Alternative Policy Options

The status quo indicates the haphazard method by which online international jurisdiction is taking shape and has led, in recent years, scholars and others to search for more appropriate policy mechanisms. This quest has resulted in a fair deal of debate on the applicability of different models to address cross-border activity online. A number of alternative methods of jurisdiction have been proposed for international governance of illicit Web activities. These alternatives represent the wide number of views held by individuals, among academia, and within private industry. Each requires stepping outside the current model of jurisdiction defined by national boundaries.

Cyberspace as a Distinct Jurisdiction

Recognizing cyberspace as a unique jurisdiction, cutting across nations, could serve to maintain a global flow of information on the Internet and clarify the ambiguity that has arisen from the application of individual nation's laws. This model recognizes a system indifferent to geographic locations characterized by a legally significant border between cyberspace and the physical world. High-level domains and smaller 'fiefdoms' would establish authority, with the key power base being banishment for offenders. The onus for patrolling this new jurisdiction may rest with Internet service providers (ISPs) and government agencies with the ability to banish offenders from the Net. The argument holds that it is in these individuals' and organizations' self-interest to maintain a safe and orderly environment in cyberspace. When actions online cause damage in the 'real' world, only then can local jurisdiction be applied to Web-based activities.

To establish the Internet as a distinct jurisdiction with its own rules requires a high degree of international agreement, which has thus far proven tenuous. However, models do exist to support this type of practice. Antarctica, outer space, and the high seas are known as 'international spaces', and the Internet may logically fall into this categorization. Mutual agreements have already been decided to dictate the proper forum for legal action in these venues. Yet unlike the South Pole and the stars, cyberspace is traversed by millions of individuals each day engaged in commerce and personal enrichment. The issues that arise in many of these international spaces are 'government to government' not 'individual to individual', 'corporation to individual', 'government to individual', and so forth, as the case is on the Internet. In that respect, a jurisdictional framework for online behavior may be more synonymous with maritime activity.

Use of Admiralty Laws

Relying on admiralty laws, rooted in piracy on the high seas, is another proposed approach to deal with jurisdiction over international online activities. This proposal holds that In Riem ^[10] jurisdiction can be exerted over property related to a dispute physically located in the questioning state. Such action addresses the issue of an individual beyond the reach of a local government (e.g., the perpetrator is in a foreign country), but their property is located in the forum state. Following maritime practices alleviates many of the issues related to enforcement of judicial actions pertaining to cyberspace.

The analogy, however, is a difficult one to make. Is the physical hardware ^[11] the vehicle for harm, is it the electronic packets containing data, or some combination thereof? Under this alternative, the router, the communications line, the modem, the World Wide Web server, and the client participating in the illicit digital transaction would be subject to jurisdiction. If a criminal utilized a public terminal located in an Internet caf or library, would these assets be subject to confiscation? Seizing this type of property has the potential to impact more innocent users than perpetrators, given that legal transactions flow on the same physical infrastructure as prohibited activity. The results may in fact be a reduction in access, technical hurdles as pieces of the Web backbone are seized by government bodies, and, moreover, the risk of confiscation may quell legal e-commerce. It would be similar to shutting down portions of an interstate highway because some individuals were known to exceed the speed limit. While providing remedy for enforcement issues, admiralty practices would result in a process that slowly dismantles the Internet.

International Harmonization of Laws

Worth noting is the approach of harmonizing international cyber laws, as alluded to earlier in this chapter. The international harmonization idea argues in favor of developing codified laws and implementing treaties to synchronize the methods countries use to apply jurisdiction to online activity. When the substantive law is similar around the world, there is less reason to object to the application of that law by institutions almost anywhere (Perritt, 1997, p. 171). This type of model relies on organizations such as The Hague, the United Nations, and ICANN.

However, a nation's laws are a result of its history, and to create unifying standards when these beliefs are engrained in the cultural norms of a nation is nearly impossible. Take for example aversions to any form of Nazi speech in Germany or protections of the First Amendment in the U.S. Such localized ideals are based on significant historical events and make a unilateral approach to online activity extremely challenging. Deadlock by international bodies and their failure to behave in a proactive mode indicates the decreasing likelihood of this option.

Intermediary Liability (Private Ordering)

Some experts believe that holding intermediaries such as Internet service providers and hosts liable for action accessible through their services will address jurisdiction questions on a global scale. It is held that such a model will force intermediaries to become the police power online as they attempt to diminish their liability. Elements of this idea are evident in France's ruling against YAHOO!, Inc. France, for one, has taken aggressive steps to further the intermediary liability approach by drafting into their Information Society Law statutes granting judges the ability to order ISPs to block data deemed offensive. Under this French law, Internet service providers and host providers could be held civilly liable when they have been informed of breaches and choose not to act (Draft Information Society Bill, 2000). By following this approach much of the liability would be absorbed by the Internet's 'gatekeepers', translating to a model with far-reaching implications.

Conceiving of the Internet in this manner would certainly simplify current legal quandaries, but the result may distribute power to unforeseeable persons and bodies. Heightened fear of privacy abuses coupled with more stringent access policies by service providers, system operators, and others with control undermines elements of this model. Censorship is another concern, given the fact that third parties (corporations) are not legally bound to uphold the same democratic principles as national governments. Market incentives also add a dynamic to this model that is not present when government is the primary player. The treatment of low-end users and availability of services may be compromised in favor of higher paying and more powerful clients. Opposition has also been raised from the system administration community and e-commerce corporations as they do not wish to assume this type of quasi-regulatory function. Following such a structure raises concerns that the Internet will be perceived as a lawless space akin to the old American Wild West as countless groups attempt to simultaneously protect their interests.

The international community does not seem prepared to permit private third parties, not connected to any official judicial structure or recognized public body, to police online activities. However, it is believed that such intermediary involvement will lead to more informal and much less costly dispute resolution mechanisms than real-space alternatives. Creating a decentralized governance structure, as this model purports, is more in sync with the inherent mechanics by which the Internet operates.

Arbitration

The use of arbitration and dispute resolution techniques to resolve online issues rather than dependence on government judicial bodies could alleviate the problems inherent in national-oriented jurisdiction. The belief for redress in this forum is that the local community is the best judge of online activities. Alternate dispute resolution programs have the potential to provide effective, quick, and affordable outcomes for parties involved. ^[12] However, utilizing arbitration has been slow to develop in both the virtual and physical worlds as an alternative to litigation. Educating the public as to the availability of arbitration services and recognizing their binding authority represents a hurdle still to be overcome. Arbitration is a viable alternative to addressing jurisdictional issues; however, the bodies certified to arbitrate will need to develop greater expertise and specialty in order to deal with increasingly technical and involved Internet issues. As a short-term solution, international arbitration is not readily available or entirely feasible, but over time mechanisms to facilitate this alternative have bona fide potential.

Country of Origin (Deference Approach)

The country of origin approach is directly opposite the model presently being applied online. This methodology applies the laws of the sovereignty where a transaction originates (e.g., where the data is physically stored or corporation is located) as opposed to basing legal action on the destination. This model has been likened to a consumer physically traveling to a foreign country to purchase a product or service. Corporations tend to favor this approach, as it permits greater clarity when transacting business online, since applicable laws are easier to identify and liability is more predictable.

It is widely held that shifting to a pure country-of-origin approach, to address challenges inherent in the current system, risks undermining consumer protection and consumer confidence in e-commerce (FTC, 2000). Under this approach individuals could potentially be exposed to lax commerce laws of foreign countries without local redress. Additionally, this approach opens a 'Pandora's Box' of challenging issues. It leads to questions regarding the extent to which website presentation and services offered impact jurisdiction. For example, what if a website is based in Brazil, posted in English, and offers free shipping to the U.S.? Under the country-of-origin approach, the laws of Brazil would apply: deceptive to an inattentive consumer.

Use of Technology (Geolocation and Filtering)

Advances in geolocation technologies have recently received heightened attention as a mechanism to manage current online jurisdictional issues. With the ability to match a computer's unique Internet address with a geographic location, the software can be used to block access to Web locations contradictory to home country laws. ^[13] These tools are leading the way for intelligent communication between computer systems, thereby permitting the application of appropriate jurisdiction principles. In essence such technology may allow for superimposing real-world borders over cyberspace.

Criticism abounds about the accuracy and appropriateness of this innovation. Many view geolocation mechanisms as a temporary fix to a much larger and systemic problem. Opposition tends to highlight these products' less than precise identification record. However, each new generation is becoming increasingly dependable, and it is widely held that today such tools are consistently 70% to 90% accurate. The debate also rages with regard to who should maintain and monitor this software once it is in place; whether it be public or private bodies opens a host of concerns related to privacy, censorship, and even democracy. Evading programs that prevent access is always a possibility that in turn compounds the need for policing. Despite concerns, the practice of using these tools has proceeded: China has instituted filtration practices to block content it finds contradictory to state interests, the U.S. has made similar attempts to prevent domestic users from accessing offshore gambling sites, and it is difficult to reach pro-Nazi sites in many European nations. The global community seems to be embracing this technology as a near-term approach to address online border-dependant issues.

^[10]Jurisdiction over property.

^[11]Computer monitors, servers, routers, fiber optic cables, etc.

^[12]One such noteworthy project, the Virtual Magistrate Project (see www.vmag.org), is financed by the National Center for Automated Information Research, American Arbitration Association, and the Cyberspace Law Institute. This project seeks to address some of the more simplistic online issues before they escalate to the courts and create jurisdictional issues.

^[13]Some corporations in this market include: Quova, Akamai, InfoSplit, Digital Envoy, and Netgeo.