New First Principles? Assessing the Internet's Challenges to Jurisdiction

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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. …