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Jurisdictions
This page looks at jurisdictional issues in the
governance of cyberspace.
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's a
delightful notion, but one unlikely to offer much comfort
to anyone who's conducting business online or has concerns
about liability, privacy, security and other matters.
Others appear to be operating on the basis of realpolitik
or gesture politics.
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 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 00), Daniel Headrick's The
Invisible Weapon: Telecommunications & International
Politics 1851-1945 (Oxford, Oxford Uni Press 91) and Intellectual
Property & Private International Law (Oxford,
Clarendon Press 99) 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. 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 is 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 and Darrel
Menthe's 1998 paper
Jurisdiction In Cyberspace: A Theory of
International Spaces offer three perspectives.
extraterritoriality
Conflicts over national jurisdictions aren't new - and
haven't 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 a discussion paper
on Hague.
The New
Sovereignty: Compliance With International Regulatory
Agreements (Cambridge, Harvard Uni Press 95) by Abram
& Antonia Chayes focuses on 'rogue states',
significant as an example of legitimacy and jurisdictional
problems. There's another perspective in
Christopher Arup's The New
World Trade Organization Agreements: Globalizing Law
Through Services & Intellectual Property
(Cambridge, Cambridge Uni Press 2000).
arbitration
Another response
has been the growth of private arbitration.
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 98). 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.
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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