Zeviar-geese the State of Law on Cyberjurisdiction and Cybercrime on the Internet

• Jurisdiction: California,United States
• Publication year: 1997
• Citation: Vol. 1 No. 1

Gonzaga Journal of International Law

Gonzaga University 721 N. Cincinnati St. Spokane, WA 99202 Phone 800 986 9585

Cite as: Gabriole Zeviar-Geese, The State of Law on Cyberjurisdiction and Cybercrime on the Internet, 1 Gonz. J. Int'l L. (1997-98), available at http://www.across-borders.com.

The State of the Law on Cyberjurisdiction and Cybercrime on the Internet

Prepared by: Gabriole Zeviar-Geese [*] California Pacific School of Law

It is in this digital soup, this is a hyper-relational environment, that we see the death of the barrier. . . . What we do have is the network and the death of dichotomy. This is fatal for the legal system, which depends for its very life on the existence of barriers- after all, that's what the law does: it utters the line between this and that, and punishes the transgressor.

Curtis E.A. Karnow [1]

INTRODUCTION

THE ARCHITECTURE OF CYBERSPACE

I. CYBERCRIME

A. The Scope of Cybercrime

B. The Types of Cybercrime

1. Fraud

2. Forgery

3. Computer Sabotage

4. Unauthorized Access to Computer Services or Systems

5. Unauthorized Copying of Computer Programs

6. Cyberstalking

C. The Cybercriminal

II. CYBERJURISDICTION

A. Cyberjurisdiction in Civil Cases

B. Minnesota's Internet Warning: Signpost of the Future

C. Cyberjurisdiction in Criminal Cases

D. Cyberjurisdiction in International Cases

III. CONCLUSION

INTRODUCTION

With the advent of the Internet, cyberlaw has become an emerging field. Cyberlaw encompasses cybercrime, electronic commerce, freedom of expression, intellectual property rights, jurisdiction and choice of law, and privacy rights. [2] Cybercrime involves activities like credit card fraud, unauthorized access to computer systems, child pornography, software piracy and cyberstalking. [3] Electronic commerce includes with encryption and data security. [4]Freedom of expression includes defamation, obscenity issues and censorship. [5] Intellectual property rights covers copyright, software licensing and trademark protection. [6] Jurisdiction focuses on who makes and enforces the rules governing cyberspace.[7] Privacy rights addresses data protection and privacy on the Internet. [8]

There are many issues to be resolved in Cyberlaw. Two areas of cyberlaw requiring further clarification are cybercrime and jurisdiction. For example, in cyberlaw there are only a limited number of cases on point and no major statutory schemes on the books. Policy makers and attorneys dealing with cybercrime are often confined to referring to the imprecisely applicable, and scarce existing statutes and cases. [9] In cyberjurisdiction, the Courts must address the question of which law-maker has jurisdiction over actions taking place on the Internet. In the few cases the Courts have adjudicated they have applied long-arm statutes and personal jurisdictional principals in making decisions. Due to the paucity of cyberjurisdiction cases there is a limited amount of law for the legal practitioner to reference.

The purpose of this article is threefold. First, to give an overview of the Internet by discussing its history, how it works, and the different ways users can communicate over it. Second, to briefly examine cybercrime by looking at its scope, the types of crimes typically committed and the kind of person who commits cybercrime. Third, to examine how cyberjurisdiction is resolved in civil, criminal and international cases with the view toward understanding jurisdictional issues in cybercrime cases.

THE ARCHITECTURE OF CYBERSPACE

The Internet is a term that describes the global connection of interconnected computer networks [10] spanning state and national borders. [11] The notion of interconnecting computers originally began in 1969 as part of a military program called "ARPANET." [12]

ARPANET was designed to enable the military, defense contractors and academics conducting defense related research to communicate with each other through alternate channels. This redundancy was created to ensure that communications could continue even if part of the network was damaged in war. ARPANET has provided the foundational design for the development of many of the civilian networks used to enable millions of people to communicate with one other and to access information from all over the world. [13]

In the last decade the Internet has undergone considerable expansion. In 1994 there were an estimated 21,000 connected networks in over 60 countries with 15 million users, and an expected growth rate of 7 to 10 percent per month. [14] Today it is estimated that there are over 9.4 million computers and as many as 40 million people worldwide linked to the Internet. [15] It is projected by the end of this century there could be over 200 million Internet users. [16]

Access to the Internet is available to users through a wide variety of communication and information retrieval methods. Popular access methods are E-mail, mail exploders, newsgroups, chatrooms and the World Wide Web. Via E-mail users can send an electronic message to another user or to a group of users. Upon receipt of the E-mail message, the message is stored electronically in the user's mailbox to be read immediately or at a later time. [17]

A mail exploder is like an E-mail group where subscribers can send messages to a common E-mail address. The messages are then forwarded to each of the group's subscribers. [18]

A newsgroup can be seen as an online discussion group where there are tens of thousands of discussion areas each focusing on a specific topic. Newsgroups are arranged into hierarchies such as comp (computers), soc (social issues), or sci (science). Each hierarchy is divided into branches and sometimes into subbranches. [19]

Chatrooms are common areas in cyberspace where users can engage in real time dialogue by sending E-mail messages that can be read by anyone in the chatroom or on a one-on-one basis. [20] Recent technical developments enable users to move beyond the limitations of chat rooms to include real-time voice communication between users anywhere in the world via the Internet. [21]

All of these methods can be used to transmit text. Most of these methods can also transmit pictures, sound and video images. In aggregate, these methods create a unique medium known as cyberspace. [22]

A Uniform Resource Locator ("URL") is used by browsers [23] to locate an item on the Internet. A URL can reference a Web site, a sound file, a graphic image, or a Web page. URLs consist of five elements. The first element is the protocol to use to access the Internet site. The second element is the Web server's name. The third element is the path to locate the item on the Web server. A path can consist of one or more slash separated directory names. The fourth element is the file name. The fifth element is the anchor name. Anchor names are used to reference a specific location within a long Web page. [24]

Sending E-mail on the Internet requires a different addressing format from URL. E-mail addresses contain four elements. [25] The typical address, however, consists of three elements. The first is the user's Internet account name. The second is the host or domain name. (Whereby, the host name is the name of the computer that contains the Internet account and the domain name is the name of the network to which the host computer is connected.) The third is the top-level domain. International E-mail contains a fourth element, the abbreviation of the country in place of or in addition to the top-level domain name.

The World Wide Web ("WWW") has been defined as a vast collection of documents stored on Internet computers. [26] Actually, the Web is only a part of the Internet, but its name has become so popular that many new users believe that the Web is the Internet. [27] From a technical standpoint the Web is an information presentation system. [28] The Web was begun by Tim Berners-Lee while working at CERN, the European Laboratory for Particle Physics. He started the WWW project with the purpose of building a distributed hypermedia system. Berners-Lee has continued his work with the W3 Consortium at the Massachusettes Institute of Technology. [29]

A Web site consists of one or more Web pages created by an individual or an organization residing on a Web server. [30] Web pages can have one of two characteristics. A Web page can either restrict users to viewing a Web page or it can be interactive and allow users to read and/or update fields on the Web page. [31] Two examples of an interactive Web page are a questionnaire or an order form.

Web documents or Web pages have two important characteristics. First, they contain icons or links (consisting of either blue or underlined text) that can be clicked on to access other Web pages. [32] These links can point to other portions of the same Web page, to other pages on the same Web server or to pages on a computer located anywhere in the world. Second, they can contain sound, graphics, animation, and/or other multimedia elements. [33]

I. CYBERCRIME

The definition of what constitutes a crime on the Internet is still being developed. In the past, the states and federal government have defined cybercrime activities to include the destruction or theft of computer data and programs to be computer crime. More recently, the definition has expanded to include activities such as forgery...