From: Greg Broiles <gbroiles@netbox.com>
Date: Sat, 4 Jan 1997 16:01:18 -0800 (PST)
To: iang@cs.berkeley.edu (Ian Goldberg)
Subject: Re: New rules for Internet sales to CA buyers
Message-ID: <3.0.32.19970104152935.0069018c@mail.io.com>
MIME-Version: 1.0
Content-Type: text/plain


At 09:50 AM 1/4/97 -0800, Ian Goldberg wrote:
>Greg Broiles  <gbroiles@netbox.com> wrote:
>>The following subsection of California Business & Professions Code section
>>17538 took effect 1/1/97 and may be of interest to people following state
>>attempts to regulate net sales:
>>
>>[...]
>>   (d) A vendor conducting business through the Internet or any other
>>electronic means of communication shall do  all of the following
>>when the transaction involves a buyer located in California:
>[snip]
>
>So is this saying that a merchant _anywhere in the world_ can be prosecuted
>under California law if someone in California goes to their web page,
>and the web page doesn't satisfy the requirements (which I snipped)?

Yes; but since the law is a criminal statute, the presence of the defendant
is required (absent the defendant's waiver) for a prosecution to occur.
Securing the appearance of an out-of-state or out-of-country defendant
(extradition) is an expensive and complicated process. Violation of the
statute is a misdemeanor, and California is unlikely to try to extradite
someone in order to try them for a misdemeanor charge. (This is an economic
choice, not a legal restriction - I worked on a case when I was in Oregon
where our client, at that time an Oregon resident, charged with a
misdemeanor in California, managed to make the prosecutor angry enough that
the various state & county agencies involved did jump through the hoops to
request extradition.)  

>How is a merchant in, say, Finland, supposed to know that this law (or others
>like it in any city, state, or country in the world) exists?

By hiring an attorney, of course. :) This is a significant problem; in the
past, it's been difficult enough to do business in far-away places that the
only organizations likely to do so were large enough that they were able to
pay people to keep track of applicable local rules. But now it's easy to
advertise or do business worldwide, and it's very difficult to control
which jurisdictions have access to your advertising materials. So it's
likely that many people and organizations will unintentionally violate many
laws in jurisdictions they're not familiar with. Hopefully the various
enforcement agencies will take this into account when enforcing their laws.
I wouldn't be surprised, frankly, if California never prosecutes anyone for
violation of this law - it's hard to imagine that this will turn out to be
an enforcement priority for anyone.

It is, of course, still useful for selective enforcement, similar to laws
against vagrancy or loitering or public drunkenness, where illegal behavior
is usually ignored but vigilant enforcement is employed to punish or drive
away people who are unpopular for an unrelated reason. If the legislators
really wanted this to be enforced, they'd have given citizens a private
right of action against offending web publishers. Then we'd see some
excitement. 

C-Net's NEWS.COM has an article on the new law at
<http://www.news.com/News/Item/0,4,6667,00.html>.
--
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