In David R. Johnson and David G. Post's article Law and Borders: The Rise of Law in Cyberspace they describe some ramifications of the World Wide Web in terms of global law. Johnson and Post state, “Global computer-based communications cut across territorial borders, creating a new realm of human activity and undermining the feasibility—and legitimacy—of applying laws based on geographic boundaries.” The essence of the issue for governments around the world is that the physical locations of the machines is irrelevant. A machine may be physically located in one country, the domain it is accessing registered in a second and the activity in a third country. “The system is indifferent to the physical locations of those machines, and there is no necessary connection between an internet address and a physical jurisdiction. This is a problem (depending on how you feel about it) for users as well because they may not know the laws of the place they are accessing because, “physical borders no longer can function as signposts informing individuals of the obligations assumed by entering into a new, legally significant, place, because individuals are unaware of the existence or those borders as they move through virtual space. When navigating physical space, for instance driving from one state to the next an individual is aware when they cross a state line and they know that they are subject to the laws of the new State they have entered. Maybe they can't buy beer on Sundays or there is no right turn on red. Whatever the rules, the individual is aware that they will be required to abide by them. On the Web not only do we not know when we move from one jurisdiction to the next but it is unclear who actually has jurisdiction over the user, the country the are sitting in or the country the website they are accessing is hosted in?
Nate Anderson's article, Explainer: How can the US seize a “Hong Kong site” like Megaupload? Attempts to shed light on exactly how the US went about taking Megaupload offline and extraditing its employees for US prosecution. The reasoning of the US government is that Megaupload purposefully targeted the US as a place to do business, hosted servers in the US and payed some US residents for providing content for their website. By paying people in the US, hosting servers in the US and using US ad services to generate revenue the United States Government claims that Megaupload knowingly did business with United States residents and in United States markets while in violation of US law. The crux of the argument is this section of Johnson and Post's article, "Because events on the Net occur everywhere but nowhere in particular...no physical jurisdiction has a more compelling claim than any other to subject these events exclusively to its laws." The flip side was that every jurisdiction might make a claim—after all, Internet publishing is "borderless," right?”
Nate Anderson's article expands upon the ideas laid out in Johnson and Post's article. The net is everywhere so it could be subject to everyone's jurisdiction. I find the idea that every country where the website in question was accessed having a claim to prosecution of the people responsible for it ridiculous. What happens when the United States want to prosecute someone along with other countries, who gets to prosecute the person in question? One could argue that the country who was most affected by the offending website has precedent but how exactly does a country go about proving this? The amount of legal work it would take to prove this would be incredibly complex and time consuming. The other consideration is that powerful countries will most likely just prosecute whoever they want. If the United States really wants to prosecute someone who is located in another country they will make it happen. Less powerful countries do not have the same amount of pull. This is plainly evident in the case of Richard O'Dwyer a 23 year old British citizen who faces extradition and prosecution in the United States because he ran a website called TVShack that posted links to copyrighted content. I find this situation very unappealing. How would we react if Saudi Arabia wanted to extradite an American citizen for hosting a pornographic website and making its content available to Saudi Arabians? The American would have been in violation of Saudi Arabian laws; would their claim be any less legitimate than American appeals for extraditions?
GG
DPS-GAMER
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