The Dormant Commerce Clause and Geolocation”

Prof. Jack Goldsmith (Harvard) and I’ll have this text out within the Texas Legislation Evaluation early subsequent 12 months, and I will be serializing it right here within the subsequent couple of weeks, beginning Tuesday. There’s nonetheless loads of time for modifying, so we would love to listen to any suggestions you people might need; within the meantime, you may learn your entire PDF of the most recent draft (although with some formatting glitches stemming from the modifying course of) right here. Meantime, the Summary:

When does the Dormant Commerce Clause preclude states from regulating web exercise—whether or not via state libel regulation or invasion of privateness regulation; via state legal guidelines requiring web pages to accommodate disabled customers (as an illustration, by offering closed captioning); via state bans on discriminating based mostly on sexual orientation, faith, or felony file; or via state legal guidelines that ban social media platforms from discriminating based mostly on the point of view of customers’ speech?

This essay argues that the constitutionality of such state regulation ought to typically activate the feasibility of geolocation—the extent to which web pages or different web providers can decide, reliably and inexpensively, which states customers are coming from, in order that the websites can then apply the correct state regulation to every person (or, if want be, select to not permit entry to customers from sure states). In recent times, geolocation has develop into possible, and is routinely utilized by main web pages for odd enterprise functions. There’s subsequently extra constitutional room for state regulation of web providers, together with social media platforms, than usually believed.