Midterm Examination MGMT 706 MW01 SP15 CyberLaw, Policy and EthicsChoose 4 of 5 questions to answer. Each question will be worth 25 points (maximum 100points). IMPORTANT RULES: If you are answering questions in a memorandum format, DO NOT CUT andPASTE answers from web sources. The answer to an essay question is an essay or memorandum. Automaticpenalties range from a 50% reduction to a zero for credit if you use external sources, lists, or short answers.Question 1. (Chapter2)The Commonwealth of Massachusetts is considering passing a law to control the availability ofobscene materials on the Internet to its residents. The proposed law, S. 1117, would provide:Section 1. Preventing Access to Obscene Matter. An Internet serviceprovider shall prevent the access of persons residing within this commonwealthto obscene matter available on or accessible through its service.(a) Compliance through Technical Measures. An Internet service provider thatimplements appropriate technical measures that block or filter access toobscene matter shall be deemed to comply with this statute.(b) Order to Remove or Disable Access to Items. If the Attorney General ofthis Commonwealth finds that obscene matter is available or is accessiblethrough the service of an Internet service provider in a manner accessible topersons within this Commonwealth, the Attorney General shall apply to thecourt of the county wherein the items have been discovered for an orderdirecting the Internet service provider to remove or disable access to theobscene matter. Such application shall identify the Uniform Resource Locatoror other address from which such matter is accessible. Upon an ex partedetermination that the material constitutes obscene matter within the meaningof section 2(b), the court shall direct the Internet service provider to removeor disable access to the material. An Internet service providers compliancewith such an order shall be deemed to be in compliance with this statute withrespect to the material covered by the order. An application for an order toremove or disable access to obscene matter, and the further applicationnecessary to ensure compliance with that order, shall constitute the solemeans of enforcing this statute.Section 2. Definitions.(a) The term Internet service provider means an entity that provides a servicethat enables users to access content, information, electronic mail, or otherservices offered over the internet.(b) Obscene matter is matter that:(i)The average person, applying contemporary community standardsof this Commonwealth, would find, taken as a whole, is designedto appeal to, or is designed to pander to, the prurient interest;(ii)Depicts or describes, in a patently offensive manner, an actual orsimulated sexual act or sexual contact, an actual or simulatednormal or perverted sexual act, or lewd exhibition of the genitals,or post-pubescent female breast; and(iii)Taken as a whole, lacks serious literary, artistic, political, orscientific value.© An appropriate technical measure is a specific technology that blocks orfilters access to obscene matter.You serve as a legislative aide to a Massachusetts state senator. The senator hasheard that several groups, including providers of Internet content and Internet users fromMassachusetts, are prepared to file an immediate challenge in federal court to theconstitutionality of S. 1117 if it is enacted. The senator considers you an expert onInternet issues, and has asked you to:Write a memorandum discussing the federal constitutional claims that are likely tobe raised in such litigation and analyze how a court might resolve them.For purposes of your analysis, you may assume that there are two open factualquestions that the state legislature is wrestling with: (1) whether an Internet serviceprovider that filters out or disables access to certain sites can preserve access to thosesites for subscribers residing outside of Massachusetts; and (2) whether any of thetechnical measures that an Internet service provider could implement to block obscenematter will lead to overblocking or underblocking. To be very clear, the senator does notexpect or want you to attempt to resolve these factual issues. Rather, he would like youto discuss how different possible resolutions of these factual issues would be relevant toa courts analysis of constitutional issues.Because the senator is only interested in the substantive merits of the S. 1117, he asksyou to assume for purposes of your analysis that any constitutional claims are raised byparties with standing and that the case would otherwise be justifiable. In addition,because he relies on other aides for analysis of non-Internet issues, he asks you toconfine your analysis of S. 1117 to matters pertinent to your CyberLaw class.Question 2. (Chapter 3)Zhenyu Jang is a Chinese citizen residing in California. Ms. Jang is a well known critic of thepolicies of the Chinese government, and she operates a website, where among other things,she posts short essays to her blog and provides links to other dissident websites and relatedmaterial concerning actions by the Chinese government and Chinese cultural affairs. Herwebsite, which is available at the URL , is actually hosted by Myweb, Inc.,which holds the files on one of its web servers located in Dayton, Ohio.In 2004, Jang puts up a blog posting listing The 10 Greatest Threats To Chinese Peace andSecurity In The Modern World One of the people listed is Sergey Brin, President and CEO ofGoogle, Inc. Jang makes a number of charges against Brin, including that he accepted bribesfrom the Chinese government to make Google search engine block certain sites deemedoffensive to the government, that he is known to be a binge drinker and a heroin addict while hewas at Stanford, and that that he personally fired several Asian-American employees who hadlinks to the Chinese dissident community. She has a hypertext link in her story to anotherwebsite (a blog operated by a California computer programmer, Ed Cox) where Cox makes thesame accusations against Brin (and has several other charges of personal and professionalmisconduct as well).(A) You work in the general counsels office at Myweb, Inc. Myweb has received a letterfrom an attorney representing Mr. Brin, asserting that the charges made against hisclient are false and defamatory, demanding that you disable Ms. Jangs websiteimmediately. The general counsel has asked you for advice about what the companyshould do.(B) It has also come to your attention that the entry in Ed Coxs blog (to which Jangs linkdirected users) contains an extended excerpt from Brins soon-to-be-published memoirs(Life at the Top of the World). You have reason to believe (and you may assume forpurposes of this question) that Coxs actions constitute infringement of Brins copyright.The general counsel of Myweb would like to know whether this exposes Myweb tocopyright infringement liability and what the company should do.(C) Myweb has also received a letter from the State Prosecutor in Shanghai, China,informing you that (a) Jangs postings constitute a violation of the Chinese criminal code(as writings detrimental to the safety and security of the Chinese state), and (b) Mywebitself is also in violation of a related provision of the Chinese criminal code (making itunlawful to make such writings available to Chinese residents over the internet). Theletter indicates that the Prosecutors office is preparing to file criminal charges againstboth Jang and Myweb. The general counsel asks for your advice concerning thecompanys potential liability on these charges and recommendations regarding actionsthe company should or should not take.Write a memo addressing each of these three issues.Question 3. (Chapter 2, 4 and 5)You are a new associate at the law firm of Jefferson & Whitman. A senior partner from thelitigation groupwell call her Janetcalls you in to her office one morning, and says thefollowing:We have represented JF Shea, Co. Inc. a large construction company headquartered inBethesda, MD, for a long timein fact, Shea was the first client I ever brought to the firm, andweve done a lot of business with them since then. Mostly its commercial litigationcontractorsubcontractor problems, some employee lawsuits, some ordinary tort stuffthats what I workon for them. We also do a lot of their financing work as well.I got a call this morning from John, Sheas general counsel. In passing, he mentioned that thefirm tried to get the www.shea.com site on the Internet, but couldnt, because it is already in use(by a law firm, no lesssome firm named Shea & Shea). He asked me what they could doabout that, and I had to admit to him that I hadnt the faintest idea.Write a memo on this subject. Keep in mind that Janet really knows next-to-nothingabout this whole Internet domain name thingit would be nice if you could give hersome background on what these are and how the whole system operates, along withsome idea of what kind of recourse Shea might have, and how they might get thewww.shea.com site.Question 4. (Chapter 2, 3 and 5)You are outside counsel to a company that has just been chosen to manage and operate anew .XXX Top Level Domain, just established by ICANN. Congressman Albert Jenkins (D-FL)has recently introduced legislation providing that:(1) Any person who knowingly, and by means of the World Wide Web or other Internetapplication, displays, transmits, or enables others to display, transmit, or otherwisemakes available to any person, material that is pornographic (as defined below) .Must make that material available only from within the .XXX Top-Level Domain.(2) Pornographic material is defined as anything that (A) depicts, describes, orrepresents, in a patently offensive manner, an actual or simulated sexual act, or anactual or simulated depiction of human genitals, and that (B) the average adult,applying contemporary nationwide community standards, would find appeals solely tothe prurient interest.(3) In addition, the statues require all persons making available any such material to takereasonable measures to prevent access to such material by persons under the age of17.Violation of the statute carries with it civil (fines up to $25,000.00) and criminal (up to 1 year inprison) penalties.Write a memo for your client assessing the issues that would be raised by CongressmanJenkinss bill if it were to be enacted into law, and recommending actions that your clientshould or should not take in that event.Question 5 (Chapter 3 and 4)You are staff counsel in the Office of the Attorney General of New York. NY has just enacted anew law that requires all Internet Service Providers serving NY customers to block any accessby its NY customers to websites, or other communications over the internet, that sell gamblingservices or games of chance (other than those expressly licensed by New York States Bureauof Online Gambling), whether or not such gambling services or games of chance involve theexchange of money. The ACLU and the American Gaming Association have sued to enjoinenforcement of the new law.