3A.1 Jurisdiction


3A.1 Jurisdiction

Jurisdiction is often the first question raised both in civil litigation and criminal prosecutions. Where should the suit be heard? Where should the defendant be tried? US law requires that a court have two types of jurisdiction in order to hear any case: subject matter jurisdiction and personal jurisdiction.

Subject matter jurisdiction is the power to hear the particular type of dispute being brought before the court. Certain types of disputes, such as civil suits between citizens of the same state, can only be brought in state court. Every state, however, has at least one court of general jurisdiction, that is, a court that can hear any type of dispute between any parties. Federal courts, on the other hand, are all courts of limited jurisdiction, meaning that they only have subject matter jurisdiction over types of disputes specifically defined by the statutes that created the courts. Primarily, subject matter jurisdiction for federal courts is defined by the Constitution (Article 3, Section 2). For example, federal courts have subject matter jurisdiction when the dispute is between citizens of different states (referred to as diversity jurisdiction), or when the dispute is one which arises from invocation of a federal law.

Personal jurisdiction is the power to enforce a judgment over a defendant. In civil suits, this is a two-part question that is often difficult to answer. Defendants may always be sued in the state in which they reside, but when is it permissible to sue them in other states? The first question is whether jurisdiction in a proposed state is appropriate under that state's "long arm statute." Every state has one of these. The long arm statute declares how far the state believes it can reasonably reach to assert personal jurisdiction over an out-of-state resident. Some states have long arm statutes that specify certain activities, such as intentionally causing harm within the state, which the state claims give rise to personal jurisdiction. Other states use long arm statutes that simply claim personal jurisdiction to the extent the Constitution permits.

This question of the appropriateness of personal jurisdiction under the Constitution is the second piece of the analysis and it is dependent on whether the court believes the defendant had sufficient "minimum contacts" with the proposed forum state, such that imposing personal jurisdiction over the defendant would not offend "traditional notions of fair play and substantial justice" - in other words, the Due Process clause of the Constitution. Certain contacts with the proposed forum state have become well understood as satisfying the "minimum contacts" standard. These contacts include things such as doing business in a state and forming contracts with citizens of a state. The less tangible the contacts are, however, the more difficult it becomes to assess whether or not they make imposition of personal jurisdiction constitutional. When the contacts are in cyberspace, this can become an extremely contentious question.

The US District Court for the District of Connecticut decided in the 1996 case Inset Systems, Inc. v. Instruction Set, Inc. that by creating a Web site, the defendant had "directed its advertising activities via the Internet" to all states, and that therefore Connecticut had personal jurisdiction over the Massachusetts defendant. The Minnesota Court of Appeals endorsed the Inset Systems decision a year later in its decision in the case of Minnesota v. Granite Gate Resorts, Inc. The trend, though, has been towards decisions that say the mere accessibility of a so-called "passive Web site" is not enough to satisfy the "minimum contacts" requirement - perhaps because the idea that a person or corporation should be subject to personal jurisdiction in any state from which it is accessible is unpalatable from a policy perspective. There are also, of course, important implications in terms of international jurisdiction. However, until the question is definitively addressed by the US Supreme Court, the issue is unsettled.

In criminal prosecutions in the physical world, the question of where jurisdiction is appropriate has traditionally been much clearer than in civil suits. Jurisdiction is appropriate if a state was either the site of the conduct or the site of its result. For many crimes committed in cyberspace, application of the traditional rule is easy. For example, if a hacker located in New York uses a computer there to break into a bank's computer in California the hacker can be charged with violations of both state and federal laws and tried in either of the two states. However, for certain other types of crimes, it can be unclear "where" something occurs in cyberspace.

Robert and Carleen Thomas, residents of Milpitas, California, ran an online Bulletin Board Service (BBS), called "Amateur Action," which offered members materials the Thomases assumed qualified as "pornography" but not "obscenity." The former is protected speech under the Constitution, the latter is not and its interstate distribution is prohibited by a federal criminal statute (18 U.S.C. 1465). In any given prosecution under the statute, the question of whether the materials in question are "obscene" and not merely pornographic is decided by a jury applying "contemporary community standards." In other words, the standard is the standard of the community from which the jury was chosen and in which the trial takes place.

After receiving a complaint about the Thomases' BBS from a resident of Tennessee, a US Postal Inspector in Tennessee signed up as a member, accessed the BBS from Tennessee, downloaded digitized photographs (GIF files), and ordered video tapes, which were sent to him. The Thomases were charged with interstate distribution of obscene materials and were tried and convicted in Memphis, Tennessee. Robert and Carleen were sentenced to 37 and 30 months in prison, respectively.

On appeal, the Thomases argued that, among other things, the statute applied only to distribution of tangible materials, that the GIF files were not transmitted to Tennessee by them, but rather by the Postal Inspector, and that the community standards of Memphis were the wrong ones to use in assessing the question of obscenity because their actions took place in cyberspace, a new "community" which has its own standards. The novel argument that activities in cyberspace should be judged by its own community standards received support from the American Civil Liberties Union, the Interactive Services Association, the Society for Electronic Access, and the Electronic Frontier Foundation. However, the US Court of Appeals for the Sixth Circuit affirmed the lower court's decision that the GIF files were tangible, not just a diaphanous collection of ones and zeros: they began as photographs on a computer in California and ended as photographs on a computer in Tennessee. The appellate court also managed to sidestep the troublesome questions of whether the GIF files were "sent" or "pulled" to Tennessee and whether special cyberspace community standards should apply by pointing to the videotapes that were shipped to the Postal Inspector as the sort of traditional physical world activity that made the Tennessee venue and community standards proper.




Digital Evidence and Computer Crime
Digital Evidence and Computer Crime, Second Edition
ISBN: 0121631044
EAN: 2147483647
Year: 2003
Pages: 279

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