Legal Considerations Tied to Physical Borders


To appreciate the intricacies of international jurisdiction online, the legal considerations of notice, enforcement, effects, and legitimacy should be understood in the context of the Internet (Johnson & Post, 1996). Each of these principles has a critical role in the determination and execution of a judiciary's authority in the physical world. However, applying these principles to online activity has proved challenging given the non-territory-specific nature of the Internet coupled with the border-dependent nature of jurisdiction.

Notice

Borders allow for communication of change in location and applicable laws. Notice entails a sovereign's ability to inform individuals (including corporations) of its established policies, laws, and subsequent modification to these practices. A road sign announcing a specific locality equates to notice in the non-virtual world; such demarcation is more ambiguous and difficult to decipher in cyberspace. It has been disputed that this type of notice does in fact exist online and is marked by passwords, changes in domains, or even migration to and from a website. However, these actions on the Internet are not tied directly to geographic boundaries, and as a result it is problematic to apply a set of national or state rules due to ill-defined and non-existent territory markers online.

Enforcement

The power and ability of a nation or judicial body to enforce its rulings is a critical consideration with regard to exerting jurisdiction. Law making requires some mechanism for law enforcement to exercise physical control over and to impose coercive sanctions on law violators (Johnson & Post, 1996, p. 4). Geographic boundaries confine this area of power to a set physical region, whereas the Internet does not. Enforcement of a ruling on persons, corporations, or property not physically located within a specific territory is nearly impossible if the violator currently resides in a country that does not uphold the same standards or laws. Extradition is an expensive and timely process; the means to bring perpetrators into custody for online incidences is often unreasonable. Therefore, many rulings internationally are not enforced unless the individual or corporation physically returns to the nation issuing the verdict, or the sovereignty has access to attachable assets.

Effects

When the effects of an action are felt within a court's physical jurisdiction, it may warrant legal action; such a practice holds true to the Objective Principle. However, it is argued that the effects of an action online are felt internationally, in many cases anywhere that is accessible to the Net. Effects have been measured based on minimum contacts standards, and weighed based on the quantity and quality of the contacts in order to maintain the appearance of a reasonable exercise of power. However, quantity and quality imply a 'sliding scale'; at one end of this spectrum are situations where an individual clearly does business online, and at the other are situations whereby information has merely been posted online in a non-interactive fashion. The subjectivity of applying this consideration has given rise to the premise that judicial bodies can declare the effects of almost any action online to have a local impact and thus warrant local jurisdiction.

Standards upholding passive and active contact within a nation have, until recently, assisted courts in determining their exercise of jurisdiction. Passive Web content, comparable to advertisements and read-only postings, were deemed outside of personal jurisdiction; yet active Web content, characterized by dynamic interaction with the end user, such as downloading files or navigating through multiple screens, permitted a local court's exercise of personal jurisdiction (CompuServe, Inc. v. Patterson, 1996). The effects consideration was previously weighed based on the extent of a user's interface with the Internet. Today, the use of passive and active content is applied with less frequency as a determinant of the effect and intent of online activity; in many cases it is entirely irrelevant.

Legitimacy

It is generally accepted that persons residing within a geographically defined border are the ultimate source of lawmaking authority for activities within that border (United Nations, 1970). Laws defined within a nation are deemed legitimate given the role local citizens and government play in their creation (via elections, military action, or legislation). However, a law's legitimacy is confined to the physical boundaries of a nation where individuals have accepted the authority's regulations (typically via citizenship). This phenomenon gives rise to questions on the Internet of the validity of certain laws that are legitimate in one physical location and not in another. [4] The Internet offers users little ability to decipher what the legitimate law is in any given space online.

The international and cross-border framework by which the Internet operates undermines the establishment of jurisdiction due to fundamental limitations related to notice, enforcement, effects, and legitimacy. As the widely recognized Internet scholar Larry Lessig asserts in Code and Other Laws of Cyberspace, "To the extent architectures in cyberspace are rules that affect behavior, cyberspace is sovereign: producing perpetual competition with real-space sovereigns" (Lessig, 1999, p. 198). Traditional jurisdictional considerations are tied too closely to physical and geographic boundaries to be appropriate for real-world regulation of online behavior. However, courts continue to rely on these standards to adjudicate cases, which has given rise to complexities and ambiguous standards in recent legal action.

[4]For example: Free speech and gambling.




Social and Economic Transformation in the Digital Era
Social and Economic Transformation in the Digital Era
ISBN: 1591402670
EAN: 2147483647
Year: 2003
Pages: 198

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