Jurisdiction in Cyberspace Part 1

In La Liegue Contre le Racisme et l’Antisemitisme v. Yahoo!, Inc., the French Supreme Court stretched the bounds of jurisdiction when it ruled that Yahoo.com’s U.S. Auction Service had to remove Nazi Memoribilia from its U.S. website because it violated French Law. How far does jurisdiction stretch? Does a nation have jurisdiction over a foreign company that chooses to violate the nation’s law on its website designed to target another country’s people? France ultimately decided that its jurisdictional arms stretched beyond borders, language, and the stretches of normal legal jurisdiction. Is it fair that Yahoo.com should be required to remove content from it’s U.S. Auction site because it violates French law?

One student in my class commented that France had the right to govern its people as it chooses and when a foreign company violates French law, French has every right to punish the foreign company. I agree with this assessment in the real world. Countries aren’t required to recognize a foreign nation’s rule of law. However, in this case we are talking about cyberspace which stretches beyond the traditional view of boundaries and space. As previously discussed in the last post, people have the ability and access to perform tasks in cyberspace that they would be unable to carry out in real space. This creates issues for jurisdiciton.

On that note, I agree with the majority opinion in Aschroft v. ACLU, in which the court found it unconstitutional to create of a community standard for regulating online content under the Child Online Protection Act (COPA). The majority focused on the fact that cyberspace has no boundaries or borders and took an exceptionalist view of regulating the internet. If the internet is regulated by a community standard, the most cautious and conservative view of regulation will be adopted preventing access to information and content. When I think of the government and lawmakers having that much power I instantly think of an Orwellian society or maybe something similar to the current regulation of online content by the Chinese. I believe there can be better laws in place to protect children from malicious content but also protect freedom of speech.

In a previous class, my class went online to the Marlboro website where we experimented with their age identification content for selling cigarettes to children. Marlboro won’t even let you visit their site without first verifying your age. In order to actually enter into the website, Marlboro requires that the user enter his or her address along with a great deal of person content and a customized quiz to verify the user is who he or she say they are. It seems like so many of the battles over jurisdiction could be less complicated if there was some way to verify a person’s identity and what law a person should be subject to while they surf the internet. Now, that sounds Orwellian, I know. But what if it wasn’t?

For example, Dick Hardt formulated the concept of Identity 2.0 as a way for users to verify who they are when they are online. Think of it as an online version of your driver’s license. If a concept like this existed in cyberspace, jurisdictional questions could become less difficult. The government would ultimately regulate the internet and be able to determine based on a user’s Identity 2.0 who the user was, what state they live in and what laws they are subject to. Governments would control what content their citizens could view and prevent them from violating the law. For example, a government would not allow a pedophile to visit his favorite illegal and illicit websites and children wouldn’t be subjected to websites which may violate COPA. However, the government would easily be able to identify who and what people are doing at all times online. The anonymity associated with the internet would not longer exist. Now that sounds Orwellian.

But then again, if the government or even corporations had the ability ot prevent users from accessing certain sites that violate local law, wouldn’t that violate the First Amendment and Freedom of Speech? Maybe Identity 2.0 isn’t a solution, but its clear that France shouldn’t be able to affect the rights of U.S. citizens.

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