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Основните тестове за установяване на компетентност в дела от компютърно право

The main tests for finding jurisdiction in cyber-law cases

By: Elena Uzunova, LLB (Oxford), LLM (Sofia)

I. Introduction

Under international law, a State is subject to limitations on its authority to exercise jurisdiction in cases that involve foreign interests or activities.[1] International law, however, does not impose hard and fast rules on States delimiting spheres of national jurisdiction. Nevertheless, the existence of limits is undisputed. Every State has an obligation to exercise moderation and restraint in invoking jurisdiction over cases that have a foreign element, and they should avoid undue encroachment on the jurisdiction of other States.[2] A State that exercises jurisdiction in an overly self-centred way not only contravenes international law, but it can also „disturb the international order and produce political, legal, and economic reprisals.“[3]

Traditionally, three kinds of jurisdiction are distinguished: jurisdiction to prescribe, or legislative jurisdiction; jurisdiction to adjudicate, or judicial jurisdiction; and jurisdiction to enforce, or executive jurisdiction.[4] Jurisdiction to prescribe is the first step in many analyses. Jurisdiction to adjudicate does not apply in the absence of jurisdiction to prescribe unless the forum State is willing to apply the law of a foreign State. For jurisdiction to enforce, States also regularly need jurisdiction to prescribe. These distinctions can be important in determining the limits of a country’s jurisdiction under international law. Depending on the nature of the jurisdiction being exercised, the requisite contacts with a State necessary to support the exercise of jurisdiction differ.[5] The three types of jurisdiction however, are often interdependent, and their scope and limitations are shaped by similar considerations.[6]

  1. Jurisdiction to prescribe

Jurisdiction to prescribe means a State’s authority to make its substantive laws applicable to particular persons and circumstances[7]. International law has long recognized limitations on the authority of States to exercise jurisdiction to prescribe in circumstances affecting the interests of other States. In principle, it was accepted that a State had legislative jurisdiction to regulate activities within its territory, as well as the conduct of its nationals abroad[8]. Yet, there is wide international consensus that not even the links of territoriality or nationality suffice in all instances for the exercise of jurisdiction to prescribe[9]. For instance, according to Article 34 of the Vienna Convention on Diplomatic Relations, diplomats are exempted from most dues and taxes[10]. When the prescriptions of two States are in conflict, each State has an obligation to evaluate its own as well as the other State’s interest in exercising jurisdiction. A State should defer to the other State if that State’s interest is clearly greater[11].

The governing principles, known as the territoriality principle, the nationality principle, the effects principle, and the protective principle[12], will be discussed further below.

  1. The territoriality principle

This principle would allow a State to order service providers who operate on its territory to obey its regulations. It would further allow barring access to certain Web sites from machines operating within the State’s territory. States insist, in fact, on their sovereignty to control activities which happen in their territory even if these activities are not limited to the national territory[13], and even if control might be ineffective[14]. Under international law, States can even incur international responsibility if they allow their territory to be used for unlawful activities directed against other States[15].

In the first place, there is the „subjective“ application, which creates jurisdiction over crimes within the state but completed or consummated abroad. Instead of having overregulation this leads to having the most basic protections coming de facto the ones which we’re adopting because everybody rushes to the location which has the lowest legal protection. So, given the disadvantages, it is quite clear that this approach is never going to become massively dominant. However, there is one major exception – the EU Electronic Commerce Directive[16]. Article 3 (2) of the Directive means that states may not impose their regulation on online providers from other member states. So it actually creates a very strong obligation within the EU to respect the laws of the originating state. Obviously, the EU is a very special example, but it does give us a view of the characteristics which would be required for the point of origin method of jurisdiction claims to work. The rules of the origin states would broadly need to be in accordance with the destination state. Another concept is the existence of some degree of reciprocity in the process.

Generally accepted and often applied is the „objective“ territorial principle (also sometimes called the destination approach), according to which jurisdiction is founded when any essential constituent element of a crime is consummated on state territory. The most well-known illustration of this destination approach, the objective territoriality principle is provided by the French case of LICRA v Yahoo[17], where the French Supreme Court ordered Yahoo!, the US Internet portal, to implement measures to stop French users from buying Nazi memorabilia via online auctions on the company’s US-website as the exhibition of such items is contrary to French law. Protected by the First Amendment, these auctions were however perfectly legitimate under US law. Due to the accessibility in France, the case could be held in France, even though the most closely connected state is America. Criticisms of this approach: impose too high and unrealistic real burdens on individuals and corporate online publishers; the super imposition of one state’s law on another state amounts to or can amount to strong censorship and deprive the online community of online diversity in content. And if states were allowed to regulate all online activities, online space would no longer be shared between states which is theoretically unsatisfactory because it is contrary to the whole setting up of a competence regime. To try to avoid some of these criticisms, the French court in Yahoo actually ordered what is in fact the only alternative compliance strategy and ordered Yahoo to prevent access to the artifacts in question from French territory and argued that by avoiding French territory, Yahoo could avoid falling foul of French law.

Whether such an exercise power is reasonable has been decided to be dependent on a number of factors. These include the extent to which the activity has (in terms of the tort analogy) a substantial direct or foreseeable effect upon the territory, the character of the activity, the degree to which the desirability of regulation is generally accepted in the international community, the existence of justified expectations, the importance of regulating the activity, consistency with the traditions of the international legal systems, the interests of other states in regulating the activity and the likelihood of conflicting regulation. The test is easy to understand by academics but hard to apply in practice because it goes beyond merely seeking to uphold a state’s authority over it’s territory and seeks to protect the individuals, the interests of other states and the coherence of the allocation system as a whole. This approach hasn’t been the one which has dominated the internet debate[18].

  1. The nationality principle

The right of a State to regulate the conduct of its citizens or nationals anywhere in the world is, like territorial jurisdiction, basically noncontroversial[19]. For example, more and more States are outlawing child sex tourism[20]. Insofar as Germany makes even its nationals residing abroad subject to its prohibition against the dissemination of child pornography[21], it is acting in accordance with international law.

The nationality principle is applicable to juristic as well as to natural persons[22]. As the German branch of CompuServe Inc., for example, is chartered as a German company, it is subject to German law[23].

In addition to the territoriality principle, therefore, service providers will in many cases also be subject to jurisdiction under the nationality principle.

  1. The effects principle

The effects principle can be invoked when an act committed in one State causes injury in the territory of another State. Jurisdiction is grounded in the fact that the injurious effect, although not the act or omission itself, occurred in the territory of the State[24]. Controversies may particularly arise where the conduct was lawful where carried out. This principle has been a major source of controversy in antitrust cases where it was invoked to support regulation of activities abroad by foreign nationals because of the economic impact of those activities in the regulating State[25]. As a basis for jurisdiction however, it is increasingly accepted[26] even when its excessive application, especially by the United States, is criticized[27].

  1. The protective principle

The protective principle allows a State to protect its own governmental functions[28]. International law recognizes the right of a State to punish a limited class of offences committed outside its territory by persons who are not its nationals. „Nearly all states assume jurisdiction over aliens for acts done abroad which affect the security of the state …“[29]. These offences must be generally recognized as criminal by the international community. This is the case for offences like espionage, counterfeiting of the State’s seal or currency, or falsification of official documents[30]. Furthermore hackers who play „wargames“ and intrude in national security data systems, or endanger the systems with worms[31] or through other means, face subjection to the jurisdiction of the affected State[32]. The protective principle does not support application to foreign nationals of laws against political expression. Considerations of national security, however, helped the House of Lords, in Joyce v. Director of Public Prosecutions[33], to decide that „an alien who left the country in possession of a British passport owed allegiance and was guilty of treason when he subsequently broadcast propaganda for an enemy in wartime.“[34]

  1. The universality principle

Universality provides for jurisdiction over a crime which customary or conventional law labels so egregious as to be of universal concern. Unlike the other principles of jurisdiction, universality does not require a direct connection such as the place of the offence, the nationality of the offender, or the effects of the offence on the prescribing State. The required connection is more abstract. Universal jurisdiction over the specified offences is a result of universal condemnation of those activities. They are subject to universal jurisdiction as a matter of customary law or as a matter of international agreements. In the latter case, it remains to be determined whether universal jurisdiction over a particular offence has become customary law for States not party to such an agreement. The doctrine was developed centuries ago to address the piracy that menaced international trade and justified its application by deeming the pirate hostes humani generi—the enemy of all mankind[35]. Piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and certain acts of terrorism are other examples. One might wonder whether any of these crimes might be committed in cyberspace. However, whoever cruises the Net for a while will not have many difficulties discovering Web sites which at least give rise to a statutory interpretation of „[d]irect and public incitement to commit genocide.“[36] Especially in regions where war is being waged, it should also be possible to prove that people are serious about hate messages—that is they really want genocide to happen. These acts may be outlawed by any State—even without one of the earlier discussed bases of jurisdiction to prescribe.

  1. Jurisdiction to adjudicate

Jurisdiction to adjudicate is defined as a State’s authority to subject persons or things to the process of its courts or administrative tribunals, whether in civil or in criminal proceedings, whether or not the State is a party to the proceedings[37]. It requires a sufficient or reasonable relation with the forum State[38].

In international criminal cases, jurisdiction to adjudicate depends almost exclusively on presence of the accused. In international civil cases, the principle of „actor sequitur forum rei“ [Plaintiff follows defendant to the latter’s forum] can be regarded as a principle accepted virtually everywhere[39].

It is important to note that the international law standard for civil cases—reasonableness—differs significantly from the U.S. „minimum contacts“ standard, which was crafted in International Shoe v. Washington and serves as the basis for deciding jurisdictional questions in the U.S.[40]

Internet-related questions involving jurisdiction have been most common in U.S. courts, primarily because of the multijurisdictional character of the country. U.S. courts have taken various approaches to this jurisdictional issue. It is helpful to separate these approaches into two categories: moderate and expansive. The moderate approach is more consistent with the „reasonableness“ standard of international law and is a better model for international multijurisdictional cases.

  1. Moderate Approach

Nine domestic courts so far have taken a moderate approach that is consistent with an international „reasonableness“ standard. One court refused to find jurisdiction based solely on the existence of a Web site where it was not established that the Web site was accessed by citizens of the forum state[41]. Another court refused to find jurisdiction where the contents of a Web site were unrelated to the cause of action[42]. In the other seven cases, the accessibility of a Web site within the state was not an adequate basis for jurisdiction[43]. In two out of these seven cases, jurisdiction based solely on Internet advertising was denied[44]. In four cases, more than Internet advertising was involved[45]. The courts upheld jurisdiction because of numerous intentional contacts to the forum state. In a final case, jurisdiction was denied where the only contact with the forum state was the location of a database[46].

  1. Expansive Approach

A hint of international jurisdictional issues central to this analysis was present in State v. Granite Gate Resorts, Inc[47]. However, Granite Gate Resorts was litigated too soon for international issues to arise; the defendants were preparing to operate their computer service from Belize, but they had not yet done so at the time of suit.

Although such issues were not directly resolved, this court and others have expanded their jurisdictional reach into cyberspace. The cases demonstrate approaches that move toward a rule calling for jurisdiction over a defendant in all states based on the accessibility of the defendant’s Web site by users in all states. If this rule was adopted internationally, a defendant would be subject to the jurisdiction and differing laws of every State worldwide.

These tests are both examples of the moderate country of destination approach.

  1. The EU

The EU approach to this issue is based on Article 5 (3) of the EU jurisdiction regulations. However, According to Article 4, the regulations are limited to cases in which the defendant is domicile in a member state and thus the national law is applicable. When the regulation is applicable, the default rule that the defendant must be sued in his or her state of domicile under Article 2(1) can in tort and intellectual property disputes be overridden by Article 5(3) provides that a person may also be sued in matters relating to tort, delict or quasi-delict in the courts of the place where the harmful event may occur[48]. This raises the question where the harmful event occurs regarding online disputes because that is central to the 5 (3) EU approach. According to the pre-internet case of Shevil against Presolance SE where the ECJ held that the harmful event is either the place where the publisher is established or the place where the publication was distributed and the plaintiff suffered his or her injury (in the context of defamation). The advantage is that the plaintiff can receive compensation for the entire damage suffered, including damage suffered in other states. Alternatively, he or she can sue in the state where the publication was distributed but only for the injury that they suffered there. In Euro Market Designs and Peters and … Ltd. illustrates a shift towards the Zippo approach[49] in the USA primarily because there are difficulties with the question where the harmful act has taken place.

4. Universality Principle

The universality principle is not only a legitimate basis for jurisdiction to prescribe. It also allows a State to exercise jurisdiction through its courts to enforce its criminal laws that punish universal crimes[50]. Thus, users who engaged in direct and public incitement to commit genocide or warcrimes[51] by means of computer communications could be haled worldwide into any court. In the case of violations of the Statute of the International Tribunal for the Former Yugoslavia[52], the perpetrator could even be requested by the International Tribunal. Article 7 of the Statute states the individual responsibility for aiding and abetting in the planning, preparation, or execution of crimes outlawed by this statute[53]. According to Article 9, the International Tribunal and national courts have concurrent jurisdiction, but the International Tribunal has primacy over the latter ones[54].

  1. Jurisdiction to enforce

Jurisdiction to enforce deals with a State’s authority to induce or compel compliance or to punish noncompliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other nonjudicial action[55]. It is widely assumed that a state may not enforce its rules unless it has jurisdiction to prescribe those rules[56]. The mere existence of jurisdiction to prescribe, however, is insufficient to justify the state to exercise enforcement jurisdiction in another state’s territory. Especially concerning measures in aid of enforcement of criminal law, a state’s law enforcement officers may exercise their functions in the territory of another state only with the consent of the state, given by duly authorized officials of that state[57].

Enforcement measures requiring consent include not only the physical arrest of a person, but also, for example, service of subpoena, orders for production of documents, and police inquiries[58]. Police investigations may therefore not be mounted on the territory of another State without its consent. The consequences may seem odd for anyone not familiar with the eagerness of States to protect their national sovereignty. Its limits are much more strictly observed than is the case with jurisdiction to prescribe.

An interesting question arises when the investigation is accomplished without entering another State’s territory, by running, for instance, a computer program which searches databases installed in another country. At least two different scenarios are imaginable. Police could send „dog sniffs“ via network to hard drives to check their contents[59]. Or, law enforcement agencies could try to filter the streams of e-mail communication by searching for certain keywords[60], evaluating the communication in certain news groups, or checking suspicious Web sites. The first scenario is distinguished from the second insofar as the objects of supervision—hard drives—have a certain territorial location. Even though they can be easily moved, they are like all tangibles always physically located, either within or outside the borders of a certain jurisdiction. It is much more difficult to locate Web sites or public bulletin boards.

Even when the location of a hard drive, a Web site, or a bulletin board is known, the question is whether the activity of a foreign law enforcement agency might be allowed because the territory was not physically entered by any agent. The Swiss Federal Tribunal, Lausanne, decided in 1982 that a violation of sovereignty did not necessarily require that the violating person acted on the territory of the violated State[61]. A German undercover agent had contacted a Belgian suspect by telephone, inducing him to come for a business deal to Switzerland. When the suspect arrived in Switzerland, Germany requested his extradition[62]. The Swiss Federal Tribunal refused the extradition, arguing that to give effect to the German request would have made Switzerland a party to the violation of which Germany was considered guilty. This strict attitude was not shared by the Court of Appeals for the Second Circuit in United States v. Romano[63]. The appellants, domiciled in Italy, were induced by U.S. agents to come to the United States to complete a transaction which had been negotiated and arranged by telephone conversations. Confronted with the complaint of violation of foreign sovereignty, the court followed a narrow approach. „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 sovereignty or offence to any State.“[64]

This approach, however, is too narrow. In the cases of service of subpoena or orders for production of documents, no government agent enters foreign territory. Nevertheless, these cases are recognized as examples of infringement of sovereignty. They are unilateral acts by public authorities compelling a certain result which is not in accordance with the legal order of the State where the effects occur. It might also be reasonable to allow everyone, even secret services, to surf the Net[65]. A search of one’s hard drive by a foreign law enforcement agency from abroad, however, has another quality. It has the same effect as a traditional search of premises, a law enforcement measure reserved to the territorial sovereign. Such a „cybersearch“ constitutes a unilateral act aimed at legal consequences. As territorial sovereignty serves, inter alia, to protect the residents from physical persecution of other states[66], this protection must be extended when persecution no longer needs to physically enter foreign territory. As a consequence, it might be concluded that whenever a „cybersearch“ targets a hard drive, a bulletin board, or a Web site in the course of a law enforcement measure, the consent of the territorial sovereign in which the target is located is required. First, however, the target must be tied to a specific foreign jurisdiction, which may not be easy in all cases involving the Internet.

  1. Conclusion

Certain limits to the international exercise of jurisdiction, however, are clear. Jurisdiction to prescribe, absent links of territoriality or nationality, is only legal under international principles if a defendant targets a State or commits a crime to which the universality principle applies.

International jurisdiction to adjudicate is not triggered by the mere accessibility of a Web site by a State’s citizens unless the alleged Internet crime falls under the universality exception. For instance, States are, in general, not allowed to exercise jurisdiction over defendants located abroad who merely advertise services over Web sites which are accessible to their citizens without particularly targeting them[67]. The consequences of such expansive jurisdiction would be severe. In areas where laws differ significantly from State to State, forum shopping could occur with a sweep as broad as the Internet is accessible[68]. Furthermore, exorbitant assertions of jurisdiction could provoke diplomatic protests, trigger commercial or judicial retaliation, and threaten friendly relations in unrelated fields[69].

Jurisdiction to enforce by computerized means over databases or hard drives located in foreign countries is tempered by the interests of those territorial States. International law strongly suggests that such jurisdiction requires their consent.

Traditional concepts of international law, however, will need further development to solve future conflicts of competing jurisdictions. Consent on abstract concepts might be reached relatively easily, but the resolution of concrete cases will provoke troubles. International solutions, which might help to solve cyberspace-specific problems of lack of territoriality or abundance of territorial links, are still at a very early stage of development[70].

Word Count: 3290

Footnotes

  1. Restatement (Third) of the Foreign Relations Law of the U.S. § 401 cmt. a (1987) [hereinafter Restatement].

  2. See Barcelona Traction, Light and Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 17-53

  3. Arthur T. von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1127 (1966); Gary B. Born, Reflections on Judicial Jurisdiction in International Cases, 17 Ga. J. Int’l & Comp. L. 1, 33 (1987).

  4. Louis Henkin et al., International Law 1046 (3d ed. 1993); Barry E. Carter & Phillip R. Trimble, International Law 726 (2d ed. 1995); Bernard H. Oxman, Jurisdiction of Statesin Encyclopedia of Public International Law 277 (Rudolf Bernhardt ed., Instalment 10 1987); Thomas Buergenthal & Harold G. Maier, Public International Law 159 (2d ed. 1990); Restatement, supra note 1

  5. Oxman, supra note 4, at 277.

  6. Restatement, supra note 1, at 230-31.

  7. Restatement, supra note 1, at 236-37.

  8.  Id. § 403 cmt. a.

  9. Id.

  10. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, art. 34, 500 U.N.T.S. 95.

  11. International Chamber of Commerce, The Extraterritorial Application of National Laws, 38-40 & 46-48 (Dieter Lange & Gary Born eds., 1987) [hereinafter International Chamber of Commerce].

  12. Another principle, the passive personality principle, will not be discussed in this analysis. The passive personality principle asserts that a State may apply law—particularly criminal law—to an act committed outside its territory by a person not its national where the victim of the act was its national. The principle has not been generally applied with approval for ordinary torts or crimes, but it is increasingly accepted as applied to terrorist attacks and other organized attacks on a State’s nationals by reason of their nationality. So far, no realistic scenarios have arisen in the cyberspace context that would provoke use of the passive personality principle.

  13.  See, e.g., Nathaniel C. Nash, Germans Again Bar Internet Access, This Time to Neo-Nazism, N.Y. Times, Jan. 29, 1996, at D6. The Germany-based T-Online service of Deutsche Telekom, a privatized former State enterprise, said it voluntarily blocked access to the World Wide Web site of Ernst Zündel, a Toronto-based Neo-Nazi, after German prosecutors warned the company that they were investigating whether it was helping to incite racial hatred. According to the European Commission, „some third countries have introduced wide-ranging legislation to block all direct access to Internet via access providers by introducing a requirement for `proxy servers’ similar to those used by large organisations for security reasons, combined with centralised blacklisting of documents . . . .“ Illegal and Harmful Content on the Internet: Communication from the European Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions, available at <http://www2.echo.lu/legal/en/internet/content/communic.html> , pt. 4.b.iv

  14. Seee.g., Hiawatha Bray, UMass Shuts Down Web Site Containing Neo-Nazi Material, Boston Globe, Feb. 2, 1996, at 28. Free speech advocates at Stanford University and Carnegie-Mellon University have obtained the offending material (Holocaust-revisionist Web pages), posted it on other Web sites, and urged others to post it in locations not blocked by Deutsche Telekom. The idea is to put the material on so many Web sites that Germany would have to completely disconnect from the Internet to censor it. 

  15. Cf. Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9).

  16. The EU Electronic Commerce Directive 2000/31/EC

  17. UEJF et LICRA v Yahoo! Inc. et YahooFrance, Tribunal de Grande Instance de Paris, No RG: 00/05308, Interim Order May 22, 2000 available at http://www.juriscom.net/txt/jurisfr/cti/tgiparis20000522.htm

  18. The information in this paragraph is from Dr Gillen’s lecture in Computer Law and Intellectual Property, Oxford Brookes University, 2011.

  19. Carter & Trimble, supra note 4, ch. 7; Blackmer v. United States, 284 U.S. 421 (1932); J. L. Brierly, The Law of Nations 231-32 (Oxford 5th ed. 1955). But see Geoffrey R. Watson, Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction, 17 Yale J. Int’l L. 41, 83 (1992) („The United States, the crusading champion of extraterritorial jurisdiction, continues to reject one of the least controversial forms of extraterritorial criminal jurisdiction, nationality-based jurisdiction. As a result, U.S. nationals commit serious crimes overseas and escape prosecution.“).

  20. See Margaret A. Healy, Prosecuting Child Sex Tourists at Home: Do Laws in Sweden, Australia, and the United States Safeguard the Rights of Children as Mandated by International Law?, 18 Fordham Int’l L.J. 1852 (1995).

  21. The Penal Code of the Federal Republic of Germany, 28 The American Series of Foreign Penal Codes (Edward M. Wise ed. & Joseph J. Darby trans., 1987).According to the wording of StGB § 6, German law is even applicable to certain international crimes of non-nationals committed abroad. However, the German Federal Supreme Court for Criminal Matter considered the principle of nonintervention and required a legitimizing link of the case with Germany. BGH Urteil, StR, 3 (1976), 298;

  22.  Restatement, supra note 1, § 402 cmt. e.

  23. See David Plotnikoff, Bite Lacking in Protests of On-Line Censorship, San Jose Mercury News, Jan. 4, 1996. („Last week, a foreign power successfully bullied an American company into pulling the plug on part of the news feed that reaches millions of Americans.“)

  24. Oxman, supra note 4, at 280; United States v. Aluminum Co. of America, 148 F.2d 416, 444 (2d Cir. 1945).

  25.  International Chamber of Commerce, supra note 11, at 4-32

  26. Jason Coppel, A Hard Look at the Effects Doctrine of Jurisdiction in Public International Law, 6 Leiden J. Int’l L. 73 (1993); Margaret Loo, IBM v. CommissionerThe Effects Test in the EEC, 10 B.C. Int’l & Comp. L. Rev. 125 (1987).

  27.  F.A. Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years, 186 R.C.A.D.I. 9, 26 (1984 III) („[T]he purely commercial effect . . . should be insufficient to confer . . . any international right to prescribe conduct abroad.“); cf. Vaughan Lowe, International Law and the Effects Doctrine in the European Court of Justice, 48 Cambridge L.J. 9 (1989).

  28. Restatement, supra note 1, § 402(3).

  29. Ian Brownlie, Principles of Public International Law 304 (4th ed. 1990).

  30. Henkin et al.supra note 4, at 1082-84; Buergenthal & Maier, supra note 4, at 169.

  31. A worm is „a usually small self-contained computer program that invades computers on a network and usually performs a malicious action.“ Merriam-Webster’s Collegiate Dictionary 1364 (10th ed. 1996).

  32. Cf. Dato V. L. Kandan & Chuah Jern Ern, Malaysia Prepares „Cyberlaws“, Intell. Prop. Worldwide (July/Aug. 1997) <http://www.ipww.com/jul97/pllmalaysia.html>. (explaining that Malaysia’s proposed Computer Crimes Bill intends to prevent mischievous activities such as hacking into computers, implanting viruses, and cracking passwords).

  33. Joyce v. Dir. of Pub. Prosecutions, 1946 App. Cas. 347 (appeal taken from Crim. App.)

  34.  Ian Brownlie, Principles of Public International Law 304 (4th ed. 1990).

  35. Robert Alfert, Jr., Hostes Humani Generis: An Expanded Notion of U.S. Counterterrorist Legislation, 6 Emory Int’l L. Rev. 171 (1992).

  36.  „After the Oklahoma City bombing, the Senate terrorism subcommittee immediately convened hearings on `The Availability of Bomb-Making Information on the Internet,’ at which Senator Dianne Feinstein expressed shock that racist militia organizations apparently use the Net to distribute `mayhem manuals’ and other bomb-making instructional material and to spread their doctrines on the `Cyberhate’ World Wide Web site and other similar outposts.“ David Post, New Rules for the Net?, Am. Law. July/Aug. 1995, at 112.

  37.  Restatement, supra note 1, § 401(b).

  38. Cf.e.g., BGHZ 115, 90;  F.A. Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years, 186 R.C.A.D.I. 9, 26 (1984 III) , at 32; Gary B. Born, Reflections on Judicial Jurisdiction in International Cases, 17 Ga. J. Int’l & Comp. L. 1, 33 (1987).

  39. Andreas Lowenfeld, International Litigation and the Quest for Reasonableness 46 (1996).

  40. International Shoe, 326 U.S. 310, 316 (1945)

    [D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.’ Id. (emphasis added).

  41. Smith v. Hobby Lobby Stores, Inc., 968 F.Supp. 1358 (W.D. Ark. 1997).

  42. McDonough v. Fallon McElligot, Inc., 40 U.S.P.Q.2d (BNA) 1826 (S.D. Cla. 1996). 

  43. Hearst Corp. v. Goldberger, No. 96 Civ. 3620 (PKL)(AJP), 1997 WL 97097 (S.D.N.Y. Feb. 26, 1997); Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), aff’d, No. 96-9344, 1383, 1997 WL 560048 (2d Cir. Sept. 10, 1997); CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996); EDIAS Software Int’l, L.L.C. v. BASIS Int’l Ltd., 947 F. Supp. 413 (D. Ariz. 1996); Resuscitation Tech., Inc., v. Continental Health Care Corp., No. IP 96-1457-C-M/S, 1997 WL 148567 (S.D. Ind. Mar. 24, 1997); Hall v. LaRonde, 66 Cal. Rptr. 2d 399 (Cal. Ct. App. 1997); Pres-Kap, Inc. v. System One, Direct Access, Inc., 636 So. 2d 1351 (Fla. Dist. Ct. App. 1994). 

  44. Hearst, 1997 WL 97097; Bensusan Restaurant, 937 F. Supp. 295.

  45. CompuServe, 89 F.3d 1257; EDIAS Software Int’l, 947 F. Supp. 413; Resuscitation Tech., 1997 WL 148567; Hall, 66 Cal. Rptr. 2d 399.

  46. Pres-Kap, 636 So. 2d 1351.

  47. Granite Gate Resorts, No. C6-95-7227, 1996 WL 767431 (Minn. Dist. Ct. Dec. 11, 1996) (denying defendant’s motion to dismiss for lack of jurisdiction), aff’d sub. nom., Humphrey v. Granite Gate Resorts, Inc., 568 N.W.2d 715 (Minn. Ct. App. 1997).

  48. Lecture, Dr M. Gillen

  49. Zippo Manufacturing Co. v. Zippo Dot Com, Inc. 952 F. Supp. 1119

  50. Restatement, supra note 1, § 421.

  51.  In 1983, the CIA, for example, produced a manual entitled Operaciones sicológicas en guerra de guerrillas which taught how to commit warcrimes. The CIA disseminated it to the so-called contras who fought against the government of Nicaragua. The International Court of Justice found that the USA thereby encouraged the commission of acts contrary to general principles of humanitarian law. Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.) 1986 I.C.J. 14, 148 (June 27); Tim Weiner, C.I.A. Taught, Then Dropped, Mental Torture in Latin America, N.Y. Times, Jan. 29, 1997, at A11. Posting this manual on the Net with the intention to make it available to people who use this knowledge would arguably pass the muster of aiding and abetting in war crimes.

  52. United Nations: General’s Report on Aspects of Establishing An International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia, May 3, 1993, Annex I, art. 4(3), 32 I.L.M. 1159, at 1192, Annex.

  53.  Id. Annex, art. 7.

  54.  Id. Annex, art. 9.

  55.  Restatement, supra note 1, § 401(c).

  56. Oxman, supra note 4, at 277-278; Mann, supra note 27, at 34. But see Restatement, supra note 1, § 431(1) („A state may employ judicial or nonjudicial measures to induce or compel compliance or punish non-compliance with its laws or regulations, provided it has jurisdiction to prescribe in accordance with §§ 402 and 403.“).

  57.  Restatement, supra note 1, § 432(2).

  58. Mann, supra note 27, at 39; Brownlie, supra note 34, at 307; Richard Whish, Competition Law 370-385 (3d ed. 1993), at 374; Federal Trade Comm. v. Compagnie de Saint-Gobain-Pont-à-Mousson, 636 F.2d 1300, 1304 (D.C. Cir. 1980) („[T]he act of service itself constitutes an exercise of American sovereign power within the area of the foreign country’s territorial sovereignty.“).

  59. Cf. Lawrence Lessig, Reading the Constitution in Cyberspace, 45 Emory L.J. 869, 882 (1996). The example comes from Michael Adler, Cyberspace, General Searches, and Digital Contraband: The Fourth Amendment and the Net-Wide Search, 105 Yale L.J. 1093 (1996).

  60. Thomas J. Lueck, 3 Are Arrested on Evidence From an Internet Wiretap, N.Y. Times, Dec. 30, 1995, at 42; John Markoff, U.S. Rebuffed in Global Proposal For Eavesdropping on the Internet, N.Y. Times, Mar. 27, 1997, at A1; Christopher Wolf & Scott Shorr, Cybercops Are Cracking Down on Internet Fraud, Nat’l L.J., Jan. 13, 1997, at B12.

  61. X (Belgian Citizen) v. Swiss Fed. Prosecutor’s Office, 10 EuGRZ 435 (Judgment of 15 July 1982) (Swiss Federal Tribunal, Lausanne, P1201/81/fs 1983).

  62.  As Belgium does not extradite its own nationals, a request to Belgium would have been senseless.

  63.  Romano, 706 F.2d 370 (2d Cir. 1983).

  64.  Id. at 375. Compare the position of the U.S. Government in United States v. Yunis, 681 F. Supp. 909, 916 n.11 (D.C. Cir. 1988), rev’d on other grounds, 859 F.2d 953 (D.C. Cir. 1988).

  65. Cf. Interview with Edzard Schmidt-Jortzig, German Minister of Justice, in „Der Nationalstaat ist Überholt“ [The National State is Antiquated], Der Spiegel (Nov. 1996) <http://www.spiegel.de/special/heft2/schmidt-jortzig.html> [hereinafter Schmidt-Jortzig Interview] (indicting the belief that everybody may surf the Net, but that the Secret Service may not assume the role of a data police without statutory authorization).

  66.  Cf. Santiago Torres Bernardez, Territorial Sovereignty, Encyclopedia of Public International Law 487, 491 (Rudolf Bernhardt ed., Instalment 10 1988).

  67.  See Dale M. Cendali & James D. Arbogast, Net Use Raises Issues of Jurisdiction, Nat’l L.J., Oct. 28, 1996, at C7. The new approach of the U.S. government is to focus on the site of origin. Cf. William J. Clinton & Albert Gore, Jr., A Framework for Global Electronic Commerce (visited Oct. 23, 1997) <http://www.ljx.com/internet/ecommframe.html> (explaining the new approach of the U.S. government), pt. III.8 („The rules of the `country-of-origin’ should serve as the basis for controlling Internet advertising to alleviate national legislative roadblocks and trade barriers.“); Lori I. Bauman, Personal Jurisdiction and Internet Advertising, The Computer Law., Jan. 1997, at 4 (citing Asahi Metal Indus. Co. v. Superior Ct. of Cal., 480 U.S. 102 (1992)). , at 6.

  68. . Richard Raysman & Peter Brown, Computer Law: On-Line Legal Issues, N.Y. L.J., Feb. 15, 1995, at 3.

  69. Born, supra note 3, at 29.

  70. See Schmidt-Jortzig Interview, supra note 65. The German Minister of Justice sees the first step in an European Agreement on the Liability of Internet Service Provider. The step in his view could be a worldwide convention, even though he acknowledges that the U.S. government would never sign an agreement that outlaws Holocaust-revisionist material. Id.

 

 

Bibliography

  1. Restatement (Third) of the Foreign Relations Law of the U.S. § 401 cmt. a (1987)
  2. Barcelona Traction, Light and Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 17-53
  3. Arthur T. von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1127 (1966);
  4. Gary B. Born, Reflections on Judicial Jurisdiction in International Cases, 17 Ga. J. Int’l & Comp. L. 1, 33 (1987).
  5. Louis Henkin et al., International Law 1046 (3d ed. 1993);
  6. Barry E. Carter & Phillip R. Trimble, International Law 726 (2d ed. 1995);
  7. Bernard H. Oxman, Jurisdiction of Statesin Encyclopedia of Public International Law 277 (Rudolf Bernhardt ed., Instalment 10 1987);
  8. Thomas Buergenthal & Harold G. Maier, Public International Law 159 (2d ed. 1990);
  9. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, art. 34, 500 U.N.T.S. 95.
  10. International Chamber of Commerce, The Extraterritorial Application of National Laws, 38-40 & 46-48 (Dieter Lange & Gary Born eds., 1987)
  11. Nathaniel C. Nash, Germans Again Bar Internet Access, This Time to Neo-Nazism, N.Y. Times, Jan. 29, 1996, at D6.
  12. Illegal and Harmful Content on the Internet: Communication from the European Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions, available at <http://www2.echo.lu/legal/en/internet/content/communic.html>
  13. Hiawatha Bray, UMass Shuts Down Web Site Containing Neo-Nazi Material, Boston Globe, Feb. 2, 1996, at 28.
  14. Cf. Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9).
  15. The EU Electronic Commerce Directive 2000/31/EC
  16. UEJF et LICRA v Yahoo! Inc. et YahooFrance, Tribunal de Grande Instance de Paris, No RG: 00/05308, Interim Order May 22, 2000 available at <http://www.juriscom.net/txt/jurisfr/cti/tgiparis20000522.htm #texte>
  17. Blackmer v. United States, 284 U.S. 421 (1932);
  18. J. L. Brierly, The Law of Nations 231-32 (Oxford 5th ed. 1955). 
  19. Geoffrey R. Watson, Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction, 17 Yale J. Int’l L. 41, 83 (1992)
  20. Margaret A. Healy, Prosecuting Child Sex Tourists at Home: Do Laws in Sweden, Australia, and the United States Safeguard the Rights of Children as Mandated by International Law?, 18 Fordham Int’l L.J. 1852 (1995).
  21. The American Series of Foreign Penal Codes (Edward M. Wise ed. & Joseph J. Darby trans., 1987).According to the wording of StGB § 6,
  22. David Plotnikoff, Bite Lacking in Protests of On-Line Censorship, San Jose Mercury News, Jan. 4, 1996.
  23. United States v. Aluminum Co. of America, 148 F.2d 416, 444 (2d Cir. 1945).
  24. Jason Coppel, A Hard Look at the Effects Doctrine of Jurisdiction in Public International Law, 6 Leiden J. Int’l L. 73 (1993);
  25. Margaret Loo, IBM v. CommissionerThe Effects Test in the EEC, 10 B.C. Int’l & Comp. L. Rev. 125 (1987).
  26. F.A. Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years, 186 R.C.A.D.I. 9, 26 (1984 III)
  27. Ian Brownlie, Principles of Public International Law 304 (4th ed. 1990).
  28. Cf. Dato V. L. Kandan & Chuah Jern Ern, Malaysia Prepares „Cyberlaws“, Intell. Prop. Worldwide (July/Aug. 1997) <http://www.ipww.com/jul97/pllmalaysia.html>.
  29. Joyce v. Dir. of Pub. Prosecutions, 1946 App. Cas. 347 (appeal taken from Crim. App.)
  30. Ian Brownlie, Principles of Public International Law 304 (4th ed. 1990).
  31. Robert Alfert, Jr., Hostes Humani Generis: An Expanded Notion of U.S. Counterterrorist Legislation, 6 Emory Int’l L. Rev. 171 (1992).
  32. Vaughan Lowe, International Law and the Effects Doctrine in the European Court of Justice, 48 Cambridge L.J. 9 (1989).
  33. Cf.e.g., BGHZ 115, 90;  F.A. Mann, The Doctrine of International Jurisdiction Revisited After Twenty Years, 186 R.C.A.D.I. 9, 26 (1984 III) , at 32; Gary B. Born, Reflections on Judicial Jurisdiction in International Cases, 17 Ga. J. Int’l & Comp. L. 1, 33 (1987).
  34. Andreas Lowenfeld, International Litigation and the Quest for Reasonableness 46 (1996). International Shoe, 326 U.S. 310, 316 (1945)
  35. David Post, New Rules for the Net?, Am. Law. July/Aug. 1995
  36. Smith v. Hobby Lobby Stores, Inc., 968 F.Supp. 1358 (W.D. Ark. 1997).
  37. McDonough v. Fallon McElligot, Inc., 40 U.S.P.Q.2d (BNA) 1826 (S.D. Cla. 1996). 
  38. Hearst Corp. v. Goldberger, No. 96 Civ. 3620 (PKL)(AJP), 1997 WL 97097 (S.D.N.Y. Feb. 26, 1997);
  39. Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), aff’d, No. 96-9344, 1383, 1997 WL 560048 (2d Cir. Sept. 10, 1997);
  40. CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996);
  41. EDIAS Software Int’l, L.L.C. v. BASIS Int’l Ltd., 947 F. Supp. 413 (D. Ariz. 1996);
  42. Resuscitation Tech., Inc., v. Continental Health Care Corp., No. IP 96-1457-C-M/S, 1997 WL 148567 (S.D. Ind. Mar. 24, 1997);
  43. Hall v. LaRonde, 66 Cal. Rptr. 2d 399 (Cal. Ct. App. 1997);
  44. Pres-Kap, Inc. v. System One, Direct Access, Inc., 636 So. 2d 1351 (Fla. Dist. Ct. App. 1994). 
  45. Hearst, 1997 WL 97097; 
  46. Bensusan Restaurant, 937 F. Supp. 295.
  47. CompuServe, 89 F.3d 1257; 
  48. EDIAS Software Int’l, 947 F. Supp. 413; 
  49. Resuscitation Tech., 1997 WL 148567; 
  50. Hall, 66 Cal. Rptr. 2d 399.
  51. Granite Gate Resorts, No. C6-95-7227, 1996 WL 767431 (Minn. Dist. Ct. Dec. 11, 1996) Humphrey v. Granite Gate Resorts, Inc., 568 N.W.2d 715 (Minn. Ct. App. 1997).
  52. Zippo Manufacturing Co. v. Zippo Dot Com, Inc. 952 F. Supp. 1119
  53. Nicaragua v. U.S. 1986 I.C.J. 14, 148
  54. Tim Weiner, C.I.A. Taught, Then Dropped, Mental Torture in Latin America, N.Y. Times, Jan. 29, 1997
  55. United Nations: General’s Report on Aspects of Establishing An International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia, May 3, 1993
  56. Richard Whish, Competition Law 370-385 (3d ed. 1993)
  57. Federal Trade Comm. v. Compagnie de Saint-Gobain-Pont-à-Mousson, 636 F.2d 1300, 1304 (D.C. Cir. 1980)
  58. Michael Adler, Cyberspace, General Searches, and Digital Contraband: The Fourth Amendment and the Net-Wide Search, 105 Yale L.J. 1093 (1996).
  59. Thomas J. Lueck, 3 Are Arrested on Evidence From an Internet Wiretap, N.Y. Times, Dec. 30, 1995, at 42;
  60. John Markoff, U.S. Rebuffed in Global Proposal For Eavesdropping on the Internet, N.Y. Times, Mar. 27, 1997, at A1;
  61. Christopher Wolf & Scott Shorr, Cybercops Are Cracking Down on Internet Fraud, Nat’l L.J., Jan. 13, 1997, at B12.
  62. X (Belgian Citizen) v. Swiss Fed. Prosecutor’s Office, 10 EuGRZ 435 (Judgment of 15 July 1982) (Swiss Federal Tribunal, Lausanne, P1201/81/fs 1983).
  63. Romano, 706 F.2d 370 (2d Cir. 1983).
  64. United States v. Yunis, 681 F. Supp. 909, 916 n.11 (D.C. Cir. 1988), rev’d on other grounds, 859 F.2d 953 (D.C. Cir. 1988).
  65. Interview with Edzard Schmidt-Jortzig, German Minister of Justice, in „Der Nationalstaat ist Überholt“ [The National State is Antiquated], Der Spiegel (Nov. 1996) <http://www.spiegel.de/special/heft2/schmidt-jortzig.html>
  66. Santiago Torres Bernardez, Territorial Sovereignty, Encyclopedia of Public International Law 487, 491 (Rudolf Bernhardt ed., Instalment 10 1988).
  67. Dale M. Cendali & James D. Arbogast, Net Use Raises Issues of Jurisdiction, Nat’l L.J.
  68. William J. Clinton & Albert Gore, Jr., A Framework for Global Electronic Commerce (visited Oct. 23, 1997) <http://www.ljx.com/internet/ecommframe.html>
  69. Lori I. Bauman, Personal Jurisdiction and Internet Advertising, The Computer Law., Jan. 1997.
  70. Richard Raysman & Peter Brown, Computer Law: On-Line Legal Issues, N.Y. L.J., Feb. 15, 1995.