July 12, 1994

Jurisdictional Quid Pro Quo and the Law of Cyberspace 


By: David R. Johnson

        The strong form of the theory that there is (or will be) a "law of cyberspace"
holds that the new electronic networks are a separate legal jurisdiction (or, maybe,
more than one). Even those who might go to the extreme with such a view,
perhaps advocating "sovereignty" for the net, nevertheless must recognize that
plodding old territorial sovereigns will continue to assert jurisdiction and make laws
about what happens online.  And even the weakest versions of the theory -- even
those that might deny that there is anything special (legally) about electronic
activity -- must concede that the dispersion of communicants across the globe is
bound to raise difficult questions of choice of law, personal jurisdiction, and venue.

        As I understand them, both national and international law doctrines regarding
jurisdiction rely heavily on questions regarding the (1) the extent of the voluntary
"contacts" the relevant person has had with the interested jurisdiction and (2)
the fairness of asserting personal jurisdiction over the acts of a foreign person. 
There is a sliding scale, with the importance of looking to fairness becoming
greater as the extent of contacts diminishes. There may also be a corrollation
between a state's assertion of jurisdiction over a person or matter and its practical
ability to enforce a judgment. Thus, the application of a particular jurisdiction's law
to the substance of a dispute similarly depends upon a combination of voluntary
actions (contacts and contracts) and a weighting of the extent of the local state's
interests (and abilities) to protect its citizens from outside abuse.

        Cyberspace intensifies all of the mysteries surrounding these already
mysterious matters.  The net allows more people to have many more "contacts"
with jurisdictions in which they do not live -- and which they may never physically
visit.  The informality and unpredictability of communications across
interconnected networks may make it hard to determine when there has been a
voluntary "contract" to submit to or abide by some local law. It is hard to
determine "where" online acts occur or, in some cases, even "where" some types
of injury (e.g., to the reputation of a pseudonym used only on the net) are
suffered. And the net calls the enforcement ability of national sovereigns into
question, at least with regard to activity online.

        But, I submit, there may be something of a solution to these
technologically-spawned jurisdictional mysteries in the technology itself.  The rise
of cross-jurisdictional communications can compound the question of what is
"fair."  But it can also help answer it if we adopt a new sort of jurisdictional
relativism -- if we accept the notion that one electronic contact deserves another,
of "jurisdiction in kind." More specifically, we might decide that any given
territorial sovereign has jurisdiction over (and can apply it's law to) any person and
set of actions in cyberspace to precisely the same extent as, and in the manner
that, the person and actions entered the electronic space the sovereign nation can
control.

        For example, building on cases regarding the fairness of a state's asserting
personal jurisdiction over a foreign person just because that person made a
telephone call into the state, scholars have debated whether the passage of an
Internet message into or through a physical jurisdiction is enough to support
personal jurisdiction for purposes of regulation or righting a wrong. That's too stark
a question.  Why not concede that the state in question can of course assert
jurisdiction to the extent it can do so by sending and receiving Internet messages?

        The traditional "fairness" inquiry asks whether there was enough consensual
contact to allow a state to require the person in question to "appear" (physically) in
its courts. The new jurisdictional relativism would say that, if she perpetrated some
wrong by e-mail, a person may be required to "appear" in interested local courts by
e-mail. Moreover, a state may be justified in such a case in applying its own laws
to protect its citizens -- if and to the extent that it can enforce those laws by
means of e-mail. For example, consider an incoming message, sent from a distant
person who could not fairly (or feasibly) be required to appear in local courts, that
allegedly violates local laws against fraudulent advertising.  The offended country
might still assert jurisdiction to hold a hearing by e-mail and then to enforce any
resulting judgment by means of implementing a filter or "cancelbot" that would
preclude or monitor future messages of that type from that person (assuming that
was the appropriate penalty under local law). The local state might also levy on
any local assets of the perpetrator, of course, but even if there were none the local
authority would have the ability to use the new medium to protect its local
interests with respect to that medium.

        I certainly don't want to encourage more regulation or assertions of
jurisdiction by territorial sovereigns with respect to the vulnerable and valuable
international networks -- much less prior restraint of free speech conducted by
e-mail. The net should be allowed to grow without premature intervention by any
legal authorities other than those that spontaneously arise online. But we can also
recognize and plan for the inevitable desires of local politicians to be seen to
protect local interests.  Until we get a global first amendment, we have reason
to fear that overreaching and overreaction might lead to disconcerting surprises
and ugly clashes between legal systems. One way to reduce these jurisdictional
conflicts is to recognize the net as a new jurisdiction. A second, interim way would
be to limit the assertions of jurisdiction by local states to those rooted
(procedurally and with respect to enforcement) in precisely the same kind of
"contacts" that gave rise to the question in the first place.