A Separate Jurisdiction For Cyberspace?
Juliet M. Oberding
Law Offices of Juliet M. Oberding
Media Design in Progress
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This article analyzes whether the technical characteristics of the Internet should create a separate legal jurisdiction.
The question is whether the global nature of the Internet naturally forms a separate legal arena. Should a Convention of Cyberspace be drafted similar to the separate international conventions governing the Law of the Sea and Admiralty Law? In essence, the question to be resolved is whether the Internet needs a separate set of laws or if current laws are adequate.
In 1969, ARPANET heralded the beginning of large scale computer-mediated communications and what would eventually be called the Internet (Rheingold, 1993). A little less than thirty years later, the use of the Internet has grown tremendously. The author asserts that the internet is a networked system of many communities.
Historically, laws were created through community meetings wherein disputes were discussed and resolved according to the norms of the community (Perritt, 1993). Now, within individual cybercommunities, participants can create and efine law applicable to their community. Such rules generally set forth the rights and obligations of the specified group.
In Thomas v. U.S. (1995), Thomas was found guilty of criminal pornography distribution after a Tennessee resident downloaded pornographic materials from the BBS. In appeal, Amateur Action BBS argued, unsuccessfully, that the trial court should have applied the community standards of the cybercommunity instead of the standards of the Tennessee community where the material was downloaded. The prosecution failed to recognize that the Amateur Action BBS is also a community similar to a town or village.
The question is as to how do existing online communities express obligation and enforce complaince? There are three general methods of enforcement on the Internet: (1) Disconnerct or exile rule breakers; (2) Employ peer or social pressures; (3) Apply the law. For e.g., BBSs, a moderator often oversees the discussion (and may "disconnect" or "unsubscribe" a troublemaker). So, this way online communities clearly maintain community norms and have the ability to create and enforce rights and responsibilites.
The next question is whether these multiple communities create the consensus for a single law of the cyberspace and is it necessary to have one et of rules to govern the whole online community?
The creation of law in a democratic society requires a consensus of the people. Many scholars believe that there can never be a consensus to support a common law for cyberspace. Contrary to this position, rules are being created and enforced in the digital communities. These common norms include social pressure where the offender is reprimanded by the group or community as opposed to an outside force. Behavior is also being controlled by contract between users and commercial services in which the offender is punished by cancellation of services.
It is also pointed out that changes in U.S. law are limited to U.S. borders. As a result, crafty individuals could play a technological version of forum shopping by picking and choosing where to locate servers in order to obtain the best legal environment. The mere possibility that individuals might be able to escape the jurisdiction of one nation by relocating computer-mediated information and services to another nation is an insufficient reason to create formally a separate jurisdiction for cyberlaw. Certainly, piracy of real ships and cargo on the sea is much different from piracy of intellectual property on the Internet. How would one pinpoint the time and location of a given event without real world references? Jurisdiction may be an anachronism in a borderless world where time and distance have little meaning (Katsh, 1995).
The question addressed is whether cyberspace require the formal creation
of a separate jurisdiction? Probably not, as an informal separate jurisdiction
already exists based on the nature of network computer-mediated communication.
This is evident in several respects:
1.Laws are being created and enforced by cybercommunities;
2.The laws of the cybercommunities are generally inapplicable outside the online community;
3.The laws of the outside world are generally difficult to apply to the online world; and
4.The outside world must create new law to control the online world.
As to the question as to who will create the laws for the Internet, it is suggested that Internet Law Task Force, an organization to research on network issues, can be the liaison between the network community and the state. The Task Force is composed of a wide variety of individuals from many backgrounds and will probably be more sensitive to community and technological issues and could be analogous to the Internet Engineering Task Force. The ITF can develop norms and determine how to resolve conflicts in cooperation with technologists, service providers and others. Such norms can be used as guidance for courts and governments.
Change in the medium does not necessarily mean that a new single system of law must be created to solve the problems on the Internet. Laws are already being created by cybercommunities. Understanding technology is key to resolving the conflicts between law and technology. Efforts to develop norms can bridge the gap between old laws and new technology.