.org/Services/Services/PolicyServices/~/media/Files/Services/PolicyServices/SamplePolicies/Cyberbullying.ashx.

[156]. U.S. Const. amend. IV; New Jersey v. T.L.O, 469 U.S. 325, 333 (1985) (holding that the Fourth Amendment’s “prohibition on unreasonable searches and seizures applies to searches conducted by public school officials”).

[157]. See supra Part I.B.  None of the states with model bullying policies address the scope of reasonable searches.  See infra Appendix A.  Indeed, state legislatures are unclear how the Fourth Amendment applies to reported cyberbullying incidents.  For example, in November 2010, a member of the Virginia House of Delegates asked the Attorney General of Virginia to look at the question of whether school officials may search students’ cellular phones and laptops when a student reports another student is violating the school’s bullying policy.  Advisory Op., No 10-105, 2010 WL 4909931, at *2 (Va. Att’y Gen. Nov. 24, 2010) (“[r]ecognizing that no court has considered the matter”).

[158]. New Jersey v. T.L.O., 469 U.S. 325 (1985).

[159]. Id. at 328.

[160]. Id.

[161]. Id.

[162]. Id. at 329.

[163]. Id. at 338.

[164]. Id. at 339.  In determining a balance between the two interests, the Supreme Court stated that “[i]t is evident that the school setting requires some easing of restrictions to which searches by public authorities are ordinarily subject.  The warrant requirement, in particular, is unsuited to the school environment . . . [as it would] unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the school.”  Id. at 340.

[165]. Id. at 341.

[166]. Id. at 342.  Note that the Court declined to rule on whether “individualized suspicion is an essential element of the reasonableness standard . . . adopt[ed] for searches by school authorities.”  Id. at 342 n.8.

[167]. Id. at 342.  The Court explained that the reasonableness standard saves teachers and administrators from being responsible for understanding the legal definition and “niceties” of probable cause while also ensuring that the students’ right to privacy is not invaded any further than is necessary.  Id. at 343.

[168]. Id. at 347.

[169]. Id. at 34142.

[170]. Klump v. Nazareth Area Sch. Dist., 425 F. Supp. 2d 622, 627 (E.D. Penn. 2006).

[171]. Id. at 630.

[172]. Id.

[173]. Id.

[174]. Id. at 631.

[175]. Id. at 64546.

[176]. Id. at 64041.

[177]. Id. at 640.

[178]. Id.

[179]. J.W. v. Desoto Cnty. Sch. Dist., No. 2:09-cv-00155-MPM-DAS, 2010 WL 4394059, at *1-2 (N.D. Miss. 2010).

[180]. Id. at *1.

[181]. Id.

[182]. Id.

[183]. Id.

[184]. Id. at *2.

[185]. Id. at *4.

[186]. Id.

[187]. Id.

[188]. Id. at *5.

[189]. Id.

[190]. Klump vs. Nazareth Area Sch. Dist. 425 F. Supp. 2d 622, 630 (E.D. Penn. 2006).

[191]. Desoto, 2010 WL 4394059, at *5.

[192]. See, e.g., infra Appendix B.

[193]. Schools may be concerned that a search conducted by a school resource officer, a police officer trained in the Fourth Amendment and employed by the city on assignment to the school, may be governed by a heightened probable-cause standard. However, one court has held that the reasonable suspicion standard that applies to school officials also applies to the school resource officer.  See In re William V, 4 Cal. Rptr. 3d 695, 699 (Cal. Ct. App. 2003).  In William, the court reasoned that the balance of the importance of the educational environment with the privacy interest of the students determined in T.L.O. is the same whether the search is being done by a school official or a school resource officer.  IdBut see Advisory Op., No 10-105, 2010 WL 4909931, at *3 n.15 (Va. Att’y Gen. Nov. 24, 2010) (“It should be noted that, if the search is being conducted by a school security officer, it may be governed by the heightened probable-cause standard.”).

[194]. Klump, 425 F. Supp. 2d at 640.

[195]. In Desoto, the school official was allowed to search a cell phone the student had used while on-campus, whereas in Klump mere possession (not use) of a cell phone, in violation of school rules, would only allow seizure and not a search.  Compare Desoto, 2010 WL 4394059, at *5, with Klump, 425 F. Supp. 2d at 640.

[196]. If the victim or student reporting the bullying is willing, schools should initiate an interview to determine the nature of the bullying, the name of the participants, the location and the manner in which the information is being sent, and the distance that the images or messages have spread.  See Nancy Willard, Educator’s Guide to Cyberbullying, Cyberthreats & Sexting, Ctr. for Safe and Responsible Use of the Internet, 9 (2005), http://www.cyberbully.org/cyberbully/documents/educatorsguide.pdf.  Policies should mandate all evidence be preserved.  Id. at 8.  This requires that any messages received by the victim (cell phone text messages and voicemails) should not be deleted, emails should be saved and printed, and posts should be printed before removal is requested.  Id.  Additionally, any information found through the school district’s investigation should be saved and documented.  Id.  One state’s department of education has endorsed a policy that requires perpetrators, victims, witnesses, teachers, and staff members to be interviewed.  Policy for Prohibiting Bullying, Harassment and Intimidation, Ga. Dep’t of Educ., 6 (Sept. 9, 2010), http://www.toombs.k12.ga.us/system/policies/bullying
_policy.pdf (last updated Mar. 31, 2011).

[197]. New Jersey v. T.L.O, 469 U.S. 325, 341 (1985).

[198]. Id. at 343.

[199]. See, e.g., Sexting, supra note 154, at 3.

[200]. Klump, 425 F. Supp. 2d at 640.

[201]. Sexting, supra note 154, at 1.

[202]. Id.  The study explains:

[T]he National Campaign to Prevent Teen and Unplanned Pregnancy released data from late September and early October of 2008 which identified that 19% of teens (aged 13 to 19) had sent a sexually-suggestive picture or video of themselves to someone via email, cell phone, or through another form of online interaction, while 31% had received a nude or semi-nude picture from someone else.


[203]. See, e.g., Jan Hoffman, A Girl’s Nude Photo, and Altered Lives, N.Y. Times, Mar. 26, 2011, http://www.nytimes.com/2011/03/27/us/27sexting.html?_r
=1&partner=rss&emc=rss&pagewanted=all (explaining how a middle school girl sent a nude photo of herself to another middle school student, a soon-to-be ex-boyfriend, who then forwarded it to another young girl, who then forwarded the photo to all contacts in her cell phone).  The article explains: “In less than 24 hours, the effect was as if Margarite, 14, had sauntered naked down the hallways of the four middle schools [in her town] . . . .  Hundreds, possibly thousands, of students had received her photo and forwarded it.  Id.

[204]. See, e.g., id.  The county prosecutor decided against charging Margarite, the middle-school girl who had sexted a nude photo of herself to a classmate.  Id.  But the prosecutor did “charge three students with dissemination of child pornography, a Class C felony, because they had set off the viral outbreak” by forwarding the nude photo to others.  IdSee also A.H. v. State, 949 So. 2d 234, 235 (Fla. Ct. App. 2007).  In A.H., a sixteen-year-old girl was criminally prosecuted for sending nude pictures of herself to her seventeen-year-old boyfriend.  Id.  The boy was also criminally charged with producing, directing, and promoting child pornography.  Id.  See also Riva Richmond, Sexting May Place Teens at Legal Risk, N.Y. Times (Mar. 26, 2009, 12:00 PM), http://gadgetwise.blogs.nytimes.com/2009/03/26/sexting‑may‑place‑teens‑at‑legal-risk/.

[205]. See, e.g., 18 U.S.C.A. § 2252A (West 2010) (prohibiting under federal criminal law the distribution of child pornography with no exception for school officials investigating sexting or cyberbullying).

[206]. Sexting, supra note 154, at 3.

[207]. Joe Elias & Daniel Victor, Sequenita High School Officials Being Investigated for Handling of Images in ‘Sexting’ Case, The Patriot News (Apr. 15, 2010), http://www.pennlive.com/midstate/index.ssf/2010/04/susquenita_high

[208]. Am. Civ. Liberties Union of Pa., ACLU of PA Sues School District for Illegally Searching Student’s Cell Phone: School Turned Over Girl’s Private Nude Photos to Law Enforcement (May 20, 2010), http://www.aclupa.org

[209]. Id.

[210]. Id.

[211]. Id.

[212]. Id.

[213]. See, e.g., Beard v. Whitmore Lake Sch. Dist., 402 F. 3d 598, 603 (6th Cir. 2005) (holding students’ constitutional rights were violated after school officials strip searched students to search for stolen money).  The court explained: “Students . . . have a significant privacy interest in their unclothed bodies.”  Id. at 604.

[214]. Sexting, supra note 154, at 3 (“[I]t should be made very clear that administrators and educators should never forward, copy, transmit, download . . . or show any non-law enforcement personnel any evidence collected from [a] personal digital device . . . after the initial discovery . . . at any other time during the investigation.”).

[215]. See infra Appendix B.

[216]. See, e.g., Anti-Defamation League, supra note 10, at 4-7.  Although this is a model statute for state legislatures to enact, instead of a cyberbullying policy for schools to adopt, this model statute gives guidance because it suggests that school bullying policies should address reporting, remedies, and education.  Id.

[217]. See supra Parts II.A–C.

[218]. See supra Part II.B.

[219]. See, e.g., N.J. Stat. Ann. § 18A:37-15(b)(5) (West 2011) (requiring schools to have a bullying policy with “a procedure for reporting an act of harassment, intimidation or bullying”).

[220]. See Anti-Defamation League, supra note 10, at 14, § B(3)(b)(ii); Lisa Madigan, Cyberbullying: A Student Perspective, 8 http://www.illinoisattorneygeneral.gov/children/cyberbullying_focus_report0610.pdf  (last visited Aug. 29, 2011); Susan P. Limber & Marlene Snyder, What Works—and Doesn’t Work—in Bullying Prevention and Intervention, The State Educ. Standard 24, 27 (July 2006), http://www.yaleruddcenter.org/resources

[221]. Dianne L. Hoff & Sidney N. Mitchell, Cyberbullying: Causes, Effects, and Remedies, 47 J. Educ. Admin. 652, 663 (2009).

[222]. Madigan, supra note 220, at 9.

[223]. See, e.g., N.J. Stat. Ann. § 18A:37-15(b)(5) (West 2011) (allowing “a person to report an act of harassment, intimidation or bullying anonymously”).

[224]. See id. (prohibiting “formal disciplinary action solely on the basis of an anonymous report”).

[225]. As set forth in Part II.C, a school official must have “reasonable grounds” based on a specific fact inquiry before conducting a search of a student’s personal property.  New Jersey v. T.L.O, 469 U.S. 325, 342 (1985).  It is doubtful that anonymous reports alone would satisfy this requirement since school officials would be unable to determine the credibility of the reports.

[226]. See, e.g., Utah Code Ann. § 53A-11a-301(2)(e) (West 2011) (requiring schools to have “procedures for promptly reporting to law enforcement all acts of bullying, hazing, or retaliation that constitute criminal activity”); see also Cyberbullying: Policy Considerations for Boards, supra note 155, at 5 (“[California school] responses might include . . . contacting law enforcement if the behavior involves [a possible crime].  The student perpetrator and his or her parents should be informed of the potential consequences to which they may be subjected, including potential civil law liabilities.”).

[227]. See, e.g., Megan Meir Cyberbullying Prevention Act, H.R. 1966, 111th Cong. (2009) (proposing that “whoever . . . use[s] electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both); S.B. 2094, S. 25th Leg., Reg. Sess. (Haw. 2010) (“If any child of school age engages in bullying or cyberbullying, the child, and the father, mother, or legal guardian, shall be fined not more than $100 for each separate offense.”); Jared’s Law, H.B. 750, 58th Leg., Reg. Sess. (Idaho 2006) (“A student who personally violates any provision of this section shall be guilty of an infraction.”).

[228]. Cyberbullying: Policy Considerations for Boards, supra note 155, at 5 (“Existing school rules pertaining to student discipline may be used in the event that a student is found to have engaged in cyberbullying, or the district may decide that other actions are needed on a case-by-case basis.”).

[229]. See, e.g., Ga. Code Ann. § 20-2-751.5(d) (2011) (“[I]t is preferable to reassign disruptive students to alternative educational settings rather than to suspend or expel such students from school.”).

[230]. See, e.g., Kan. Stat. Ann. 72-8205(e)(1) (2011) (“The board may transact all school district business and adopt policies that the board deems appropriate to perform its constitutional duty to maintain, develop and operate local public schools.”).

[231]. Wisniewski ex rel. Wisniewski v. Bd. of Educ., 494 F.3d 34, 40 (2d Cir. 2007) (citing Wood v. Strickland, 420 U.S. 308, 326 (1975)) (recognizing that it is not the place of federal courts to set aside school administrators’ decisions on such matters as the extent of a student’s punishment, but not directly ruling on whether the extent of the punishment was constitutional).  But see Doninger v. Niehoff, 527 F.3d 41, 53 (2d Cir. 2008) (suggesting that if the student’s punishment had been more extreme than prohibiting her participation in student council, that punishment may have been in violation of her constitutional rights).

[232]. See, e.g., O.Z. ex rel. v. Bd. of Trs. of the Long Beach Unified Sch. Dist., 2008 U.S. Dist. LEXIS 110409, at *17 (C.D. Cal. Sept. 9, 2008) (holding that a school has an interest in being able to transfer a student who has shown violent tendencies toward a teacher).

[233]. Wisniewski, 494 F.3d at 40 (alteration in original) (quoting Strickland, 420 U.S. at 326).

[234]. RI Task Force Takes on Cyberbullying, Sexting, Boston Globe (Mar. 15, 2011), http://www.boston.com/news/local/rhode_island/articles/2011/03/15/ri
_task_force_readies_new_policy_for_cyberbullying/ (“One proposal from the task force would create a statewide education policy on cyberbullying for schools . . . A single, statewide policy would help teachers know what to do when they hear a student is being bullied . . . .”).

[235]. Lorraine Adams & Dale Russakoff, Dissecting Columbine’s Cult of the Athlete, Washington Post, June 12, 1999, http://www.washingtonpost.com/wp
-srv/national/daily/june99/columbine12.htm (explaining schools should not give the appearance that popular student athletes receive special treatment because of their abilities or social status).

[236]. See, e.g., Doninger, 527 F.3d at 54; J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 868 (Pa. 2002); O.Z., 2008 U.S. Dist. LEXIS 110409, at *13; Cyberbullying: Policy Considerations for Boards, supra note 155, at 5 (authorizing the suspension or expulsion of a student who engages in harassment or bullying by electronic means).

[237]. See Todd D. Erb, Comment, A Case for Strengthening School District Jurisdiction to Punish Off-Campus Incidents of Cyberbullying, 40 Ariz. St. L.J. 257, 275 (2008).

[238]. See, e.g., N.J. Stat. Ann. § 18A:37-15(b)(9) (West 2011) (allowing for “consequences and appropriate remedial action for a person found to have falsely accused another as a means of retaliation or as a means of harassment, intimidation or bullying”); Model Policy Against Bullying and Harassment, supra note 140, at 1 (explaining that a school policy against bullying and harassment should include a statement that “bullying” and “harassment” include “[r]etaliation against a student or school employee by another student or school employee for asserting or alleging an act of bullying or harassment” and also that “[r]eporting an act of bullying or harassment that is not made in good faith is considered retaliation”).

[239]. See Model Policy Against Bullying and Harassment, supra note 140, at 2–3; see also Limber & Snyder, supra note 220, at 24, 27 (explaining how one antibullying program recommends that schools adopt four straight-forward rules about bullying: “we will not bully others; we will try to help students who are bullied; we will make it a point to include students who are easily left out; if we know someone is being bullied, we will tell an adult at school and an adult at home”).

[240]. Limber & Snyder, supra note 220, at 27.

[241]. See, e.g., Fla. Stat. § 1006.147 (4)(j) (2008) (requiring school bullying policies provide “a procedure to refer victims and perpetrators of bullying or harassment for counseling”); Cyberbullying: Policy Considerations for Boards, supra note 155, at 5 (“[T]he district should consider ways it can provide support to the victim through counseling or referral to mental health services.”).

[242]. See, e.g., Santa Barbara School Districts Board Policy, 4, http://www.sbsdk12.org/board/policies/5000/BP5131.pdf (last updated Dec. 14, 2010) (“If the [cyberbully] is using a social networking site or service that has terms of use that prohibit posting of harmful material, the Superintendent or designee also may file a complaint with the Internet site or service to have the material removed.”).

[243]. Model Policy Against Bullying and Harassment, supra note 140, at 8.

[244]. Fla. Stat. § 1006.147(4)(l) (2010) (requiring “a procedure for providing instruction to students, parents, teachers, school administrators, counseling staff, and school volunteers on identifying, preventing, and responding to bullying or harassment”).

[245]. The Model Cyberbullying Policy in Appendix B of this Article gives an example of an educational program.  Like Florida, Illinois also requires schools to implement antibullying training.  105 Ill. Comp. Stat. 5/27-13.3 (2010).  Although Illinois does not provide a model cyberbullying policy, the Illinois Attorney General’s Office has prepared a webinar and training modules to give some guidance to schools.  The educational material includes statistics, anecdotes, and discussion of cyberbullying and sexting.  The training modules are modified to be grade-appropriate for elementary school, middle school, and high school.  See Office of the Ill. Att’y Gen., Attorney General’s Internet Safety Training Modules (2010), www.isbe.state.il.us/curriculum/ppt/internet_safety
(last visited Sept. 20, 2011).

[246]. Hoff & Mitchell, supra note 221, at 663 (setting forth a study that students reported incidents of cyberbullying occurring when they were as young as ten years old and up through their high-school years).

[247]. Willard, supra note 196, at 7.  See also Hinduja & Patchin, supra note 151, at 1 (stating that certain cyberbullying behaviors are encompassed in existing criminal legislation, such as: harassment, stalking, felonious assault, certain acts of hate or bias).

[248]. Hoff & Mitchell, supra note 221, at 663; see also Limber & Snyder, supra note 220, at 27 (stating that students should be taught to be good citizens, rather than passive bystanders, when they witness bullying).

[249]. Willard, supra note 196, at 6.

[250]. Hoff & Mitchell, supra note 221, at 663 (explaining that student input would be valuable because “they are the group who understands this phenomenon best”).  See also Madigan, supra note 220, at 8 (explaining how students suggested peer-to-peer mentoring and mediation programs).

[251]. Md. Code Ann., Educ. § 7-424.1(g)(1) (West 2010) (requiring schools to develop an antibullying educational program for “staff, volunteers, and parents”).

[252]. See Model Policy Against Bullying and Harassment, supra note 140, at 4; Hoff & Mitchell, supra note 221, at 663.

[253]. Madigan, supra note 220, at 8.

[254]. See id.; Anti-Defamation League, supra note 10, at 15.

[255]. See Model Policy Against Bullying and Harassment, supra note 140, at 8.

[256]. Willard, supra note 196, at 10.

[257]. Also referred to as the Student Harassment Prevention Act.

[258]. Ala. Code § 16-28B-6 (2011).

[259]. Id. § 16-28B-3 (defining harassment as not limited to, written electronic, verbal or physical acts).

[260]. Alaska Stat. § 14.33.200(a) (2011).

[261]. Sample Issues and Areas to Consider When Developing Local Policies for Harassment, Intimidation, and Bullying, Alaska Dep’t. of Educ. and Early Dev., http://eed.state.ak.us/tls/SchoolSafety/Docs/Sample_Issues_and_Areas.pdf (last visited Sept. 20, 2011).

[262]. Ariz. Rev. Stat. Ann. § 15-341(37) (2011).

[263]. Ark. Code Ann. § 6-18-514 (a)(2) (2010).

[264]. Id. § 6-18-514 (a)(3)(B) (defining “Electronic Act”).

[265]. Cal. Educ. Code § 32282(a)(1)(E) (West 2011).

[266]. Id. § 32261(d) (bullying includes acts committed personally or by means of an electronic act).

[267]. Sample Policy for Bullying Prevention, Cal. Dep’t of Educ., (2010), available at http://www.cde.ca.gov/ls/ss/se/samplepolicy.asp.

[268]. Colo. Rev. Stat. Ann § 22-32-109.1(2)(a) (West 2010).

[269]. Colorado Association of School Boards Sample Policy on Bullying Prevention and Education, Ctr. for the Study and Prevention of Violence, (2001), http://www.colorado.edu/cspv/safeschools/bullying_casbpolicy.html.

[270]. Conn. Gen. Stat. § 10-222d (2010).

[271]. Id. § 10-222d(7) (2010) (requiring each school to notify parents or guardians of both the students who commit any verified acts of bullying and the students against whom such acts were directed).

[272]. The District of Columbia is considering a proposed bill that would require schools to implement antibullying policies, including bullying using “electronic communications.”  The bill also proposes that a model policy be developed.  Council of D.C., Bullying Prevention Act of 2010, B18-0770 (D.C. 2010) available at http://www.dccouncil.washington.dc.us/images/00001

[273]. Id.

[274]. Id.

[275]. Del. Code Ann. tit. 14, § 4112D(b)(1) (2011).

[276]. Id. 14 § 4112D(a) (bullying includes electronic acts).

[277]. Delaware’s Model Bully Prevention Policy, Del. Dep’t of Educ., http://www.doe.k12.de.us/infosuites/students_family/climate/files/Bully%20Prevention%20Policy%20Template.pdf (last visited Sept. 19, 2011).

[278]. Del. Code Ann. tit. 14, § 4112D(b)(2)(j) (2011) (requiring notification of a parent, guardian, relative caregivers, or legal guardian of any target of bullying or person who bullies another).

[279]. Fla. Stat. § 1006.147(2) (2010).

[280]. Id. § 1006.147(3)(b) (defining harassment to include use of data or computer software).

[281]. Model Policy Against Bullying and Harassment, supra note 140.

[282]. Fla. Stat. § 1006.147(4)(i) (2010) (requiring a procedure for immediate notification to the parents of a victim and the parents of the perpetrator of an act).

[283]. Ga. Code Ann. § 20-2-751.4(b)(1) (2011).

[284]. Id. § 20-2-751.4(a) (stating that bullying includes use of data or software that is accessed through a computer, computer system, computer network or other electronic technology of local school system).

[285]. Id. § 20-2-751.4(b)(3) (requiring that a method be developed “to notify the parent, guardian, or other person who has control or charge of a student upon a finding . . . that such student has committed an offense of bullying or is a victim of bullying”).

[286]. But see Haw. Rev. Stat. Ann. § 302A-1002 (2009) (requiring schools to report crime-related incidents, but no mention of bullying or cyberbullying).

[287]. S.B. 2094, 25th Leg., Reg. Sess. (Haw. 2010).

[288]. Idaho Code Ann. § 33-512(6) (2011).

[289]. Id. § 18-917A(2)(b) (“[H]arassment . . . may also be committed through use of a land line, care phone, or wireless telephone, or through the use of data or computer software that is accessed through a computer, computer system or computer network.”).

[290]. 105 Ill. Comp. Stat. 5/27-23.7(d) (2010).

[291]. Id. at 5/27-23.7(b).

[292]. Ind. Code § 20-33-8-12(1) (2011).

[293]. Iowa  Code § 280.28 (3) (2011).

[294]. Id. § 280.28 (2)(a) (2011).

[295]. Anti-Bullying/Anti-Harassment Policies, supra note 137.

[296]. Kan. Stat. Ann. § 72-8256(b) (2009).

[297]. Kan. Stat. Ann. § 72-8256(a)(1)(B) (2009).

[298]. Ky. Rev. Stat. Ann. § 158.148(1) (West 2011).

[299]. La. Rev. Stat. Ann § 17:416.13(B)(1) (2011).

[300]. Id. § 17:416.13(C)(2) (defining “cyberbullying”).

[301]. Me. Rev. Stat. Ann. tit. 20, § 1001(15)(H) (2010).

[302]. Maine School Management Association Sample Policy, supra note 139.

[303]. Md. Code Ann., Educ. § 7-424.1(c)(1) (West 2010).

[304]. Id. § 7-424.1(a)(2) (stating that bullying, harassment or intimidation includes an intentional electronic communication).

[305]. Mass. Gen. Laws ch. 71 § 37O(c) (2011).

[306]. Id. § 37O(a).

[307]. Id. § 37O(d)(viii) (setting forth procedures for notifying parents or guardians of a victim and perpetrator).

[308]. Matt’s Safe School Law, supra note 66.

[309]. Model Anti-Bullying Act, supra note 139.  While this policy is not mandated by law, it was developed by the Michigan Department of Education based on the antibullying bills pending in the Michigan state legislature.  See Matt’s Safe School Law, supra note 66.

[310]. Minn. Stat. § 121A.0695 (2010).

[311]. Id.

[312]. Miss. Code. Ann. § 37-11-67(2) (2010).

[313]. Id. § 37-11-67(1).

[314]. Mo. Rev. Stat. § 160.775(1) (2011).

[315]. Id. § 160.775(2).

[316]. Neb. Rev. Stat. §§ 79-2, 137(3) (2010).

[317]. Id. § 79-2, 137(2).

[318]. Considerations for Policy Development, Neb. Dep’t of Educ., http://www.education.ne.gov/safety/Bullying_Prevention/Bullying_Prevention_Policy_Dev.html (last visited Sept. 20, 2011).

[319]. Nev. Rev. Stat. § 388.133 (2010).

[320]. Id. at § 388.123.

[321]. N.H. Rev. Stat. Ann. § 193-F:4(II) (2011).

[322]. Id. §§ 193-F:3(II), (III).

[323]. Id. § 193-F:4(II)(h) (describing a procedure for notification within forty-eight hours of the reported incident to both the parents or guardian of victim and the parents or guardian of the perpetrator of bullying or cyberbullying).

[324]. N.J. Stat. Ann. § 18A:37-15(a) (West 2011).

[325]. Id. § 18A:37-14 (defining electronic communication).

[326]. Model Policy and Guidance for Prohibiting Harassment, Intimidation and Bullying on School Property, at School-Sponsored Functions and on School Buses, State of N.J. Dep’t of Educ., http://www.state.nj.us/education/parents
/bully.pdf (last updated Apr. 2011).

[327]. N.M. Code R. § (LexisNexis 2010).

[328]. Id. §

[329]. N.Y. Educ. Law § 2801-a(1) (McKinney 2000) (requiring school safety plan).

[330]. Id. § 2801-a(2)(e) (requiring policies for contacting parents, guardians and persons in parental relation to students in the event of a violent incident).

[331]. N.C. Gen. Stat. § 115C-407.16 (2010).

[332]. Id. § 115C-407.15(a) (defining bullying to include electronic communication).

[333]. Ohio Rev. Code Ann. § 3313.666(B) (West 2011).

[334]. Anti-Harassment, Anti-Intimidation or Anti-Bullying Model Policy, Ohio Dep’t of Educ. Adm’r, http://education.ohio.gov/GD/Templates/Pages/ODE
/ODEDetail.aspx?Page=3&TopicRelationID=435&Content=106473 (last modified June 3, 2011).

[335]. Ohio Rev. Code Ann. § 3313.666(B)(5) (West 2011) (requiring parents or guardians of any student involved in incident be notified and have access to any written reports pertaining to the incident).

[336]. Okla. Stat. tit.70, § 24-100.4(A) (2011).

[337]. Id. (prohibiting bullying by electronic communication specifically).

[338]. Safe Schools Guide, Okla. Dep’t of Educ., 75 (2005), http://www.sde.state.ok.us/Schools/SafeHealthy/pdf/SafeSchlGuide.pdf.

[339]. Or. Rev. Stat. § 339.356(1) (2010).

[340]. Id. § 339.351(1) (defining cyberbullying).

[341]. 24 Pa. Cons. Stat. § 13-1303.1-A(a) (2010).

[342]. Id. § 13-1303.1-A(e) (stating that bullying includes intentional electronic acts).

[343]. R.I. Gen. Laws § 16-21-26(b) (2011).

[344]. Id. § 16-21-26(a)(3) (defining electronic communications).

[345]. Guidance on Developing Required Policies Against Bullying, http://www.ride.ri.gov/psi/docs/child_family/substance/bullying%20guidance%20and%20modelpolicy%2011-21-03.pdf (last visited Sept. 16, 2011).

[346]. S.C. Code Ann. § 59-63-140(A) (2010).

[347]. Id. § 59-63-120(1) (stating that harassment, intimidation, and bullying includes electronic communication).

[348]. South Carolina—Self Control Addressing Bullying in Our Schools: A Bullying Prevention Model, S.C Dep’t of Educ. 31–36, http://www.itv.scetv.org
/guides/sc2v2.pdf (last visited Sept. 24, 2011).

[349]. Tenn. Code Ann. § 49-6-1016(a) (2011).

[350]. Tex. Educ. Code Ann. § 37.001(a) (West 2009).

[351]. Id. § 37.001(a)(6).

[352]. Utah Code Ann. § 53A-11a-301(1) (West 2011).

[353]. Id. § 53A-11a-301(3)(j).

[354]. Vt. Stat. Ann. tit. 16, § 565 (2011).

[355]. Model Bullying Prevention Plan, supra note 139.

[356]. Va. Code Ann. § 22.1-279.6(A) (2011).

[357]. Id. (explaining that model policies should address the use of electronic means for purposes of bullying, harassment, and intimidation).

[358]. Wash. Rev. Code § 28A.300.285(1) (2010).

[359]. Id.at § 28A.300.285(2).

[360]. Prohibition of Harassment, Intimidation and Bullying, State of Wash. Office of Superintendent of Pub. Instruction (Apr. 2008), http://www.k12.wa.us/SafetyCenter/Guidance/pubdocs/Anti‑BullyingPolicyFinal.pdf.

[361]. W. Va. Code Ann. § 18-2C-3(a) (West 2011).

[362]. Student Code of Conduct, W. Va. Dep’t of Educ. (July 1, 2003), http://wvde.state.wv.us/policies/p4373.html.

[363]. W. Va. Code Ann. § 18-2C-3 (b)(5) (West 2011).

[364]. Wis. Stat. § 118.46(1)(a) (2010).

[365]. Bullying Prevention Policy Guidelines, Dep’t of Pub. Instruction (Mar. 2007), http://www.dpi.state.wi.us/sspw/pdf/bullyingguide.pdf.

[366]. Wyo. Stat. Ann. § 21-4-314(a) (2011).

[367]. Id. § 21-4-312.

[368]. Safe School Improvement Act of 2010, S. 3739, 111th Cong. (2010) (allowing for federal funding for schools that have bullying prevention programs).  See also Megan Meir Cyberbullying Prevention Act, H.R. 1966, 111th Cong. (2010).

[369]. Megan Meir Cyberbullying Prevention Act, H.R. 1966, 111th Cong. (2010).

[370]. This Model Cyberbullying Policy is limited only to cyberbullying.  In addition to cyberbullying, schools should adopt policies that are inclusive of off-line bullying and harassment (both of which are beyond the scope of this Article).  This Policy is based on Part III of this Article and also the pending Safe Schools Improvement Act of 2010, the “Florida Department of Education Model Policy Against Bullying and Harassment,” and the Anti-Defamation League “Model Statute.”  See Safe School Improvement Act of 2010, S. 3739, 111th Cong. (2010); Model Policy Against Bullying and Harassment, supra note 140; Anti-Defamation League, supra note 10.

[371]. See supra Part II.A(2) of this Article.

[372]. See supra Parts II.A(2)-B(1) of this Article.

[373]. See supra Parts II.A(2)-B(1) of this Article.

[374]. See supra Parts II.A(2)-B(1) of this Article.

[375]. See supra Part II.B(1) of this Article.

[376]. See supra Part II.B(1) of this Article.

[377]. See supra Part II.A(1) of this Article.

[378]. See supra Part II.A of this Article.

[379]. See supra Part II.B(2) of this Article.

[380]. The Anti-Defamation League drafted a model acceptable use policy, adapted from a U.S. Department of Justice model policy.  Anti-Defamation League, supra note 10, at 21.

[381]. See supra Part II.B(2) of this Article.

[382]. See supra Part II.C(1) of this Article.

[383]. See supra Part II.C(1) of this Article.

[384]. See supra Part II.C(1) of this Article.

[385]. See supra Part II.C(1) of this Article.

[386]. See supra Part II.C(2) of this Article.

[387]. See supra Part III(A) of this Article.

[388]. See supra Part III(B) of this Article.

[389]. See supra Part III(C) of this Article.

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