In the bricks and mortar world, jurisdiction is clearly
marked by road signs and other geographic boundaries. For example, when a
driver traveling on the highway enters the bricks and mortar city of
Milwaukee Wisconsin, there is a road sign indicating that the driver has just
entered Milwaukee and, therefore, is subject to the laws, statutes and criminal
justice system of the city of Milwaukee in the state of Wisconsin.
Unfortunately, jurisdiction on the web isn't clearly marked by road signs like bricks
and mortar geographic boundaries are. In fact, there is no clear
delineation of jurisdiction in the cyber world at all. This brings up the
salient question of whether the law can effectively (or even legally) resolve
internet disputes if it is not within a bricks and mortar jurisdiction
and it's concomitant legal system. This begs the question, "...in what jurisdiction is the internet
'located?' This is important because
the laws of New Hampshire don't generally apply to citizens of Atlanta unless
the New Hampshire citizen physically travels to Atlanta and commits a
crime. Similarly, the laws of the United States don't generally apply to
Nigerian citizens unless that person physically visits the United States and
breaks a law while visiting.
How, then, does the law regulate activities on the internet when
the internet spans state and national borders. For example, can an
American citizen view web sites located on servers in Nigeria, China, Korea,
etc. Yet, what is illegal in the United States might not be illegal in
those other countries. On-line gambling is one example of such a
problem.
On-line gambling is illegal in the United States. Yet,
millions of American citizens are involved in on-line gambling while sitting at
their computers here in the United States. Although the gambling web sites
often proclaim that their sites are not illegal, it is only true that gambling
is not illegal in the countries in which the server containing the gambling site
is located. Yet, although the server might be located in Japan, citizens
from all over the world - regardless of their country's laws on e-gambling - can
participate in gambling activities and can even move money for their wins and
losses via electronic funds transfers. purchase a product
directly from a citizen in Nigeria with neither person leaving the confines of
their own country.
Jurisdiction Based on Personal Availament, Long Arm Statutes or
Minimum Contacts
As noted earlier, courts don't have jurisdiction over a person,
generally, unless that person is personally available in that
jurisdiction. One method, however, in which the court can have
jurisdiction over a non-resident is where the the defendant has certain minimum
contacts in the forum state and has purposefully directed his activities at the
residents of the forum. When does the display of a web page or
participation in on-line activities subject a person to the personal
jurisdiction of courts in another state?
State courts have also asserted jurisdiction over people
residing outside of the state via their 'long arm' statutes. These
statutes are so named because their purpose is to reach a 'long arm' into
another state to exercise jurisdiction over a nonresident defendant. Such
statutes vary from state to state but have many commonalities. The Uniform
Interstate and International Procedure Act is typical (see http://www.cyberspacelaw.org/kesan/kesan1.html
)
In terms of international issues, the doctrine of comity and
treaties provide some answers to the jurisdiction issue. The doctrine of comity has developed in international law whereby
nations will extend certain courtesies to other nations particularly by
recognizing the validity and effect of their executive, legislative and judicial
acts.
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