Jurisdiction

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Information travels over networks which cross geopolitical boundaries, each of which may have its own regulations on information security. A single incident may cross many jurisdictions and require the involvement of different law enforcement agencies. These agencies may all have different requirements and procedures for getting involved with a security incident and may lead to issues of positioning on who is in charge of the investigation.

A computer crime may violate a number of laws at both the federal and local levels that could have either civil or criminal remedies. This will create a variety of options when it comes to prosecuting the attacker. However, it may also cause a great deal of confusion about the direction to take during the investigation. This issue is compounded by the international nature of the Internet.

A user may use a computer which is remote ” at another location ” accessing data from yet another location. The data, in the process of being sent over a network, could cross many boundaries on its way to a server which, in turn , could utilize multiple back-end servers which could be located elsewhere. So often the question of jurisdiction is a question of where the transaction takes place. Every transaction can cross several different boundaries and many different organizations. Even in the simplest of jurisdiction issues ” when there are multiple computers involved in a transaction, where the transaction took place ” is still debated, case by case.

With the explosive growth of the Internet worldwide, computer crimes are increasingly prone to have international dimensions. Some of the challenges faced by law enforcement on the international front include: harmonization of countries ' criminal laws, locating and identifying perpetrators across borders, and securing electronic evidence of their crimes so that they may be brought to justice . Complex jurisdictional issues arise at each step.

A Paris Superior Court found Yahoo liable under French law for permitting the auction of Nazi memorabilia, and ordered the service to prevent any further display of Nazi memorabilia or "any other site or service which constitute an apology of Nazism or which contest the Nazi crimes" to French citizens . Yahoo then sought a declaratory judgment in a California federal court that the French court orders were unenforceable. On November 7, Judge Jeremy Fogel ruled that the first amendment to the U.S. Constitution precludes enforcement of the French court orders. ^[78]

^[78] "Yahoo v. LICRA," U.S. District Court, Northern District of California, San Jose , case C-0021275, 7 November 2001.

International Issues

Due to worldwide networking, computer attacks can come from anywhere in the world. This can severely complicate the process of prosecution . In the process of tracing an attack, it may travel through many foreign countries, not all of which consider hacking a crime. Treaties , conventions, and agreements are in place with some countries, which simplifies the ability to get help and find the correct contacts.

Internet globalization has opened doors to criminal activities which are unprecedented, even in the most technologically developed countries. Furthermore, high-speed telecommunications make it easier for organized criminal groups to engage in multiple activities at the same time, spreading thin the attempt by law enforcement to fight crime. Computer- related fraud has become an international security threat, but the real toll will come when such financial damage threatens the economies of developing countries. It is widely presumed that financial fraud will continue to rise, thus giving the need for security a new sense of urgency.

The global Internet has opened the door to attacks from around the world. The FBI reports that some 122 countries around the world have the infrastructure to support hacker attacks on U.S. networks. International laws and treaties make it difficult to locate and prosecute these attacks that cross borders. Many countries still do not have criminal statutes concerning hacking.

When adjudicating cases involving foreign nationals, the courts must balance several factors. On a case-by-case basis, the courts must consider the procedural and substantive policies of other countries whose interests are affected by the court's assertion of jurisdiction. Keeping these policies in mind, the court must then consider the reasonableness of assertion of jurisdiction examined in the light of the interest of the federal government in its foreign relation policies. When extending jurisdiction into the international field, great care and reserve must be exercised. Because of these sovereignty concerns, there is a higher jurisdictional barrier when litigating against a foreign national.

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