& the GII
& Free Speech
This page looks at jurisdictional issues in the governance
It covers -
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
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
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
Those agreements, with varying degrees of effectiveness,
have accommodated disputes about arbitration schemes,
venue for litigation and enforcement arrangements.
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
Dan Burk's 1996 paper
Jurisdiction in a World Without Borders, Joel Reidenberg's
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
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
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
exploring global jurisdiction issues, although many regard
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
on Jurisdiction in Cross-border Consumer Contracts
offer other perspectives.
Pointers to literature regarding offline borders (and
conceptualisation of national or other boundaries) are
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
Reidenberg claims that the Yahoo! decision, explored in
more detail here, represents
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
illegal interception of computer data
computer-related fraud and forgery
copyright violations "on a commercial scale"
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
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
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.
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
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
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.
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
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
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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