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     Jurisdictions

This page looks at jurisdictional issues in the governance of cyberspace.

It covers -

• whose jurisdiction
• the debate
• extraterritoriality
• the cybercrime convention
• arbitration

     whose jurisdiction

Traditional law is based on the notion that activity occurs in a particular jurisdiction - a nation, a state/territory, a municipality - and can be dealt through reference to the rules (and authorities) of that physical location.

Some theorists have argued that we now live in a borderless world where people, capital, information permeate through jurisdictional boundaries at will. The internet poses particular challenges. There are questions about where online activity takes place. There are questions about the location or nature of any dispute resolution mechanisms, since few regions have identical law. And there are questions about the shape, authority and effectiveness of any regulatory enforcement, since even if police or lawyers are able to identify online malefactors, their power may stop at the border.

Responses to those conundrums vary. 

Barlow's response is apparently to abandon regulation per se, or to leave it up to the wizards. It is a delightful notion, but one unlikely to offer much comfort to anyone who is conducting business online or has concerns about liability, privacy, security and other matters.

Others appear to be operating on the basis of realpolitik, gesture politics or the sort of absurdity inherent in the establishment of 'virtual states'. 

German law, for example, forbids Holocaust denial and the dissemination of Nazi propaganda. Far-right groups in Germany and other states publish such material from sites based outside German jurisdiction, including Australia and the US. German courts have responded by declaring that the publication of Nazi material on any site is an offence. In December 2000 the German Supreme Court upheld a conviction against Adelaide-based Frederick Toben. Enforcement appears to depend on the civil action in the defendant's territory - traditionally quite difficult, one reason why the proposed Hague Convention mentioned below is significant - or hoping that they'll enter your jurisdiction.

In November 2000 French courts gave US-based Yahoo! three months to prevent French citizens from accessing similar material, although such publication is allowed under US free speech provisions, French law does not apply in the US and many experts argue that technology won't permit such differentiation. 

The US has used trade negotiations to enforce 'extraterritorial' application of its law. More cogently, some analysts have pointed to the long history of international agreements about trade, telecommunications and dispute resolution. The first agreements on cross-border treatment of mail and plant material dates from the 1850s and 1860s, for example. Detailed agreements about telecommunication standards and pricing were in place from the 1870s. 

Studies such as John Torpey's The Invention of the Passport: Surveillance, Citizenship & the State (Cambridge: Cambridge Uni Press 2000), Daniel Headrick's The Invisible Weapon: Telecommunications & International Politics 1851-1945 (Oxford: Oxford Uni Press 1991) and Intellectual Property & Private International Law (Oxford: Clarendon Press 1999) by Paul Torremans suggest that the 'borderless world' predates the global information infrastructure.

Those agreements, with varying degrees of effectiveness, have accommodated disputes about arbitration schemes, venue for litigation and enforcement arrangements.

     the debate

Henry Perritt, one of the leading theorists of internet law, has written widely on governance issues.  We're impressed by his paper on Jurisdiction & the Internet and paper on The Role & Efficacy of International Bodies & Agreements in the Global Electronic Marketplace. His 1995 address on Computer Crimes & Torts in the Global Information Infrastructure: Intermediaries & Jurisdiction is insightful. 

Dan Burk's 1996 paper Jurisdiction in a World Without Borders, Joel Reidenberg's paper on Governing Networks & Rule Making in Cyberspace, Craig Rutenberg's paper Limiting Self-Help in Article 2B: Enforcing Traditional Boundaries in Cyberspace and Maureen O'Rourke's paper  Fencing Cyberspace: Drawing Borders in a Virtual World take a different view of principles and practicalities. Reidenberg's 2005 paper Technology & Internet Jurisdiction comments that the erosion of national jurisdictional claims has been exaggerated, flawed, arguing that network technologies potentially give states greater authority to claim personal jurisdiction and enable electronic enforcement of decisions, thereby bypassing some problems of foreign recognition and enforcement.  

Juliet Oberding & Terje Norderhaug's paper argued against A Separate Jurisdiction for Cyberspace, relying instead on norms.

The American Bar Association has developed an excellent site exploring global jurisdiction issues, although many regard its proposal for a global commission as deeply problematical. The Global Internet Project's 1999 paper on Jurisdiction in Cyberspace and Daniel Drezner's All Politics Is Global: Explaining International Regulatory Regimes (Princeton: Princeton Uni Press 2007) are also worth reading. 

John Gauntt's 1998 paper The Internet & International Trade Policy, Jane Ginsburg's 1997 paper Copyright Without Borders? Choice of Forum & Choice of Law for Copyright Infringement in Cyberspace, Darrel Menthe's 1998 paper Jurisdiction In Cyberspace: A Theory of International Spaces, Michael Geist's paper (PDF) Is There A There There? Towards Greater Certainty for Internet Jurisdiction and the TransAtlantic Consumer Dialogue paper on Jurisdiction in Cross-border Consumer Contracts offer other perspectives.

Pointers to literature regarding offline borders (and conceptualisation of national or other boundaries) are here.

     extraterritoriality

Conflicts over national jurisdictions are not new - and have not always involved use of gunboats - but are exacerbated by the internet.

One response has been the proposed Hague Convention on Jurisdiction & Foreign Judgements in Civil & Commercial Matters (HCCH), an international agreement applying to most private litigation (essentially you could be sued overseas but judgements would be collected in Australia). 

The Commonwealth Attorney-General's Department has produced series of discussion papers on Hague. Criticism by the Consumer Project on Technology (CPT), established by Ralph Nader, is here. There is a paper by Richard Stallman on Harm from the Hague.

The New Sovereignty: Compliance With International Regulatory Agreements (Cambridge: Harvard Uni Press 1995) by Abram & Antonia Chayes focuses on 'rogue states', significant as an example of legitimacy and jurisdictional problems. There is another perspective in Christopher Arup's The New World Trade Organization Agreements: Globalizing Law Through Services & Intellectual Property (Cambridge: Cambridge Uni Press 2000).

Joel Reidenberg's 2001 The Yahoo Case and the International Democratization of the Internet paper argued that although the net enables actors to reach a geographically dispersed audience, it should not change the accountability of those actors for their conduct within national borders.

Reidenberg claims that the Yahoo! decision, explored in more detail here, represents

a maturing of the Internet regulatory framework and ... the policy rules embedded in the technical infrastructure must recognize values adopted by different states and must not be dictated by technical elites.

     the cybercrime convention

The international Convention on Cybercrime, discussed in more detail elsewhere on this site, aims to increase international cooperation regarding the identification of and response to online offences. It was drafted in 2000 by the Council of Europe, rather than by the United Nations, and has gained the support of the US, UK and Australia among other governments.

The Convention requires members to adopt similar legislation regarding -

• illegal access
• illegal interception of computer data
• data interference
• network interference
• misuse of devices
• computer-related fraud and forgery
• child pornography
• copyright violations "on a commercial scale"

Overall it has gained the endorsement of industry groups such as the Cyber Security Industry Alliance but been vehemently criticised by civil liberties advocates such as the EFF and by groups with anxieties about globalisation (or merely about government).

The EFF, with a characteristic emphasis on a potential headline rather than content, thus dubbed it one of the "World's Worst Internet Laws", lamenting that the Convention

requires that the US government help enforce other countries' 'cybercrime' laws—even if the act being prosecuted is not illegal in the United States. That means that countries that have laws limiting free speech on the Net could oblige the FBI to uncover the identities of anonymous U.S. critics, or monitor their communications on behalf of foreign governments. American ISPs would be obliged to obey other jurisdictions' requests to log their users' behavior without due process, or compensation.

In responding to xenophobic comments from groups such as the EFF some European commentators have noted that reciprocity is not unusual and that US authorities have been seeking (and often gaining) the arrest of Europeans for offences that are not illegal in their own countries, ie without a requirement of 'dual criminality'.

In practice, the Convention features a set of exceptions to mutual assistance. Nations may refuse to cooperate with requests that involve a "political offence" or if a country believes the request would prejudice its sovereignty, security, public order other essential interests. The US Department of Justice accordingly signals that "essential interests" would authorise the US to refuse any request that would violate its Constitution. Article 15 of the Convention explicitly recognises judicial oversight of cross-border requests for identification or detainment of alleged cyber-criminals, referring to safeguards that include

judicial or other independent supervision, grounds justifying application, and limitation of the scope and the duration of such power or procedure.

That has not deterred chauvinistic attacks, with one US exceptionalist grizzling that

Even worse, the Cybercrime Treaty is open to all nations to ratify. That means a future leftist President could even allow Communist China to sign on to the treaty and direct U.S. law enforcement to investigate Chinese dissidents, even Americans, based in the United States ... The treaty could allow European or even Chinese Communist agents to electronically spy on innocent Americans.

     arbitration

Another response has been the growth of private arbitration, discussed in more detail in a supplementary profile on this site. 

A notable example is ICANN's Uniform Domain Name Dispute Resolution Process (UDRP), explored in our profile on the 'ICANN Wars'. 

The UDRP is aimed at addressing disputes about domain names - eg cybersquatting - in a way that's more speedy and economical than recourse to international courts and that doesn't get bogged down in disagreements between different national/regional jurisdictions (eg French versus US courts). The World Intellectual Property Organisation (WIPO) Domain Name Dispute Resolution Service (DNDRS) has so far gained most of the work.

A valuable perspective on such arbitration is provided by Dealing in Virtue: International Commercial Arbitration & the Construction of a Transnational Legal Order by Yves Dezalay & Bryant Garth (Chicago: Uni of Chicago Press 1998). It is unclear whether the arbitral model will gain wide acceptance in other disputes; US courts for example appear to be increasingly disregarding such arrangements in asserting global coverage of US law, an assertion underpinned by US status as the world's biggest market.

For a more detailed discussion see Law & Practice of International Commercial Arbitration (London: Sweet & Maxwell 1999) by Alan Redfern & Martin Hunter and International Commercial Arbitration in the United States: Commentary & Materials (New York: Kluwer 1994) by Gary Born. We've highlighted other resources in a profile on this sight regarding e-commerce alternative dispure resolution (ADR) schemes

Four papers offer a background in considering tensions between legal regimes, choice of legal fora and disputes about what's a crime in the global information infrastructure. 

David Post's thought-provoking paper The "Unsettled Paradox": The Internet, the State, and the Consent of the Governed, like Lessig's Code, highlights the significance of perceptions by the governed.

Sean Thornton's paper State Criminal Laws in Cyberspace: Reconciling Freedom for Users with Effective Law Enforcement, Fred Cate's paper on Global Information Policymaking & Domestic Law and Henry Perritt's 1997 paper in the Journal of International Legal Studies on Cyberspace & State Sovereignty offer other perspectives. 



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