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Internet Jurisdiction: Who controls the Internet?
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Internet Jurisdiction: Who controls the Internet?

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This presentation examines the legal conflicts that can arise due to the Internet being borderless and different countries having different laws. Possible solutions are offered.

This presentation examines the legal conflicts that can arise due to the Internet being borderless and different countries having different laws. Possible solutions are offered.

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  • 1. Internet Jurisdiction: Resolving International Conflicts of Law Presented by Prof. Mark Grabowski
  • 2. Introduction A French court presiding over a lawsuit in June 2013 directed Twitter to reveal authors of anti-Semitic and racist tweets. Twitter's lawyers are evaluating the court order.
  • 3. • The controversial tweets were made by someone in U.S.A., which is also where Twitter and its servers are located. • In the U.S.A., hate speech is protected by free speech laws. • But, in France, where the tweets were seen – and in many European countries – hate speech is illegal.
  • 4. The issue Consider the far-reaching impacts of this attempt to regulate Internet and social media speech. Do laws of one country apply to a company based in another country whose laws differ? Can a nation ever have global jurisdiction over speech on the Internet?
  • 5. Such disputes are becoming more common because… 1.Different countries have differing ideas on internet regulation 2.Our existing remedies for resolving international conflicts of law are inadequate for the Internet 3.With 192 countries, there’s no one-size fits all solution
  • 6. The presentation Courts and commentators have long recognized these issues, yet there has been little progress made toward finding a solution to the Internet jurisdiction dilemma. Given this situation, it is imperative to establish a workable framework for resolving such conflicts among governments with differing values and goals. This presentation proposes some possibilities.
  • 7. Consequences The economy suffers as businesses are less likely to invest and innovate due to legal uncertainties. Dot coms also waste valuable resources handling international legal disputes. And some users may find themselves facing legal claims for activities that are legal in the users’ country. While others must surf the web without any certainty that redress is available for harms they might suffer online.
  • 8. Presentation Overview I. Examples of recent & ongoing conflicts II. Differing views of Internet regulation III. Inadequacy of existing remedies IV. Possible solutions & my proposal
  • 9. Examples of Int’l Conflicts
  • 10. The U.S.A. often presents itself as the bastion of Internet free speech, but it arguably oversteps its bounds sometimes. Consider the 2008 case of a British citizen living in Spain, with Internet servers in the Bahamas, selling holidays to Cuba, and having his domain name impounded by a registrar located in the U.S.A. because it appeared to break the U.S.A.’s embargo against Cuba.
  • 11. A German court could not seize the Facebook account of a German citizen accused of burglary as evidence because, although Facebook has an office in Hamburg, the data was located on a server in the U.S.A.
  • 12. Even within the same country, there are sometimes disagreements about internet jurisdiction. Two Californian judges in the same district disagreed about their jurisdictional competence to hear cases between a Korean plaintiff and an Australian defendant, who used US social media platforms.
  • 13. Differing Models for Internet Regulation (even within U.S.A.)
  • 14. 1. Self-Governance Insists that the Internet community is capable of regulating itself and promulgation of domestic or international laws is both unnecessary and undesirable. But that ship has sailed; most countries already regulate the Internet within the framework of their political, legal, moral and cultural values.
  • 15. 2. Neo-mercantilism It’s based on the premise that the Internet is essentially a vehicle of commerce. The role of government, therefore, is to ensure the free flow of commerce along the information superhighway and to remove any impediments. This model is considered to be the American approach to Internet regulation.
  • 16. 3. Culturalism Views cultural protection as the primary objective of Internet regulation. Internet laws and policies are enacted to reflect and protect a nation’s intellectual, aesthetic and moral values, with little consideration of their global impact. The French ruling against Twitter illustrates the culturalist perspective.
  • 17. 4. Globalism Requires multinational political, economic, technological, and cultural cooperation in regulating the Internet. This model relies on treaties and international conventions to achieve that goal. Although international regulation of intellectual property and child pornography on the Internet has made some progress, there are no international agreements resolving Internet jurisdiction.
  • 18. Why existing remedies are inadequate
  • 19. There’s no dispute that a sovereign state may create and enforce laws concerning activities within its borders.
  • 20. … But the internet is a cross-border space.
  • 21. In the traditional analog world, it is relatively easy for courts to determine the geographical locations of the persons, objects, and activities relevant to a particular case. Even international sea law, such as the United Nations Convention on the Law of the Sea, is based on territory. However, as online activities often involve actors and intermediaries in multiple physical locations, diverse sets of potentially incompatible laws and rules overlap and frequently are in conflict. Virtual frontiers do not map neatly into boundaries of national territories.
  • 22. Content providers may physically reside in one place, conduct their business in another place, and locate their servers in a third location, and their content is readily accessible from anywhere in the world. As the French Twitter case and Cuba travel case illustrate, cross-border platforms can host user-generated content that might be deemed illegal in certain jurisdictions, but not in others.
  • 23. Furthermore, attempts to identify the location of a particular user over the Internet have proven extremely difficult, and many Internet users compound this problem by intentionally hiding their location. Traditional principles of international jurisdiction, particularly territoriality, are poorly suited for this sort of environment of geographic anonymity.
  • 24. Towards a global standard Courts have struggled to develop a satisfactory solution, yet no progress has been made toward a uniform global standard of Internet jurisdiction. Here are some common proposals…
  • 25. 1. A universal regulatory scheme? An international convention would lead to a treaty establishing substantive "universal standards” for what’s legal and illegal. The treaty would also create an international body that would promulgate civil and criminal Internet regulations and jurisdictional rules. However, getting 192 nations to agree on standards and then adopt them into their domestic legal codes seems daunting, if not impossible. Attempts to do this with Outer Space and the Moon haven’t worked well – either few countries adopt the law or it’s so vague as to be toothless. Adoption of a universal internet law could also create conflicts between the universal Internet regulations and the domestic laws regulating the same activities.
  • 26. 2. A global standard for determining jurisdiction? A treaty would be signed by all nations that creates a a single test for determining Internet jurisdiction. It could, for example, be an effects test. Under this principle, a state may assert jurisdiction over conduct that has an effect, but does not actually occur, within its border. As with a universal standard, reaching a consensus would be daunting.
  • 27. 3. Filtering Governments would regain control of their borders by placing blocking and tracking technologies at international access points or at the Internet Service Provider's (ISP) servers to act as centurions. Many governments have already implemented such technologies to monitor and regulate Internet activities of their citizens. However, such filters can easily be circumvented and won’t solve issues such as defamation and copyright infringement. In addition, this could undermine the Internet’s infrastructure and is antithetical to its founding purpose of being a tool to share information.
  • 28. 4. Choice of Laws Provisions Content providers and users could agree to resolve disputes in a particular forum via choice of law provisions in terms of service contracts. But there would need to be an international consensus regarding the validity of such agreements. This seems unlikely given that it would limit governments power and the EU has been reluctant to allow forum selection clauses.
  • 29. 5. Do nothing Not all of the issues of Internet regulation require solutions. But, of course, conflict will persist.
  • 30. My proposal The best model for Internet governance is a hybrid that incorporate some elements from all five models. Internet governance is a complex task requiring a complex set of regulatory mechanisms. As a result, the optimal system of governance is a combination of regulation. Various stakeholders – government officials, tech companies and netizens – need to be involved.
  • 31. My proposal Organizations like the Internet Governance Forum and Internet & Jurisdiction have propped up to tackle these issues. Progress may also be achieved by using existing channels and devices. Admittedly, this solution may seem like a bit of a cop out. But, keep in mind, the reason for the deadlock concerning Internet jurisdiction is because each of the most common solutions have significant drawbacks. There is no silver bullet.
  • 32. About the Presenter Mark Grabowski is an assistant professor at Adelphi University in New York, where he teaches media law and Web journalism. Previously, he worked as a journalist, covering news and politics for large newspapers and popular websites around the United States. He holds a J.D. from Georgetown Law. His research focuses on Internet law, social media and media ethics. For more information, visit markgrabowski.com.
  • 33. Sources • Internet Jurisdiction, internetjurisdiction.net • Internet Governance Forum: “The Transboundary Internet: Jurisdiction, Control and Sovereignty” • 31 B.C. Int'l & Comp. L. Rev. 345 • 29 Vand. J. Transnat'l L. 75 • University of Illinois Public Law Research Paper No. 07-25 • New York Times • Ars Technica