© 2000 Wyndrose Technical Group, Inc, All rights reserved. Determining the Applicable Law Governing Cyberspace

© 2000 Wyndrose Technical Group, Inc, All rights reserved.

Determining the Applicable Law

Governing Cyberspace


Determining the Applicable Law Governing Cybercrimes

• Proper jurisdiction when cybercrimes occur

• Applicable U. S. and State laws

• Scope and relevance of International Law


Jurisdiction Basics

• “Jurisdiction” refers to the power of governments to

– Proscribe behavior

– Adjudicate

– Enforce

• Older notions of physical presence have inevitably given way to

– fairness

– reasonable nexus

– adequate notice

– opportunity to defend


Whom to Call: The Jurisdiction Muddle

• Computer crime is a Federal offense when it involves:

– theft or compromise of national defense, foreign relations, atomic energy or other classified information

– a computer owned by the Government

– a bank or other financial institution

– interstate or foreign communications

– people or computers in other states or countries

– reproduction or distribution of copyrighted works



• The FBI has jurisdiction over Federal cases involving

– national security

– terrorism

– banking

– organized crime

• The Secret Service has jurisdiction when

– The Treasury Department is the victim

– Violations of the Computer Fraud and Abuse Act

• In some cases, the Customs Department or a military organization (e.g. OSI) may have jurisdiction



• All States now have computer crime laws

– Revisions of older statutes

– New statutes paralleling the Federal statutes

• BOTH Federal and State organizations may have jurisdiction over cybercrimes

• Other factors may also be considered

– The nature and severity of the offense

– The resources available to pursue the investigation

• International Laws may also be applicable


Limitations on Jurisdiction

• Every government is subject to limitations on its authority to exercise jurisdiction in cases that involve foreign interests or activities

– United States Constitutional limits power of Federal government at the expense of the States

– International law also limits governments

• must exercise moderation and restraint in invoking jurisdiction over cases with foreign involvement

• must avoid undue encroachment on the jurisdiction of other states


Jurisdiction to Legislate

• Does the state have the authority to make substantive laws applicable to particular persons and circumstances?

– states have the authority to regulate activities within its territory, as well as conduct of its citizens abroad

– but diplomats are exempted from most taxes


Nationality Principle

• States may regulate:

– the activities,

– interests,

– status, or

– relations

of its citizens

outside of

as well as within their territories


Territoriality Principle

• States may regulate– conduct that takes place within their territories– status or persons, or interests in things, present in their

territories• CompuServe in Germany

• CompuServe was conducting business in Germany, and was therefore subject to German laws

• Extraterritorial application of national law is not permitted

• American Library Ass’n v. Pataki• New York cannot hold Internet users responsible for posting of

obscene or indecent material that New York children could access


Effects Principle

• States may regulate:– Conduct outside their territories that have substantial

impact or effect within their territories• U. S. v. Thomas

– California defendants tried in Memphis, TN for distribution of obscene materials to the Western District of Tennessee

– Defendants knew the jurisdiction in which their files were being accessed and downloading could not have occurred without their approval

• Playboy v. Chuckleberry Publishing– US court could not prohibit distribution worldwide, but could ban

access to customer sites in the US


Effects Principle (continued)

• Distinguishing on-line approaches:– e-mail is no different from letters or phone calls

• e-mail correspondents may not be aware of the citizenship of those who receive their e-mail

– Bulletin Boards• imposition of criminal liability for postings would subject the

poster to the unreasonable burden of knowing of criminal liability in hiundreds of jurisdictions when she cannot conrol the distribution

– World Wide Web• impossible for the owner of a web site to prevent access by

users in a given jurisdiction


Effects Principle and Targeting

• If a jurisdiction is “targeted”, it may regulate conduct that in a completely open situation could not be regulated

• Panavision v. Toeppen– Illinois defendant used a California company’s trademark in a

website for the purpose of extorting money– Three-part test:

• non-resident defendant must purposively avail himself of the privilege of conducting activities in the forum

• the claim must arise out of or result from the defendant’s forum-related activites

• the exercise of jurisdiction must be reasonable


Protective Principle

• States may regulate:

– certain conduct outside their territories by persons not their citizens that is directed against

• the security of the state or

• against a limited class of other state interests

– espionage

– counterfeiting

– falsification of official documents

– network intrusions into state computers?

– Software piracy?


General Requirement for Reasonableness

• Even when one of the bases for jurisdiction applies, the principles of territoriality, effects, nationality, and protection can be used to justify jurisdiction over persons or activities connected to another state only when the exercise of jurisdiction is reasonable


Reasonableness

– Factors to be considered include:

• the extent to which the activity takes place within the territory or has substanytial, direct and foreseeable effect upon the territory

• The connections (nationality, residence, economic activity) between the regulating state and the person responsible for the activity, or between the state and those the regulation is designed to protect

• the character of the activity to be regulated


Reasonableness (continued)

• the importance of the regulation to the state

• the extent to which other states regulate such activities

• the extent to which the desirability of the regulation is generally accepted

• The extent to which justified expectations might be protected or hurt by the regulation

• The importance of the regulation to the political, legal, or economic system

• The extent to which the regulation is consistent with tradition


Reasonableness (continued)

• The extent to which other states may have interests in regulating the activity

• the likelihood of conflict with regulation by another state

• States are supposed to defer to another state with a clearly greater interest if conflicts of prescriptions arise


Universality Jurisdiction

• Any state has jurisdiction to prescribe punishment for offenses recognized by the community of nations as being of universal concern

– piracy

– slavery

– attacks on or hijacking of aircraft

– genocide

– war crimes

– certain acts of terrorism


Jurisdictions to Adjudicate and Enforce

• Jurisdiction to Adjudicate does not exist if there is no jurisdiction to legislate – unless the forum is willing to apply the laws of a foreign state

• A state may not enforce rules that it has no jurisdiction to create– Conversely, the jurisdiction to legislate doesn’t confer the

jurisdiction to enforce the rules in another state’s territory

– Consent is required for

• physical arrest

• service of process

• discovery

• law enforcement investigations


But What About . . .

• Internet investigations where the investigator never enters the other jurisdiction

– U. S. v. Romano• Appellants, domiciled in Italy, were lured to the U. S. by

telephone conversations• The court said, “It must be stated at the outset that in this case

no peace officer or officer of the United States ever entered Italian territory, Therefore, there was no violation of territorial sovereignity or offense to any state.”

– But, the search of your hard drive by foreign law enforcement officers from abroad is more like a traditional search, presumably with legal consequences


Conclusions

• States will increasingly seek to regulate “criminal” behavior on the Internet

• There are limitations on states ability to exercise legislative, adjudicative and enforcement jurisdiction– Legislative jurisdiction is limited to

• territoriality or nationality cases

• targeting

• where the universality principle applies

– Jurisdiction to adjudicate is not triggered by mere web presence

– Jurisdiction to enforce extraterritorially requires consent


Conclusions (continued)

• This is a very active area of the law, both domestically and internationally

– Activities which are constitutionally protected in the United States may subject travelers to prohibitions

• The net is a wonderful place to acquire exposure to may different cultures, people and experiences

• It also can provide exposure to many different penal codes and judicial systems

Documents

© 2000 Wyndrose Technical Group, Inc, All rights reserved. Determining the Applicable Law Governing Cyberspace