July-December 2019
ISSN 2516-1210 (Print), 2515-9887 (Online)
This research explores a theory of cyber law expressed in the form of seven guidelines and based upon international principles of jurisdiction. Focus in cyberlaw largely has been on aspects of cybercrime rather than the theory, philosophy, and science of cyber law generally. This article seeks to characterize the jurisprudential aspects of cyber law jurisdiction by developing a broad measuring stick that can be applied to the law as it impacts cyberspace. The attention herein is on private law, and the primary focus is to begin to regularize a vocabulary that can be understood by both the legal and cyber communities, to develop guidelines for applying settled concepts in the physical space to the problem of jurisdiction in cyber space, and the development of new legal paradigms addressing yet unknown issues in cyber jurisprudence. These issues vocabulary and jurisdiction - form the most significant stumbling blocks to the development of a coherent, universal, and useful jurisprudence addressing issues in cyber space, now and in the future. The private law explored addressing private law jurisdiction is derived from international legal concepts. The landscape is viewed in three ways (“Law Types”): 1. Settled, physical space law; 2. Physical space law that can be molded or interpreted to address cyberspace; 3. Areas where new laws must be made to address issues that are uniquely cyber-related. This article addresses some of the most relevant issues, resources and cases, both from the U.S. and internationally. It is not intended to be pervasive, but rather as a starting point for further discussion and research.
A Jurisdictional Analysis of Microsoft v. 10 John Does Using IP Address 73.21.204.220. (2018).
Advancing Responsible State Behaviour in Cyberspace in the Context of International Security – Resolution adopted by the General Assembly on 22 December 2018 – 73rd session of The United Nations Agenda Item 96 (2018).
American Law Institute, Restatement (First) of Conflict of Laws § 377 (American Law Institute. 1934).
American Law Institute, Restatement (Second) of Conflict of Laws § 6 (American Law Institute. 1971).
Bryan A. Garner, Black’s Law Dictionary (West Publishing Company 6 ed. 1990).
Cedric Ryngaert, Jurisdiction in International Law (Oxford University Press. 2008).
C. E. Shannon, A Mathematical Theory of Communication, 27 The Bell System Technical Journal (1948).
Dan Jerker B. Svantesson, Solving the Internet Jurisdiction Puzzle (Oxford University Press. 2017).
Diana Sancho Villa, Jurisdiction Over Jurisdiction and Choice of Court Agreements: Views on the Hague Convention of 2005 and Implications for the European Regime, 12 Yearbook of Private International Law, (2010).
Geoffrey M. Hodgson, The Concept of Emergence in Social Science: Its History and Importance, 2 Emergence (2000).
Jack Goldsmith, Lea Brilmayer, Erin O’Hara O’Connor, Conflict of Law – Cases and Materials (Wolters Kluwer 7 ed. 2015).
Jeremy Wright, Cyber and International Law in the 21st Century (Speech) (UK Government 2019).
Michael N. Schmitt, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (Prepared by the International Groups of Experts at the Invitation of the NATO Cooperative Cyber Defence Centre of Excellence 2 ed. 2017).
Microsoft Corporation v. John Does 1-10 using IP address 73.21.204.220, (United States District Court, Western District of Washington at Seattle).
Peter R. Stephenson, Defining a Cyber Jurisprudence (2017).
Peter R. Stephenson, Jurisdiction in Cyberspace: A Question of Conflict of Laws? (2018).
Report of Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security. (2013).
Robert Rosen, Essays on Life Itself (Columbia University Press 1 ed. 2000).
Ronald Dworkin, Taking Rights Seriously (Bloomsbury Academic. 2013).
Unmanned Systems in Homeland Security. (2015).
William Craig, The History of the Internet in a Nutshell, WebFX, available at <https://www.webfx.com/blog/web-design/the-history-of-the-internet-in-a-nutshell/>.
Wikipedia, Lotus Case, Wikipedia. (2009).
2 to cyber operations (Prepared by the International Groups of Experts at the Invitation of the NATO Cooperative Cyber Defence Centre of Excellence 2 ed. 2017).
3 Unmanned Systems in Homeland Security. (2015).
4 Peter R. Stephenson, Jurisdiction in Cyberspace: A Question of Conflict of Laws? (2018).
5 Jack Goldsmith Lea Brilmayer, Erin O’Hara O’Connor, Conflict of Law – Cases and Materials (Wolters Kluwer 7 ed. 2015).
6 Within this paper we will use the terms “place of the harm” and “place of the wrong” interchangeably, recognizing that there may be subtle contextual differences in some cases.
7 American Law Institute, Restatement (First) of Conflict of Laws § 377 (American Law Inst(American Law Institute. 1971).
8 Schmitt, 2017.
9 “A number of principles and rules of conventional and customary international law derive from the general principle of sovereignty. Examples include those relating to jurisdiction (Chapter 3), including the obligation to respect certain immunities of other States (Rule 5), and the principle of due diligence (Rule 6).”
10 The first five (a-e) cases identified courtesy of “The Verge” – These six lawsuits shaped the internet https://www.theverge.com/2014/8/19/6044679/the-six-lawsuits-that-shaped-the-internet.
11 Plaintiffs filed suit challenging constitutionality of provisions of the Communications Decency Act (CDA) provisions seeking to protect minors from harmful material on the Internet Reno v. Am. Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997).
12 Negligence action was brought against commercial interactive computer service provider alleging that provider unreasonably delayed in removing defamatory messages posted by unidentified third party, refused to post retractions of those messages, and failed to screen for similar postings thereafter. Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997).
13 1997) 952 F.Supp. 1119 United States District Court, W.D. Pennsylvania. Zippo Manufacturing Company, Plaintiff, v. Zippo Dot Com, Inc., Defendant. Jan. 16, 1997.
14 The “Zippo Test” has been debated widely based upon its apparent simplicity in an environment – the Internet – that is anything but simple. See, for example: Pres-Kap, Inc. v. System One, Direct Access, Inc., 636 So. 2d 1351 (Fla. App. 3 Dist. 1994), CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996), Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997), and Dudnikov v. Chalk & Vermilion, 514 F.3d 1063 (10th Cir. 2008).
15 “(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.”
16 Shrink-wrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are unconscionable). ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).
17 See, for example, CoStar Realty Information, Inc. v. Field: “…a user’s affirmative act of clicking an “Agree” button in order to enter the website binds the user to the Terms of Use associated with using the website”.
18 Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995).
19 Pres-Kap, Inc. v. Sys. One, Direct Access, Inc., 636 So.2d 1351 (Fla. Dist. Ct. App. 1994).
20 International Shoe v. State of Washington, 326 U.S. 310 (1945); Shaffer v. Heitner, 433 U.S. 186 (1977); Calder v. Jones, 465 U.S. 783 (1984).
21 “The law is well settled that in order for a state court to subject a nonresident defendant to an in personam judgment, due process requires that the nonresident defendant have certain minimum contacts with the forum state such that the suit does not offend traditional maintenance of the notions of fair play and substantial justice…”
22 Cedric Ryngaert, Jurisdiction in International Law (Oxford University Press. 2008).
23 Wikipedia, Lotus Case, Wikipedia (2009).
24 For incidents on the high seas, this ruling has been contradicted by article 11, 1958 High Seas Convention.
25 Permanent Court of International Justice of 7 September 1927, France v Turkey, Series A, No. 10, p. 69.
26 Erich Gasser GmbH v Misat Srl (C-116/02) European Court of Justice 09 December 2003.
27 Diana Sancho Villa, Jurisdiction Over Jurisdiction and Choice of Court Agreements: Views on the Hague Convention of 2005 and Implications for the European Regime, 12 Yearbook of Private International Law, (2010).
28 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.
29 Appeals, Second Circuit. United States v. Aluminum Co. of America et al. March 12, 1945.
30 Ryngaert. 2008.
31 Bryan A. Garner, Black’s Law Dictionary (West Publishing Company 6 ed. 1990).
32 Case Concerning Barcelona Traction, Light, and Power Company, Ltd [1970] ICJ.
33 Ryngaert. 2008.
34 “…a State may only exercise its jurisdiction if another State with a purportedly stronger nexus to the case fails to do so…” Ryngaert.
35 American Law Institute, Restatement (First) of Conflict of Laws § 377. (1934).
36 Digital Shadows blog on bulletproof hosting: https://www.digitalshadows.com/blog-and-research/criminal-services-bulletproofhosting/
37 A Jurisdictional Analysis of Microsoft v. 10 John Does Using IP Address 73.21.204.220. (2018).
38 Microsoft Corporation v. John Does 1-10 using IP address73.21.204.220, (W.D. Wash.).
39 Stephenson on Microsoft’s basis of IP communication data.
40 “Venue is also proper in this district pursuant to 28 U.S.C. 1391(b) because a substantial part of the events giving rise to the claims occurred in the Western District of Washington.”
41 28 U.S.C. § 1391(f) – Civil actions against a foreign state.
42 See footnote 39.
43 Mathematical Theory of Communication, 27 The Bell System Technical Journal (1948).
44 Robert Rosen, Essays on Life Itself (Columbia University Press, 1 ed. 2000).
45 Morgan in Geoffrey M. Hodgson, The Concept of Emergence in Social Science: Its History and Importance, 2 Emergence (2000), p.66.
46 William Craig, The History of the Internet in a Nutshell, WebFX, available at https://www.webfx.com/blog/web-design/the-history-of-the-internet-in-a-nutshell/.
47 See footnote 45.
48 Numerous intermediate servers in multiple jurisdictions, encryption, etc.
49 Ronald Dworkin, Taking Rights Seriously (Bloomsbury Academic. 2013), Chapter 4 “Hard Cases”.
50 Peter R. Stephenson, Defining a Cyber Jurisprudence (2017).
51 HPE blog on zombie servers: https://www.hpe.com/us/en/insights/articles/your-zombie-server-action-plan-1901.html
52 Regulation (EU) No 1215/2012 (Brussels Regulation, 2012).
53 See footnote 27 – the subsidiarity principle.
54 “… international law and in particular the United Nations Charter, is applicable…” UN Report (2013).
55 UN Resolution, General Assembly, 73rd session, Agenda Item 96 (2018).
56 Jeremy Wright, Cyber and International Law in the 21st Century (UK Government Speech, 2019).
57. applicable and is essential to maintaining peace and stability and promoting an open, secure, peaceful and accessible ICT [Information and Communications Technology] environment.” Report of Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security. (2013).
58. Advancing responsible State behaviour in cyberspace in the context of international security – Resolution adopted by the General Assembly on 22 December 2018 – 73rd session of The United Nations Agenda Item 96 (2018).
59. Jeremy Wright, Cyber and International Law in the 21st Century (Speech) (UK Government 2019).
1 Email: prs33@leicester.ac.uk
(2019). International Private Law as a Model for Private Law Jurisdiction in Cyberspace. Legal issues Journal, 7 (2), https://www.legalissuesjournal.com/article/07-02-11072019/
