Rebecca Fishman Writing 111 Professor Case 18 April 2013 The Broken System of Cyber Jurisdiction With the

world consisting of over 190 countries, having a tool such as the internet can come to be a problem. It connects every country through an unseen network, one that cannot be judged or held under the normal territorial jurisdictions and boundaries the known world has come to rely on. How Cyber Jurisdiction Affects Cybercrime Prosecution notes this issue of jurisdiction when convicting criminals, but it remains to be seen if this issue extends further than internet crime. Though the issues of jurisdiction, countries such as the US have been found to adopt the laws of other countries, such as what is seen in The International Legal Consequences of Web Publishing. Cybercrime affects the world through its impact on jurisdiction, and proves that when faced with a common problem, countries will borrow laws from one another. However, if they are so willing to borrow from others in times of need, why is it so difficult for them to cooperate when convicting cyber criminals? In fact, it is so hard for the various territories of our world to work together that laws had to be passed universally in order for any cooperation to occur; even this does not eliminate the double criminality principle. This is why the internet should be regarded as a separate nation with separate laws, rather than a singular entity that can be ruled by all. Although it is soilless it is still a landas it has currency, population, and cultureand so it should be treated as such. By giving the internet rules not bound by the normal jurisdiction of territory, all those who use the internet would have no issues as to what rights and laws exist on it.

What is a cyber-criminal? There are too many definitions to count, but the consensus is that such a person can be considered a hacker. However, one is reminded that hackers built the internetthey transformed the UNIX operating system, run the Usenet and make the World Wide Web work. Even though the internet is built on the work of hackers, a subset of such people, dubbed crackers, break into other peoples computers through a variety of methods (Sukhai 128-132). Not only do the words crackers and hackers sound alike, but they are both related and this easily draws the question: where is the line drawn between cyber-criminals and cyber necessities? As this answer is not black and white, so is cyber legislation. Not only do such laws have to define who is legally considered a criminal and an innocent, but ways to track down and convict said criminals have to exist as well. Laws regarding cyber-criminals have been many and far reaching, leaving the area of cyber law as a confusing tangle. Each nation has different regulations regarding the internet; only a few principles are regarded on a secular level. These principles include most real-world crimes, along with the Double Criminality principle, which explains how criminals may be extradited (Sukhai 128-132). How Cyber Jurisdiction Affects Cybercrime Prosecution reviews this oversight and it turns out that, in order to extradite an individual they require that conduct be a crime in the jurisdiction where it was committed, as well as in the jurisdiction seeking to extradite an offender. Legally speaking, this allows for any potential cyber-criminal to wreak havoc on the general public through computer cracking, and then flee to a foreign nation before (s)he is caught. This is not simply a what-if scenario, as such a case has occurred many times throughout the short history of cyber-crime. Such an example is the Love Bug virus. The person who created this virus was not penalized by law, because this cracker escaped to the Philippines lawfully, and abided by every Pilipino law once there. Even though billions of

dollars of damage were caused by the virus this person unleashed, justice simply could not convict him or her in enough time! According to the FBI and Computer Security Institute, this problem of cyber-crime is only spreading, as prove in an annual survey of 520 companies and institutions, [of which] more than 60% reported unauthorized use of computer systems over the past 12 months and 57% of all break-ins involved the Internet (Sukhai 128-132). It cannot be proven that most of these criminals do or dont get away with such a feat, as over 60% of these kinds of attacks go undetected, and because it is difficult to determine where a cybercrime is committed (Sukhai 128-132). The perpetrators and victims of such crimes are very often located in different nations, plus the perpetrator is able to use computer systems in various countries while attacking the victim (How Cyber Jurisdiction Affects Cybercrime Prosecution). Traditionally, the idea of jurisdiction includes territory, whereas the scope of one nations legal jurisdiction lies within the countrys territorial borders. However, it has already been established that cyber-crime extends past the boundary of territory. This being said, crime is not the only activity that occurs on the internet, as the cyber world is an important aspect of general life: it is a tool for work, study, pleasure and invisibility. Although it may not be common knowledge that the internet is run by a collection of thousands of individual networks and organizations, all of which cooperate in order to direct internet traffic so that information can pass among them, a common bond is felt with the invisible network (Gralla). Many relatively new terms have popped up, such as cybercitizenship, netiquette and cyber ethics proving this connection (Sukhai 129). These terms are all parts of cyber culture, and beg the question of what a secular bonding network such the internet can be considered. It does not have physical territory, but the internet still contains crime. It does not have buildings, but institutions and aspects of culture still exist; it does not have money, but it has currency. What does this make the

internet, and what impact could this have on its jurisdiction? This question is simply answered, as each mentioned trait is also that of a nation! One may argue that humans are tribal animals, with a tendency to, arrange themselves in small groups around dominant males and females much like a group of monkeys in the trees (Karlsson). This can be extrapolated to mean that the idea of a nation implies a common relationship; this type of relationship does exist on the internet, even if it is not physical or through blood. By going online, people arrange themselves into groups depending on what websites they go on, as well as the general group of an internet user. There are, of course, other factors. Language is a definite factor for example, but not only do many nations exist happily with multiple languages, but the internet has translators to eliminate this barrier to an extent. The opposition may say that, nations with a single dominant language often use this language to define who they are. This is particularly the case in those situations where the language is very difficult for outsiders to learn (e.g. Danish, Finnish, Japanese), but it is also important to remember that the very coding that makes up the internet can be considered a language, along with text talk, and it is also challenging for outsiders learn (Karlsson). That is not to say that all internet users know how to code, or that each one speaks in text talk, but these languages are not used to define who internet users are. Rather, they are an aspect of internet culture that simply makes even the concept of language into a separate entity from that of the territorial world. Culture, and the artifacts of culture, plays a part in defining a nation. This too defines the internet as a nation, even though it is without physical territory. Besides, due to immigration, many recognized, modern nations include within them diverse communities, which challenge the idea of national homogeneity. Even territorial nations are a community of citizenship rather than membership in the nation. Nations seem so compelling, so real, yet they come into being and dissolve with the times (Karlsson). The modern concept of a

nation is therefore tempered enough for the internet to fit the definition, even without physical territory. If the internet can be considered a nation, then all natural rights should extend to it. John Lockes impression of these rights is what much of the worlds laws and constitutions are based off of, and so his natural rights shall be used in this case. Lockes Theories state that people have basic rights, such as the rights to life, liberty, and property, all of which have a foundation independent of the laws of any particular society. Locke used the claim that men are naturally free and equal as part of the justification for understanding legitimate political government as the result of a social contract where people in the state of nature conditionally transfer some of their rights to the government in order to better ensure the stable, comfortable enjoyment of their lives, liberty, and property. Since governments exist by the consent of the people in order to protect the rights of the people and promote the public good, governments that fail to do so can be resisted and replaced with new governments. In the case of the internet, property is all devices which connect to it, as well as virtual goods; liberty can be considered the freedom of speech; life is self-explanatory. However, these rights are often violated by the jurisdictions of territorial governments, who do not consider these rights to extend to a landless place. The International Legal Consequences of Web Publishing deals with the internet on an international scale, reminding one that when publishing something online, all areas of law in each country must be considered, as they do not all abide by the natural rights. What is legal in one nation may not be legal in another, and yet everything posted on the internet can be seen worldwide. The ordinances of individual countries arent necessarily secular, such as how in Germany, individuals are not able to promote Nazi ideologies, although in the US, this type of behavior would be legally permissible. In addition, the nations of France, Germany,

Britain, Canada and Denmark have all placed charges for hate speech on the internet, due to their web of cyber laws. Since the goal of law is to eradicate bad behavior, this system is illogical. With each country attempting to enforce their cyber laws, citizens of the internet are left confused as to what they can and cannot say. Even if it is impossible to convict someone of another country due to the Double Criminality principle, cases trying to convict foreign citizens exist. The ruling of Yahoo, Inc v. La Lingue Contre Le Racisme et LAmtisemitisme has become a landmark in secular cyber jurisdiction. Although ordered by a French court, this proceeding has impacted the world community, as its ruling states that, Yahoo must block French citizens access to online auctions of Nazi items on its U.S.-based site (The International Legal Consequences of Web Publishing). Although this seems to only affect France, the impact of it has had a much larger influence than on simply one nation. Yahoo removed all Nazi items from the entire system, and then the US courts ruled that they, may consider whether the company must remove material from its entire system, even if its only distasteful or illegal for citizens of a particular country. Although French laws are not the same as American laws, because the internet is a global network, America can choose to enforce foreign laws on American soil. This opens up the idea of laws not being bound to one nation territorially, and has the potential to change the way that cyber jurisdiction is viewed. A similar idea has come to root in Bermuda, where the countrys interest in developing itself as a center of e-commerce has allowed for the passage of supporting legislation. Although Bermuda is a sovereign nation, as a whole the country has, pledged to do away with tax practices regarded as harmful [by the OECD], and committed in particular to a program of effective exchange (Which Offshore Jurisdiction? The Example of Bermuda). Technically, Bermuda does not have to pass legislation to appease the

organizations of other countries. However, in order to continue having favorable trade privileges, Bermuda allows for the practices of other countries to seep into its legislation. In this way, the jurisdiction of customs is increased when it serves to be favorable, and the secular community is becoming closer in terms of law. This being said, it is very feasible for a universal set of cyber laws to fix the problem of cyber jurisdiction. Current international law provides many forms of jurisdiction including, national jurisdictionbased on the either the nationality of the victim or the criminalterritorial jurisdiction, protective jurisdiction, and universal jurisdiction. Due to the nature of the Internet and the realities of cybercrime, the latter of these jurisdictions is much easier to apply, as it shares a disregard of national borders with cybercrime. Furthermore, the capability of a nation to employ its laws is normally based upon the location of an incident. Although scholars such as Professors Goldsmith and Wu argue that, characterizations of the Internet as borderless or lacking any territorial connection are invalid because the Internet increasingly is conforming to national laws and requirements, thus losing the characteristic of being beyond the state, it still remains that there are no present national laws that apply directly to cybercrime (Gable 44). This is due to the earlier fact that cybercriminals and victims are often located in separate nations, plus that the criminal can use computer systems in various countries while attacking a victim. Together, these facts prove that cyber-attacks occur in cyberspace, rather than occurring within a territorial boundary. In addition, using so many servers and computers can confuse the process of identifying a victim(s) and/or an attacker(s); if identification is accomplished, states may dispute over extradition, as more than one jurisdiction may be in effect, or the double criminality rule could apply. Although the whereabouts and identity of the cybercriminal has to be ascertained

before proclaiming any type of jurisdictionincluding universal jurisdictionsuccessful discouragement also entails an ease of trial, which solely universal jurisdiction can offer. However, universal jurisdiction does not ensure the cooperation of all nations in the effort to combat cybercrime. The admissibility of such universal jurisdiction under international law is controversial in many nations, and as cybercrime has to be condemned widely in order for such a jurisdiction to have the effect of a deterrent. Further, a basis of jurisdiction not accepted by the entire secular community is inadequate (Gable 57). If some of international community cannot accept the natural laws of John Locke, which are the basis for the constitutions of various western nations, what is to make every nation accept a universal set of cyber laws? Especially since said natural rights should extend to the internet, as it has separate currency, culture and crimealong with the other previously mentioned arguments proving it as a land without territory. As discussed, cyberspace is everywhere and nowhere. It exists beyond the territory of traditional nations and therefore should be regarded as such, and should be governed as such. As a single nation could debunk universal jurisdiction, such a jurisdiction can still be considered territorial law. The internet is not a territory, and so it transcends territorial law. Rights and laws exist to create order; implementing them in a contradicting manner only serves to confuse the people. Such is the case for the Internet, which cannot be bound by territorial jurisdiction, as is it not a territory itself. Doing so has only created confusion in the minds of those who do use it, as what is legal in one country is not legal in another, even though cyberspace transcends the territorial boundaries in which these laws should reside. Even a universal set of laws is territorial, as it relies on the cooperation of land based nations. As the internet is a nation without land, it deserves to contain laws not affected by the traditional idea of territory.

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