Big law is rife with not either openly caring or not considering fundamental US Constitution issues. I can show dozens of examples of big law "client alerts" on various laws, mostly state laws, that are facially unconstitutional, but that never gets mentioned in any client alert. The billable hour is all consuming. Pesky things like actually pushing back against laws that are ultra vires or unconstitutional are far down the priority scale.
I suspect, however, the final outcome of this discussion will depend on what US courts want to do with it. This is not my practice area, but I worked as a clerk on the appeal of a criminal case some 50 years ago where the unpopular defendants were dragged from the UK to the US in pretty obvious violation of the applicable UK-US extradition treaty. The 2nd Circuit essentially agreed our argument on the treaty and law was correct, but then said if they applied it they would have to throw out the case, which they weren’t prepared to do. My trust in the courts to do the right thing here is very, very limited. Especially, if they Democrats are in power or Democrat nominated judges are involved.
The one caveat here is that 4chan has no financial assets or personnel in the UK (it's somewhat of a unique case - basically a large passion project), so the UK has little recourse.
To the degree that large enterprises actually have a real business presence in Europe (not to mention the screws which could be tightened on domestic financial processors), this defense isn't sufficient.
If only the server country applied, wouldn't that open up a can of worms on child pornography? Let's say a country set the legal age of 15 or no legal age. Would that allow anyone to view it stating that it was not illegal? Granted a country could use firewalls to block communication with any server from that country however.... While I like the idea of free speech being protecetd by US laws, I am not enamored with what COULD happen. The "law of unintended consequences" always rears its ugly head.
Then you could not go after the site owner, but viewing it - which means having the image on your device in your country could still be an offense. Arrest the Johns and prostitution will be less of a problem than if you try to go after the hookers….
This is going to get more complicated when servers in different jurisdictions serve the same data. If I have, say, an AWS application/website that is hosted in both an EU data center and a US one, then which legal system applies?
I suspect the answer is going to be: "don't". I'm not a lawyer, but have some experience in international policy, and the fact is, as old as there have been governments, you've had situations like Juarez and El Paso, or Tijuana and San Diego, where you have two very different cities separated by a line. The people can't be credibly said to be different, but the jurisdictions matter. Big Tech has believed that their economies of scale mean they can just comply with the most restrictive government and pay the bribes to keep it from getting too bad, but I don't think they'll be able to. They just make too much money and it's funded a race to the bottom for the most restrictive regulations possible because the greatest oppressor is the one getting the bribes not to make things worse.
I agree with you here but what about the argument the EU can somehow regulate the correspondence because the "email" goes through European cables? (I've seen this done in the states as well, if that's different, how?)
If the European Union can land ground troops on U.S. soil and defeat America in battle, we will be happy to have that conversation then. But not a moment before
Great explanation. Thanks for the clarity!
Big law is rife with not either openly caring or not considering fundamental US Constitution issues. I can show dozens of examples of big law "client alerts" on various laws, mostly state laws, that are facially unconstitutional, but that never gets mentioned in any client alert. The billable hour is all consuming. Pesky things like actually pushing back against laws that are ultra vires or unconstitutional are far down the priority scale.
Fascinating and, I think, substantially correct.
I suspect, however, the final outcome of this discussion will depend on what US courts want to do with it. This is not my practice area, but I worked as a clerk on the appeal of a criminal case some 50 years ago where the unpopular defendants were dragged from the UK to the US in pretty obvious violation of the applicable UK-US extradition treaty. The 2nd Circuit essentially agreed our argument on the treaty and law was correct, but then said if they applied it they would have to throw out the case, which they weren’t prepared to do. My trust in the courts to do the right thing here is very, very limited. Especially, if they Democrats are in power or Democrat nominated judges are involved.
The precedent will eventually be made with enough bites at the apple. The weight of existing First Amendment precedent is pretty overwhelming.
Hope you’re right!!
The one caveat here is that 4chan has no financial assets or personnel in the UK (it's somewhat of a unique case - basically a large passion project), so the UK has little recourse.
To the degree that large enterprises actually have a real business presence in Europe (not to mention the screws which could be tightened on domestic financial processors), this defense isn't sufficient.
You could always pull out of Europe. Americans need good jobs too.
If only the server country applied, wouldn't that open up a can of worms on child pornography? Let's say a country set the legal age of 15 or no legal age. Would that allow anyone to view it stating that it was not illegal? Granted a country could use firewalls to block communication with any server from that country however.... While I like the idea of free speech being protecetd by US laws, I am not enamored with what COULD happen. The "law of unintended consequences" always rears its ugly head.
Then you could not go after the site owner, but viewing it - which means having the image on your device in your country could still be an offense. Arrest the Johns and prostitution will be less of a problem than if you try to go after the hookers….
This is going to get more complicated when servers in different jurisdictions serve the same data. If I have, say, an AWS application/website that is hosted in both an EU data center and a US one, then which legal system applies?
I suspect the answer is going to be: "don't". I'm not a lawyer, but have some experience in international policy, and the fact is, as old as there have been governments, you've had situations like Juarez and El Paso, or Tijuana and San Diego, where you have two very different cities separated by a line. The people can't be credibly said to be different, but the jurisdictions matter. Big Tech has believed that their economies of scale mean they can just comply with the most restrictive government and pay the bribes to keep it from getting too bad, but I don't think they'll be able to. They just make too much money and it's funded a race to the bottom for the most restrictive regulations possible because the greatest oppressor is the one getting the bribes not to make things worse.
I agree with you here but what about the argument the EU can somehow regulate the correspondence because the "email" goes through European cables? (I've seen this done in the states as well, if that's different, how?)
If the European Union can land ground troops on U.S. soil and defeat America in battle, we will be happy to have that conversation then. But not a moment before