Where The Internet Goes, Law Does Not Necessarily Follow.

No single government or nation state can completely regulate the Internet. The Internet, by its very nature, is resistant to control and regulation. The Internet evolved from the defense-related ARPANET project, a communications tool for the United States government in the late 1960's to link a decentralized system of computers that would be able to resist a nuclear attack. Information maintained and deliberately stored in computers at different physical locations would be connected electronically via a data packet transfer system that could circumvent inoperable communication nodes, thereby allowing the transfer of data even after a centralized attack. The system was intended to be able to keep lines of communication open during crisis periods by processing information through multiple computer routes. For example, designers strategized and planned to enable authorized users in Colorado access to computer databases in Washington, D.C. Of course, the very nature of this system led to its ever increasing fragmentation and decentralization. Today, what was once viewed as little more than an emergency fall-back system has grown into one of the most widely used methods of international communication.

The United States government -- having spawned an Internet communications network that now transcends interstate and international boundaries and can survive deliberate disruptions -- and other countries -- having developed communications links that cross their boundaries such that users around the world can access the Internet -- now must wrestle with whether and how to apply historical governmental functions to this essentially boundary-less creation. Traditional notions for resolving conflicts between governments over whose law applies to an interstate or international transaction take on an entirely new dimension in this modern era of Internet communication.

As a general rule, until now, governmental authority has been essentially limited to its own geographical territory. Most laws have been drafted on the premise that the world in which they will be enforced can be defined by definite geographical and political boundaries. However, since the Internet transcends these types of boundaries, the application of laws used to prosecute criminals and regulate commercial transactions in a more conventional medium often becomes overreaching and unwieldy when applied to Internet transactions.

Take the issue of commerce alone. Cities, counties and states traditionally taxed transactions (whether through sales or value added taxes) where they occurred. How does this apply to an Internet transaction, in which buyer, seller and linking servers may each be in different countries, much less local political jurisdictions? In international transactions, governments traditionally levied import taxes when goods crossed their borders. How does this apply to data of commercial value that flows over the Internet? Today, a dispute brews in Congress over whether cities and states in the U.S.A. can tax commercial transactions effected over the Internet, with the Clinton Administration opposing the exercise of such authority by the cities and states and with governors and mayors arguing that they have such powers and can lawfully exercise them.. Even if the Congress resolves this legal question as among the various internal political subdivisions of the U.S.A., this question remains unresolved on an international scale and internally within other countries.

When individuals had disputes -- over business transactions or personal wrongs (called "torts") such as defamation and business interference -- the court to decide the dispute usually had a territorial jurisdiction connected in some fashion to site of the wrongdoer's acts. Does this mean today that a particular nation might claim jurisdiction over an individual's activities regardless of where that individual is physically located when the acts are committed based upon the individual's "presence" in cyberspace? When an individual logs onto the Internet an electronic "presence" on the Net can be detected by a wide variety of computers linked to the Internet from virtually anywhere in the world. Thus, a number of countries might "claim" jurisdiction over a person's virtual presence. One of the most common examples of this multinational presence occurs when an individual sends e-mail to a person in another country. An e-mail message sent from New York, New York to Melbourne, Australia might travel through computer networks in Sweden and the Czech Republic on its way to Australia. Likewise, the reply might very well access Japan's network of computers, then be sent on to South Africa and Costa Rica before it finally reaches its return destination in New York. Which nation or nations have jurisdiction to prosecute the author of such a message (assuming it amounts to criminal activity)? Which nation or nations is responsible to regulate a business transaction consummated or facilitated by the message? These are indeed difficult questions to answer.

One example of the difficulties presented by attempting to apply a national law to such an inherently international medium was recently highlighted in France. A tabloid book was written by a physician to the late president of France, Francois Mitterand. The French government subsequently banned sales of this book. However, French authorities did not ban the book quickly enough to prevent an Internet user from uploading the entire text on-line. Of course, once the book was on the Internet it became accessible to many French citizens who had access to the Internet because it was present on servers in a variety of countries. Since France does not have the jurisdiction to ban the book in other countries it could not reasonably prevent its own citizens from downloading and reading the book in the privacy of their own homes. This example illustrates the difficulty of establishing jurisdiction over our Internet transactions. Did France have jurisdiction to prevent one of its citizens from downloading the book within the borders of France? Probably. What about outside of France's borders? A more difficult question. However, most would agree that the French government would have no authority to regulate the activities of an American who downloaded the book? But what if the American then transferred the book into France?

The problems illustrated above exist not only on the international level, but also locally. For example, the U.S. Supreme Court's definition of pornography illustrates a local example of jurisdictional problems presented by the Internet. The legal standard used in the U.S.A. in defining pornography looks at three factors. First, courts must examine the material to see if it appeals to the "prurient interest." Secondly, they evaluate it to see if it contains any artistic, scientific or literary value based on a national community standard. Finally, the material is scrutinized to see if it is patently offensive to the local community. The Internet made application of this standard a problem when individuals in Memphis accessed information put on-line in San Francisco by operators of an adult computer bulletin board. In United States v. Thomas, 74 F.3d 701 (6th. Cir. 1996), the operators were charged with obscenity and brought to trial in Memphis even though they had not actively sought business in this jurisdiction. Thus, the operators were arguably subjected to a stricter local community standard than they would have had to face in San Francisco. Of course, one can argue that such people should be aware that their products are traveling across the United States and around the world, and thus should conduct business accordingly. But aren't they entitled to conduct business within a predictable framework?

The presently existing body of international law fails to address adequately the appropriate method for establishing who has jurisdiction over Internet crimes such as pornography, hacking, and the like, as well as which government is responsible for the regulation of business conducted over the Internet. Failure to achieve an agreement dealing with these jurisdictional issues can arguably be attributed partially to the newness of the medium and partially to an international inability to agree on what substantive laws should govern and who should enforce them. This lack of international consensus can result in the uneven application of inadequate law.

The multi-jurisdictional nature of the Internet goes beyond the bounds of traditional international law problems associated with the regulation of more traditional methods of communication such as mail, telephone, telegraph, radio, and satellites -- each of which was once considered revolutionary in itself.

Arguments can be advanced that the Net should be left entirely unto itself as the last wild frontier. But, unscrupulous Netizens will inevitably try to take unfair (even criminal) economic or other advantage of other Net users. Someone inevitably will need to try to right the wrong. Others will make unfounded charges of wrongdoing and someone will need to resolve them. Governments will try to collect taxes and enforce their own notions of social order on events impacting their citizenry. Uncoordinated approaches to these issues will inevitably tie some Net users up in complex legal proceedings while leaving others, such as people swindled out of their life savings, with no effective recourse. Perhaps the "best" way to address these problems is for countries to attempt to reach an agreement for Internet regulation through "diplomatic" methods arranged by formal treaties, such as international arbitration, tribunals, or organs of the United Nations. Initial steps indicating the desire and need for an international agreement have already been taken. This past April the ministers of the European Union held hearings regarding whether their Union had adequate authority to make a decision related to the Internet or whether the decision should be referred to international negotiators. While treaty-based allocations of governmental power among nations have surely not always been effective, no other mechanism has yet been identified as potentially capable of dealing with the inevitable governmental issues activities involving the Net will engender. Since the issues will not go away, countries with access to the Internet should make a concerted effort to develop a reasoned international treaty to deal with these issues.

The international community should focus attention on the development of the Internet and solutions for its accompanying problems. An international treaty on the subject ought to include specific provisions which would guarantee both human rights and privacy. Yet, it should also attempt to resolve jurisdictional problems by including specific provisions which deal with citizenship and extradition. One example of legislation that attempts to do this is the British Computer Misuse Act. This Act provides that jurisdiction will be retained in the local jurisdiction if the acts are classified as an offense both in the foreign jurisdiction and the local jurisdiction. Other areas that an international convention should address are expansion of extradition treaties to specifically include computer offenses and mutual international assistance provisions which would avoid violations of state sovereignty or international law. An international convention specifically targeted to the Internet would require users to be responsible so that the Internet can continue to be a useful tool in everyday life. Until the international community reaches agreement and fully addresses the unique problems presented by the Internet, regulation of this sophisticated new medium will remain unpredictable as its scope is beyond the boundaries contemplated by currently existing laws.