International cyber-jurisdiction: a comparative analysis.

Headline grabbing cases point out an issue of increasing concern: Who has jurisdiction over cyberspace? (1) In one recent case, a French court assumed jurisdiction over Yahoo, an American online content provider, and ordered it to remove web pages showing Nazi memorabilia, material that is illegal

to view in France but legal almost everywhere else. (2) In another case, a British court held a British subject liable for posting photographs on an American web server considered obscene in Britain but not in the United States. (3) Still another, an American court held the president of a gambling company organized and headquartered in Antigua liable for soliciting and accepting bets from Americans over the Internet. (4)

The challenge in determining if and when courts have jurisdiction over activities conducted on the Internet would not be great if the Internet were confined to a single geographical area, or if it were neatly divisible along territorial boundaries into distinct local networks. By its nature, however, the Internet is international: it disrespects local and national jurisdiction. The challenge, therefore, is to create rules that work smoothly across local, national, and international boundaries.

In devising new jurisdictional rules for cyberspace, judges, legislators, and treaty draftsmen are using analogy--the tried-and-true tool of legal reasoning--to modify existing rules to fit this new paradigm. Reasoning by analogy can have its problems, however, especially when differences in context are not taken into account. (5) Nevertheless, analogy is the reasoning tool of choice for creating new law, and existing analogous rules have to be considered in any description of cyber-jurisdiction as it currently stands. (6)

Jurisdiction, of course, defines three kinds of power: the power to prescribe, the power to adjudicate, and the power to enforce. (7) The first of these relates principally to the power of a government to establish and prescribe criminal and regulatory sanctions; (8) the second, to the power of the courts to hear disputes, especially civil disputes; and the third, to the power of a government to compel compliance or to punish noncompliance with its laws, regulations, orders, and judgments. (9)

Although prescriptive jurisdiction is exercised by legislatures and executive agencies (through the making of laws, rules, and regulations), it is most commonly challenged and tested in the courts. Similarly, legislatures and executive agencies can exercise adjudicative jurisdiction and enforcement jurisdiction (through hearings, arrests, and the like), but once again the scope of this power is usually challenged and tested in the courts. That being so, the discussion here will examine how the courts have defined and treated jurisdiction and, in particular, international jurisdiction in the realm of cyberspace.