September 11-12, 2000
San Francisco, CA

Jurisdiction and the Internet: Basic Anglo/American Perspectives

Internet Law and Policy Forum
Jurisdiction: Building Confidence in a Borderless Medium
Montréal, Canada, 26-27 July 1999

Henry H. Perritt, Jr.
Vice President, Dean and Professor of Law
Chicago-Kent College of Law, Illinois Institute of Technology
hperritt@kentlaw.edu

Three types of jurisdiction

Jurisdiction defines the legitimate scope of governmental power. Three kinds of governmental power give rise to three categories of jurisdiction.¹ Prescriptive jurisdiction limits legislative power. When a sovereign state has jurisdiction to prescribe, it legitimately may apply its legal norms to conduct. Adjudicative jurisdiction limits judicial power. When a state has jurisdiction to adjudicate, its tribunals may resolve disputes. Enforcement jurisdiction limits executive power. When a state has jurisdiction to enforce, its police, and customs authorities may restrict the flow of trade, detain individuals, and alter property interests.

Territorial limits on coercive power

All three types of jurisdiction reflect practical limits on the exercise of coercive power by the state. The practical exercise of control over human conduct defines state sovereignty.² When a state seeks to exercise prescriptive jurisdiction and to govern conduct occurring outside its borders, it is dependent either on the willingness of other states to give effect to its law or on the practicability of exercising its own coercive power outside its borders to enforce its law. Either scenario presents the risk of conflicts between sovereigns. Accordingly, doctrines of prescriptive jurisdiction proceed from concepts of territoriality. Similarly, when a state adjudicates a dispute, the adjudicatory decision can be effective only if the losing party acquiesces in the decision or if the state has practical means of compelling compliance by the application of its coercive power. As in the case of prescriptive jurisdiction, application of coercion to execute a judgment is more practicable inside its borders than outside, and when it occurs outside its borders encounters risks of inter-sovereign conflict. Enforcement jurisdiction refers directly to the application of coercive power and has the same relationship as the other two types of jurisdiction to the practical territorial scope of the application of the force.

Although territoriality is a common theme of all three types of jurisdiction and is strongly correlated with the territoriality of sovereignty itself, the scopes of the three types of jurisdiction are not exactly the same. Nor is territoriality a complete solution to defining jurisdiction.

Disjoint concepts

The three types of jurisdiction are not perfectly congruent. Prescriptive jurisdiction is the broadest. Determining prescriptive jurisdiction involves what American lawyers know as "choice of law." At least since the early 19th Century when choice of law was summarized in Justice Story's and Chancellor Kent's treatises, jurists have accepted the proposition that courts do not always apply the substantive law of their own sovereigns. Regularly, they instead apply the substantive law of other sovereigns: to contracts performed outside the forum state, to torts committed outside the sovereign state and to property located outside the forum state. In doing so, they recognize limits on the jurisdiction of their own sovereign to prescribe. Jurisdiction to adjudicate, typically expressed by American lawyers as personal jurisdiction," extends through "long arm" concepts, to persons not physically located within the territory of the forum state when process is served.

Jurisdiction to enforce is the narrowest of the three. It exists only when the criteria for prescriptive and adjudicative jurisdiction exist³ and then only with respect to persons, things, or activities actually present in the enforcing jurisdiction or at its borders. Controversial exceptions involve coercive power exercised outside the borders in extraordinary cases and pejoratively referred to as "kidnapping."⁴

All based on state interests

Despite these differences, there are nevertheless common themes for all three types of jurisdiction. States have jurisdiction to prescribe and to adjudicate only when they have legitimate interests in the subject matter or the litigant. Analysis of these interests, whether for purposes of choice of law or assessing personal jurisdiction, typically is done through the proxy of contacts with the forum state. A state has jurisdiction to prescribe, that is to have its substantive law chosen for application, only when that state has the most significant contacts with the matter at issue as an indication of legitimacy of its interests.⁵

Interest analysis, evaluating contacts, and thus determination of prescriptive, adjudicative, and enforcement jurisdiction all have links to territoriality, but territoriality is insufficient to determine all jurisdictional questions. Many modern activities, including civil aviation, radio and television broadcasting, satellite activity, maritime commerce, and telecommunications all occur free of special territorial connections to any one state, and in some cases entirely outside the boundaries of any state, insofar as those boundaries have any meaningful connection with practical application of coercive power.

Something old; something new

Accordingly, long before the Internet, the international legal system, through private international law, developed a rich body of doctrine used in defining prescriptive, adjudicative, and enforcement jurisdiction relating to these activities. Those doctrines are expressed and applied in many cases and commentaries. The Internet presents many of the same issues as other transnational technologies and puts further stress on efforts by private international law to localize conduct so that jurisdictional questions can be decided.

For example, a Web page placed on an Internet server is as visible elsewhere in the world as it is in the sovereign in which the server physically is located. While it is true that a particular sovereign may have legitimate interests in regulating what its citizens see and do with respect to that Web page, because it is visible and accessible to its own citizens, that same interest exists in all of the nearly 300 sovereigns throughout the world. Interest analysis thus says that everyone has prescriptive jurisdiction and thus as good a claim to have its own substantive law applied to that Web page as any other sovereign.

Because that Web page has contacts with every sovereign, and because the author of the Web page knows about the global character of the Internet and many cases uses the Web precisely because of that global character, analysis of personal jurisdiction may well result in the conclusion that any court anywhere in the world has adjudicative jurisdiction over the author or publisher of the Web page. On the other hand, it is far more difficult to make meaningful use of purposefulness of contact⁶ as a test for adjudicative jurisdiction when the inevitable result of publishing a Web page aimed at a Belgian audience intrinsically has as much contact with Brazil as with Belgium. While it is not technically impossible to limit access to Web pages to persons whose computers are located in particular sovereign places, it is difficult and expensive to do so, much more difficult than with respect to Volkswagens, Burger King franchises, or motorcycle tire valves.

Over-and underinclusiveness of traditional doctrines

The result of traditional jurisdictional analysis is thus both overinclusive and underinclusive. It is overinclusive in the sense that it allows almost unlimited exercise of prescriptive and adjudicatory jurisdiction with resulting spillover effects wherever Web-based activities occur. It is underinclusive in the sense that it entirely disconnects practical limitations on the exercise of coercive power from intellectual touchstones of jurisdiction.

Both overinclusiveness and underinclusiveness are problematic. Overinclusiveness retards robust development of the Internet's potential because it exposes suppliers of Internet services to unpredictable liability. Fear of such liability inhibits risk taking. As the general counsel of one of the earliest suppliers of spaces for electronic commerce and commentary on the Internet is reported to have said, "When in doubt take it out." Underinclusiveness presents political problems as supporters of various forms of regulation⁷ become alarmed that their countries' laws cannot be enforced effectively against purveyors of harmful material through the Internet.

Example of Internet jurisdictional issues

Several types of material or activity perceived to be harmful in at least some parts of the world raise jurisdictional problems. Hate speech has spawned some of the best known controversies. A Web page author may compose a Web page with pro Nazi material on a server located in the United States, where at least some such material is protected by the First Amendment to the United States Constitution. Unless extraordinary measures are taken, that Web page is as visible in Germany as it is in the United States. German law prohibits such content. Does Germany have prescriptive jurisdiction with respect to the material, or must it yield to the prescriptive jurisdiction of the United States? Does the German court have adjudicative jurisdiction over the Web author or the operator of the Web server? Do the German authorities have enforcement jurisdiction to force the operators of routers in Germany to program their routers to exclude the packets from the U.S. server? Do they have enforcement jurisdiction to conduct electronic measures that would disable the Web page on the U.S. server?

Licensing presents another problem. Suppose a physician in France offers diagnostic services to patients all over the world through a Web presence. Does the Province of Quebec in Canada have jurisdiction over the physician on the grounds that he is practicing medicine without a license in Canada and thus jeopardizing the welfare of patients located in Quebec?

The United States Congress is considering a report from a federal commission recommending that federal law prohibit Internet gambling. If such a law is enacted, will that exceed the prescriptive jurisdiction of the United States if it is applied to a Web based casino on a Web server located in Cuba? Would an American court have adjudicative jurisdiction to enforce the law over the Cuban operator of the server?

Suppose a Russian corporation fraudulently offers shares of stock over the Web. Is this beyond the reach of the U.S. Securities and Exchange Commission seeking to protect American investors?

And what about implementation of the European Commission's data privacy directive? What if a member state of the European Union interrupts data flows between that state and an enterprise in the United States because it collects personal data on its Web site without complying with European date privacy regulations?

False Alarm?

Many of these questions can be resolved by straightforward application of traditional conflicts of law principles. None of the Web pages in any of the examples can be viewed in any sovereign without the use of routers, Internet service providers and telephone lines located in or near that sovereign. Such tangible facilities are subject to all three forms of jurisdiction but the burdens of shifting the regulatory responsibility to those intermediaries raises the problems noted earlier regarding overinclusive regulation. Conversely, wireless technologies, especially satellite-based ones, will lessen the dependence of Web based publishing, commentary, and electronic commerce on physical facilities connected through the terrestrial telephone system. That raises all of the problems noted earlier with respect to underinclusiveness.

Harmonization

In thinking about all of the examples, one should realize that the practical problems of over-and underinclusiveness diminish – especially those associated with overinclusiveness – when the substantive content of law in different sovereigns is the same. Hate speech is a problem mainly because German and American law are so different in striking the balance between freedom of expression and the regulation of content likely to offend local values. Conversely, securities fraud may present fewer problems, at least for more extreme forms of fraud, because the substantive law in various sovereign states is basically similar.

When the substantive law is similar around the world, there also is less reason to object to the application of that law by adjudicative institutions almost anywhere under expansive interpretations of adjudicative jurisdiction. Why should the United States object if German authorities exercise enforcement jurisdiction to give effect to norms that are the same or substantially are the same as those that would be enforced by the Securities and Exchange Commission?

In other words, natural harmony – or harmonization resulting from international negotiations – reduces the pressure on the international legal system to answer difficult jurisdictional questions. That means that assessment of international jurisdiction may differ depending upon the subject matter of regulation as to which jurisdiction is postulated.

Commentators disagree

Students of Internet jurisdiction issues differ sharply on their assessment of the problem and their prescriptions for action. On one side is Jack Goldsmith of the University of Chicago. He has suggested that hand wringing over Internet jurisdictional issues is much ado about nothing.⁸ The dependence of Internet activity on physical facilities, and the long experience of the international legal system in dealing with spillover effects from local regulation of transnational activity through conflict of laws doctrines, provide sufficient answers to most problems. "Cyberanarchy" is a figment of overactive imaginations.

David R. Johnson has been a consistent proponent of the view that the Internet requires fundamental rethinking of how jurisdiction works. He suggests ceding prescriptive, adjudicative, and enforcement power to private net-based institutions working on a bottom up basis. He and his co author David Post have suggested that those inclined to design new Internet regulatory institutions have lessons to learn from Chaos theory and researchers who suggest that the study of biological systems offer interesting models for complex decentralized human systems such as the Internet in terms of how order and rule compliance can emerge from the natural interaction of apparently chaotic or anarchic systems.⁹

Others occupy a middle ground. Peter Swire, in his provocatively named "Elephants and Mice" article,¹⁰ has suggested that Jack Goldmith's view is essentially correct for the elephants of the Internet – large multinational corporate entities that provide Internet services. They have sufficient physical presence in most countries that traditional concepts of jurisdiction will work well because those concepts can focus on intermediary facilities. On the other hand, says Swire, the mice, the small enterprises that provide Internet connectivity in large markets in the United States and potentially can do so in foreign markets, and the small Web publishers and their system operators, can escape regulation through traditional means and under traditional concepts. Swire's elephants will suffer most from the overinclusiveness phenomenon, while the mice will exemplify the underinclusiveness problem.

I have suggested that adaptation of some fundamental concepts in traditional analysis of jurisdiction may be appropriate, for example targeting Internet packets, domain names, or IP routing data for in rem attachment, either as a way of asserting jurisdiction or of enforcing foreign judgments.¹¹

I also have suggested that there is an unavoidable tradeoff between intermediary liability and jurisdiction, essentially agreeing with Goldsmith that sovereigns unable to assert their prescriptive, adjudicative, and enforcement power in other ways will naturally target intermediaries with facilities in their own territory.¹² This is not desirable because it will make intermediaries timid and turn them into private censors exempt from the scrutiny available for public censors under First Amendment and due process concepts. That suggests the need for a concerted effort to develop new international institutional mechanisms to facilitate forms of regulation certain to be insisted upon by democratic political forces.

The Future

So that's where Anglo American perspectives on jurisdiction have taken us so far. Now, we should particularize the analysis to understand which point on the Goldsmith/Johnson perspective is most appropriate for different types of problems arising from political action and electronic commerce on the Internet, depending on whether the concern is privacy, consumer fraud, hate speech, gambling, or taxation. That is what the ABA Jurisdiction Project¹³ is doing, with the aid of several hundred volunteers from the practicing bar.

As the ABA Project begins to report its findings, the ILPF, the Hague conference on Private International Law, the American Law Institute, and the Conference of Commissioners on Uniform State Laws can begin to crystallize possibilities for international negotiation over treaty-based and privately centered mechanisms for harmonizing substantive law. Success will ease the burden on prescriptive jurisdiction doctrine. It will develop new institutions for adjudication thus easing burdens on adjudicative jurisdiction doctrines, much as international commercial arbitration under the New York convention has eased it. It will develop further entirely new concepts of enforcement effectuated within the Net itself, whether through revocation of domain names or changes in routing protocols to effectuate Internet border controls.

Endnotes

1. Restatement (Third) of Foreign Relations Law of the United States ' 401 (1986). These three types of regulation apply not only to action directly by legislatures, courts, and executive authorities; they also apply to quasi-legislative and quasi-judicial action by administrative agencies and to enforcement action taken by administrative agencies whether or not located within executive branch.
2. Quote definition of sovereignty.
3. Restatement (Third) of Foreign Relations Law of the United States ' 431 (1986).
4. Stephan Wilske & Teresa Schiller, Jurisdiction Over Persons Abducted in Violation of International Law in the Aftermath of United States v Alvares-Machain, 5 U. Chi. L. Sch. Roundtable 205 (1998).
5. Compare Phillips Petroleum Co. v Shutts , 487 U.S. 1223 (1998) with Burger King v. Rudzewicz, 471 U.S. 462 (1985) and Asahi v Superior Court, 480 U.S. 102 (1987).
6. World-Wide Volkswagen Corp. v Woodson, 444 U.S. 286, 314 (1980).
7. "Regulation" comprises the entire class of legislative, judicial, and enforcement activities limited by jurisdictional concepts.
8. Jack L. Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev. 1199 (1998).
9. David R. Johnson & David Post, Law and Borders--The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996).
10. Peter P. Swire, Of Elephants, Mice, and Privacy: International Choice Of Law and the Internet, 32 Int'l Law. 991 (1998).
11. Henry H. Perritt, Jr., Will the Judgment-proof Own Cyberspace?, 32 INT'L LAWYER 1121 (1998).
12. Henry H. Perritt, Jr., Jurisdiction in Cyberspace: the Role of Intermediaries, in Brian Kahin & Charles Nesson, BORDERS IN CYBERSPACE: INFORMATION POLICY AND THE GLOBAL INFORMATION INFRASTRUCTURE 164 (1997).
13. http://www.kentlaw.edu/cyberlaw/