State Regulation of Online Behavior: The Dormant Commerce Clause and Geolocation

33 Pages Posted: 28 Jun 2022 Last revised: 21 Jul 2022

See all articles by Jack Landman Goldsmith

Jack Landman Goldsmith

Harvard Law School

Eugene Volokh

University of California, Los Angeles (UCLA) - School of Law

Date Written: June 21, 2022

Abstract

When does the Dormant Commerce Clause preclude states from regulation Internet activity--whether through state libel law or invasion of privacy law; through state laws requiring web sites to accommodate disabled users (for instance, by providing closed captioning); through state bans on discriminating based on sexual orientation, religion, or criminal record; or through state laws that ban social media platforms from discriminating based on the viewpoint of users' speech?

This essay argues that the constitutionality of such state regulation should generally turn on the feasability of geolocation--the extent to which web sites or other Internet services can determine, reliably and inexpensively, which states users are coming from, so that the sites can then apply the proper state law to each user (or, if need be, choose not to allow access to users from certain states). In recent years, geolocation has become feasible, and is routinely used by major web sites for ordinary business purposes. As a result, there is more constitutional room for state regulation of Internet services, including social media platforms, than often believed.

Keywords: dormant commerce clause, geolocation, internet platform regulation, social media, constitutional law, federalism

Suggested Citation

Goldsmith, Jack Landman and Volokh, Eugene, State Regulation of Online Behavior: The Dormant Commerce Clause and Geolocation (June 21, 2022). Texas Law Review, Forthcoming, Harvard Public Law Working Paper No. 22-21, Available at SSRN: https://ssrn.com/abstract=4142647 or http://dx.doi.org/10.2139/ssrn.4142647

Jack Landman Goldsmith (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

Eugene Volokh

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-206-3926 (Phone)
310-206-6489 (Fax)

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