Commerce Clause Internet Regulation
American Libraries Ass'n v. Pataki (S.D.N.Y. 1997) concluded that the nature of the Internet "makes it impossible to restrict the effects of the law to conduct occurring within New York" (Pataki, supra, 969 F. Supp. at p. 177); an Internet user may not intend his messages to be accessible in New York but cannot prevent New Yorkers from accessing his messages or prevent messages directed to recipients in other states from passing through New York computers.
"Thus, conduct that may be legal in the state in which the user acts can subject the user to prosecution in New York and thus subordinate the user's home state's policy--perhaps favoring freedom of expression over a more protective stance--to New York's local concerns." (Ibid.)
Pataki held that New York's regulation of the Internet had the effect of projecting New York's laws into other states and was per se invalid under the Edgar/Healy extraterritoriality analysis of the commerce clause. (Ibid.)
Pataki further concluded that the nature of the Internet requires a national uniform regulation because Internet users would be threatened by multiple inconsistent burdens if each state implemented its own Internet regulations.
Pataki cited several cases in which laws purporting to regulate only intrastate matters of local concern were struck down under the commerce clause because they affected a form " 'of the national commerce which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority.' (Quoting Southern Pacific Co. v. Arizona, supra, 325 U.S. at p. 767 65 S. Ct. at p. 1519.)" (Pataki, supra, 969 F. Supp. at pp. 181-182.)
Pataki reasoned that the Internet, like the rail and highway regulations at issue in Southern Pacific Co. and Bibb v. Navajo Freight Lines, supra, 359 U.S. 520, would be severely burdened if users were "lost in a welter of inconsistent laws, imposed by different states with different priorities," and concluded the Internet "requires a cohesive national scheme of regulation so that users are reasonably able to determine their obligations." (Pataki, supra, at p. 182.)
The potential for multiple inconsistent burdens was increased by the fact that the New York law banned harmful matter using the Miller v. California (1973) 413 U.S. 15 93 S. Ct. 2607, 37 L. Ed. 2d 419 standard, which incorporates a patently offensive to prevailing standards in the community test.
Pataki noted that because there is no single prevailing community standard in the United States, "even were all 50 states to enact laws that were verbatim copies of the New York Act, Internet users would still be subject to discordant responsibilities"; matter not deemed harmful in the state from which it was sent could be deemed harmful in states in which it was received. (Pataki, supra, at pp. 182-183.)
Because an Internet user cannot know the geographic location of the message recipient or foreclose access to the message, he or she would have to:
(1) comply with the most stringent standard, or (2) forgo communicating matter protected in the user's state, or (3) risk prosecution based on the geographic fortuity of the unknown recipient. Based on this analysis Pataki concluded:
"Further development of the Internet requires that users be able to predict the results of their Internet use with some degree of assurance. Haphazard and uncoordinated state regulation can only frustrate the growth of cyberspace. the need for uniformity in this unique sphere of commerce requires that New York's law be stricken as a violation of the Commerce Clause." ( Id. at p. 183.)
The American Libraries Ass'n v. Pataki (S.D.N.Y. 1997) commerce clause analysis was followed in Cyberspace, Communications, Inc. v. Engler (E.D.Mich. 1999) 55 F. Supp.2d 737 and in American Civil Liberties Union v. Johnson (10th Cir. 1999) 194 F.3d 1149 (Johnson).
Engler held unconstitutional under the commerce clause a Michigan statute that criminalized Internet communications to minors of sexually explicit matter harmful to minors ( Mich. Comp. Laws 722.671 Mich. Stat. Ann. 25.254).
The Engler court noted the extraterritorial effect of the statute and found it a per se violation of the commerce clause. ( Engler, supra, at p. 751.)
The court also found the statute unconstitutional under the Pike balancing test. (Ibid.)
Johnson held unconstitutional under the commerce clause a New Mexico statute that criminalized dissemination by computer of harmful matter to a minor. ( N.M. Stat. Ann. 30-37-3.2, subd. A.)
The Johnson court noted that the statute "represents an attempt to regulate interstate conduct occurring outside New Mexico's borders, and is accordingly a per se violation of the Commerce Clause." ( Johnson, supra, at p. 1161, fn. omitted.)
The Johnson court also found the statute unconstitutional under the Pike balancing test and the need for uniform regulation test. ( Id. at pp. 1161-1162; see also People v. Barrows (1998) 177 Misc.2d 712 677 N.Y.S.2d 672, 685 (Barrows II); but see People v. Foley (1999) 257 A.D.2d 243 692 N.Y.S.2d 248, 256.)