2001 B.C. Intell. Prop. & Tech. F. 112701
WHAT A LOCAL INTERNET COMPANY CAN DO ABOUT LEGAL UNCERTAINTY IN CYBERSPACE: A Policy Proposal on How To Deal with the International Jurisdictional, Judgment Enforcement, and Conflict of Law Problems Posed By the Internet
Javier Beltran
[fnA]
November 27, 2001
A. I. INTRODUCTION
Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of the Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.
We have no elected government, nor are we likely to have one, so I address you with no greater authority than that which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you posses any methods of enforcement we have true reason to fear.1
--John Perry Barlow, Declaration of the Independence of Cyberspace
John Perry Barlow’s declaration, circa 1990, is typical of the time that it was made. Since then, however, such The Matrix-like hipsters have been shoved aside for the moment by the rush of Banana Republic and Amazon.com shoppers barreling down the information superhighway toward their favorite dotcom. What was once a new frontier beyond the reach of law and order is now a space beginning to look a bit more like the high seas shortly after the establishment of basic maritime and trading norms—or perhaps, in an even more cynical light, an unruly international bazaar in the form of a 24-hour interactive shopping channel. Still, Matrix wannabes aside, the international qualities of the Internet have not ceased to imbue it with multiple levels of legal uncertainty. That is, the jurisdictional quandaries of what are the laws that govern international Internet transactions and/or interactions and can/should enforce them remain uncertain.
For example, in the business context, an organization’s website could be violating laws in another country without having ever intended to do so, and, consequently, it may have to submit to a foreign court’s jurisdiction that may take action against it—such as monetary penalties or freezing any assets it may have abroad. The Georgia Institute of Technology found itself in such a situation in 1997 when it was sued by two French language organization in France because its website offered information only in English about its programs.2 The plaintiffs accused Georgia Tech of violating a 1994 French law that required websites offering “goods and services” in France to be in French.
The problem, hence, is that while some legal certainty in Internet business transactions is available through internationally enforceable forum-selection and choice of law agreements between contracting parties,3 there is no such certainty when international disputes arise outside of a contractual context. Put simply, contractual forum-selection and choice of law clauses alone are not enough to aid an organization’s internet business when unforeseeable foreign regulations—such as fraud, defamation, trademark disputes, language purity, advertising, libel, defamation, obscenity, informational content regulation, and commercial speech laws—suddenly expose it to litigation or harm that is beyond the contractual context and that can be enforced abroad. And, in the converse, such contractual clauses are of little help when a domestic company may need to pursue legal action against another company abroad that may be adversely affecting its e-business (by, for example, posting trade secrets) through a foreign website, without ever having had any contact with the domestic company’s business, website, or its country for that matter.
The cause of this problem is that the increasing use of cyberspace to conduct both national and global commerce has shaken up the sovereign state's historical control over economic and social activity.4 The very nature of the Internet makes it hard for some countries, like the United States, to apply old models of economic and social regulation to electronic commerce and interaction. The current controversies about individual jurisdictions within nation-states themselves over claims of jurisdiction to tax or haul into court Internet merchants located in other sister jurisdictions illustrate the economic and social regulatory problems the Internet thus poses.5 For, “there is no central law governing the Internet because there is no central policy-making body that enforces Internet decisions. This creates problems on such issues as jurisdiction, criminal law, evidence, privacy and even human rights.” 6
But, what can a local Internet business company do about this? According to a recent study, by 2005, fifty-seven percent of Internet users worldwide will speak a language other than English.7 Therefore, what local e-businesses can and must do is to get involved in international policy-making via the political channels they have available domestically. Though lobbying Congress may be easier for big companies, smaller companies can also participate by joining together as an industry. In addition to lobbying Congress, another good place to start, where it doesn’t matter how big or small your company may be, is to begin appealing to and working with government agencies themselves, such as the Federal Trade Commission, that are currently active in pursuing international solutions to these problems. For example, in Boston, the FTC does actually meet with industry representatives and the public to get input on these problems and to report on what the FTC is doing about them. In such a recent workshop, the FTC’s commissioner reported to local e-businesses and the public that:
In [its] work . . . the FTC . . . . in discussions with [its] international colleagues, the Commission is taking a two-prong approach toward resolution of these issues: (1) laying the groundwork for international recognition of consumer protection laws and creating international treaties defining rules for jurisdiction and choice of law; and
(2) self-regulatory initiatives that yield good business practices and facilitate alternative dispute resolution.
Both strive to balance our two policy goals: ensuring that consumers receive effective consumer protection and at the same time ensuring that the online medium provides sufficient certainty to businesses to foster commercial growth and development. Any ultimate solution likely will require some combination of these approaches.8
Thus, such agencies like the FTC are great places to start to pitch policy proposal over what to do with the particular quandaries over jurisdiction in the global internet because not only are they very receptive to local e-business concerns, but because they are also very able to represent such concerns and proposals at the international policy-making level. For, Commissioner Thompson, leads the U.S. delegation to the particular committees of the Organization for Economic Cooperation and Development currently working on international e-business guidelines in their attempts to overcome “the differences between many European countries’ systems of law and our own . . . in developing consensus of difficult issues like choice of law and jurisdiction.”9
Accordingly, for the purposes of this very presentation, this project will first focus specifically on what domestic internet companies should know about jurisdiction, enforcement of judgements, and conflict of law issues in cyberspace when a dispute arises outside of the contractual sphere. Second, this presentation will suggest a way to think about law and cyberspace that may be better suited for the task of overcoming the legal uncertainty in cyberspace created by its current jurisdictional, conflict of law, and enforcement of judgements problems. Next, this presentation will brainstorm on how such a theory of approaching governance in cyberspace would work. Then, in section five, this presentation will suggest a policy proposal on how such an approach could be brought down to earth and made a reality. Lastly, in section six, the proposed policy will be applied to a hypothetical example (dealing with content regulation) in which the merits of the proposal’s ability to overcome the jurisdictional, enforcement of judgments, and conflict of law problems posed by the Internet today will be assessed.
II. THE DOMESTIC & INTERNATIONAL PROBLEM OF JURISDICTION FACED BY LOCAL INTERNET COMPANIES
Jurisdiction issues are of great concern to Internet companies because they have great domestic and international implications. Content and information posted on one website may be accessible anywhere in the world and, therefore, may cause harm anywhere.10 Thus, of paramount concern for an Internet company are the questions of: (1) under what circumstances will a court, foreign or not, assert its jurisdiction over a non-resident; and, (2) whether foreign countries and the United States will enforce each other’s judgements, the validity of which depends on personal jurisdiction.11 Because the law of personal jurisdiction regarding the Internet in the United States is unclear, confusing, and fact intensive, and also not harmonious with that of other countries—whose laws can be just as unclear and confusing—a solution needs to be legislated at the international level to effectively address such concerns.12
Personal jurisdiction is a fundamental concept in litigation because a judgment rendered by a court lacking personal jurisdiction is void.13 In the absence of enforceable contractual forum-selection clauses, U.S. courts follow a two-step analysis to determine whether personal jurisdiction is proper. First, they ask if jurisdiction is appropriate under the forum state’s long-arm statute. And, second, they ask if the exercise of jurisdiction is consistent with Due Process as provided for in the United States Constitution.
Every state has a long-arm statute that provides rules for determining when personal jurisdiction can be appropriately asserted over a non-resident. There are two basic types of long arm statutes: statutes that reach as far as the due process clause;14 and statutes that limit jurisdiction to enumerated15 grounds. Long-arm statues also distinguish between two types of jurisdiction over non-residents, specific and general. General jurisdiction refers to contacts with a state that do not relate to the cause of action, but are sufficient to subject the non-resident defendant to the jurisdiction of that state’s courts—such as owning property in the state even though it has nothing to with the lawsuit. Specific jurisdiction refers to defendant’s contacts that relate to the underlying action—such as soliciting insurance by mail, transmitting radio broadcasts into a sate, or sending magazines into a state to be sold by independent contractors.
Most statutes are of the limited type in which jurisdiction may not be available if the enumerated grounds are not applicable—sometimes leaving non-residents beyond the grasp of a court. Moreover, unless a specific federal jurisdictional statute applies, federal courts will apply the state statute of the forum state.16 And, in a federal court, “if the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is . . . effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state.”17
After an American court finds that jurisdiction is present under a long-arm statute, it must determine whether the assertion comports with Due Process. Pursuant to the Due Process Clause, a non-resident defendant may not be sued in a forum unless it has first established sufficient “minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”18 Moreover, the non-resident’s “conduct and connection with the forum [must be] such that he should reasonably anticipate being haled into court there.”19 To put it another way, the jurisdictional reach of a court is as long as its relevant long-arm statute, but never any longer than the reach permitted by the Due Process Clause.
As a result, the U.S. law of jurisdiction is faced with two important problems when dealing with Internet cases where no contractual agreements regarding jurisdiction exist between a plaintiff and a defendant: (1) whether the electronic communication between a plaintiff and a defendant is covered by the long-arm statute of the forum state; and, more importantly, (2) whether the communication satisfies requirements of the Due Process Clause. For example, a defendant that happens to sell computer software on-line through a world-wide network of buyers and users without any salesmen, distributors, or other agents, and without any hard-copy letters or invoices, or any other contact with a plaintiff’s state of residence, may or may not have generated the traditional minimal contacts with a state.
The majority20 of American courts that have dealt with such scenarios have used what is referred to as the “Passive versus Interactive Website” 21 analysis that emerged from two important cases, Zippo Manufacturing Co. v. Zippo Dot Com, Inc.,22 and Cybersell, Inc. v Cybersell, Inc.23 In Zippo the court upheld jurisdiction in an action for trademark infringement by a Pennsylvania plaintiff against a California defendant, that was an on-line Internet access and newsgroup provider. Although the defendant had no offices or employees in Pennsylvania, the defendant had entered into agreements with seven Internet access providers in Pennsylvania to allow their subscribers access to the defendant’s news service. Close to 3000 subscribers, which themselves composed 2% of total subscribers, were Pennsylvania residents.
The court reasoned that “[t]he likelihood that personal jurisdiction can be constitutionally exercised based on entity’s presence on Internet computer network is directly proportionate, in manner of sliding scale, to nature and quality of commercial activity that entity conducts over Internet.”24 The court then presented three different levels that may be used to determine whether personal jurisdiction may be constitutionally exercised: (1) the defendant sells products or services into the forum jurisdiction or is otherwise actively doing business on the Internet; (2) the defendant maintains interactive web pages where users in the forum can exchange information with the host computer; and (3) the defendant merely maintains a “passive” website that simply provides information or advertisements. Because in the first two scenarios, jurisdiction is likely to be found, while in the third it is not, the single fact that the defendant’s website was accessible in Pennsylvania was not by itself sufficient to assert jurisdiction.
In Cybersell, where a domain name dispute was at issue, the court adopted the Zippo analysis and found that its case only involved a “passive web” site and thus held against jurisdiction. The court noted the following: that the defendant had conducted no commercial activity in the forum; that all it had done was to post an essentially passive home page on the Web; the defendant had done nothing to encourage people in Arizona to access its site, and that there was no evidence that any part of its business was sought or achieved in the forum state; that defendant had not entered into contracts in the state, had made no sales there, had received no telephones calls from the forum state, earned no income from the state, and had not sent messages there over the Internet. Thus, the court concluded that to allow jurisdiction in an action alleging trademark infringement on the Internet against an essentially passive website “would automatically result in personal jurisdiction wherever the plaintiff’s principal place of business is located.”25
The Zippo and Cybersell approach, thus, stand for the idea that the valid exercise of jurisdiction—that which does not go beyond the Due Process Clause—depends on near which end of a spectrum the facts in a case may fall. That is, at one end, if an out-of-state defendant simply “does business” within the forum by way of the Internet then he can very likely be sued there. On the opposite end of the spectrum stand a set of facts in which simply maintaining a “passive web-site” that is accessible in the forum-state is not by itself sufficient for the exercise of jurisdiction. Accordingly, websites with differing levels of interactivity and/or with differing levels of commercial activity (or even according to the commercial nature of the information posted) are then implied to be somewhere in the middle.
What does this mean for a local U.S. Internet company? In short, that a U.S. court may not assert its jurisdiction over an entity abroad that has posted a passive, non-interactive, albeit harmful, website. For example, in Agar Corp. Inc. v. Multi-Fluid, Inc. a Texas court held that a Norway-based company was not subject to suit in Texas because its products could not be purchased and contractual relations could not be made through its website.26 As the court noted, “[a] site sponsor cannot purposefully direct the information to any particular jurisdiction merely through maintenance of a passive website.”27 Such a result is highly problematic for local companies because a passive and non-interactive website can be extremely harmful—especially when it contains defamatory statements, or reproduces a person’s name or likeness in violation of a right of publicity or privacy, or posts a competitor’s trade secrets, or includes a trademark or trade address confusingly similar to the owner’s, or reproduces beyond fair use a copyright owner’s work.28
However, to add to the confusion and uncertainty, some U.S. courts29 have also used a different approach than that of Zippo-Cybersell by applying an “effects” test. In Panavision International, L.P. v. Toeppen the court upheld jurisdiction against a nonresident cybersquatter who had purposefully aimed his scheme to register Panavision’s trademark as his domain name for the purpose of extorting money from Panavision.30 Thus, this emerging effects test for Internet cases seems to require evidence of intent to have an effect in the forum state to establish the additional element necessary to sustain jurisdiction.
In the converse, local U.S. Internet companies face a myriad of unpredictable circumstances in which their Internet activities may subject them to personal jurisdiction abroad. Generally, unless a bilateral treaty applies, jurisdiction over non-residents in most other countries is decided under each nation’s rules and regulations, which obviously vary greatly.31 Thus, for example, foreign courts may claim jurisdiction in Internet cases involving U.S. defendants on the theory that a tort or injury or harmful event occurred in that country. For example, in Mecklermedia Corp. v. D.C. Congress, the United Kingdom High Court of Justice, Chancery Division, sustained jurisdiction in the UK in an action by an U.S. company and its UK subsidiary, against a German company.32 For the court it was sufficient to establish jurisdiction, in an unfair competition action, that the German company engaged in tortuous acts by hosting trade shows and operating a website in Germany that caused injury in England, “since the harm to the plaintiffs was to their goodwill in England and the effect on their reputation in England.”33
In another foreign case involving a trademark infringement action, Tele-Direct Inc. v. Canadian Business Online, Inc., a Canadian Federal court held that the U.S. defendant corporation, and another U.S. corporation that was not named as a defendant, could be held in contempt for violating the court’s interim injunction orders.34 The court stated that although “the Federal Court’s jurisdiction does not go beyond the borders of Canada . . . [it can] find a foreign corporation or person guilty of contempt of a Federal Court order . . . [who] after having knowledge of the injunctive order, did not abide by its terms to do what it was ordered not to do.”35 Lastly, a German court went further than the English and Canadian courts when it stated in a recent case that jurisdiction can be had “anywhere that a person can receive [a] defamatory [I]nternet message.”36
Consequently, the different and varying approaches used by courts around the world, including the U.S., in dealing with personal jurisdictional issues illustrate the difficulties in electronic contacts cases. That is, depending on where a court is sitting in the world, it may either aggressively over-extraterratorialize its jurisdiction over anyone who puts up a webpage, or it may weakly fail to assert jurisdiction over a non-resident defendant that has indeed caused a harm within its territory. Because such legal uncertainty is unacceptably detrimental to e-businesses, Internet companies should be concerned about such and should indeed begin to brainstorm over what can be done about this. Accordingly, in the next sections, this presentation will do just that: brainstorm a possible solution that could potentially be pitched to U.S. government agencies in order to give them input on what can be done to resolve these jurisdictional problems.
III. TOWARDS A DISTINCT LAW FOR CYBERSPACE: Resolving Jurisdictional Uncertainty and the Related Problems of Judgment Enforcement and Conflict of Law.
If the problem over jurisdiction as presented above existed in a vacuum, it would be relatively simple to convene most governments of the world and put together a treaty establishing across-the-board practical rules of jurisdiction in furtherance of greater legal certainty in international Internet interactions. In fact, representatives from various foreign countries and from the United States have actually tried to do such by proposing a possible Hague Convention on jurisdiction.37 However, because the problem regarding the reach of personal jurisdiction over non-resident defendants is further complicated by the problem of foreign recognition and enforcement of judgments the success of such a convention is unlikely. That is, because different countries have differing and, at times, contradicting legal traditions no international solution to the Internet’s jurisdiction problem will be successful unless it can also overcome the problem of foreign recognition and enforcement of judgements.
For example, in the United States, the judgments of foreign countries are entitled to recognition as a matter of comity.38 Under the Uniform Foreign Money Judgments Recognition Act,39 enacted in 28 U.S. states, a foreign country money judgment is generally enforceable if the foreign country had personal jurisdiction. However, a defamation judgement obtained in a foreign court with jurisdiction but under a law that is inconsistent with the First Amendment principles of the U.S. defamation law may not be enforceable in the United States.40 It is also questionable whether a defamation judgment obtained in a foreign court against an internet service provider under a law that is inconsistent with the statutory immunity of the defendant under section 230 of the Communications Decency Act41 would be enforceable in the U.S., despite the proper assertion of jurisdiction by a foreign court.
In Europe, for litigants from countries that are parties to the Brussels Convention or the Lugano Convention, judgments rendered by a forum in one country with jurisdiction must be recognized and enforced in another country.42 However, “a judgment shall not be recognized: if such recognition is contrary to public policy in the State in which recognition is sought; and, where it was given in default of appearance, if the defendant was not duly served.”43
Thus, because the problem of legal uncertainty in the Internet jurisdiction dilemma involves not only the problems caused by the conflicting traditional, territorially-based, approaches to internet contacts cases, as described in the preceding section, but also conflict of laws and judgement recognition-enforcement issues, the time has come to begin theorizing alternative approaches to governance in cyberspace that can overcome such problems by rationally taking account of the nature of the Internet and those who live in it. For, cyberspace radically undermines the relationship between legally significant events and physical location. The advent of the global computer network has dismantled the link between geographic location and (1) the power of local governments to assert control over behavior; (2) the effects of behavior on individuals or things; (3) the legitimacy of the efforts of a local sovereign to enforce rules applicable to global phenomena; and (4) the ability of physical location to give notice of which sets of rules apply.44 Therefore, because cyberspace easily subverts a system of rule making and enforcement based on borders between spaces, policymakers should be informed that the Internet perhaps might not be governed best by territorially defined rules alone.
As David Johnson and David Prost have suggested in their work on the rise of law in cyberspace, many of the jurisdictional and substantive problems raised by border crossing electronic communications could be resolved by one simple principle: conceiving of cyberspace as a distinct “place” for the purpose of legal analysis and recognizing a legally significant border between cyberspace and the “real world.”45 This would allow us to no longer worry so much about the unanswerable question of “where” in the physical world a cyberspace-based transaction took place.
Treating cyberspace as a separate space to which distinct laws apply should come naturally because entry into this world of on-line communications begins through a screen and a “password” boundary. One does not just find oneself in cyberspace, one has to log on to it, thus there is indeed a “placeness” to the Internet, albeit not a geographical one. Moreover, identifiable communities and activities do exist at various on-line locations, each with their own unique characteristics and their own distinct set of rules. Thus, in addressing the current problems with jurisdiction, regulating Internet-based transactions may be easier through Internet-based conceptions of authority and domain than through a complex identification of which territorially based authority might apply to your conduct. That is, that it would be easier to know that one has to abide by the “terms of service” established by CompuServe or America Online—or, better yet, to the rules of conduct set and agreed to by the community of users inhabiting such systems—when navigating through their online territory rather than having to guess whether France or California will succeed in asserting their right to regulate such activities and those of the “placeless” online known and unknown identities with whom one might communicate.
Conceiving of the Internet as a separate place could provide for a much more simplified paradigm through which to envision a suitable legal framework for cyberspace interactions than what is currently being used; an incoherent and contradicting system of territorially-based approaches that compete with each other and are stretched beyond what they can do. Yet, such a paradigm, paradoxically, cannot be made possible unless a new type of relationship emerges between the Internet and territorially based systems of governance. Accordingly, the next section will suggest an approach that could be pitched to policymakers as a viable way to bring such a theory of law and order in cyberspace down to earth.
IV. NETWORK GOVERNANCE: Rule-Making in Cyberspace and the Emergence of Semi-Sovereign Networks.46
While Cyberspace is indeed borderless in physical space, it is not devoid of its own kinds of borders. For, as Ethan Katsh has pointed out, cyberspace is a “software world” where “code is Law.” 47 The Internet is client-server software that allows machines linked on a network to share and work with information on any of the connected machines. Thus, “entry of messages into, and routing of messages across, digitally-based electronic networks are controlled by more effective protocols [than generally govern non-electronic communications networks in the “real world”]: each network’s technical specifications (typically embodied in software or switching mechanisms) constitute rules that precisely distinguish between compliant and non-compliant messages. This boundary [is not an] artificial construct because the rules are effectively self-enforcing.” 48 To put the matter simply, you can’t “almost” be on the Boston College System or America On-line—you are either transmitting BC- or AOL-compliant messages or you are not. Furthermore, in addition to the demarcation lines in place among network providers like America Online, CompuServe, EUNet, or Prodigy, there also exist a wide array of currently self-governing entities composed of participants constituting what is referred to as a Network Community. Thus, it is at the network level that policy must first be aimed at to consolidate network boundaries and to legally/politically serve (i.e. govern) network communities if there is to exist an effective and legitimate role for governments in cyberspace.
First, policy can consolidate Network borders through the implementation of technical choices that affect a network’s architecture. For example, ISDN technology and the World Wide Web transmission protocol provide better capabilities and choice than simple transfer protocols and analog technology. Gateways between different systems or between a proprietary network like America Online and the Internet establish fundamental rules of conduct; without a gateway, interactions are effectively prohibited. In effect, technical standards exert substantial control over information flows. The degree of system interoperability thus determines the openness of a network’s architectural “borders,” and, ultimately, the openness of the Global Information Society (since it lives in the “network of networks”). Technical standardization may be the result of a purely market-driven process or alternatively may be adopted through a standards body such as the American National Standards Institute. Ultimately, from an international perspective, the contours of the world’s networks could be delineated and recognized through the already existing combined industry/government body of the International Organization for Standards.
Second, as networks themselves have taken on political characteristics of self-governing entities, networks determine the rules and conditions of membership—for instance, America Online’s private contracts mediate the rights and responsibilities of participants—they have also begun to adjudicate disputes emerging within the network community. In the recent past, there has been at least one mechanism, the Virtual Magistrate, made available for online dispute settlement complete with network-based tribunals of experts.49 Much like nation states, network communities hold significant powers to enforce the rules of participant conduct. In the case of proprietary networks, service providers can terminate access for offending participants. “Nettiquette” rules are also enforced by individual members of the network community through technical means such as “cancelbots.” Cancelbots are programs that delete messages circulating on the Internet originating from offending participants who disregard the community’s prohibition of “spamming” or the sending of unsolicited messages such as advertisements in your e-mail. Thus, from states’ perspectives, governmental approaches should not be an attempt to expropriate all regulatory power from network communities, rather than they should serve as a reinforcement of norms for network activities.
Clearly, if network communities want to maximize their self-regulating capabilities they must do so via the effective tools provided by the solid implementation of standards policies. While this can be achieved at the private level, it cannot hope to reach its fullest global extent unless it seeks out the resources found at the state level. Therefore, network governance requires a complex mix of state, business, technical, and citizen forces. Rules for network behavior will come from each of these interest centers. Within this framework, the private sector can focus its energies in developing the Information Society while governments contribute to the protection of public interests. Physical points of contact between networks and states as a result of the location of users and network infrastructure such as cables, nodes, and situs points give states a direct power over certain network activities. Territorial borders will retain an important role in structuring overlaps between network boundaries and state jurisdictions, yet sovereign states should look to act only within certain spheres of influence. Thus, much like the European principle of subsidiarity, states in this network model should act to govern behavior on networks only when state competence and direct state interests are established or when states are more capable of doing so than networks.
Finally, moving beyond theory, how network governance could work in practice is to establish state-licensed “Virtual Magistrates” that could adjudicate on criminal matters and civil torts, and non-state network “Arbitration Panels” that could arbitrate civil disputes—both keeping in mind the rules and norms agreed to and set out by each network community.50 Since network members can and actually do physically reside throughout the world, they nevertheless would be bound to the jurisdiction of their network’s Virtual Magistrate and Arbitration Body due to the terms of contract signed which include a “choice of law” clause recognized by international law—however, an international treaty should be signed to ensure that all netizens can effectively bargain the terms of such contractual provisions dealing with jurisdiction in accordance with due process considerations. Alleged violations of community norms would be adjudicated through a system of arbitration implemented through spaces on the network itself. Complaints could be made, arbitrators selected, hearings held and arbitral decisions announced through electronic messages and file exchange. Sanctions could include monetary penalties or exclusion from network participation. Arbitration awards could be enforced worldwide under the New York Convention51 on the enforcement of international arbitration awards, or simply by excluding wrongdoers from the benefits of services available through the community. Thus, for example, an AOL German customer-member would be bound to the decisions of its New York City based Arbitration Panel, since in signing her contract she, in effect, bargained for and agreed to the terms of arbitration provided by her network community.
Such a system of network semi-sovereignty could work today under the already existing body of international contract law. Still, international contract law is fundamentally dependent on international private law which tends to suffer from the aforementioned problems posed by conflicts of law—which greatly restricts the abilities of the Virtual Magistrates to adjudicate online criminal and civil tort cases. Thus, while the example of lex mercatoria has proven that the law of situs can survive the complex world of trade affairs, a workable legal regime for the Internet would require the creation of a new lex informatica which could solidify not only the observance of intentional contracts but also the current lacking binding nature of international criminal law beyond what the doctrine of autolimitation provides today.52 Such, indeed, would be unprecedented for it implies solidifying the current soft-law status of public international law. It would require an immense amount of effort if states where to approach it individually via unilateral and/or multilateral treaties. Even if such an effort where to mobilize it could be done in vain since all attempts to regulate global cyberspace demand a considerable international harmonization of what is to be considered legal and illegal behavior on the Internet under domestic laws across the board. Thus, since network semi-sovereignty depends on the existence of two primary legal functions of governments—adjudication and rule-making—any and all efforts to bring legal certainty and order to cyberspace will require both the establishment of an International Virtual Court System and a restatement53 for cyberspace.
V. PROPOSAL: THE INTERNATIONAL INTERNET COMMUNCATIONS COORDINATION UNION
The two ambitious goals set out in the preceding section may only be possibly achieved through the auspices of an international organization of states and their respective or non-aligned network sub-sovereigns.54 The first goal of developing a public international court system for cyberspace has been implicitly addressed by a certain group of scholars which have called for initiatives to enlarge the institutional framework of the International Court of Justice to include a broader range of international legal disputes.55 Yet, since the ICJ is an arbitration body that seems fixated on maintaining its jurisdiction limited to disputes between nations, other scholars have pointed to the currently developing international criminal court56 under the United Nations as a more suitable forum for the adjudication of international cyberspace criminal matters.57 The world could deal with criminal conduct and civil torts in cyberspace by bringing certain types of electronic piracy and computer crimes within the jurisdiction of emerging international criminal and civil law institutions of this proposed court. In addition, problems of international search and seizure, such as when the evidence pertinent to a crime in one country is contained on a network server located in another country, could be addressed by broader adoption of legal assistance treaties on the model suggested by the UN draft treaty.58 Furthermore, extradition treaties would also need to be modernized to include computer crimes and certain civil torts within enumerated extraditable offenses.
For such a court to be practical, however, computer crimes and grave Internet torts must be perceived as sufficiently serious to warrant their inclusion in international documents and institutional jurisdictions traditionally concerned with war crimes and terrorism. Certain computer crimes involving computerized crimes, such as terrorism by means of a computer, or crimes involving computerized financial transactions, might be an appropriate starting point.59 Moreover, there would have to be a further harmonization of substantive criminal and tort law concepts pertaining to computer interactions, both to make transnational jurisdiction over computer crimes and torts acceptable for new international bodies, and to satisfy the dual criminality requirements of both extradition and legal assistance treaties. Since politics is important in determining how such pre-requisites for an effective court system will be met, the successful harnessing of the political interests involved must therefore include an international institution capable of producing the needed restatement for cyberspace.
Thus, in order to achieve our second goal, the world will need an institution designed to legislate such a lex informatica. Ideally head-quartered in Barcelona, Spain, a UN specialized agency, called the International Internet Communications Coordination Union, could be founded upon the principle that global cyberspace coordination and standardization is the most efficient and only way to provide immediate order to cyberspace. From this principle, the following norms—addressed in section four of this project—would result: Network self-regulation, State subsidiarity for the protection of public interests, and technical standardization for the consolidation of network boundaries.
The structure of the International Internet Communications Coordination Union would be composed of an Assembly of all member states (universal membership), which would participate in it by way of Internet Network shares determined by percentage of network situs points (nationally located servers), meeting annually. The structure of IICCU would also include a Meeting of Signatories ( individual or groupings of commercial and private service providers—constituting, in essence, the most accessible representatives of transnational network communities since they hold the contracts with users60) which would address the non-sovereign operational and technical standardization matters in addition to consolidating transactional expectations and behavior through their agreements on the “rules of the game”; a permanent General Secretariat (which sits in both the Assembly and the Meeting to promote coordination); and a standing Arbitrary Panel for intra-IICCU dispute resolution and international cyberspace arbitration of civil disputes. The primary legislative body would be the Meeting of Signatories which would “propose” legislation and policies to the States’ Assembly (which must approve all laws and regulations and can also “authoritatively suggest” legislation to the meeting). Decision making could be based on a qualified majority and/or weighted voting adjusted to the amount of each state’s “Internet share” for the States’ Assembly, and a one-network-community-one-vote system for the Meeting of Signatories. All laws passed are to be legally binding international law, unless decided otherwise by the International Criminal Court when laws address criminal issues.
More explicitly, the proposed global cyberspace governance effort will be largely carried out by the Meeting of Signatories. The identities of these signatories, i.e. network representatives, will vary according to the nature of each state’s relationships with its service providers. For example, signatories coming from a country such as China will most likely be government officials since most of China’s servers are in fact government run. In contrast, signatories registered in a country such as the U.S. may be both from the private and public sector. Furthermore, signatories could also be registered in two countries, such as the U.S. and France, thus coming to the IICCU as representatives of the Network Community that is transnationally French and American. Put simply, whether from the private or public sector, the Signatories will be those persons who either own an online service or represent the users of that service depending on that service provider’s contractual arrangements with its users regarding the nature of their network’s political organization. Therefore, signatories could represent authoritatively or democratically ruled network communities—for example, AOL’s president, seeing that his business will prosper if he is receptive to his users’ representation demands might send an “e-mail” elected representative of the community alongside his own private representation (this implies that each network community throughout the world will have to work out such arrangements with their service providers). Such a service provider-network representative would endow the Assembly with the most pertinent players in the game of cyberspace governance, for only they and their user constituencies can give life to regulation via their own coordination of minimum but globally adhered to standards.
The proposed IICCU legislative design should strive to roughly resemble the European Union’s arrangements which delegate “proposals” to the EU Commission while conceding final decisions to the inter-governmental Council of Ministers. Thus, in the IICCU, the Meeting of Signatories would shadow the EU Commission model while the States’ Assembly mimics the model of the EU’s Council of Ministers. The reason for adopting this model is based on the observation that the European Governance Model is currently the only working arrangement today which has managed to consolidate a legislative system that can successfully alternate the merits of intergovernmentalism and transnationalism to create binding policies.61 As a matter of principle, the hierarchical IICCU ultimately would give states the final word, ensuring that states maintain their traditional roles as the key actors in the international arena. Yet, the IICCU would provide the necessary decentralization to the global Internet’s units (network-communities) by granting them the policy creating powers they will need to make Cyberspace self-regulation a reality.
Communication between the two bodies mentioned above is essential if true subsidiarity is to take place. The States’ Assembly and the Meeting of Signatories must work together to bring an order to the Internet that is adaptable to the medium’s potential for anarchy.62 Such intra-IICCU coordination could be fostered by the territorial ties that already exist between service providers and states and between service providers themselves regardless of their physical location. Nevertheless, states will also have to develop relationships with the service providers that cater to across-the-border-situated users and the states within which those users reside in order to harmonize trans-boundary subsidiarity coordination. Since the Net is a global phenomenon, only such an interplay between states’ divergent commitments to their respective public interests and the network communities’ respective member’s interests63 will provide the IICCU with a workable and internationally acceptable regulatory coordination of cyberspace. Therefore, the IICCU’s overall decision-making structure should be based on the aforementioned design and should only be subject to an alteration of its architecture, in a complimentary manner, if the founding principle of the organization where to be found to require to do so by the ultimate holders of sovereignty in the organization, states.
Thus, it is only under this kind of international cooperation, fostered by an institution such as this proposed International Internet Communications Coordination Union, that states will manage to retain the traditional competencies they will otherwise lose.64 States must initially lead the organization via the States’ Assembly, yet step aside when necessary, in terms of using controlled subsidiarity, once the organization’s goal of inter-network semi-sovereign self-regulation is achieved. For, in order to make the IICCU successful, all states must approach the organization with an attitude that is open to an inclusive yet subordinate status for the new players in international relations, the semi-sovereign networks.65 Having arrived at a description on how the IICCU should aim to operate in the future, it may be fruitful to now turn to a hypothetical example of how the proposed institution could overcome the current problems of jurisdiction, judgement enforcement, and conflict of law when dealing with something such as content regulation.
VI. CONSENSUS, BASE AGREEMENTS, AND COORDINATION: An Example of How the ICCU Could Address Content Regulations in Cyberspace.66
National restrictions on the freedom of speech on the global Internet are becoming increasingly commonplace around the world.67 Individual nations, each bent on preserving what they perceive to be within the parameters of national interests, have sought to regulate certain forms of speech the content of which is classified as reprehensible and offensive to national well-being or civic virtue. The fact that this offending speech is technologically dispersed instantaneously to millions of potential recipients around the world has enhanced rather than diminished the impetus to regulate. Such an initial impetus clearly could serve to bring the issue to the IICCU either through the state forum and/or the network forum.
Speech is not—and never has been—inviolate, either in the United States or in any other country of the world. Communicative acts on the Internet fall within such national speech restrictions because the Net is not wholly extraterritorial and its users are not otherwise exempted from existing national speech regulations. And in fact, many nations have already begun the process of constricting speech on the Internet. Thus, taking a rough inventory of the regulatory rules in force in various countries throughout the community of nations would have to be the first step of either of the IICCU chambers wishing to initiate such a policy (see appendix).
Once established such an inventory would reveal that an escalating national de jure regulation of speech meets a similarly pervasive de facto futility of enforcement. Thus, the following strange paradox would have to be acknowledged: the international dimension of the information infrastructure strengthens and weakens both speech regulation and free speech simultaneously. That is, given the international qualities of the Internet, states have been driven to hyper-regulate content unilaterally, though almost simultaneously, yet have failed to achieve any effective regulation due to lack of international coordination in the matter. Given this paradox, states should seek to regulate content by agreeing upon an internationally acceptable, or already accepted, principle. While speech has never enjoyed absolute protection, the principle of freedom of speech has become part of a minimum standard of freedoms for the great majority of nations. So a method would have to be devised in the IICCU’s forums for defining certain categories of regulable speech while at the same time staunchly protecting all other speech. Only speech that is encompassed within certain specified, albeit narrow, confines should be regulated on the basis of its content. All speech outside these narrow boundaries should be assiduously sheltered from content-based regulation
How the IICCU could reach an international, multinational, and multicultural—in order to avoid vulnerability to chauvinistic national interests, and charges of cultural imperialism—consensus could be by using an already existing international legal principle as a basis on which to build a content of communication code. The international law concept of jus cogens might provide such a basis for regulating speech content on the Net. For jus cogens, as defined by the 1969 Vienna Convention on the Law of Treaties, is “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”68 Thus, jus cogens, gleaned from verifiable behavior across the community of nations, structurally fulfills the methodological requirements the IICCU should pursue, offering the necessary consensus in the telecommunications arena. As a “peremptory norm of international law,” jus cogens represents a corpus of law and international rules that are binding upon every nation and every people. It compromises by definition the multicultural and multinational consensus that the IICCU must seek. Jus cogens norms mandate that certain forms of behavior are unequivocally intolerable.
Basing initial efforts of gathering global consensus upon jus cogens norms could provide the ICCU with the touchstone for identifying types of speech that are amenable to an internationally acceptable content-based regulation. In addition, considering the paradigm shift required by the Net’s very nature—sections three and four of this presentation—not only should speech that incites behavior condemned by jus cogens principles be regulated, but also speech that advocate conduct that jus cogens terms as depraved should be banned if the IICCU so deems a broader ban appropriate. To be sure, the varieties of speech regulable under a jus cogens based IICCU code would be few and narrowly defined: only speech that advocates the following irrevocably reprehensible behavior would be constrained: piracy, genocide, slavery, aggressive warfare, apartheid, terrorism, and torture.69
Therefore, working with the precarious yet already existing consensus found in the body of law on speech and content, the States Assembly could produce the following act: The International Agreement on Cyberspace Speech or The Cyberspace Act Against Child Pornography and Racism. This act would be based solely on the global consensus that cyberspace communications of child pornography are to be deemed illegal and outlawed wherever they may surface. Clearly, this would demand a minimum consensus on what is child pornography and if it is desirable to ban it—I do not believe such a minimum consensus is beyond the International community. In addition, other decrees would follow in a sequence dictated by the availability and speediness of minimum consensus regarding the desirability to ban the other forms of negative content communications—most likely, Europe’s current efforts to ban Internet racism dictates that regulations of such expressions would most likely follow. Therefore, building from an initial agreement, states could establish the ground norms for content regulation in order to initiate the global coordinating process.
Finally, the proposed IICCU is not, at least initially, based on a rigid declaration of what is to be universally accepted, but rather a consensus on what is to be regulated via technical and standards coordination. Indeed, the IICCU could serve to further promote the advance of international law on speech and content. That is, enforcement in the IICCU, much like in other international communications organizations, will rest upon the widely perceived need for coordination. Indeed, the room available for states and service providers to deviate is wide, but so is the room for retaliation by individual or groups of states and servers—“cancelbots” and other endless forms of cyberspace “jamming” of unwanted communications that currently exist and could be even more effective if coordinated globally via such an organization. Therefore, much like in other forums for international communications, IICCU enforcement will rely upon arbitration and bargaining rather than on immediate unrealistic reliance on the overnight “hardening” of world laws.
CONCLUSION
The proposed IICCU’s organizational design, which mixes state and cyberspace self-governance is, is something that e-business and the Internet Industry in general should consider as one effective way to deal with both the technical and political/legal problems of cyberspace regulation—the technical being the problems of overcoming territorial preoccupations with jurisdiction and governance(sections two and three), and the political/legal being the ability to effectively regulate and coordinate globally (sections five and six). Such a proposal is not intended to be the end-and-be all of ways to bring more legal certainty to cyberspace. However, it is something that Internet companies should pitch at government agencies because although some of its concepts may not be adopted it may spur policy think tanks to consider a variety of approaches to the problem.
Furthermore, it should be kept in mind that the main political obstacle that this policy proposal would have to address is the gap between the “wired” nations and the “non-wired” world. Considering the qualified majority and/or weighted voting decision-making procedures for states in the proposed institutions, it would not be pessimistic to conclude that the highly technologically and industrialized countries would eventually run the proposed IICCU by virtue of greater market share. Indeed, this proposal assumes rough equality or at least some level of network shares per country (assume that in the beginning, at least, service providers are for the main part primarily legally tied to their territorial states). One way to overcome such an obstacle might be to include native network development policies under currently existing international development projects or in the IICCU itself. Unfortunately, looking at the already existing gap between North and South in every other area, hoping that native Internet network development will avoid the dominance of the “wired” over the “non-wired” seems to be nothing but optimistic.
Thus, since expecting the Third World to obtain access to the information superhighway when it is probably more preoccupied in obtaining adequate living standards for its people, the IICCU might indeed have to deal with underdeveloped states whose online services are provided from abroad thus making its domestically located network community subject to contract rights and representative schemes of foreign private companies. For example, Mexican citizens as members of the AOL community whose situs point is in Dallas, Texas. Still, if such an inevitable situation should arise, as in fact it is, it should nonetheless not mean that Mexico would not be given any representation, for its citizens would still have access to AOL’s network community representation in the IICCU. Yet, such states in Mexico’s position might feel their sense of sovereignty invaded upon in terms of their diminished voting strength in the States’ Assembly. Therefore, it is very important that all states seek development of domestically located, if not owned, service providers to guard against loss of influence in the Assembly—as mentioned before, this could happen under the IICCU’s network development agency, or it could simply be left as is when a country does not feel the need to develop its own situs points, or at least amass them within their territory or its national registers, and thus sees fit that a foreign developed country provide the service through direct contracts with the state in question; such contracts could make specific demands on the service providers to ensure representation for those citizens of unwired states.
Finally, though the sovereign-centric tendencies and obsessions of states are indeed the largest obstacle to the acceptance of such a proposed organization, such an obstacle is not insurmountable if states are persuaded by the industry to realize that ordering cyberspace globally would greatly reduce the current, legal uncertainty inherent in current Internet interactions. Thus, bringing law and order to the Internet must be, by the technology’s very nature, an international endeavor.
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© 2001 Javier Beltran. Published with permission of the copyright holder.
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