Poachers with PCs: the United States' potential obligations and ability to enforce endangered wildlife trading prohibitions against foreign traders who advertise on eBay.

• Author: Beardsley, Elizabeth R.

ABSTRACT

The Internet has become a dangerous tool in the illegal trading of wildlife; a recent one-week survey found over 9,000 wildlife products for sale. As the Convention on International Trade in Endangered Species (CITES) and the United States' implementing legislation, the Endangered Species Act (ESA), address the movement of wildlife across national boundaries, the use of the Internet in such trade poses significant new legal questions, implicating basic principles of international law and jurisdiction.

This paper explores applicable law when a foreigner, in a foreign country, places an illegal wildlife item for sale on a U.S.-based Internet auction service, such as eBay. While U.S. law authorizes the government to prosecute the hypothetical foreigner, it is unlikely that the United States could successfully assert jurisdiction to prescribe without the agreement of the foreign country.

First, the Internet posting comprises an offer for sale prohibited by the ESA. Second, while the ESA has ambiguities as to extraterritorial application, interpretive methods on balance suggest that it is so intended. Third, evolving jurisprudence in the Internet context provides support for personal jurisdiction (e.g., if "something more" is present, likely with a repeat seller).

While the hypothetical is untested on some aspect of each of these issues, sources of law have been identified that support the claim. Jurisdiction to prescribe over the hypothetical, however, is not supported in the law. The hypothetical does not convincingly fit the effects principle, and universality would likely fail on state sovereignty concerns. Thus, the United States cannot assert jurisdiction.

1. CITES AND THE PROBLEM OF INTERNET TRADING IN ENDANGERED SPECIES II. UNITED STATES' OBLIGATIONS UNDER CITES III. POTENTIAL APPLICATION OF THE USA TO FOREIGN POSTED INTERNET ADVERTISEMENTS IN THE UNITED STATES A. The Endangered Species Act and Its Prohibitions 1. Violation of Prohibition on Offer for Sale. 2. Whether the Offer for Sale Is Extraterritorial B. Extraterritorial Application of USA Section 9(a)(1)(F) 1. Language and Structure of the USA a. Persons Subject to the Jurisdiction of the United States b. Language and Structure of Section 9 2. Congressional Intent as to Section 3. Purpose of the Whole Statute 4. Interpretation of Similar Statutes 5. Conclusion C. Jurisdiction to Prescribe D. Personal Jurisdiction 1. Personal Jurisdiction in Internet Cases 2. Minimum Contacts 3. Fair Play 4. Venue, Notice, and Service 5. Conclusion IV. CONCLUSIONS A. U.S. Laws Are Adequate to Implement CITES Obligations B. U.S. Laws May Reach an Offer for Sale by a Foreign Trader Using eBay, but the U.S. Still Lacks Jurisdiction to Prescribe C. Any Law Enforcement Response to the Problem of International Internet Auctions in Global Wildlife Trade Must Originate in the International Community Enforcement efforts ... are only in their infancy, enabling illegal Internet traders to remain several steps ahead.... [T]ime is running out for those highly endangered species threatened by continued illegal trade.... Th[e] body of law will have to adapt quickly to new technologies if it is to be effective in saving species. (1) I. CITES AND THE PROBLEM OF INTERNET TRADING IN ENDANGERED SPECIES

   The Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES") (2) entered into force in 1975 and now boasts 169 parties, (3) making it one of the largest environmental treaties and the most important wildlife treaty. (4) CITES establishes a system to regulate the international trade of listed species of flora and fauna, formed around three appendices. Appendix I includes all species threatened with extinction which are or may be threatened by trade. (5) Commercial trade in specimens of threatened species is all but prohibited. Trade of threatened species, for non-commercial uses require export and import permits which may only be granted subject to certain findings by the exporting and importing countries, including that the transaction will not be detrimental to the survival of that species. (6) Appendix II includes all species which may become threatened with extinction unless trade is subject to strict regulation and related species. (7) Trade in these species may be allowed with an export permit, subject to certain findings by the exporting country, including that the export will not be detrimental to the survival of that species. (8) Appendix III includes all species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exportation; these species may be traded with an export permit, requiring only a certificate of origin and the primary finding that the specimen was not obtained in violation of domestic laws. (9) Thus, CITES sets out to nearly prohibit the international trade in the most threatened species, and to allow, but regulate, the international trade of potentially threatened species.

   CITES has been widely viewed as a success, particularly in halting or slowing extinctions forecasted prior to its enactment. (10) Moreover, CITES has largely accomplished the goal of international cooperation. The regime created by CITES also has demonstrated adaptability to respond to changing conditions, whether with respect to a particular species or global pressures. (11) This adaptability is evidenced by the significant activity at each biannual Conference of Parties (COP), such as proposals for new or modified species listings, programs to provide financial and/or technical assistance to Parties or prospective Parties, and cooperation on enforcement. (12) An example of how CITES has responded to changes in global pressure is its elephant program, in which the COP creatively provided for an ivory quota to facilitate sustainable development where there are healthy populations. (13)

   Despite CITES' successes, many species remain endangered: CITES currently lists approximately 5,000 species of animals and 28,000 species of plants, with CITES Appendix I comprising 827 of these species. (14) International trade plays an ongoing role in the endangered status of these species. (15) According to the CITES Secretariat, the central challenges it faces include: "Expanding human populations, economic development, poverty and war are testing the ability of many kinds of animals and plants to survive the modern world. Globalization is also adding to the pressure as higher levels of international trade and income expand the demand for wildlife and wildlife products." (16) Interpol estimates illicit trade in endangered wildlife species as the second largest global black market with a volume of roughly $6 billion per year. (17) "As the COP acknowledges ... illegal trade in the most sought after species still continues at an alarming rate." (18) Unfortunately, "[t]he United States is one of the world's largest markets for wildlife and wildlife products." (19) The United States is the world's largest importer of wildlife and wildlife products, and "protected plants and animals are second only to drugs among illegal items smuggled into the country." (20)

   Technological advancements facilitate illicit trade in endangered species. For example, the internet is now a major tool in the illegal trading of wildlife. In August 2005, the International Fund for Animal Welfare (IFAW) issued a study finding that:

   [T]he Internet is coming to play a central role in the activities of illegal traders ... [In monitoring] the nature and scale of wildlife trade on the Internet over several months ... IFAW found a shocking array of species for sale in which all commercial trade is legally prohibited or strictly regulated. Within an intensive one week survey, we found over 9,000 wild animal products and specimens and live wild animals for sale, predominantly from species protected by law. (21) The U.K. House of Commons published a report on wildlife crime noting "the significant switch to the Internet as the preferred method for trading in protected and endangered species." (22) Additionally, a recent criminal justice study of the illegal wildlife market in South Africa and Namibia reported that "[t]raffickers relied on modern communications technology of email and Internet web sites to trade their stolen goods." (23) As a further sign of the significance of the Internet to endangered species trading, a CITES Party seeking to demonstrate the substantial international trade in Great White Sharks relied solely on Internet listings. (24) The U.S. Fish and Wildlife Service ("USFWS"), Office of Law Enforcement, has an undercover wildlife cyber crime team; one agent reportedly stated he has noticed an increase in the last five years of illegal products and animals being sold online, although the agency does not keep track of how many cases it works on each year. (25)

   While in one view it is a merely a new medium for the commission of an old crime, (26) the Internet significantly threatens the success of CITES in halting illegal trades in wildlife. The Internet's combination of anonymity and global reach could easily facilitate expansion of international trade and further frustrate the CITES mission. The vast scale of Internet commerce is a further obstacle to enforcing international trade laws. (27)

   Since CITES and its implementing national legislation focus on the movement of wildlife across national boundaries, the use of the Internet in such trade may pose new legal questions. (28) As one practice guide notes, the Internet complicates even the most fundamental legal matters:

   [T]he typical facts of a ... transaction conducted through the Internet support competing inferences regarding the place and time of the transaction. (Where is a web page located/Where it is viewed ... or where server transmitting [it] is located?) ... [This leads to dispute over which law should be applied]--the law of the place of origin...