New first principles? Assessing the Internet's challenges to jurisdiction.

Author:Scassa, Teresa
 
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CONTENTS I. INTRODUCTION II. THE CURRENT STATE OF THE LAW A. Jurisdiction Defined Generally B. Jurisdictional Actors: A Public Law Concept C. The Customary International Law of Jurisdiction (and a Bit on Treaties) D. The Special Case of Qualified Territoriality E. Distinguishing Extraterritorial Effect from Extraterritorial Jurisdiction III. CHALLENGES POSED BY THE INTERNET: TRADITIONAL NORMS UNDER STRESS A. Technology and Globalization B. The Internet IV. STATE JURISDICTION OVER INTERNET-BASED ACTIVITIES A. Qualified Territoriality and the Courts B. Prescriptive Jurisdiction C. The Erosion of Jurisdiction V. STATE RESPONSES A. Unilateral Territorial Measures B. Conflict C. Formal Cooperation and Harmonization VI. RECOMMENDATIONS A. New First Principles B. Forecasts and Suggestions VII. CONCLUSION I. INTRODUCTION

Despite its historical origins, the Internet is far more than a communications network. In a short space of time it has become an apparently borderless marketplace, a forum for discussion and exchange of ideas, a criminal network, and a site for the uninhibited exchange of intellectual property. Its global and decentralized nature has also dramatically changed the identities and roles of traditional actors and intermediaries in a range of activities, from commerce to cultural production and information dissemination.

The variety and significance of so much Internet activity--and its impact on pressing domestic issues such as crime, national security and the economy--has necessarily compelled states toward increased engagement with matters outside their traditional spheres of legal authority. Put simply, because the Internet is borderless, states are faced with the need to regulate conduct or subject matter in contexts where the territorial nexus is only partial and in some cases uncertain. This immediately represents a challenge to the Westphalian model of exclusive territorial state sovereignty under international law. As a result, many states have grappled with defining the boundaries of traditional notions of state jurisdiction in cyberspace. This is manifest in the assumption of jurisdiction by states over a broad range of subject matter, from the most routine financial transactions to the muchhyped need for "cyber-security" against Internet-based attacks by other governments or terrorist groups. Courts struggle with a range of increasingly pressing challenges to their very competency to hear a matter, which would have been unheard of only two decades ago. (1) Inter-state conflict is inevitable and has occurred.

Given this situation, it is imperative to attain a clear understanding of the law of jurisdiction and to examine its operation in cyberspace. However, a great deal of the attention paid to jurisdictional issues in the legal literature has been sector-based; one sees publications on jurisdiction over cyber-crime, jurisdiction over foreign torts, jurisdiction over commercial transactions, and so on. The literature has also often been limited to a consideration of jurisdiction solely in the context of a single branch of government, most often in relation to the exercise of jurisdiction by courts. What is needed, we suggest, is an approach grounded solidly on a broad understanding of both how states and state entities exercise their jurisdiction, and the fundamental legal norms that underpin it.

Accordingly, in this paper we will explore both the concept of state jurisdiction and the way in which this concept is being transformed in the context of the Internet. Drawing on examples from various substantive law areas that have been affected by the Internet, we will develop and illustrate the range of state actions encompassed by a broad understanding of jurisdiction. Such a multi-faceted approach to jurisdiction is required to understand the Internet's impact on the way jurisdiction is exercised by various arms of the state, whether through legislative, administrative, judicial or enforcement activity. Through this lens we will examine the manner in which states, via the various branches of government, have adapted to the challenge of the Internet. We scrutinize the extent to which these responses have already begun to shape new principles for the exercise of state jurisdiction in the Internet age and query whether new "first principles" of jurisdiction are nascent, emergent, or even required. The goal is to understand the current state of the law, to assess and forecast where the Internet has placed traditional norms and expectations under stress, and to suggest means and ways by which states, legislators, and courts must innovate.

  1. THE CURRENT STATE OF THE LAW

    1. Jurisdiction Defined Generally

      It is difficult to come up with a legal term which is more overburdened than 'Jurisdiction"; it is a "word of many, too many, meanings." (2) Its multiple layers and meanings are driven by the context in which it is used, but there are nonetheless common threads that allow lawyers, when speaking with each other, to use the word in an intelligible way. Generally speaking, jurisdiction refers to:

      ... the ability of the state to exercise some form of power, coercive or otherwise, over persons, places, things (including property) and events. This power may be exercised by various agencies of the state--the legislature, the executive, the courts or regulatory bodies that receive delegated power from one of those sources--and is defined and delimited by whatever the powers of those agencies happen to be. (8) One sometimes sees the phrase "domestic jurisdiction" used in a way meant to distinguish it from "international jurisdiction," yet this is essentially shorthand for a point that is vital to examining jurisdiction and the Internet--to wit, there is a domestic law of jurisdiction and there is international law about jurisdiction. Any given state will have a law or set of laws, typically as part of its constitution, which sorts out the relative authority of any branch of the state. For example, in federal states such as Canada and the U.S., the constitution prescribes what powers each level of government (federal and provincial, federal and state, respectively) has, and implicitly or explicitly sets out limitations on those powers, whether according to subject matter, geography, or some other factor. It also sets out the areas of competence of the courts. As noted in the introduction, this domestic law is not the primary focus of this paper, apart from at a general level which will be described in part B of this section, below.

      The international law of jurisdiction is our primary focus here--that is to say, the body of public international law which sets out rules for when and how the state (in its many aspects) may exercise jurisdiction over something. It is in a practical sense analogous to the international law of the sea, a field which demanded the creation of a set of rules among states, as the jurisdictional actors, given that the subject matter was so vast that none could control it. Yet even this analogy breaks down when one considers the global electronic interconnectedness of the Internet, which produces the unique effect that it exists, operates and is used both in one state at a time and simultaneously in all states. Not only will any single state not wish to control the Internet, it could not possibly do so except in isolated pockets, and even then any exercise of jurisdiction over the Internet potentially has implications for something or someone outside that state.

      The latter point is perhaps the most important, because it illustrates that any exercise of jurisdiction by a state in an inter-connected world has the potential to bump up against the interests of another state. This naturally implicates the international law of jurisdiction, which, as Mann noted in his seminal essay, establishes normative parameters for "a State's right under international law to regulate conduct in matters not exclusively of domestic concern." (4) That law, he wrote, "is concerned with what has been described as one of the fundamental functions of public international law, viz. the function of regulating and delimiting the respective competences of States." (5) Jurisdiction at international law "reflects the basic principles of state sovereignty, equality of states and non-interference in domestic affairs." (6) Quite obviously, states' sovereign interests are heavily engaged in Internet-related matters, regardless of subject matter. Accordingly, in our view, international jurisdiction is the hot topic when it comes to "law and the Internet."

      The international law meaning of jurisdiction will be explored below, as well as our overall question, which is whether that body of law is adequate to offer states a meaningful framework to govern their actions in relation to Internet-based activities.

    2. Jurisdictional Actors: A Public Law Concept

      It is important to emphasize at the outset that jurisdiction is an inherently public law concept. This might seem self-evident, given the definitions for jurisdiction provided above, and yet we feel it bears explanation and emphasis if one is to gain a broad understanding of the nature of jurisdiction. It may also help to avoid the problems which often crop up in the literature, from focusing on a particular kind of exercise of jurisdiction, by a particular state entity, in a particular area of substantive law.

      One of the building blocks of the literature regarding the law of jurisdiction has, for many decades, (7) been the division of the state into three entities for the purpose of exercising jurisdiction. (8) These familiar branches are: the legislative or prescriptive branch, which refers to the ability of the state to make and apply laws to subject matter, whether that subject matter involves wholly domestic matters or touches on matters outside the state's territory; the enforcement or executive branch, which refers to the state's ability to give effect to its...

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