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State Cyberspace Jurisdiction and Personal
Cyberspace Jurisdiction
Georgios I. Zekos, Dr.*
+ Author Affiliations
*
BSc(Econ), JD, LLM, PhD. Barrister-Economist
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1 Introduction
Cyberspace is an amorphous space that does not occupy a set physical or geographic location.
Moreover, cyberspace is an electronic place and sovereignty and never before have we seen a space
in which individuals, corporations, communities, governments and other entities can exist within
and beyond the borders of the nation state in such an instantaneous, contemporaneous or ubiquitous
manner1.
What we call ‘cyberspace’ can be characterized as a multitude of individual, but interconnected,
electronic communications networks. Cyberspace is already a global communications medium and
the subject of valid international interest2. The Internet is not a physical object with a tangible
existence, but is itself a set of network protocols that has been adopted by a large number of
individual networks allowing the transfer of information among them. Additionally, the Internet is a
medium through which a user in real space in one jurisdiction communicates with a user in real
space in another jurisdiction. The world of cyberspace has no physical existence beyond the
computers on which it resides but this fact does not keep it from being real because it is a world of
information that have real consequences and a real existence. It is the interplay between the vast
number of largely centralized individual networks and the decentralized Internet work through
which they can communicate that will prove to be a fundamental importance in determining the
efficacy with which state law can be imposed on individual network communities. Hence, the key
feature of the Internet is that the net is set up to operate logically rather than geographically.
Internet takes the user to the separate place of cyberspace and no one exists in cyberspace without an
Internet account. Logging on gives to every one an apparently separate virtual life which means that
cyberspace contains many inhabitants, some of whom will be ‘seen’ only in cyberspace making
friends, fall in love, and buy goods and services for ‘real space life’ while living a virtual cyberspace
life and adopting a new identity. Cyberspace life exists only as long as somebody is logged on to
Internet and the act of turning off the computer removes somebody from cyberspace. Thus,
cyberspace is a separate electronic place where somebody can live it every day.
The author considers that cyberspace is an electronic place that conforms to our understanding of the
real world, with private spaces such as websites, email servers, and fileservers, connected by the
public thoroughfares of the network connections3. Cyberspace is an electronic place where
electronic transactions take place and probably new technology will bring forward a more advanced
virtual world.
Aim of the analysis is the identification of the differences of state sovereignty and jurisdiction
versus cyberspace.
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2 Cyberspace characteristics
Is cyberspace like the physical world? Is it necessary to take the physical characteristics of the real
world and map them onto the abstract virtual world? Is cyberspace a place only as a metaphor? The
virtual world that the development of cyberspace brought has been accessed by computers hardware
and software transforming the virtual world into the dimension visible by people in the real world.
Cyberspace is not only a technical change but also a new place ‘the electronic one’ where a whole
new type of purely electronic transactions and electronic life can exist affecting the present and
future physical life of people which means the need for a new understanding of the electronic
substance of the whole scale of events taking place there but the real effects are felt in the real world
and the state sovereignty and territory which means the need for legal regulation accordingly.
Humans watch actions taking place on virtual reality but they cannot live in it. There is a need to
distinguish between actions taking place in cyberspace without any effect on real world and actions
taking place in cyberspace and having effects upon real life. Cyberspace cannot exist out of a state’s
sovereignty due to accessibility at least for human beings who can only leave on earth and not
electronic beings that can leave in electronic environment. Thus, as long as technology has not
achieved the instantaneous travel in the dimension of time (Einstein’s Theory), every virtual transfer
finally runs to earth. Cyberspace is an instrument of dispersion of effects4. While the older
technologies such as telegraph, radio and television technologies remained confined in their uses to
nation states, Internet and cyberspace has developed a global scope which does not necessarily
means that sovereignty is undermined. It could be argued that cyberspace is a supra-territorial
phenomenon and the supra-territoriality of the medium results in part in a supra-territorial society. It
should be taken into account that cyberspace has got its own territory with boundaries, which are the
whole network territory. The emergence of cyberspace brought a growing number of digital goods
and services that have replaced many ordinary goods and services, which creates a new type and
way of trading. Hence, the rise of cyberspace brings forward the need for a revision of the meaning
and substance of jurisdiction and sovereignty.
Cyberspace5 has no territorially-based boundaries of course based on the real world territory
approach and the cost and speed of message transmission on the Net is independent of physical
location. Messages can be transmitted from any physical location to any other location without any
physical barriers that otherwise keep certain geographically remote places and people separate from
one another. Cyberspace enables transactions between people who do not know, and in many cases
cannot know, the physical location of the other party. Location remains critically essential, but only
location within a virtual space consisting of the ‘addresses’ of the machines between which
messages and information are routed. The system is indifferent to the physical location of those
machines, and there is no necessary connection between an Internet address and a physical
jurisdiction6.
In fact, the law of Cyberspace is based on private contracting on a global basis and enforced by a
combination of the sysop’s fundamental right to banish unruly users and the users’ ultimate right to
change online service providers7. If a system operator adopts rules that appear oppressive, the users
go to another jurisdiction. Indeed, it is possible for technologically sophisticated users to transmit
messages without dealing through intermediaries who know who they are or who can enforce
compliance with any established rules. Those who control access to the interconnected systems have
the power to discipline or deny interchange of messages to sites that fail to conform to a Cyberspace
norm.
Cyberspace is not a homogenous place; groups and activities found at various online locations
possess their own unique characteristics and distinctions, and each area will likely develop its own
set of distinct rules8. Messages posted under one e-mail name will not affect the reputation of
another e-mail address, even if the same physical person authors both messages. The power to
control activity in Cyberspace has only weak connections to physical location. The effects of
cyberspace activities tied to geographically proximate locations and information available on
cyberspace is available concurrently to anyone with a connection to the global network. So, efforts
to control absolutely the flow of electronic information across physical borders are likely to prove
pointless. The author considers that the development of online persona brings forward the need for
online due process based on the traditional due process and taking into account the nature of the net.
Cyberspace based activity must be subject simultaneously to the laws of all territorial sovereigns
that could be affected or affected by electronic transactions.
The protection of fairness for individual users in the global net-world will rely less upon the law of
territorially based jurisdictions and more upon the actions of online communities9. The value of
cyberspace’ rules will depend more upon sysops who control the on-off buttons and the reactions of
their customers, wherever they may reside, than they will upon theories relating to limits of
‘sovereign’ powers.
Since Web sites are accessible worldwide, the prospect that a Web site owner might be hauled into a
courtroom in a far-off jurisdiction is a very real possibility10. Cyberspace from its beginning
heralded a new world order of interconnection and decentralization. Globalization brought
increasing trans-national and supra-national governance and increasing mobility of persons and
capital across geographical boundaries. Hence, the combination of cyberspace and globalisation
brought a new order in humans’ life, law and order,11 which mean that there is a need for the
adoption of a universal cyberspace jurisdiction.
David Johnson and David Post12 considered that cyberspace could not lawfully be governed by
territorially-based sovereigns and that the online world should create its own legal jurisdiction. Does
the nature of Internet destroy the importance of physical location, eliminating the option of a single,
uniform legal standard? Post13 argued that the nature of Internet destroys the significance of physical
location, eliminating the possibility of a single, uniform legal standard and the lack of physical
borders in cyberspace prevents effective rule-making by centralized government14. The author
considers that Post, Barlow, Johnson and other scholars arguing for own legal jurisdiction not
governed by or related to state jurisdiction based their view on the basis that cyberspace is used only
for scientific and other social reasons rather than commercial usage affecting people living in state
territory and jurisdiction. Law-making sovereignty is defined by control over physical territory15.
Should the law applicable to transactions in cyberspace be the same law as that applicable to
physical, geographically-defined territories? Boyle16 considers the difficulties states have in
regulating cyberspace, but arguing that certain private filtering and control mechanisms will
ultimately facilitate far greater state regulation. Should cyberspace be its own jurisdictional entity?
The author considers that we can have law-making sovereignty control over cyberspace territory as
well. Electronic agents, persons and electronic market formulate their own rules. In fact cyberspace
is an electronic place and sovereignty and a user is able to reach it via the use of a provider and a
computer. In many electronic transactions there are physical connections to a geographical locality,
such as a server. Other cyberspace transactions consist of endlessly changing collections of
messages that are routed from one network to another across the global net, with no centralized
location at all but they are circulating via the use of various servers located in a state territory and
become feasible by the use of electronic instruments located in a state sovereignty as well.
Cyberspace enables instantaneous transactions between large numbers of people who do not know
the physical location of the other party but is possible to locate them by the use of modern
technology. The effects of cyberspace transactions are felt everywhere, concurrently and equally in
all corners of the global network but also in a specific state jurisdiction as well.
Is cyberspace a simple transmission medium facilitating the exchange of messages sent from one
legally significant geographical location to another, each of which has its own applicable laws?
Johnson and Post argue for the creation of an indigenous law of cyberspace which law would take
into account many of the distinctive features of online interaction which means law formation and
enforcement wherein cyberspace with its own self regulating jurisdiction. In other words lawmaking within the cyberspace sovereignty and territory which at the moment can only be
approached by the use of electronic equipments located in a physical world and a state sovereignty
and territory. It could be argued that formation and enforcement can take place wherein cyberspace
but the legal system of states is based on territories and effects felt by human beings living on earth.
Of course communities in cyberspace are governed by ‘rule-sets’ and these rule-sets are the
underlying restrictions on behavior that are either promulgated in a contractual document or
embedded in the architecture of the website. Individual system operators can impose their rules and
individual users can join online communities they want to. Territorial sovereigns would enforce
cyberspace law as a matter of comity and allow the development of self regulating cyberspace rules
and law making as long as there is no threat to the sovereignty and territory of a state but is very
useful for the development of e-commerce. The author considers that cyber market creates slowly its
own electronic lex mercatoria, which is reflected in a degree in the new state and international laws
regulating electronic transactions. The electronic market will regulate the purely electronic
transactions that are not taking the form of a material product but merely emerge as digital goods
and services and consumed as such. Of course the rule-set competition is meaningless when there is
a monopoly on cyberspace services as it happens in many occasions to real world transactions17.
Large multinational content providers that may efficiently monopolize a given market conquer the
online market. It could be argued that contract law more and more will become the primary law of
cyberspace offering a way around jurisdictional puzzles by allowing parties to construct their own
legal relations, opt for a particular set of legal rules, and choose the forum of their choice for dispute
resolution. Moreover, creators of intellectual products are relying less on traditional intellectual
property regimes to allow them to limit access to their material, and more on a combination of
contractual rights and technological protections18.
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3 State sovereignty and cyberspace sovereignty
Sovereignty is founded upon the fact of territory and therefore without territory a legal person
cannot be a state.19 Legal concepts as sovereignty and jurisdiction can only be comprehended in
relation to territory and thus the principle whereby a state is deemed to exercise exclusive power
over its territory can be considered as a fundamental axiom of the classical international law. A
‘sovereign’ state possesses sole jurisdiction over its citizens and internal affairs20. Most nations
indeed developed through a close relationship with the land they inhabited.21 The sovereignty of the
state is derived from its utility to express the sovereignty of the individual.22 On the other hand, it
could be said that cyberspace sovereignty is founded upon cyberspace territory and so legal concepts
as cyberspace sovereignty and jurisdiction can be comprehended in relation to cyberspace territory
where the electronic market exercise exclusive power over its territory.
States are the principal actors in the international system acting rationally to maximize their power
and states are ‘sovereign’ to the extent that they are the supreme authority within a given territory23.
A state has authority to regulate the transmittal of information across its borders and the use of that
information by individuals within its territory24. The territoriality principle grants a state jurisdiction
to prescribe law with respect to ‘conduct that, wholly or in substantial part, takes place within its
territory.’ States rely on the territoriality principle to regulate in-state hardware and software used in
Internet communications. Moreover, States rely on the effects principle in applying their domestic
laws to out-of-state Internet activity. Electronic activity occurs across multiple jurisdictional
boundaries. The effects of online activities are not tied to geographic locations but can be felt by
people living in a specific place25. According to the representational conception the individual is the
most important unit of analysis in the international system and a truly sovereign state represents the
general will of its populace which means that the legitimacy of applying a state’s laws to conduct
that occurs in another state’s territory depends on whether such laws ‘would prevent [that] State
from functioning as a sovereign’26. The post-modern conception of sovereignty based on the
dispersion of authority in an era of increasing globalisation,27 which for the author does not mean
that state sovereignty disappears28. The decidedly heterogeneous character of cyberspace facilitates
the development of separate ‘spheres of activity,’ each with its own set of rules29. The real world
power disparities stemming from geographical or cultural privilege continue to exist on the
cyberspace30.
The Internet is not like the physical world and metaphors exist to help us think through new
problems by analogizing them to old ones. Territorial borders define areas within which various sets
of legal rules apply and there has been a general correspondence between borders drawn in physical
space between nation states, political entities or NGO and borders in ‘law space.’ Control over
physical space, and the people, political entities, NGO and things located in that space, is a defining
attribute of sovereignty and statehood31. In fact Westphalian32 gives emphasis on territorial
sovereignty and sovereign equality. The correspondence between physical boundaries and
boundaries in ‘law space’ reflects a relationship between physical proximity and the effects of any
particular behaviour. It should be taken into account that the persons within a geographically defined
border are the ultimate source of law-making authority for activities within that border and
consequently the ‘consent of the governed’ implies that those subject to a set of laws must have a
role in their formulation. It could be argued that cyberspace societies have their role in the
formulation of electronic rules and norms, but cyberspace societies correspond with specific people
on earth as well who are the same people having their role in the formation of the traditional legal
rules.
Does the application of geographically based conceptions of legal regulation to a-geographical
cyberspace activity lead to disorder? Communication in cyberspace is not ‘functionally alike’ to
contact in real-space and according to Post33 ‘the jurisdictional and choice-of-law dilemmas posed
by cyberspace activity cannot be adequately resolved by applying the ‘settled principles’ and
‘traditional legal tools’ developed for analogous problems in real-space.’ People have been
communicating and transacting with other people in other territorial jurisdictions for a long time,
well before the Internet has emerged. Cyberspace transactions take place concurrently and evenly in
all national jurisdictions, regulation of the flow of this information by any specific national
jurisdiction might produce negative spillover effects in other jurisdictions. It has to be taken into
account that more than one jurisdiction can justifiably apply its law to the same transnational
activity34. Transactions between human beings are still transactions between human beings, whether
they take place via e-mail, postcards, telegraph, or smoke signal, which means there is need for
regulating but the question is by whom. Events and transactions in real-space and cyberspace are not
identical in many ways. A world in which virtually all events and transactions have border crossing
effects is without doubt not ‘functionally alike’ to a world in which most do not and scale is making
the difference. Many legal principles (the Effects Principle etc) applied to real space transactions are
not workable to cyberspace transactions,35 which mean that there is need for new legal principles
applicable and suitable for the new electronic environment.
As discussed earlier, the source of the right of the owner of an Internet site to legally control access
to and use of the site and its content is the tort law of trespass and the law of contract. The sources of
the right of users to freely access and use Internet content are the policies of free speech and public
accommodation. Conflict arises over whether the existing legal framework for property and places
should apply to the electronic medium, or whether the uniqueness of the Internet requires a different
characterization. Cyberspace is characterized as the ‘most participatory form of mass speech yet
developed’. Private networks are staking out their claims to cyber territory and suing those who
interfere with their property rights. The tension between two conceptual frameworks, voice and
place, is evident in the early development of Internet case law. As mentioned above, courts have
analogized cyberspace to physical places.36 Moreover, the analogy is important, as it is well
documented that the words we choose to describe a concept can influence the way in which the
concept is understood. Terms also play a part in setting the legal landscape of Internet law. If we
analogize various aspects of cyberspace, such as networks and web sites, to physical places, which
are generally governed by property law, then we will likely determine the relationships of people
who occupy, visit, or intrude upon those places by reference to traditional property law.37
There are two basic requirements to prove trespass to chattels. First, the chattel must be interfered
with, or meddled with, and second, the chattel must suffer some damage. As Internet sites define
their terms of use, and create contracts to delineate authorized access, Internet site administrators
may exclude potential users and limit use of the website. The state, however, may be within its
rights to regulate the privately imposed terms of use to protect the public interest in an open Internet.
In modern law, the nature of the property affects real property rights. That is, if private property is
used as a public place, civil rights laws as well as the laws of common carriers place limitations on
the owner ’s right to exclude others. Most courts have found that even minimal harm can support a
trespass to chattels claim and have more broadly applied this common law tort to the new medium38.
In Intel v.Hamidi39 the court considered whether the sending of an e-mail through a proprietary
company e-mail network constitutes trespass to chattels. The court examines the intangible attributes
of the electronic environment in order to apply the age-old tort of trespass to chattels, where the
computer system was the personal property subject to the trespass. The unauthorized access, viewed
in light of the terms of use, satisfied the meddling component of trespass, and the reduced network
capacity satisfied the damage component.
AOL was successful in arguing that the spam constituted a trespass to its system, and that it had
been harmed by the effect on the system of the large amounts of unsolicited e-mail. In order to
constitute damage to a computer system there must be an ‘actual or threatened interference with the
computers’ functioning.’40 The damages required an impairment of the system, as with the sending
of millions of spam e-mails and automated searches, or the threatened impairment of the system.41
The mere access to another’s website in order to copy metatags was a trespass, without proof of
actual damages. A trespass to chattels allegation involving computer systems must include actual or
threatened damage. Individual restrictions on the operation and use of the open network could
impose significant transaction costs and decrease its intrinsic value. Courts have viewed computer
networks as property with physical characteristics, upon which robots may enter and trespass42. The
courts have interpreted the common law tort of trespass over time to award damages for harm
similar to a physical interference, although the property being trespassed on and the trespasser are
no longer required to have a physical form. While access remains an important first step, it alone
will not create equality of opportunity to participate in the electronic revolution.43 Hence, courts are
using the metaphor of cyberspace as a ‘place’ to justify application of traditional laws governing real
property to this new medium44. It should be taken into account that the Internet is not ‘just like’ the
physical world. Not every Web site is necessarily a purposeful availment of the benefits of every
forum state45. On the Internet, problems of physical infrastructure and overcrowding are less
apparent because is a different dimension46.
Regardless that 100 percent geographical identification might be infeasible, cyberspace is regulated
by geographically based sovereigns and so regardless that perfect regulation is impossible, such
regulation can still be effective enough. Cyberspace is un-regulatable with the sense that there is the
possibility to move a website around the global network. There is an effort to compile databases that
match up the possible Internet locations with actual locations47. In fact, geographical tracking allows
marketing campaigns tailored to customers in particular locations and the ability to sell more
targeted advertising which means the ability of sites to employ technology to enforce local laws in a
cyberspace environment and state cyberspace sovereignty. An advanced geographical tracking
technology becomes both more accurate and more widely used means the development of cyberworld digital passports, applicable to state cyberspace sovereignty. It could be said that part of the
electronic territory coincides with state territory at the moment that electronic actions affect the
specific state territory.
Each state can enforce on servers within its jurisdiction the regulation of other states for citizens
from those other states, in exchange for having its own regulations enforced in other jurisdictions
based on reciprocal enforcement because states have some goals they wish to be enforced
extraterritorially48. A reciprocal enforcement system can operate internationally. The enforcement
will be impossible when an action is taken by an electronic agency and it cannot be identified the
natural person responsible for its actions. In fact, while countries may be able to regulate various
sites within their borders, they may well find it difficult to convince other countries to enforce
certain restrictions, even in a reciprocal scheme49. It could be said that a cyberspace where
individuals could only access content that was approved by their government is a very different
cyberspace from the one most people have experienced until now50.
Do the Internet and globalization produce true conceptual challenges to sovereignty and
territoriality? Goldsmith51 argues that ‘territorial regulation of the Internet is no less feasible and no
less legitimate than territorial regulation of non-Internet transactions.’ The cyberspace sovereignty is
indefinite and borderless but accessible by instrument based on territorial borders that of the sate
sovereignty and territoriality in order to have state jurisdiction upon electronic transactions. It could
be said that territorial regulation is infeasible because individuals can evade the sovereign’s
regulatory reach. Moreover, territorial regulation means that a website will be subject to the laws of
all jurisdictions concurrently. Prescriptive jurisdiction is a nation’s power to apply its laws to
particular transactions. But the question of whether or not that regulation will in fact be enforced
depends upon the nation’s capacity to induce or force compliance with the law through its
enforcement jurisdiction. The sovereign will be able to enforce its regulation ‘to the extent that the
agents of the acts have a local presence or local property against which local laws can be enforced.’
Moreover, local jurisdiction has more extraterritorial power than originally envisioned by moving
against end users or intermediaries that operate within its territory52. On the other hand, it is
illegitimate a local regulation that happens to affect behaviour extraterritorially. So, geographical
filtering technology will allow content providers to ensure that material deemed objectionable in a
jurisdiction never reaches that jurisdiction. The majority of people who transact on cyberspace have
no presence or assets in the jurisdictions that wish to regulate their information flows. In fact, as
long as the content provider never sets foot in the jurisdiction, enforcement power will be lacking53.
A small player is protected by the fact that the distant jurisdiction will have no means of enforcing
any judgment but this individual not only has no presence or assets in the foreign jurisdiction, but he
will never have such a presence or maintain such assets.
Does the Internet defy territorial borders? Can geographical boundaries be reinscribed into
cyberspace? The commercial environment is now global, but legal sovereignties are still territorial.
The Internet collapses our traditional notions of location and the significance of geography for
sovereignty and regimes of law. The jurisdiction of national courts is based upon the domestic laws
of individual countries and the legislative jurisdiction of a State is limited to its territory. Border
controls on the Internet are not impossible to develop and implement54. Many governments already
regulate cyberspace. Countries, corporations, organizations, and private individuals already regulate
the Internet. The U.S. government retains control over the content of the authoritative root zone
file55. It is difficult for governments to impose technological limit on what is accessible via the
Internet but China controls access to the Internet through centrally regulated servers56. The United
States has relied on the preservation of state sovereignty as a rationale for regulating exports of
encryption technology and for promoting national regulation of Internet gambling. Regulation of
Internet activities that originate in another state is an illegitimate encroachment on that state’s
sovereignty57. In iCraveTV a U.S. court asserted jurisdiction over a Canadian company webcasting
in Canada58. iCraveTV had sought to limit its distribution to Canadians and thus avoid U.S.
jurisdiction. iCraveTV conditioned access on passing through three stages of verifications and
clickwrap agreements to ensure that only persons located in Canada could lawfully access the
service59. The ability to enforce a local decision will often depend upon whether the affected party
has local assets subject to seizure or is sufficiently large that it cannot afford to ignore an
outstanding court order, no matter where it is located. Using the technology, website operators or
Internet service providers can allow access to some users while denying access to others, based on
the geographical location of the user. Website operators perhaps would be required to monitor
constantly the laws of every jurisdiction in order to determine which users to admit. Of course,
providers have to look at the state jurisdiction and not a cyberspace jurisdiction. Geographical
filtering would impose a tremendous burden on services such as Yahoo!, which would be required
‘to maintain a huge matrix of pages versus jurisdictions to see who can and can’t see what60. Loss of
geographical anonymity might make people more reluctant to visit certain sites for fear that they
may be identified61. The state can controls the access of its citizens to the materials available in
cyberspace and the actions that take place in or through cyberspace. Where the state increases the
costs of accessing forbidden content to a sufficient level, it can successfully deter most users from
receiving undesired content. In order for IP packets to enter a specific territory, certain physical
components must be present there and so by exercising control over the physical components
required for Internet access, the state can regulate cyberspace. The difficulties of detection in
cyberspace are no any greater than those posed by, many traditional kinds of illegal behavior.
Cyberspace sovereignty may spring from a consensus among individuals in different states that
these rules and norms are reasonable and deserve respect. At the second stage, domestic institutions
may transmit this consensus to the state, and a respect for these norms and rules may become a state
preference. Where actions in cyberspace have negative effects on real space, a consensus against
state regulation of such actions is improbable. For example, most people are likely to agree that
control of criminal activity is still the domain of the state.
The legal right of countries to control the Internet is undoubted62 and the most effective means to
achieve this is to regulate the architecture of cyberspace. The efficacy of the concept of ‘closest and
most real connection’63 is reduced, in that no part of the world is any more directly affected than any
other by events on the web, as information is available simultaneously to anyone with a connection
to the Internet. Global computer-based communications cut across territorial borders, creating a new
realm of human activity and undermining the access and legitimacy of applying laws based on
geographic boundaries. Location remains important, but it is virtual location, rather than physical
location - there is no necessary connection between an Internet address and a physical location.
Does the Internet itself threaten traditional political institutions and perhaps even the very concept of
sovereignty itself? Should law recognise a separate jurisdiction, or even a separate sovereignty, for
the Internet? Law—understood as centralized juridical state power—has lost its importance in
modernity and had been eclipsed by power that is specific, local, fragmentary, and dispersed64 but
always the state controls the contribution of power still keeping the centralized juridical state power
in tact where it considers necessary to sustain the state power. Government regulates by changing
the architecture of the space itself, which means that governments might well be able to control
online behavior even more successfully than they control behavior in the ‘real world.’ For instance,
the Digital Millennium Copyright Act has overly enhanced the ability of copyright owners to wield
electronic protective measures to control new kinds of exploitation of their works65. Hence, the state
has introduced a new Act dealing with digital copyright whose effects are felt within place and the
state’s sovereignty but exist and circulate in the cyberspace territory and sovereignty part of which
as long as it is accessed by machines located in state territory considered as state cyberspace
territory and sovereignty. In fact, nation-states endorsed laws purporting to regulate almost any
conceivable online activity from gambling66, chat rooms67, auction sites68, and seeking to enforce
territorially-based rules regarding contractual relations69, privacy norms70, ‘indecent’ content71, and
crime72. Do states consider cyberspace sovereignty as part of state sovereignty? The author
considers that present regulations of electronic transactions show that states regard cyberspace
sovereignty as part of their own sovereignty since electronic actions affect their own territory.
Transactions taking place in cyberspace that have an effect on persons or property in any specific
location have virtually no geographic structure at all but it could be argued that the effect of
electronic transactions has geographic structure in the final end in order to be felt by people.
Previous SectionNext Section
4 Cyberspace jurisdiction
Have jurisdictional rules emerged from a utilitarian calculus about the most efficient forum for
adjudicating a dispute? The exercise of jurisdiction has been part of the way in which societies
distinguish space, define communities, and draw both physical and symbolic boundaries. As
discussed earlier, the choice of jurisdictional rules reflects the attitudes and perceptions members of
a community hold towards their geography, the physical spaces in which they live, and the way in
which they define the idea of community itself. The territorially-based jurisdictional principle
articulated in the nineteenth century by the Supreme Court in Pennoyer v. Neff73—states have
complete authority within their territorial boundaries but no authority outside those boundaries—
derive in part from a particular understanding of social space in the United States at the time.
Jurisdictional rules are always evolving, and this evolution has always responded to changing social
constructions of space, distance, and community. International Shoe substituted a flexible ‘fairness’
test for the more rigidly territorial scheme of Pennoyer. Has the sense of social space shifted once
again with the rise of global capitalism and cyberspace? Parties share economic space to a greater
degree than ever before, in large part because of the increase in online interaction. Cyberspace has
allowed the world financial markets to become so powerful that the actions of individual territorial
governments often appear to be incompetent by comparison. Online communities disregard
territoriality altogether and instead organized around shared interests.
What is the basis for the exercise of legal jurisdiction in an increasingly electronically
interconnected world? The question of jurisdiction implicates issues of convenience to the parties in
deciding a case in a given location, whereas choice-of-law addresses the actual norms to be applied
and so both involve the symbolic assertion of a community’s dominion over a dispute. The objective
of legal jurisdiction both reflects and reinforces social conceptions of space, distance, and identity.
Are nation-states be defined only by fixed territorial without any sustained discussion of how people
in fact experience allegiance to community or understand their relationship to geographical distance
and territorial borders? It could be argued that jurisdiction is related with the assumption that nationstates defined by fixed territorial borders remaining the relevant jurisdictional entities, without any
discussion of how people really experience allegiance to community or understand their relationship
to geographical distance and territorial borders74. Current rules for jurisdiction and conflict of laws
are territorially-based and were developed in an era when physical geography was more
consequential than it is today. It could be argued that rules for cyberspace jurisdiction should be
territorially-based as well where the single territory of cyberspace transactions is that of the
cyberspace itself.
Cross-border interaction is not a new phenomenon, but in an electronically connected world the
effects of any given action may at once be felt elsewhere with no relationship to physical geography
at all which means that assertions of jurisdiction on this basis will unavoidably tend towards a
system of universal or transnational jurisdiction because so many activities will have effects far
beyond their immediate geographical boundaries. The author considers that the development of a
universal cyberspace jurisdiction might be a solution for dealing especially with electronic
transactions concerning digital goods and services.
Taxation regimes have been based on geography and have depended on the traditional nation-state
structure. Any transaction can be located precisely in two dimensional geographic space and
geography does not map on cyberspace. Most modern countries have based their tax policies on
traditional notions of a nation’s sovereign authority over its subjects. The geographically-fixed
nation-state possessed inherent taxing authority, reflecting the vision that nations were natural units
and that within their boundaries national governments were sovereign for all purposes and nationstates continue to require full taxing authority over people, property, and transactions ‘within’ their
territory75. Are the electrons passing through the server adequate in electronic transactions to
establish a presence or ‘permanent establishment’ so as to justify taxation? Corporations must have
a ‘physical nexus’ with a jurisdiction before taxation is permitted76. A place where computer
equipment, such as a server, is located may in certain circumstances make up a permanent
establishment requiring that the functions performed at that place be important/major as well as an
essential or core part of the business activity of the enterprise77. In fact, companies can now with no
trouble avoid local taxation by maintaining only an ‘e-presence’ in a given country. In other words it
could be argued that electronic of source Centres can be established and cyberspace can be
considered as the electronic place accommodating them. The non-geographic nature of digital
transactions creates problems because fiscal sovereignty still based on geographically defined
nation-states. It could be argued that the accessibility having effects on a state should be considered
as the element for establishing state cyberspace sovereignty for tax matters.
International copyright protection traditionally has been based on the application of national
copyright laws with firmly territorial effects and on the application of choice of law rules to
determine which country’s copyright laws would apply. Besides, immediate and concurrent global
access to copyrighted works over digital networks deeply challenges territorial notions in copyright
and complicates traditional choice of law doctrine because it is often difficult to decide where
specific acts have occurred78. Copyright laws like laws concerning jurisdiction, rely upon
geographical boundaries among nation-states and it is questionable if they can be maintainable in
the new online context. The development of electronic cyberspace copyright on cyberspace territory
will add to enforce copyright protection in the electronic era.
The boundaries of trademark law have been delineated in part by reference to physical geography79
but in cyberspace apparent spatial boundaries are collapsed because, as a technological matter, there
can be only one diavlos.com domain name, and it can only point to one firm. The court in
Panavision Int’l v. Toeppen80 expanded the geographical reach of trademark law, at least with
regard to domain names. It could be said that the application of trademark law to domain names has
meant that trademark law has become unmoored to physical geography and is now more probable
operate extraterritorially. Parties claiming ownership in a trademark could sue in a different
country81 and, because of differences in substantive law, each party could win and so with the
growing scope of trademark law in cyberspace there is a problem of enforcement. ACPA provides in
rem jurisdiction over the domain name itself wherever that name is registered82 creating assertions
of jurisdiction and the question is if they comport with Constitutional Due Process guarantees. It
could be argued that Congress cannot avoid the Constitutional requirements of fair play and
substantial justice purely by calling an action in rem, and by limiting recovery to the res itself83.
Furthermore, tt could be said that state cyberspace jurisdiction for trademarks on cyberspace is the
answer to problems caused by geography. Disputes over domain names are resolved by ICANN and
WIPO regardless of geographical borders but they are quasi-governmental entities exercising de
facto governing power over the Internet without structures of democratic accountability or
transparency. The arbitration system can be biased in favor of trademark holders84.
Criminal conduct involving computers extends far beyond simply crimes perpetrated against
computer networks and the interest of governments worldwide in combating terrorism, tracking
crime through electronic means is increasingly a priority85. National borders are inconsequential
both to the commission of the crime or the location of the relevant evidence. The physical location
of electronic evidence depends upon the network architecture and a criminal intentionally stores
computer files in a jurisdiction that affords greater privacy protection86. The jurisdictional
challenges of international computer crime include not simply how to enforce criminal laws across
borders but also how to investigate such cases87. Hence, the establishment of state cyberspace
sovereignty and jurisdiction will bring effectiveness.
Finally, as a worldwide phenomenon, e-commerce regulation is more and more likely to be
conducted within a system whose epicentre will be the WTO. The expansion of e-commerce
regulation bears comparison with other international trade law development since there are
indications that it is being informed by and will draw on business practices and norms ensconced in
an electronic lex mercatoria. Liberalisation of e-commerce related trade might affect issues such as
commercial presence and the presence of natural persons engaged in e-commerce related trade. The
author regards that electronic companies and electronic persons-electronic persons should be
coincided with the people using the electronic personas on matters of liability- have to be recognised
as new entities of international trade, which means a need for adaptation of international law and
national laws in order to regulate the new forms and entities taking part in international trade.
Previous SectionNext Section
5 Personal Cyberspace jurisdiction
The U.S. Supreme Court’s International Shoe88 test for determining whether an assertion of personal
jurisdiction comports with the Due Process Clause of the U.S. Constitution asks whether the
defendant has sufficient contact with the relevant state ‘such that jurisdiction is consistent with
traditional notions of fair play and substantial justice’ which means that minimum contacts is
satisfied as long as the nature of the activity of the defendant within the state is adequate regarding
the fair and orderly administration of the laws which it was the rationale of the due process clause to
insure. Hence, it is problematical to be certain in advance how many and what sort of contacts will
be enough for a state to exercise jurisdiction under the US federal Constitution. Moreover, the
Supreme Court has looked to whether defendants have ‘purposely availed’ themselves of the state,
whether they could ‘reasonably anticipate’ that they would be sued there, or whether the interests of
the state in adjudicating a dispute outweighed the defendant’s concerns about increased cost,
inconvenience, or potential bias.89
Courts must have jurisdiction over the parties who appear before them. Parties can establish
personal jurisdiction pursuant to a United States statute that authorizes nationwide service of process
or pursuant to a particular jurisdiction’s long arm statute90. The due process analysis of International
Shoe involves a two-step inquiry. First, a court must determine whether the defendant has minimum
contacts with the forum state. How the minimum contacts test defined in cyberspace transactions
when I post information on a website and it is immediately accessible throughout the world. Under
the directive 2000/31, the law of the country of the merchant or service provider applies in the event
of a cyberspace dispute91. There are different views considering choice of law and forum selection
clauses in electronic contracts92. Second, it must analyze the reasonableness of allowing the lawsuit
to be brought in a forum state.93
This due process analysis varies with the type of personal jurisdiction that a party asserts—either
general or specific. General jurisdiction exists when a defendant’s activities in a forum state are
continuous and systematic; the activities relate to some general presence within a forum state but not
necessarily to the cause of action being asserted in the lawsuit94. Specific jurisdiction, however, is
based on a defendant’s conduct in the forum state that relates to, or arises out of, an underlying
claim. Courts analyze specific jurisdiction using a three-part test: (1) the defendant must
purposefully avail itself of the privilege of conducting activities in the forum state or consummate
some act or transaction with the forum state; (2) the defendant’s forum-related activities must relate
to the claim; and (3) the exercise of jurisdiction must be reasonable. Courts continue to rely on the
due process analysis of International Shoe as they construe personal jurisdiction based on
cyberspace activities.95
In LSI Indus., Inc. v. Hubbell Lighting, Inc96 specified that the Supreme Court has never outlined a
test for determining whether a defendant’s activities within a state are sufficient for general
jurisdiction. According to Patrick J. Borchers97 general jurisdiction is only appropriate in the states
in which the corporate defendant has a place of incorporation, principal place of business, or ‘branch
facility,’ but not where the defendant conducts activities such as sales, purchases, or advertisements.
In People Solutions, Inc. v. People Solutions, Inc98 the court acknowledged the interactivity of the
site and refused to assert jurisdiction absent evidence that residents of Texas had actually purchased
from the site. Moreover, in Winfield Collection, Ltd. v. McCauley,99 the court refused to admit the
idea ‘that the mere act of maintaining a Web site that includes interactive features ipso facto
establishes personal jurisdiction over the sponsor of that website anywhere in the United States’
when the individual has no say in where the products would be sold.
As mentioned above, the federal circuits have fairly consistent conclusions regarding a minimum
contacts analysis of personal jurisdiction that is based on websites and online communications100.
Some courts would find that the exercise of personal jurisdiction was proper even over defendants
whose only contact with the relevant state was an online advertisement available to anyone with
Internet access.101 For instance, website advertisements directed to all states within the United States
means that a firm had ‘purposefully availed itself of the privilege of doing business within
Connecticut.’102 In Maritz Inc. v. CyberGold, Inc103 although defendant’s web server was located in
California, the court noted that the disputed website was ‘continually accessible to every Internetconnected computer in Missouri.’ CyberGold’s contacts considered as such a quality and nature,
even though a very new quality and nature for personal jurisdiction jurisprudence, that they favor
the exercise of personal jurisdiction over defendant. A ‘passive’ website, where a defendant has
simply posted information on the Internet ‘available to those who are interested’ and absent
additional contact with the forum state or its citizens, would not be enough to support jurisdiction.
An active site by entering into contracts with residents of a foreign jurisdiction that involve the
knowing and repeated transmission of computer files over cyberspace would be sufficient to
establish jurisdiction anywhere the site is accessed104. The exercise of jurisdiction is determined by
examining the level of interactivity and commercial nature of the exchange of information that
occurs on the Web site. Courts appear to be shifting away from the Zippo approach towards a test
based on the effect of the activity within the jurisdiction105. Passive websites, standing alone, are not
sufficient to confer personal jurisdiction. Active websites, on the other hand, are highly interactive
enabling parties to enter into contracts that contemplate continued business with the forum state, and
knowingly and repeatedly transmit files and communicate over the Internet106. Jurisdiction based on
these websites depends on the nature and quality of commercial activity.107 Personal jurisdiction,
therefore, may not be appropriate under this new rule ‘Web Site Plus’ Rule108 based on an otherwise
active website that offers products for sale and contains a toll-free telephone for use in placing
orders and managing customer service purporting to apply the due process analysis of International
Shoe. In ALS Scan, Inc. v. Wilkins109, the plaintiff joined Digital, an Internet service provider,
Notwithstanding the commercial nature of Digital’s website and the ability to send electronic signals
to the forum state of Maryland, the court found no interaction by or between the website and
Maryland residents. Digital merely served as an ISP provider, enabling Alternative Products to
transmit information over its own website. Many courts were called upon to analyze whether an
interactive website was ‘doing business’ within a specific forum pursuant to a relevant state long-
arm statute.110 Media3 Technologies, LLC v. Mail Abuse Prevention System, LLC111, involved a
California-based Internet service provider, MAPS, whose ‘stated purpose’ was to ‘combat spam.’
The court categorized MAPS’s website as interactive because Internet users could access the site to
conduct searches for specific Internet addresses and could download the entire blackhole list after
entering into a contract and paying a fee. Courts are perfectly capable of adapting established legal
doctrine to new contexts112. Moreover, courts ask whether the defendant had sufficient contact with
the relevant state ‘such that jurisdiction is consistent with traditional notions of fair play and
substantial justice.113’ The appropriateness of asserting jurisdiction depends upon whether the
parties themselves think it reasonable to do so114.
Can foreign countries have unlimited jurisdiction to regulate the content of U.S.-based sites? Had
the French court in yahoo case successfully engaged in extraterritorial censorship? A French judge
ordered the world’s most popular Web site (Yahoo.com) to implement technical or access control
measures blocking auctions featuring Nazi memorabilia hosted on the Yahoo.com site from French
residents115. Judge Jean-Jacques Gomez of the County Court of Paris held that he was entitled to
assert jurisdiction over the dispute since the content found on the Yahoo.com site was available to
French residents and was unlawful under French law116. The basis of the decision was the impact of
cyberspace actions upon the territory and sovereignty of France. Technologies could accurately
identify French Internet users at least seventy percent of the time and so Judge Gomez ordered
Yahoo! to ensure that French residents could not access content on the site that violated French
law117. Yahoo! Challenged the French court’s jurisdiction, but the court found jurisdiction was
proper under Section 46 of France’s New Code of Civil Procedure. The French court further ordered
Yahoo! to take all necessary measures to prohibit access to the Nazi artifacts on its site and to warn
that viewing such material violates French law. The District Court concluded that it could properly
exercise specific jurisdiction over LICRA and UEJF holding that there was an actual controversy
causing a real and immediate threat to Yahoo! and that enforcement of the French orders in the
United States would violate the First Amendment. U.S. District Court in California held that the
French court ruling cannot be recognized or enforced in the United States both because the French
court lacked jurisdiction in the first place and because the judgment was impermissible under the
First Amendment118. The District Court held that it did have personal jurisdiction over LICRA and
UEJF the court of appeal review this exercise of personal jurisdiction de novo119. No basis for
general jurisdiction exists because LICRA and UEJF do not have the kind of continuous and
systematic contacts with the forum state sufficient to support a finding of general personal
jurisdiction120. Moreover, LICRA and UEJF are also not subject to personal jurisdiction under the
specific jurisdiction doctrine, which permits jurisdiction over a defendant in a lawsuit ‘arising out of
or related to the defendant’s contacts with the forum.’ The parties did anything wrongful, sufficient
for a finding of ‘express aiming,’ in bringing this suit against Yahoo!. As a result, according to the
court of appeal121 the District Court did not properly exercise personal jurisdiction over LICRA and
UEJF. Brunetti, Circuit Judge argued that LICRA and UEJF targeted Yahoo! in California by
successfully moving the French court to issue an order requiring Yahoo!’s American website to
comply with French law, serving Yahoo! with such order in the United States, and thereby
subjecting Yahoo! to significant and daily accruing fines if Yahoo! refuses to so comply. LICRA
and UEJF directed their actions toward Yahoo! in California sufficiently to confer in personam
jurisdiction. Even if a nonresident party’s contacts with the forum state are insufficient for general
personal jurisdiction, however, the party may be amenable to jurisdiction under the specific
jurisdiction doctrine if the claim is related to the party’s activities in or contacts with the forum state.
LICRA and UEJF’s conduct toward California is sufficient to establish their purposeful availment of
the forum122. LICRA and UEJF expressly aimed the cease-and-desist letter, the service of process,
and the service of the French order at Yahoo! in California. LICRA and UEJF’s actions toward
California-based Yahoo! constitute such purposeful availment of California to justify the exercise of
personal jurisdiction over them there. LICRA and UEJF’s contacts cannot be deemed ‘a result of
random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or third
person,’ Brunetti considers that the district court properly exercised personal jurisdiction over
LICRA and UEJF.
Is the cyberspace sovereignty reflected and attached to state sovereignty with common boundaries
the state’s territory when it comes to effects and access? It seems that both courts based their view
on their jurisdiction upon the principle that whatever happens or has effects within the boundaries of
their territory should be decided by them. For a single cyberspace action there is a different
approach among courts of a different degree. The court of appeal allows the enforcement of a
decision based on a local effect of cyberspace actions on the rule of contacts within the forum. It
would be more justifiable for electronic actions taking place in cyberspace sovereignty to establish
electronic cyberspace jurisdiction for all courts and specifically to establish conventional courts and
arbitral tribunals or electronic ones dealing only with electronic transactions. It seems that both
courts regard that state sovereignty coincides with cyberspace sovereignty establishing a cyberspace
state sovereignty since it is accessibly by a computer located in the state sovereignty regardless the
dimensional difference and therefore courts are establishing personal jurisdiction for the electronic
actions.
A party should only be hauled into a foreign court where it was foreseeable that such an eventuality
might occur. With global Internet availability, foresee ability is much more difficult to estimate and
so the ‘borderless Internet’ drastically impedes the application of physical laws, which means that
there is a need for a separate cyberspace jurisdiction123 and identification of specific and common
factors that will imply personal jurisdiction on cyberspace transactions since by nature are global as
well. Every jurisdiction is foreseeable or none is in cyberspace. Courts and policy makers are
possible to bias toward asserting jurisdiction where harm has been experienced locally124. The court
Rudder v. Microsoft Corporation125 dismissed a class action lawsuit brought against Microsoft on
the basis that a clickwrap agreement between the parties provided for the state of Washington law to
govern any dispute. A local court may be willing to assert jurisdiction even in the absence of
evidence that the harm was directed at the jurisdiction, reasoning that the perceived local harm is too
great to ignore.
A cyberspace activity that takes place in cyberspace sovereignty is not considered as such but there
is always a shift in the dimension and look at the state sovereignty impact. Can we regard the
existence of personal cyberspace jurisdiction based on the impact of cyberspace actions upon the
state cyberspace sovereignty as defined previously rather than on the impact upon state sovereignty?
Cyberspace territory and sovereignty can be endless but at the same time specific when the specific
website can have specific territory and sovereignty and its impact is felt on the real space territory
and sovereignty which will be changeable according to the geography of the user. There is emphasis
on the reflection of cyberspace actions and sovereignty on real space dimension, which causes
problems and confusion covering all the possible situations and exceptions. There is emphasis on
evaluating the factors relating the impact of the electronic actions on real space and not only the
facts of being electronic actions and their relations to the specific infrastructure and electronic
parties. Has it taken into account the electronic person or the person behind the electronic one? Can
we distinguish between the electronic person and the person? The connection of an electronic
transaction with the state cyberspace sovereignty should be sufficient for personal jurisdiction on
cyberspace transactions for an electronic person. Is there a need for emphasis on the local access and
effect for common electronic personal jurisdiction rather on international targeting?
Is the concept of targeting the best solution to the challenge presented by problems in localizing
conduct in Internet markets? No one lives in cyberspace. Jurisdiction is considered appropriate when
the defendant is assumed to have engaged in wrongful conduct targeted at a plaintiff whom the
defendant knows to be a resident of the forum state126. In other words targeting is regarded as a basis
for the exercise of jurisdiction. What are the criteria to be used in assessing whether a website has in
fact targeted a specific jurisdiction? Courts have applied the law of the place where the copying or
other allegedly infringing act occurred127 but the place where an act of alleged infringement ‘occurs’
has become difficult to establish in cyberspace because concepts such as ‘place’ of publication or
‘country of origin’ lose meaning in a global and digital world, where geography holds less meaning.
For instance, in Itar-Tass Russian News Agency v. Russian Kurier, Inc128., a U.S. corporation was
taking articles from Russian newspapers, rearranging them, and creating a Russian language
newspaper for U.S. distribution the court applied Russian copyright law to the question of who holds
the copyright, but applied American law to the infringement question. Is the use of forum
jurisdiction, above all in the digital world where publication may occur simultaneously in a number
of countries the right129 solution? Is the law of the place where a website server located the
answer130 to digital disputes? A server is not sufficient to constitute presence in a jurisdiction for tax
purposes. It could be argued that a user must know the location of the server, which is rarely
happens in electronic transactions and cyberspace sovereignty. Not only websites may contain
elements stored on multiple servers but also somebody can change servers frequently that can easily
be located anywhere, which means regulatory race to the bottom.
It is worth mentioning that in Gutnick131 the facts were that allegedly defamatory content created in
New York was uploaded to a server in New Jersey where it was available for access in the city of
Melbourne, in the State of Victoria, in the country of Australia. The issue was whether the
respondent could litigate his defamation action in the courts of Victoria, where the defamation law
was stricter than in the United States. Was jurisdiction based on accessibility or something more?
The High Court accepted that accessibility of the website in the case of defamation was sufficient to
found jurisdiction. However, the Court explained that litigation would be futile in a jurisdiction in
which the respondent did not have a reputation. All judges agreed, according to that settled law, that
publication had occurred when the material was made comprehensible; that is, at the point of
downloading, which means interpretation of traditional legal rules to accommodate cyberspace
transactions. Within a few days of the Gutnick decision, in Young v New Haven Advocate132 the
United States Court of Appeals for the Fourth Circuit decided on very similar facts that jurisdiction
was not satisfied where the alleged defamatory material was accessed or read unless the offending
website had ‘targeted’ the forum state. The tort of defamation requires a defendant to communicate
defamatory remarks to a third person who receives the communication in the forum state.133 A
website that contains allegedly defamatory remarks regarding a federal agent who had gained
national and international reputation, cannot have had an effect on, or otherwise target, the forum
state where the plaintiff resides134. Hence, personal jurisdiction will not be conferred based on a
newspaper’s allegedly defamatory article that is posted on a website that focuses on a specific
audience in a state other than the forum state135. In both situations, the courts used the effects test to
examine the ‘geographic focus’ of the defamatory articles rather than look to the plaintiff’s physical
location136. Furthermore, courts will not assert personal jurisdiction over a defendant who simply
posts allegedly defamatory information on a noncommercial website or on a website that is operated
by another who simply allows the posting of messages137. It could be argued that in trying to
reconcile the Gutnick decision with the United States case law, it may be suggested that as WSJ.com
was a subscription website, targeting of the State of Victoria had occurred when subscriptions from
that place were accepted; at least, on the Zippo sliding scale test, WSJ.com was more than a passive
website. Moreover, according to the author’s view cyberspace in globalization and a digital
economy targets any jurisdiction concurrently with active websites or passive websites which have
the same effect upon real people and not upon electronic personas and accessibility implements the
worldwide targeting of the nature and characteristics of cyberspace. Furthermore, an injunction to
restrain defamation in NSW [New South Wales] according to the court in Mcquarie Bank Ltd. v.
Berg138 is designed to guarantee compliance with the laws of NSW, and to protect the rights of
plaintiffs, as those rights are defined by the law of NSW and so an injunction is not designed to
superimpose the law of NSW relating to defamation on every other state, territory and country of the
world. It could be said that in both cases (Gutnick and Berg) courts have considered that cyberspace
sovereignty is extended along to state sovereignty with boundaries the territory of the state because
the cyberspace sovereignty is visual within the state territory taking into account that the location of
the user would be feasible. Additionally, in re Moshe D139 the court held that Italian courts have
jurisdiction both when an act or oversight has actually been committed on Italian territory and when
simply the effects or consequences of an act are felt in Italy. Additionally, the Federal Supreme
Court in Germany ruled that the former school teacher could be charged with inciting racial hatred
under German law because the offending material, which denied the deaths of millions of Jews
during the Nazi era, could be accessed by German Internet users140. Moreover, the Canadian Human
Rights Commission ordered Ernst Zündel, a former Canadian resident now living in the United
States, to remove anti-Semitic hate speech from his California-based Internet site141. Hence,
accessibility is the factor prevailed in implying personal cyberspace jurisdiction for some courts
rather than the targeting factor prevailed in US. The possibility of enforcement of decisions is
different from the courts’ understanding regarding the identification of both sovereignties where the
state has the power of enforcement.
Previous SectionNext Section
6 Conclusion
The Internet is a place where people meet to communicate, where businesses meet consumers and
sell their products, and where investments in web site development and presence are electronic
versions of property. No one metaphor, or legal parallel, will reflect the myriad nature of this
Internet. Therefore, new terminology, which recognizes the complexity of the Internet relationship,
is necessary. While in the world of physical property it is the right to the exclusive use of property,
and the corollary right to exclude all others, which gives value to the property, in the online world it
is the ability of others to access, use, and communicate with the computer which gives value to the
network. It seeks to preserve the rights historically associated with private property, while at the
same time recognizing that when an online private property owner transforms that property into a
place for public communication, receiving a benefit from that transformation, then the property
owner can be subject to the common law duty of non-discrimination traditionally imposed on
innkeepers and common carriers.
There is a need to consider a cyberspace jurisdiction for cyberspace actions having not feasible
effects on real world and the creation, execution and effects are felt only in cyberspace. Cyber courts
and cyber arbitral tribunals should have jurisdiction to solve all actions taking place on the net and
the enforcement of their awards and decisions will be made according to international conventions
on recognition and enforcement of foreign awards and e-awards. Of course, courts and arbitral
tribunals have to be regarded as equal and independent forms of dispute resolutions.
On the one hand cyber entities contact electronic transactions, on the other hand humans fell the
effects of cyber actions. It could be argued that cyber society is the force of law-making in
cyberspace sovereignty which is not connecting to any specific state sovereignty but only to
cyberspace sovereignty. Part of cyberspace is a society of a specific state with the only difference in
the dimensional expression. The above analysis has shown that some electronic actions are more
adaptable to traditional legal rules rather others due to the ease of transformation from digital to
material goods and vice versa. Electronic transactions have effects upon people living in state
territory and so state has got the right to impose legal laws regarding the effects upon people and so
imposing legal laws according to the effects felt within their territory by their citizens and not net
citizens who can leave in another country which means the part of cyberspace territory coincides to
state territory. In other words state sovereignty coincides to cyberspace sovereignty creating the
state cyberspace sovereignty. As discussed earlier, states regulate many kinds of electronic actions
having in mind the old legal principles adapted to accommodate the digital type of actions. There are
many problems in regulating effectively and fairly many electronic actions. It could be argued that
since cyberspace is a unique electronic place there is a need to establish cyberspace sovereignty for
electronic actions contacted by electronic entities. The establishment of universal cyberspace
jurisdiction for this electronic place allowing all courts around the globe to deal with the cyberspace
transactions and disputes will bring harmony and certainty in electronic trading taking into account
that the electronic transactions have the potential to affect simultaneously all jurisdictions.
Differences felt by people in real world solved by people in real world and not by a cybersociety
means that disputes will be settled by state jurisdiction. It seems that presently there is a variety of
factors taking into consideration in order to justify jurisdiction for electronic transactions creating
uncertainty. Universal cyberspace jurisdiction will mean that any state whose people are affected in
any way by an electronic action will have jurisdiction to decide and the decision will be enforced by
an international convention of enforcement of foreign courts decisions. The universal cyberspace
jurisdiction will be especially useful for criminal and intellectual property cases. Personal
cyberspace jurisdiction should be based on the local accessibility resulted in local effects upon
people since websites target the whole cyberspace territory being accessible by all jurisdictions that
provide the electronic equipments for access.
Previous Section
Footnotes

↵1 Brian Fitzgerald, ‘Software as Discourse: The Power of Intellectual Property in Digital
Architecture’ (2000) 18 Cardozo Arts and Entertainment Law Journal 337, 353 fn 52.
Gutnick (2002) 194 ALR 433. Lawrence Lessig, ‘The Law of the Horse: What Cyberlaw
Might Teach’ (1999) 113 Harvard Law Review 501. David Johnson and David Post, ‘Law
and Borders — The Rise of Law in Cyberspace’ (1996) 48 Stanford Law Review 1367. The
bases of jurisdiction pursuant to international law are territorial sovereignty (territorial
principle), nationality (nationality principle), protection of nationals (passive nationality
principle), protection of the state from outside events that may have an effect within the
jurisdiction (protective principle) and universality of the crime (the universal principle)

↵2 Green Paper, entitled ‘A Proposal to Improve Technical Management of Internet Names
and Addresses’ can be found at http://www.ntia.doc.gov/ntiahome/domainname/dnsdrft.htm.

↵3 Voyeur Dorm v. City of Tampa, 265 F.3d 1232 (11th Cir. 2001) (holding that a live sex
show broadcast over the Internet from a house in Tampa did not violate a local zoning
ordinance prohibiting adult entertainment, because the entertainment was not physically
provided at that location, but sent to remote users).

↵4 Zekos G I, ‘Internet or Electronic Technology: A Threat to State Sovereignty’, 1999 (3)
The Journal of Information, Law and Technology (JILT).
<http://www.law.warwick.ac.uk/jilt/99-3/zekos.html>

↵5 Lawrence Lessig, The Path of Cyberlaw, 104 Yale L.J. 1743, 1745–46. Jonathan Zittrain,
The Rise and Fall of Sysopdom, 10 Harv. J.L. & Tech. 495, 497.

↵6 William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the
Virtual Community, 30 Wake Forest L. Rev. 197, 207–08 (1995) (discussing the federal
obscenity test of local “contemporary community standards” articulated in Miller v.
California, 413 U.S. 15 (1973)).

↵7 G Zekos “Legal Problems in Cyberspace” 2002 Managerial Law 45, Number 5.

↵8 David R. Johnson, Traveling in Cyberspace, Legal Times, Apr. 3, 1995, at 26. Lawrence
Lessig, The Zones of Cyberspace, 48 Stan. L. Rev. 1403, 1408. Anne Wells Branscomb,
Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in
Cyberspaces, 104 Yale L.J. 1639, 1640 (1995) (stating that experimental user groups called
virtual communities “can be said to occupy separate and diverse cyberspaces”). Philip
Giordano, Invoking Law as a Basis for Identity in Cyberspace, 1998 Stan. Tech. L. Rev.1.

↵9 Jane C. Ginsburg, Global Use/Territorial Rights: Private International Law questions of
the Global Information Infrastructure, J. COPY. SOC. 318, 319–320.

↵10 Digital Equipment Corp. v. Altavista Technology, Inc., 960 F. Supp. 456 (D. Mass.
1997).

↵11 Deirdre M. Curtin, Postnational Democracy: The European Union in Search of a
Political Philosophy 4 (1997) (“Just think of how global computer-based communications
cut across territorial borders, creating a new realm of human activity and undermining the
feasability—and legitimacy—of applying laws based on geographic boundaries to this new
sphere.”). Arjun Appadurai, Disjuncture and Difference in the Global Cultural Economy, in
Modernity at Large: Cultural Dimensions of Globalization 27, 27–29 (1996) (“Today’s
world involves interactions of a new order and intensity.... With the advent of the steamship,
the automobile, the airplane, the camera, the computer and the telephone, we have entered
into an altogether new condition of neighborliness, even with those most distant from
ourselves.”); Michael Edwards, Future Positive: International Co-operation in the 21st
Century 5-6 (1999) (“Globalisation challenges the authority of nation states and international
institutions to influence events, while the scale of private flows of capital, technology,
information and ideas makes official transfers look increasingly marginal.”).

↵12 David R. Johnson & David Post, Law and Borders—The Rise of Law in Cyberspace, 48
Stan. L. Rev. 1367 (1996).

↵13 David G. Post, Governing Cyberspace, 43 Wayne L. Rev. 155 (1996).

↵14 David G. Post, Anarchy, State, and the Internet: An Essay on Law-Making in
Cyberspace, 1995 J. ONLINE L. 3.

↵15 Restatement (Third) of Foreign Relations Law of the United States § 201 (1987)
(“Under international law, a state is an entity that has a defined territory and a permanent
population, under the control of its own government . . . .”) and Malcolm N. Shaw,
International Law 277–314 (3d ed. 1991)(“International law is based on the concept of the
state [which] in its turn lies upon the foundation of sovereignty [which itself] is founded
upon the fact of territory. Without territory, a legal person cannot be a state.”). Henry Perritt,
The Internet as a Threat to Sovereignty? Thoughts on the Internet’s Role in Strengthening
National and Global Governance, 5 Ind. J. Global Legal Stud. 423 (1998) (arguing that the
“Internet as a threat to sovereignty” thesis only threatens a “Realist” theory of international
relations, not the “liberal tradition of international relations” that already accounts for the
interaction of non-state actors across borders), Anne-Marie Slaughter, Liberal International
Relations Theory and International Economic Law, 10 am. U. J. Int’l L. & Pol’y 717 (1995)
(distinguishing the liberal theory of international relations from realism, which assumes “that
the primary actors are states, and define states as monolithic units identifiable only by the
functional characteristics that constitute them as states”).

↵16 James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired
Censors, 66 U. CINC. L. REV. 177 (1997). Joel R. Reidenberg, Governing Networks and
Rule-Making in Cyberspace, 45 EMORY L. J. 911 (1996) (arguing that the transnational
nature of the Internet requires governance by a collection of state, business, technical, and
citizen forces); John T. Delacourt, Note, The International Impact of Internet Regulation, 38
HARV. INT’L L. J. 207 (1997) (contending that national regulation of the Internet is
inappropriate and that a consensual regime of user self-regulation should be adopted).

↵17 Patricia Fusco, Top U.S. ISPs by Subscriber: Q2 2001—Market Insights (Aug. 17,
2001), available at http://www.isp-planet.com/research/rankings/usa_history_q22001.html

↵18 Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54
STAN. L. REV. 1 (2001) (arguing that copyright doctrines must be subjected to independent
First Amendment scrutiny).

↵19 Oppenheim’s International Law 1992 R Jennings Chapter 5 at 563.

↵20 The Schooner Exch. v. M’Faddon, 11 U.S. (7 Cranch) 116, 136 (1812).

↵21 I Brownlie ‘Principles of Public International Law’ 1990 Oxford pp 100–200.

↵22 L Kramer ‘Extraterritorial Application of American Law’ 1991 Sup. Ct. Rev 179.
Strassheim v Daily 221 US 280.

↵23 Paul R. Viotti & Mark V. Kauppi, International Relations Theory: Realism, Pluralism,
Globalism 35 (2d ed. 1993).

↵24 Stephan Wilske & Teresa Schiller, International Jurisdiction in Cyberspace: Which
States May Regulate the Internet?, 50 Fed. Comm. L.J. 117, 129–42 (1997). Restatement
(Third) of Foreign Relations Law § 402(1)(a) (1987). The effects principle grants a state
jurisdiction to regulate “conduct outside its territory that has or is intended to have
substantial effect within its territory.” Id. § 402(1)(b). Jack L. Goldsmith, The Internet and
the Abiding Significance of Territorial Sovereignty, 5 Ind. J. of Global Legal Stud. 475, 476
(1998).

↵25 James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired
Censors, 66 U. Cin. L. Rev. 177, 178–83 (1997) (summarizing the argument that “the
technology of the medium, the geographical distribution of its users, and the nature of its
content all make the Internet specially resistant to state regulation”). Joel R. Reidenberg,
Governing Networks and Rule-Making in Cyberspace, 45 Emory L.J. 911, 917–19 (1996)
(asserting that the Internet’s infrastructure creates “visible borders” that replace national
borders in regulating online interactions). Henry H. Perritt, Jr., Cyberspace SelfGovernment: Town Hall Democracy or Rediscovered Royalism?, 12 Berkeley Tech. L.J.
413, 414 (1997) (“[Cyberspace] may be distinct enough to have its own law and legal
institutions — a system of ‘cybergovernment.’”). Timothy S. Wu, Note, Cyberspace
Sovereignty? — The Internet and the International System, 10 Harv. J.L. & Tech. 647, 654–
55 (1997) (describing examples of Internet regulation in China and Singapore that cast doubt
on “the arguments for cyberspace sovereignty inasmuch as they seem to make sense only in
particular contexts”).

↵26 New York v. United States, 505 U.S. 144, 177 (1992). Roxanne Lynn Doty, Sovereignty
and the Nation: Constructing the Boundaries of National Identity, in State Sovereignty as
Social Construct 121, 122 (Thomas J. Biersteker & Cynthia Weber eds., 1996) (“Today no
state possesses legitimacy which does not also claim to represent the will of the nation.”

↵27 Peter J. Spiro, New Global Communities: Nongovernmental Organizations in
International Decision-Making Institutions, WASH. Q., Winter 1995, at 45, 46 (“It is almost
as if the world has arrived at a sort of neomedievalism in which the institutions and sources
of authority are multifarious.”). Rosemary J. Coombe, The Cultural Life of Things:
Anthropological Approaches to Law and Society in Conditions of Globalization, 10 AM. U.
J. Int’l L. & Pol’y 791, 831 (1995) (noting that because of globalization, cultures can no
longer be considered bounded by territorial terms, but instead exist across borders);
Alexander B. Murphy, The Sovereign State System as Political-Territorial Ideal: Historical
and Contemporary Considerations, in State Sovereignty as Social Construct, at 81, 82–84,
107 (asserting that globalization challenges the sovereign state’s conceptual integrity by
dispersing authority to a multitude of “significant functional spaces”).

↵28 Steven R. Salbu, Who Should Govern the Internet?: Monitoring and Supporting a New
Frontier, 11 HARV. J.L. & TECH. 429, 457–58 (1998) (“Interactive computer technology
signals a paradigm shift away from geographic conceptualizations of community, in favor of
nongeographical communities.” Thomas M. Franck, Clan and Superclan: Loyalty, Identity,
and Community in Law and Practice, 90 AM. J. INT’L L. 359, 376 (1996) (“In many areas
of endeavor — commerce, defense, environmental protection, health, entertainment,
education — human needs and wants cannot . . .be satisfied by, or in, the state alone.”).

↵29 Todd H. Flaming, The Rules of Cyberspace: Informal Law in a New Jurisdiction, 85
ILL. B.J. 174, 179 (1997) (asserting that territorial governments should recognize cyberspace
as an autonomous space that orders itself according to the preferences of the Internet
community); Aaron Mefford, Note, Lex Informatica: Foundations of Law on the Internet, 5
IND. J. OF GLOBAL LEGAL STUD. 211, 236 (1997) (asserting that self-regulation is more
legitimate than territorial law because users create “Net law”);

↵30 Margaret Chon, Radical Plural Democracy and the Internet, 33 CAL. W.L. REV. 143,
147 (1997).

↵31 Restatement (Third) of Foreign Relations Law of the United States § 201 (1987)
(“Under international law, a state is an entity that has a defined territory and a permanent
population, under the control of its own government . . . .”); id. § 402 (a state has
“jurisdiction to prescribe law with respect to (1)(a) conduct that, wholly or in substantial
part, takes place within its territory; (b) the status of persons, or interests in things, present
within its territory; (c) conduct outside its territory that has or is intended to have substantial
effect within its territory; . . .”); see also Lea Brilmayer, Consent, Contract, and Territory,
74 Minn. L. Rev. 1, 11–12 (noting the significance of state authority derived from
sovereignty over physical territory in the context of social contract theory).

↵32 Alfred-Maurice de Zayas, Peace of Westphalia (1648), in 7 ENCYCLOPEDIA OF
PUBLIC INTERNATIONAL LAW 536–39 (1984).

↵33 David G. Post, Against “Against Cyberanarchy”, Vol. 7 Berkeley Technology Law
Journal 1 at 2. Jack L. Goldsmith, The Internet and the Abiding Significance of Territorial
Sovereignty, 5 Ind. J. Global Legal Stud. 475, 479 (1998) (“Internet activities are
functionally identical to these non-Internet activities. People in one jurisdiction do
something—upload pornography, facilitate gambling, offer a fraudulent security, send spam,
etc.—that is costly to stop at another jurisdiction’s border and that produces effects within
that jurisdiction deemed illegal there.”); Allan R. Stein, The Unexceptional Problem of
Jurisdiction in Cyberspace, 32 INT’L LAW 1167, 1180 (1998) (“The Internet is a medium.
It connects people in different places. The injuries inflicted over the Internet are inflicted by
people on people. In this sense, the Internet is no different from the myriad of ways that
people from one place injure people in other places . . . .”).

↵34 Restatement (Third) of Foreign Relations § 402(1)(c) (1987) (concluding that unless
“unreasonable,” a state has jurisdiction to prescribe law with respect to “conduct outside its
territory that has or is intended to have substantial effect within its territory”). Neil
Weinstock Netanel, Cyberspace Self-Governance: A Skeptical View from Liberal
Democratic Theory, 88 Calif. L. Rev. 395, 491 (2000) (criticizing as “fundamentally
incorrect as a matter of positive international law” the notion that a sovereign “cannot
properly legislate or otherwise prescribe law” that applies to extraterritorial conduct).

↵35 Religious Tech. Ctr. v. Netcom On-line Servs., Inc., 907 F. Supp. 1361 (N.D. Cal.
1995).

↵36 American Library Assoc.v.Pataki,969 F.Supp.160,161 (1997)(comparing the Internet to
highways and railways). Intel Corp.v.Hamidi,30 Cal.4th 1342,1361 (2003)(Writing for the
majority of the California Supreme Court, Justice Werdegar warns us against an over
reliance on metaphor and analogy. He notes that “‘cyberspace’ itself has come to be known
by the oxymoronic phrase ‘virtual reality,’ which would suggest that any real property
‘located’ in ‘cyberspace’ must be ‘virtually real’ property. Metaphor is a two-edged
sword.”). Ethan Preston, Finding Fences in Cyberspace:Privacy and Open Access on the
Internet, 6 J.TECH.L. &POL ’Y 3 (2001)(arguing that “computer security law would be
more coherent and protect equity more predictably if it treated the Internet as if it were
physical place – cyberspace”); Harold Smith Reeves, Property in Cyberspace, 63 U.
CHI.L.REV.761 (1996)(discussing property-based models applicable to cyberspace).
Pruneyard Shopping Center v.Robins,447 U.S.74,82 (1980).

↵37 PruneYard Shopping Center v.Robins, 447 U.S.74 (1980);New Jersey Coalition Against
War in the Middle East v.J.M.B.Realty Corp.,650 A.2d 757 (N.J.1994);Bock v. Westminster
Mall Co.,819 P.2d 55 (Colo.1991). Jennifer A.Klear, Comparison of the Federal Courts’ and
the New Jersey Supreme Court’s Treatments of Free Speech on Private Property: Where
Won’t We Have the Freedom to Speak Next?,33 RUTGERS L.J.589 (2002) (comparing the
Federal Court ’s and the New Jersey Supreme Court ’s holdings related to free speech on
private property).

↵38 Prune Yard Shopping Center v.Robins,447 U.S.74 (1980);New Jersey Coalition Against
War in the Middle East v. J.M.B.Realty Corp.,650 A.2d 757 (N.J.1994);Bock v. Westminster
Mall Co.,819 P.2d 55 (Colo.1991). Albertson’s Inc.v.Young,131 Cal.Rptr.2d 721 (2003).
Ticker Master Corp.v.Tickets.com,Inc.,2000 WL 1887522 (C.D.Cal.Aug.10,2000), aff ’d, 2
Fed.Appx.741 (9th Cir.2001). eBay v.Bidder’s Edge,Inc.,100 F.Supp.2d 1058
(N.D.Cal.2000).Register.com,Inc.v.Verio,Inc.,126 F.Supp.2d 238 (S.D.N.Y.2000). Oyster
Software,Inc.v.Forms Processing,Inc.,No.C-00-0724 JCS,2001 WL 1736382
(N.D.Cal.Dec.6,2001).

↵39 Intel Corp.v.Hamidi,114 Cal.Rptr.2d 244 (Cal.App.3d 2001). Intel Corp.v.Hamidi,71
P.3d 296 (Cal.2003).Intel v.Hamidi,114 Cal.Rptr.2d 244,253-55 (reviewing the case law and
the uncertainty of the state action doctrine); Register.com,Inc.v.Verio,Inc.,126 F.Supp.2d
238,249-50 (S.D.N.Y.2000)(holding that trespass to chattels had occurred where defendant’s
actions reduced capacity, thereby slowing response times and reducing system performance).

↵40 AOL v.IMS,24 F.Supp.2d 548,549 (E.D.Va.1998). AOL v.LCGM,Inc.,46 F.Supp.2d
444,448 (E.D.Va.1998). AOL v.GreatDeals.Net,49 F.Supp.2d 851 (E.D.Va.1999). Jeffrey
M.Rosenfeld, Spiders and Crawlers and Bots, Oh My: The Economic Efficiency and Public
Policy of Online Contracts that Restrict Data Collection, 2002 STANFORD TECH.L.REV.3
(2002), available at http://stlr.stanford.edu/STLR/Articles/02_STLR_3 (arguing for
enforceability of contract restrictions on robot searching, and a fair use technical standard).

↵41 Noah v.AOL Time Warner,Inc.,261 F.Supp.2d 253 (E.D.Va.2003). Albertson’s
Inc.v.Young,131 Cal.Rptr.2d 721 (2003). Intel Corp.v.Hamidi,71 P.3d 296,311-12
(2003)(acknowledging that speech is protected from government and not private restrictions,
but finding that state action is present in a trespass case when an injunction against speech on
private property). Noah v.AOL Time Warner,Inc.,261 F.Supp.2d 532,537,543
(E.D.Va.2003)(discussing whether the Civil Rights Act of 1964 or the ADA can be applied
in cyberspace). Access Now, Inc. v. Southwest Airlines,Co.,227 F.Supp.2d 1312,1321
(S.D.Fla.2002)(stating that “it is the role of Congress, and not this Court, to specifically
expand the ADA’s definition of ‘public accommodation’ beyond physical, concrete places of
public accommodation, to include ‘virtual’ places of public accommodation”). EF Cultural
TravelBV v.Zefer Corp.,318 F.3d 58,63 (1st Cir.2003)(“EF did not purport to exclude
competitors from looking at its website and any such limitation would raise serious public
policy concerns.”)

↵42 Noah v.AOL Time Warner,Inc.,261 F.Supp.2d 532,534 (E.D.Va.2003). Access Now,
Inc. v. Southwest Airlines,Co.,227 F.Supp.2d 1312 (S.D.Fla.2002). Carparts Distribution
Ctr., Inc. v. Automotive Wolesaler’s Ass ’n,37 F.3d 12 (1st Cir.1994). Reno v.ACLU,521
U.S.844,863 (1997)(quoting ACLU v.Reno,929 F.Supp.824,844 (E.D.Pa 1996)). United
States v. Am. Library Ass ’n,123 S.Ct.2297,2305 (2003)(holding that a public library does
not create a public forum on its computers when it provides Internet access to library
patrons.

↵43 Putnam Pit,Inc.v.City of Cookeville,221 F.3d 834 (6th Cir.2000)(holding that a local
government website did not constitute a traditional or designated public forum, and that the
city did not violate the First Amendment when it refused to include on its site a link to a
small, tabloid web publication that reported on alleged city corruption, despite the fact that
the cite did link to other profit and non-profit entities). Noah v.AOL Time Warner,Inc.,261
F.Supp.2d 532,534 (E.D.Va.2003). Access Now, Inc. v. Southwest Airlines,Co.,227
F.Supp.2d 1312 (S.D.Fla.2002). Carparts Distribution Ctr., Inc. v. Automotive Wolesaler’s
Ass ’n,37 F.3d 12 (1st Cir.1994). Access Now, Inc. v. Southwest Airlines,Co.,227 F.Supp.2d
1312 (S.D.Fla.2002). Doe v.Mutual of Omaha Ins.Co.,179 F.3d.557 (7th Cir.1999). Rendon
v.Valleycrest Prods.Ltd.,294 F.3d 1279 (11th Cir.2002). Noah v.AOL Time Warner,Inc.,261
F.Supp.2d 532,540-45 (E.D.Va.2003). Daniel v.Paul,395 U.S.298 (1969).

↵44 Courts applying the doctrine of trespass to chattels to the Internet, see, e.g., eBay, Inc. v.
Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000); Register.com, Inc. v. Verio,
Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000); America Online v. National Health Care
Discount, Inc., 174 F. Supp. 2d 890 (N.D. Iowa 2001); Oyster Software, Inc. v. Forms
Processing, 2001 WL 1736382 (N.D. Cal. Dec. 6, 2001);

↵45 GTE New Media Servs. v. BellSouth Corp., 199 F.3d 1343 (D.C. Cir. 2000); Jessica
Litman, Breakfast with Batman: The Public Interest in the Advertising Age, 108 Yale L.J.
1717, 1725 (1999) (“There has been inexorable pressure to recognize as an axiom the
principle that if something appears to have substantial value to someone, the law must and
should protect it as property.”).

↵46 eBay, Inc. v. Bidder’s Edge, 100 F. Supp. 2d 1058 (N.D. Cal. 2000). Register.com, Inc.
v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000); Oyster Software, Inc. v. Forms
Processing, 2001 WL 1736382 (N.D. Cal. Dec. 6, 2001); and Intel Corp. v. Hamidi, 114 Cal.
Rptr. 2d 244 (Ct. App. 2001).

↵47 Michael Geist, E-borders Loom, for Better or Worse, TORONTO GLOBE & MAIL,
http://www.globetechn...neutral&slug=TWGEISY&date=20010628;

↵48 Vacco v. World Interactive Gaming Corp., 714 N.Y.S.2d 844 (1999) (prosecution of
non-resident corporation and subsidiaries for offering Internet gambling to residents of New
York); Humphrey v. Granite Gates Resorts, Inc., 568 N.W. 2d 715 (1997) (prosecution of
non-resident corporation and its principal for deceptive trade practices, false advertising, and
consumer fraud in connection with an Internet gambling site).

↵49 Tan Tarn How, Foreign Websites that Refuse to Register “Can be Blocked,” THE
STRAITS TIMES (SINGAPORE) (Sep.1, 2001), (reporting that Singapore government will
block access to foreign websites that do not register in Singapore as political websites and
abide by new laws that limit political campaigning by websites during an election.).

↵50 Henry H. Perritt, Jr., The Internet is Changing the Public International Legal System, 88
KY. L.J. 885 (1999–2000) (“The Internet’s low economic barriers to entry provide a voice to
political actors who otherwise would be denied effective access to the public arena. Because
the Internet gives them access, and is inherently global, these actors can find like-minded
people in other states, thus enabling them to build political movements across national
lines.”).

↵51 Jack Goldsmith, The Internet and the Abiding Significance of Territorial Sovereignty, 5
IND. J. OF GLOBAL LEGAL STUD. 475, 475 (1998).

↵52 Ned Stafford, French ISPs Fight to Avoid Blocking Nazi, Racist Content,
NEWSBYTES, (Sep. 4, 2001), available at http://www.newsbytes.com/cgibin/u...lient.id=newsbytes&story.id=169727.

↵53 47 U.S.C. §230(c)(1) (Supp. 1999) (“No provider or user of an interactive computer
service shall be treated as the publisher or speaker of any information provided by another
information content provider.”); see also Zeran v. America Online, 129 F.3d 327, 330 (4th
Cir. 1997) (concluding that Congress enacted this provision because of “the threat that tort
based lawsuits pose to freedom of speech in the new and burgeoning Internet medium”).

↵54 United States v Montoya de Hernandez 473 US 531, The Chinese Channel Limited
http://www.chinese-channel.co.uk Framework for Global Electronic Commerce
http://www.ecommerce.gov/; Management of Internet http://www.ntia.doc.gov/

↵55 Courtney Macavinta, ICANN to Control Domain Name Server, CNET NEWS.COM,
June 30, 1999, at http://news.com.com/2100-1023-227889.html.

↵56 Peter H. Lewis, Limiting a Medium Without Boundaries, N.Y. TIMES, Jan. 15, 1996, at
D1. John Pomfret, Chinese Sentenced in Internet Case, WASH. POST, Jan. 21, 1999, at
A19.

↵57 American Libraries Ass’n v. Pataki, 969 F. Supp. 160, 177 (S.D.N.Y. 1997) (holding
that a New York law that criminalized the dissemination of obscene materials to minors
unconstitutionally encroached “upon the sovereignty of New York’s sister states [and was]
per se violative of the Commerce Clause”).

↵58 ICRAVETV.com http://www.icravetv.com/adinfo/adinfo_frameset.html CNET
News.com http://news.cnet.com/category/0-1004-200-1559907.html Stephan Wilske and
Teresa Schiller, International Jurisdiction In Cyberspace: Which States May Regulate The
Internet?, 50 Fed. Comm. L.J. 117, 122–3 (1997) (“When CompuServe, Inc. blocked access
by its subscribers in the United States and around the world to two hundred discussion
groups after a federal prosecutor in Germany had indicated that they might violate German
pornography laws, users realized that ‘cyberspace doesn’t belong to a single country,’ but to
a whole range of countries with diverse legal concepts.”) Henry H. Perritt, Jr., Will the
Judgment-Proof Own Cyberspace?, 32 Int’l Law. 1121, 1123 (1998) (“The real problem is
turning a judgment supported by jurisdiction into meaningful economic relief. The problem
is not the adaptability of International Shoe-obtaining jurisdiction in a theoretical sense. The
problem is obtaining meaningful relief.”).

↵59 National Football League v. TVRadioNow Corp., 53 U.S.P.Q.2d 1831, 1834–35
(W.D.Pa. 2000). Ed Hore, JumpTV Wants to Put TV Signals on the Internet, THE
LAWYERS WEEKLY, Jan. 12, 2001;

↵60 Jessica Litman, Privacy and E-Commerce, 7 B.U .J. OF SCI . & T ECH . L. 223, 225
(2001) (arguing that cases such as Yahoo! and iCraveTV, which give ISPs some
responsibility for controlling access to people in different geographic areas, will exacerbate
privacy concerns because, if an ISP has to know where you are, then there will be greater
incentives to link web profiles with physical locations).

↵61 Jonathan D. Glater, Hemming in the World Wide Web, N.Y. TIMES (Jan. 7, 2001) at
sec. 4, p. 5 (“A lot of times people are looking for information on the Internet that they
wouldn’t want people to know they’re looking for.”)

↵62 US v Smith, 680 F 2d 255 (1st Cir. Mass 1982).

↵63 McConnell Dowell Constructors Ltd v Lloyd’s Syndicate 396 [1988] 2 NZLR 257
(CA).

↵64 Alan Hunt, Foucault’s Expulsion of Law: Toward a Retrieval, 17 L. & SOC. INQ. 1.

↵65 Robert C. Denicola, Mostly Dead? Copyright Law in the New Millennium, 47 J.
COPYRIGHT SOC’Y USA 193, 204-07 (2000) (arguing that balance between incentive for
copyright holders and public access has shifted towards “a free market in property rights
rooted in the natural entitlement of creators”); L. Ray Patterson, Understanding the
Copyright Clause, 47 J. COPYRIGHT SOC’Y USA 365, 387–89 (2000) (arguing that
Congress inappropriately granted a “natural law monopoly” in the Act “comprised of rights
for the creator to the exclusion of any duties”); Pamela Samuelson, Intellectual Property and
the Digital Economy: Why the Anti-Circumvention Regulations Need to be Revised, 14
BERKELEY TECH. L.J. 519, 566 (1999) (arguing that certain provisions of the Act are
overbroad and warning of its “potential for substantial unintended detrimental
consequences”); Jane C. Ginsburg, Copyright and Control Over New Technologies of
Dissemination, 101 COLUM. L. REV. 1613, 1616–17 (2001) (arguing that proper
“resolution of tensions between the exercise of control under copyright on the one hand and
the availability of new technology on the other... notwithstanding current critiques, supports
a continued role for control in a new technological environment” and suggesting that the
logic underlying the act “is consistent with earlier approaches to copyright/technology
conflicts”).

↵66 Vacco v. World Interactive Gaming Corp., 714 N.Y.S.2d 844 (1999) (enforcing state
and federal laws to ban foreign corporation, its Antiguan subsidiary, and their principals,
officers, and directors from operating or offering gambling over the Internet); Humphrey v.
Granite Gates Resorts, Inc. , 568 N.W. 2d 715 (1997) (asserting personal jurisdiction over
non-resident corporation and its principal for deceptive trade practices, false advertising, and
consumer fraud in connection with an Internet gambling site); Interactive Gambling Act,
2001, (Aust l.) avaiable athttp://www.noie.gov.au/projects/consumer/gambling/banact.pdf.

↵67 Nev. Rev. Stat. Ann. § 176A. 413 (2001) (restricting ownership and use of online
chatrooms by people previously convicted of cyber-stalking); 47 U.S.C. § 254 (l)(1)(A)((ii)
(2001) (requiring schools and libraries to adopt and implement policies to insure the safety
and security of minors when using chat rooms).

↵68 Ind. Code Ann. § 26-2-8-102 (2001) (applying consumer regulations to online auction
sites); N. C. Gen. Stat. § 66-312 (2000) (same); TGI Paris, Ordonnance de référé du 20 nov.
2000, available at http://www.juriscom.net/txt/jurisfr/cti/tgiparis200001120.htm (enjoining
Yahoo!.com from permitting French users access to Nazi memorabilia via Yahoo!’s auction
sites).

↵69 Uniform Computer Information Transactions Act §209 (1999), available at
http://www.law.upenn.edu/bll/ulc/ucita/cita10st.doc (proposed uniform state law to govern
online contracts); Electronic Transactions Act, 1999 (Austl.) available at
http://www.law.gov.au/publications/ecommerce/ (creating a regulatory regime intended to
support and encourage business and consumer confidence in the use of electronic
commerce).

↵70 Electronic Communications Privacy Act, 18 U.S.C. § 2701 (Supp. III 1998) (prohibiting
unauthorized access to a “facility through which an electronic communication service is
provided”); Data Protection Act, 1998, c. 29 (Eng.) available at
http://www.hmso.gov.uk/acts/acts1998/19980029.htm (requiring technical and
organizational measures against unauthorized or unlawful processing of personal data and
against accidental loss or destruction of, or damage to, personal data).

↵71 Sexual Exploitation and other Abuse of Children Act, 18 U.S.C. § 2252(A) (1998 Supp.
III) (prohibiting the receipt or distribution of sexually explicit photos of minors by any
means including computer); Reno v. ACLU, 117 S.Ct. 2329 (1997) (striking down, on First
Amendment grounds, provisions of the Communications Decency Act, 47 U.S.C. § 223
(1994, Supp. II), that criminalized certain content sent via online communication); ACLU v.
Reno, 217 F.3d 162 (3d Cir., 2000) (striking down, on First Amendment grounds, the Child
Online Protection Act, 47 U.S.C. § 231 (1998 Supp. III), which also criminalized certain
content sent via online communication), cert. granted sub nom. Ashcroft v. American Civil
Liberties Union, 121 S.Ct. 1997 (2001); Regina v. Pecciarich, [1995] O.R.3d 748 (holding
that the distribution of child pornography by uploading photos to an electronic bulletin board
was in violation of criminal statutes).

↵72 America Online, Inc. v. LCGM, Inc., 46 F. Supp.2d 444 (E.D. Va. 1998) (holding that
defendants who harvested email addresses of AOL members using an extractor program and
then used those addresses to send unauthorized bulk email advertising their pornographic
web sites were in violation of the Act).Computer Fraud and Abuse Act, 18 U.S.C. § 1030
(1998 Supp. III) (applying federal law to newly discovered forms of computer abuse and
providing civil remedies for certain types of computer crimes); Regulation of Investigatory
Powers Act, 2000, c. 23 (Eng.) (defining criminal penalties for interception of traffic on all
postal and telecommunications networks and any action that may cause the content of a
message to become known to people other than the sender or intended recipient).

↵73 95 U.S. 714 (1877). at 722 (“[E]very State has the power to determine for itself the civil
status and capacities of its inhabitants; to prescribe the subjects upon which they may
contract, the forms and solemnities with which their contracts shall be executed, the rights
and obligations arising from them, and the mode in which their validity shall be determined
and their obligations enforced; and also the regulate the manner and conditions upon which
property situated within such territory, both personal and real, may be acquired, enjoyed, and
transferred.... [N]o State can exercise direct jurisdiction and authority over persons or
property without its territory.”).

↵74 Peter J. Spiro, Globalization, International Law, and the Academy, 32 N.Y.U.J. INT’L
L. & POL. 567, 568 & n.2 (2000) (noting that the term “‘postnational’ has crept into other
disciplines,” but that international law scholars have been slow to pick up the term, having
“only recently caught on to ‘globalization.’”).

↵75 Stephen G. Utz, Tax Harmonization And Coordination In Europe And America, 9
CONN. J. INT’L L. 767, 767 (1994).

↵76 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §412 (1987).

↵77 OECD Progresses towards Achieving an International Consensus on the Tax Treatment
of E-commerce, OECD News Release (Feb. 12, 2001).

↵78 Andreas P. Reindl, Choosing Law in Cyberspace: Copyright Conflicts on Global
Networks, 19 MICH. J. INT’L L. 799, 800–01 (1998).

↵79 United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 101 (1918) (“But where two
parties independently are employing the same mark upon goods of the same class, but in
separate markets wholly remote from the other, the question of prior appropriation is legally
insignificant....”

↵80 Panavision Int’l v. Toeppen, 141 F.3d 1316, 1326 (9th Cir. 1998) (quoting Panavision
Int’l v. Toeppen, 945 F.Supp. 1296, 1304 (C.D. Cal. 1996)). Congress first passed the
Federal Trademark Dilution Act (Pub.L. No. 104-98, 109 Stat. 985 (codified at 15 U.S.C. §§
1125, 1127) and then the Anticybersquatting Consumer Protection Act (ACPA Pub.L. No.
106-113 (1999); see H.R.Rep. No. 106-479 (Nov. 18, 1999)), which provides an explicit
Federal remedy to combat so-called “Cybersquatting.”

↵81 Mecklermedia Corp. v. DC Congress GmbH, 1 All E.R. 148, 160 (Ch.1998) (reaching a
different conclusion on ownership of a mark from the one reached in other countries).

↵82 Compare, e.g., Fleetboston Financial Corp. v. Fleetbostonfinancial.com, 138 F.Supp.2d
121, (D.Mass. Mar 27, 2001 (finding that in rem provisions of ACPA violate due process
when domain name registration paper is subsequently transferred to a district other than the
district where registrar is located); Heathmount A.E. Corp. v. Technodome.Com, 106
F.Supp.2d 860, 865–66 (E.D.Va.2000) (finding that the registration of a domain name,
without more, cannot be sufficient minimum contacts for the purposes of in personam
jurisdiction); America Online, Inc. v. Chih-Hsien Huang, 106 F.Supp.2d 848, 855–60
(E.D.Va.2000) (finding that filing an online domain name registration agreement with
Network Solutions is not sufficient contact with Virginia to justify in personam jurisdiction).
Caesars World, Inc. v. Caesars- Palace.Com, 112 F.Supp.2d 502, 504 (E.D.Va. 2000).
(finding sufficient contacts for purposes of in rem jurisdiction); Lucent Technologies, Inc. v.
Lucentsucks.com, 95 F.Supp.2d 528, 535 n. 5 (E.D.Va.2000) (Brinkema, J.) (finding that
registration is sufficient minimum contact for in personam jurisdiction).

↵83 Caesars World, Inc. v. Caesars-Palace.Com, 112 F.Supp.2d 502, 504 (E.D.Va. 2000)
(“under Shaffer, there must be minimum contacts to support personal jurisdiction only in
those in rem proceedings where the underlying cause of action is unrelated to the property
which is located in the forum state”).

↵84 Michael Geist, Fair.com?: An Examination of the Allegations of Systemic Unfairness in
the ICANN UDRP, available at http://aix1.uottawa.ca/~geist/g.PDF; Steven Bonisteel, Law
Expert Charges Bias in Domain-Dispute Arbitrations, NEWSBYTES (Aug. 20, 2001),
available at http://www.newsbytes.com/news/01/169180.html A. Michael Froomkin, Wrong
Turn in Cyberspace, Using ICANN to Route Around the APA and the Constitution, 50
DUKE L.J. 17 (2000).

↵85 Michael A. Sussmann, The Critical Challenges from International High-Tech and
Computer-Related Crime at the Millennium, 9 DUKE J COMP & INT’L L. 451, 455 (1999).

↵86 Declan McCullagh, Spam Oozes Past Border Patrol, WIRED.COM(Feb. 23, 2001),
available at http://www.wired.com/news/print/0,1294,41860,00.html, (reporting that an
increasing amount of unsolicited commercial e-mail is originating from overseas sites and
flowing through non-U.S. servers). Jonathan I. Edelstein, Note, Anonymity and International
Law Enforcement in Cyberspace, 7 FORDHAM INTEL. PROP., MEDIA & ENTER. L. J.
231, 265–67 (1996) (discussing the possibility of countries using anonymous remailers and
computer secrecy laws to create data havens for criminals).

↵87 United States v. Cabrales, 524 U.S. 1 (1998) (ruling that money laundering charge could
only be prosecuted where the alleged acts of laundering took place, not in the district where
the crimes generating the money allegedly occurred).

↵88 International Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945) (establishing
test for determining whether an assertion of personal jurisdiction comports with the Due
Process Clause of the U.S. Constitution based on whether the defendant had sufficient
contact with the relevant state “such that jurisdiction is consistent with traditional notions of
fair play and substantial justice”).

↵89 Hanson v. Denckla, 357 U.S. 235, 253 (1958). World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980). Burger King v. Rudzewicz, 471 U.S. 462, 476–77
(1985). Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 119 (1987)
(Brennan, J., concurring in part and concurring in the judgment). In Asahi, four justices
indicated that simply placing a product in the stream of commerce, without more, would not
be sufficient to establish jurisdiction wherever that product happened to end up. Instead,
these justices would require some sort of “additional conduct” by the defendant that would
demonstrate that the defendant had the specific “intent or purpose” to serve the market in the
state exercising jurisdiction. Id. at 112 (Opinion of O’Connor, J.). Four other justices
(including Justice Brennan) disagreed, however, arguing that simply placing a product in the
stream of commerce was sufficient. See id. at 117 (Opinion of Brennan, J.). The ninth,
Justice Stevens, found that, based on the facts of the case, jurisdiction was proper under
either test and therefore declined to choose between them.

↵90 Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002) (noting that in
addition to establishing personal jurisdiction based on a state long-arm statute, jurisdiction
also must comply with due process principles).

↵91 Council Directive 2000/31, 2000 O.J. (L 178).

↵92 Rudder v. Microsoft Corp., 2 C.P.R. (4th) 474 (Ont. S.C.J. 1999) (holding that to find
the forum selection clause unenforceable would undermine the integrity of any agreement
entered into through the Web); Kilgallen v. Network Solutions, 99 F. Supp. 2d 125 (D. Mass.
2000) (holding that forum selection clauses are enforceable unless proven unreasonable
under the circumstances). Williams v. America Online, Inc., 2001 WL 135825 (Mass.
Super.2001) (refusing to enforce forum selection clause contained in America Online’s
Terms of Service agreement in part because “public policy suggests that Massachusetts
consumers who individually have damages of only a few hundred dollars should not have to
pursue AOL in Virginia.”). Siegelman v. Cunard White Star Ltd., 221 F.2d 189, (Frank, J.,
dissenting) (arguing that a choice-of-law provision in a contract of adhesion should not be
honored). Susan D. Rector, E-Commerce Update: Clickwrap Agreements: Are They
Enforceable?, 13 CORP. COUNS. 1 (Mar. 1999) (noting that the complete terms of click
stream contracts often are not known until after the consumer makes the purchase).

↵93 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980).

↵94 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414–15 & n.9 (1984).

↵95 Hinsch v. Outrigger Hotels Haw., 153 F. Supp. 2d 209, 213–14 (E.D.N.Y.2001).

↵96 232 F.3d 1369, 1375 (Fed. Cir. 2000). Linda Sandstrom Simard, Hybrid Personal
Jurisdiction: It’s Not General Jurisdiction, or Specific Jurisdiction, But Is It Constitutional?,
48 CASE W. RES. L. REV. 559, 567 (1998) (Supreme Court’s holdings provide little
guidance on the requisite criteria for general jurisdiction). “General jurisdiction” is the term
used to describe the exercise of jurisdiction over a defendant for any cause of action based
on activities unrelated to the plaintiff’s claims. Arthur von Mehren & Donald Trautman,
Jurisdiction to Adjudicate: A Suggested Analysis, 79 HARV. L. REV. 1121, 1136–37
(1966).

↵97 Patrick J. Borchers, The Problem with General Jurisdiction, 2001 U. CHI. LEGAL F.
119, 137. Lea Brilmayer, How Contacts Count: Due Process Limitations on State Court
Jurisdiction, 1980 SUP. CT. REV. 77, 87 (the appropriate test is whether the defendant is
enough of a “political insider” to invoke the political processes of the state); Sarah R. Cebik,
“A Riddle Wrapped in a Mystery Inside an Enigma”: General Personal Jurisdiction and
Notions of Sovereignty, 1998 ANN. SURV. AM. L. 1, 33–36 (propounding a “realist” theory
of sovereignty for general jurisdiction under which a defendant would be amenable to
general jurisdiction if it is incorporated, shapes its corporate policy, or conducts its core
activities in the forum); B. Glenn George, In Search of General Jurisdiction, 64 TUL. L.
REV. 1097, 1129 (1990) (suggesting the requisite minimum contacts for general jurisdiction
exist only if a corporate office is in the forum); Allan R. Stein, Styles of Argument and
Interstate Federalism in the Law of Personal Jurisdiction, 65 TEX. L. REV. 689, 758 (1987)
(urging that the appropriate standard is whether the “defendant has adopted the forum as its
sovereign” by treating it as its home for most purposes); Mary Twitchell, The Myth of
General Jurisdiction, 101 HARV. L. REV. 610, 676 (1988) (advocating that general
jurisdiction should be restricted to the defendant’s place of incorporation and principal place
of business).

↵98 People Solutions, Inc. v. People Solutions, Inc., 2000 WL 1030619 (N.D. Tex., 2000).

↵99 Winfield Collection, Ltd. v. McCauley, 105 F. Supp.2d 746 (E.D. Mich., 2000).

↵100 Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1086–88 (9th Cir.
2000) (upholding personal jurisdiction under the “effects test” because the defendant’s letter
to Network Solutions, Inc. was deemed to have an effect on the plaintiff in California despite
very limited contacts with the forum state of California); Intercon, Inc. v. Bell Atl. Internet
Solutions, Inc., 205 F.3d 1244, 1247-48 (10th Cir. 2000) (upholding the district court’s
assertion of personal jurisdiction over the defendant because once it had notice it was routing
subscriber’s e-mails to the wrong domain name of a global service provider, its actions were
deemed to be purposefully directed to the forum state); GTE New Media Servs. Inc. v.
BellSouth Corp., 199 F.3d 1343, 1349 (D.C. Cir. 2000) (classifying the defendant’s website
as interactive, but refusing to assert personal jurisdiction over the defendant based solely on
allegations that forum state residents could access the defendant’s yellow pages websites);
Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1297 (10th Cir. 1999)
(characterizing a bank’s website as passive because it offered information regarding its
services and solicited business globally, yet refusing to assert jurisdiction even though a
forum state resident could access the website); Mink v. AAAA Dev. LLC, 190 F.3d 333,
336–37 (5th Cir. 1999) (characterizing the defendant’s website as passive, and therefore,
incapable of supporting personal jurisdiction because it posted product and service
information; included a tollfree telephone number, mailing address and e-mail address; and
provided a printable mail-in order form that could not be submitted via the Internet); 3D
Sys., Inc. v. Aarotech Lab., Inc., 160 F.3d 1373, 1378-80 (Fed. Cir. 1998) (conferring
jurisdiction where non-Internet activities with the forum state were combined with minimal
Internet activities and acknowledging that a passive website alone is not sufficient to confer
personal jurisdiction); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 419–20(9th Cir. 1997)
(holding jurisdiction improper based on a passive website); CompuServe, Inc. v. Patterson,
89 F.3d 1257, 1264 (6th Cir. 1996) (finding that the defendant purposefully availed himself
of the privilege of doing business in the forum state where he actively transacted business via
the Internet and otherwise corresponded with the plaintiff in the forum state via emails).
Stomp, Inc. v. NeatO, LLC, 61 F. Supp. 2d 1074, 1078 (C.D. Cal. 1999) (declining to adhere
to general concepts of foreseeability with respect to the defendant’s actions within the forum
state, and instead focusing on the intrinsic characterization of the forum, including the
defendant’s anticipated, but not as yet established, target audience); see also Roche v.
Worldwide Media, Inc., 90 F. Supp. 2d 714, 718 (E.D. Va. 2000) (holding personal
jurisdiction improper because a passive website cannot direct itself purposefully to the forum
state of Virginia based simply on a pornographic website that solicited e-mail addresses and
credit card information); Inset Sys., Inc. v. Instruction Set, Inc., 937 F. Supp. 161, 165 (D.
Conn. 1996) (upholding jurisdiction based on a passive website because such website
continuously advertised and solicited over the Internet and “purposefully availed itself of the
privilege of doing of business in [the forum state]”).

↵101 Inset Systems, Inc. v. Instruction Set Inc. 937 F. Supp. 161, 165 (D. Conn. 1996). The
court ruled that the defendant’s promotional website, because it was accessible in
Connecticut, supported the exercise of jurisdiction in the state. Telco Communications v. An
Apple a Day, 977 F. Supp. 404, 407 (E.D. Va. 1997) (a website available twenty-four hours a
day in the forum state constituted “a persistent course of conduct” in the state); Heroes, Inc.
v. Heroes Found., 958 F. Supp. 1, 5 (D.D.C. 1996) (suggesting that the existence of a
website might be deemed a sustained contact with the forum because “it has been possible
for a . . . resident [of the forum] to gain access to it at any time since it was first posted”).

↵102 Inset Systems, Inc. v. Instruction Set Inc. 937 F. Supp. 161, 165 (D. Conn. 1996).
Humphrey v. Granite Gate Resorts, Inc., 568 N.W.2d 715 (Minn. 1997).

↵103 Maritz Inc. v. CyberGold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996). Ameritech
Services, Inc. v. SCA Promotions, Inc., 2000 WL 283098 (N.D. Ill., 2000); LFG, LLC v.
Zapata Corp., 78 F. Supp.2d 731 (N.D. Ill., 1999); Biometics, LLC v. New Womyn, Inc.,
112 F.Supp.2d 869 (E.D. Mo., 2000);

↵104 Zippo Manufacturing Co. v. Zippo Dot Com, Inc. 952 F. Supp. 1119, 1124 (W.D. Pa.
1997). GTE New Media Services Inc. v. BellSouth Corp., 199 F.3d 1343 (D.C. Cir. 2000);
Amberson Holdings LLC v. Westside Story Newspaper, 110 F.Supp.2d 332 (D. N.J., 2000);
Hasbro, Inc. v. Clue Computing, Inc., 66 F.Supp.2d 117 (D. Ma.., 1999); Search Force Inc.
v. DataForce Intern., Inc., 112 F.Supp.2d 771 (S.D. Ind., 2000); American Eyewear, Inc.v.
Peeper’s Sunglasses and Accessories, Inc., 106 F.Supp.2d 895 (N.D. Tex., 2000).

↵105 Nissan Motor Co. Ltd. v. Nissan Computer Corp., 89 F. Supp.2d 1154 (C.D. Cal.,
2000); Euromark Designs, Inc. v. Crate & Barrel, Ltd., 96 F. Supp.2d 824 (N.D. Ill., 2000);
Neogen Corp. v. Neo Gen Screening, Inc., 109 F.Supp.2d 724 (W.D. Mich., 2000. Blakey v.
Continental Airlines, Inc., 164 N.J. 38 (N.J. 2000) (using effects test to determine that
jurisdiction existed over non-resident defendants who allegedly posted defamatory messages
on electronic bulletin board of their New Jersey-based employer).

↵106 Bensusan Rest. Corp. v. King, 937 F. Supp. 295, 301 (S.D.N.Y. 1996), aff’d, 126 F.3d
25 (2d Cir. 1997) (holding that to target a specific forum for purposes of jurisdiction,
something more is needed than simply creating a website).

↵107 Butler v. Beer Across Am., 83 F. Supp. 2d 1261, 1267 (N.D. Ala. 2000) (recognizing
the limited number of sales to forum residents); Maritz, Inc. v. Cybergold, Inc., 947 F. Supp.
1328, 1333 (E.D. Mo. 1996) (emphasizing the importance of quantity of contacts such as
131 hits to a website). Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 891–92 (6th
Cir. 2002) (holding that quantity and specifically a “‘percentage of business’ analysis” is not
the proper test for personal jurisdiction; rather the proper test is “whether the absolute
amount of business conducted . . . [in the forum state] represents something more than
‘random, fortuitous, or attenuated contacts’ with the state”) (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475 (1985)); Tech Heads, Inc. v. Desktop Serv. Ctr., Inc., 105 F.
Supp. 2d 1142, 1150–51 (D. Or. 2000) (upholding personal jurisdiction based on a “highly
interactive website” that resulted in only one transaction with the forum state because the
court focused on the requirement of “quality” rather than “quantity” of contacts); Zippo Mfg.
Co., 952 F. Supp. at 1126–27 (recognizing that 3000 subscriptions, or two percent of total
subscriptions was a sufficient basis for jurisdiction because the Supreme Court emphasizes
the nature and quality of contacts with the forum rather than the quantity of contacts); Rainy
Day Books, Inc. v. Rainy Day Books & Caf’e, LLC, 186 F. Supp. 2d 1158, 1166 (D. Kan.
2002) (“the critical inquiry in determining whether there was a purposeful availment of the
forum jurisdiction is the quality, not merely the quantity, of the contacts”).

↵108 Digital Control Inc. v. Boretronics Inc., 161 F. Supp. 2d 1183, 1186–87 (W.D. Wash.
2001) (describing the “something more” that is needed to establish jurisdiction was known as
a “web site plus” rule where the plaintiff sought to obtain jurisdiction based on the
defendant’s website). Alitalia-Linee Aeree Italiane S.p.A. v. casinoalitalia.com, 128 F. Supp.
2d 340, 350–51 (E.D. Va. 2001) (analogizing the defendant’s online casino to that involved
in Thompson v. Handa-Lopez, Inc., 998 F. Supp. 738 (W.D. Tex. 1998)). The Thompson
court held that the on-line casino generated enough activity to support a finding of personal
jurisdiction. Id. at 744. Medinah Mining, Inc. v. Amunategui, 237 F. Supp. 2d 1132, 1135-36
(D. Nev. 2002) (holding that personal jurisdiction does not exist over a defendant that posted
allegedly defamatory information on a passive website operated by another party); Med-Tec
Iowa, Inc. v. Computerized Imaging Reference Sys., Inc., 223 F. Supp. 2d 1034, 1038 (S.D.
Iowa 2002) (characterizing defendant’s website as passive because it posts product
information, a description of products, and instructions on how to place orders and allows
visitors to download a catalog; this activity is not sufficient to confer personal jurisdiction);
SCC Communications Corp. v. Anderson, 195 F. Supp. 2d 1257, 1261 (D. Colo. 2002)
(recognizing the ability to use e-mail hyperlinks from a website to communicate for
informational purposes; however, refusing to assert personal jurisdiction because such
website was classified as passive in nature); Miami Breakers Soccer Club, Inc. v. Women’s
United Soccer Ass’n, 140 F. Supp. 2d 1325, 1329 (S.D. Fla. 2001) (recognizing that personal
jurisdiction cannot be based on a passive website that advertises a product line, yet allows
purchases only by telephone order); Enter. Rent-A-Car Co. v. Stowell, 137 F. Supp. 2d 1151,
1158–59 (E.D. Mo. 2001) (holding that personal jurisdiction does not exist over a defendant
whose website included photographs of classic cars, however, customers could not purchase
the cars via the website or otherwise use the website to exchange information with
defendant); Fiber Network Solutions, Inc. v. Pac. Bell, No. C2-02-176, 2002 U.S. Dist.
LEXIS 23252, at *11 (S.D. Ohio Oct. 25, 2002) (recognizing that personal jurisdiction
cannot be asserted based on a passive website); Rose v. Cont’l Aktiengesellschaft (AG), No.
99-3794, 2001 U.S. Dist. LEXIS 2354, at *1-5 (E.D. Pa. Mar. 2, 2001) (recognizing that in a
products liability case where a German-manufactured tire caused an injury in Germany,
general personal jurisdiction will not be upheld in Pennsylvania based on a website that is
maintained merely for informational purposes); Amazon.com, Inc. v. Kalaydjian, No. C001740R, 2001 U.S. Dist.LEXIS 4924, at *16-17 (W.D. Wash. Feb. 20, 2001) (acknowledging
that the AmazonTan.com website is a “text-book example of a passive site” because it
provides information about tanning products and instructs customers how to purchase the
products through the mail; the website does not allow customers to purchase products online
or interact with the owner); Metallic Ceramic Coatings, Inc. v. Precision Prods., Inc., No. 00CV-4941, 2001 U.S. Dist. LEXIS 1224, at *10 (E.D. Pa. Feb. 13, 2001) (holding that a
passive website that advertises a product line and provides a toll-free telephone number is
not sufficient to confer personal jurisdiction). In re Magnetic Audiotape Antitrust Litig., 171
F. Supp. 2d 179, 189 (S.D.N.Y. 2001) (holding that the minimum contact analysis is not
satisfied for personal jurisdiction based on a non-interactive website that is written in the
English language and maintained on a server within a foreign country), aff’d in part, No. 99
Civ. 1580 (LMM), 2002 U.S. Dist. LEXIS 8362 (S.D.N.Y. May 9,2002), and rev’d in part,
Tex. Int’l Magnetics, Inc. v. BASF Aktien gesellsch aft, No. 01-7307, 2002 U.S. App.
LEXIS 3853 (2d Cir. Mar. 12, 2002).

↵109 ASL Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 709 (4th Cir.2002).

↵110 Deleo v. Swirsky, No. 00 C 6917, 2001 U.S. Dist. LEXIS 8465, at *6-7, 12 (N.D. Ill.
June 19, 2001) (conferring personal jurisdiction over defendant in a shareholder derivative
suit because defendant’s website actively solicited shareholders from the forum state, and
therefore, pursuant to the state’s long-arm statute qualified as transacting business within the
state as well as doing business within the state).

↵111 No. 00-CV-12524-MEL, 2001 U.S. Dist. LEXIS 1310, at *4 (D. Mass. Jan. 2, 2001).
“Spam” is defined by the Internet industry as “unwanted e-mail that is often sent en masse to
e-mail addresses for commercial purposes.” Remsburg v. Docusearch, Inc., No. 00-211-B,
2002 U.S. Dist. LEXIS 1940 (D.N.H. Jan. 31, 2002) (upholding personal jurisdiction based
on the New Hampshire long-arm statute where the requirement of transacting any business
within the state is coextensive with a constitutional due process analysis). In Remsburg, the
defendant operated an Internet-based investigation and information service. Id. at *2. A
resident e-mailed several requests to the defendant and paid for services to locate a third
party whom he later murdered. Id. at *3-6. The court held that when the defendant accepted
the requests and fulfilled them by providing the necessary information, it knew it was selling
information to a New Hampshire resident, and therefore, had established a business
relationship in New Hampshire. Id. at *16.

↵112 Michael Geist, Is There a There There? Toward Greater Certainty for Internet
Jurisdiction, 16 Berkeley Tech. L.J. 1345, 1354 (2001) (breaking the issue of Internet
jurisdiction into three “layers”: adjudicatory jurisdiction, choice of law, and enforcement of
judgments); see also Henry H. Perritt, Jr., Will the Judgment-Proof Own Cyberspace?, 32
INT’L LAW. 1121, 1123 (1998) (“The real problem is turning a judgment supported by
jurisdiction into meaningful economic relief. The problem is not the adaptability of
International Shoe-obtaining jurisdiction in a theoretical sense. The problem is obtaining
meaningful relief.”).

↵113 International Shoe Co. v. Washington 326 U.S. 310 (1945). Burnham v. Superior
Court, 495 U.S. 604 (1990);

↵114 International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)
(the reasonableness standard is couched in terms of “minimum contacts”). Morguard
Investments Ltd. v. De Savoye [1990] 3 S.C.R. 1077 (real and substantial connection.)

↵115 UEJF et LICRA v. Yahoo! Inc. et Yahoo France, Tribunal De Grande Instance De
Paris, N° RG: 00/05308, May 22, 2000. Jim Hu and Evan Hansen, Yahoo Auction Case May
Reveal Borders Of Cyberspace, CNET News.com (11 August 2000), online: C-Net News
<http://news.cnet.com/news/0-1005-200-2495751.html> (“A warning to Internet companies
doing business abroad: Local governments may have the power to impose restrictions even if
your servers are in the United States.”); Kristi Essick, Yahoo Told to Block Nazi Goods From
French, The Standard (20 November 2000), online, The Standard
http://www.thestandard.com/article/article_print/0,1153,20320,00.html> (“A French judge
upholds his previous decision, ordering the company to install a filtering system for its
auction site. The case raises questions about the jurisdiction of national courts over
international Net companies.”); Brian Love, Can Neo-Nazis Yahoo! in France?, Reuters (10
August 2000), online: ZDNet News
<http://www.zdnet.com/zdnn/stories/news/0,4586,2614196,00.html> (“French law prohibits
the sale or exhibit of objects with racist overtones and none are directly available or visible
on the Yahoo.fr site.”) Kelly v. Ariba Soft, 280 F.3d 934 (9th Cir. 2002) (collection of
images by search engine to display in search results was fair use, but linking to the images
on the searched site was illegal); Yahoo!, Inc. v. La Ligue Contre le Racisme &
L’Antisemitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001) (noting French criminal conviction
of Yahoo! for permitting members to auction Nazi paraphernalia, but refusing to enforce the
French judgment on First Amendment grounds);

↵116 LICRA v. Yahoo!, supra, also see Yahoo! ordered to bar French from Nazi sites,
Reuters (20 November 2000), online: ZDNet UK http://www.zdnet.co.uk/news/2000/46/ns19192.htmlFrench Auschwitz Group Sues Yahoo, REUTERS (Jan. 22, 2001), available at
http://www.zdnet.com/zdnn/stories/news/0,4586,2677090,00.html?chkpt=zdnnstop.

↵117 LICRA v. Yahoo! Inc., County Court of Paris, N° RG : 00/05308, May 2000 (Interim
Court Order), online: Internet Societal Task Force
<http://www.istf.org/archive/yahoo_france.html>

↵118 Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F.Supp. 2d 1181
(N.D. Ca. 2001).

↵119 Panavision Int’l., L.P. v. Toeppen, 141 F.3d 1316, 1319–20 (9th Cir. 1998).

↵120 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.9 (1984).

↵121 YAHOO INC V LA LIGUE CONTRE LE 9th Circuit No. 0117424p - 08/23/2004.

↵122 Quill Corp. v. North Dakota, 504 U.S. 298, 308 (1992) (“So long as a commercial
actor’s efforts are ‘purposefully directed’ toward residents of another State, we have
consistently rejected the notion that an absence of physical contacts can defeat personal
jurisdiction there.”)

↵123 David R. Johnson and David G. Post, Law And Borders--The Rise of Law in
Cyberspace, Stan. L. Rev. 1367 (1996).

↵124 Paul Meller, European Justices Pass Stiff E-Commerce Law, IDG (30 November
2000), online: IDG <http://www.idg.net/ic_300048_1794_9-10000.html “The law, dubbed
the Brussels I regulation, will come into effect next March. It states that where there is a
dispute between a consumer in one EU country and an online retailer in another, the
consumer will be able to sue in a court in his own country. The justice ministers and the
European Commission, which drafted the regulation, argue that this focus on the consumer is
essential to help get electronic commerce off the ground in Europe. “A lack of consumer
confidence is the main thing holding up the development of e-commerce here,” said
Leonello Gabrici, spokesman on judicial matters for the Commission. He said that by
handing jurisdiction of such cross-border disputes to the courts in the consumers’ country,
the regulation will be encouraging consumers to purchase online.”

↵125 Rudder v. Microsoft Corporation (1999), 2 C.P.R. (4th) 474 (Ont. S.C.J.).

↵126 Bancroft & Masters Inc. v. Augusta National Inc., 223 F.3d 1082, 1087 (9th Cir.2000);
American Information Corp. v. American Infometrics, Inc., 139 F.Supp.2d 696 D.Md.,2001
(ruling that “[a] company’s sales activities focusing generally on customers located
throughout the United States and Canada without focusing on and targeting the forum state
do not yield personal jurisdiction.”)

↵127 Subafilms, Ltd. v. MGM-Pathe Communications Co. , 24 F.3d 1088, 1097.
RESTATEMENT (SECOND) OF CONFLICTS OF LAWS §§ 6, 145, 222 (1971)
(articulating the “most significant relationship” test and listing the choice of law principles
according to which courts should determine the place with the most significant relationship
to the dispute).

↵128 153 F.3d 82 (2d Cir. 2000). (following “law of the state with ‘the most significant
relationship’ to the property and the parties”.

↵129 Allarcom Pay Television Ltd. v. General Instrument Corp., 69 F.3d 381 (9th Cir. 1995)
(ruling that a public performance occurs at the place or receipt of satellite transmissions);
National Football League v. TVRadioNow Corp., 53 U.S.P.Q.2d (BNA) 1831, 1834–35
(W.D. Pa. 2000) (holding that where defendants originated the streaming of copyrighted
programming over the Internet from a website in Canada, public performances occurred in
the United States because users in the United States could access the website and receive and
view the defendants’ streaming of the copyrighted material). Antony L. Ryan, Principles of
Forum Selection, 103 W. VA. L. REV.167, 192 (2000) (providing various examples and
noting that, at least in the domestic context, there is a “marked tendency” for courts to
choose to apply their own law).

↵130 Jane C. Ginsburg, Copyright Without Borders? Choice of Forum and Choice of Law
for Copyright Infringement in Cyberspace, 15 CARDOZO ARTS & ENT. L.J. 153, 173
(1997) (“[T]he court should either apply the law of the place of the server or of the
defendant’s domicile”).

↵131 Gutnick (2002) 194 ALR 433, 445, 447 (Gleeson CJ, McHugh, Gummow and Hayne
JJ), 448 (Gaudron J), 475 (Kirby J), 479 (Callinan J).

↵132 315 F 3d 256 (4th Cir, 2003) (‘Young’). See also ALS Scan Inc v Digital Service
Consultants Inc, 293 F 3d 707 (4th Cir, 2002) (‘ALS Scan’). Cf Northwest Healthcare
Alliance Inc v Healthgrades.com Inc (Unreported, United States Court of Appeals for the
Ninth Circuit, Judges Hall, Tashima and Rawlinson, 7 October 2002). On 28 April 2003 the
United States Supreme Court refused to hear an appeal: Healthgrades.com Inc v Northwest
Healthcare Alliance Inc, 155 L Ed 2d 826 (2003). Regie National des Usines Renault SA v
Zhang (2002) 187 ALR 1, 436–7 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ):
in an action for a tort with a foreign element, the choice of law rule to be applied is that
matters of substance are governed by the law of the place of the commission of the tort (lex
loci delicti).

↵133 Oasis Corp. v. Judd, 132 F. Supp. 2d 612, 621 (S.D. Ohio 2001). at 622 (noting that the
Zippo sliding scale does not apply to a noncommercial website because no purposeful
availment exists).

↵134 Revell v. Lidov, 317 F.3d 467, 475–76 (N.D. Tex. 2001) (applying the effects test
analysis to illustrate that the defendants had no knowledge where the plaintiff resided, and
therefore, could not use an Internet bulletin board to intentionally direct any activity toward
the plaintiff in the forum state).

↵135 Young v. New Haven Advocate, 315 F.3d 256, 263 (4th Cir. 2002).

↵136 N.W. Healthcare Alliance, Inc. v. Healthgrades.com, No. 01-35648, 2002 U.S. App.
LEXIS 21131, at *5-6 (9th Cir. July 12, 2002) (using the effects test to find that personal
jurisdiction did exist based on a website that rated home health care providers, including the
plaintiff).

↵137 Kovacs v. Jim, No. 02 C 7020, 2002 U.S. Dist. LEXIS 21787, at *6 (N.D. Ill. Nov. 8,
2002) (stating that personal jurisdiction does not exist over a defendant who does little more
than make information available to interested parties); Medinah Mining, Inc. v. Amunategui,
237 F. Supp. 2d 1132, 1136-37 (D. Nev.2002) (holding that personal jurisdiction does not
exist over a defendant that posts allegedly defamatory information on a passive website).

↵138 Mcquarie Bank Ltd. v. Berg, [1999] NSWSC 625 (New South Wales Supreme Ct.,
June 2, 1999). Gutnick v. Dow Jones & Co., Inc. [2001] VSC 305 (Supreme Ct. of Victoria,
Aug. 28, 2001) (asserting jurisdiction of American publisher for publishing on its website an
article allegedly defaming an Australian citizen).

↵139 In re Moshe D. (Court of Cassation, Italy, Jan. 10, 2001), English translation available
at http://www.cdt.org/speech/international/001227italiandecision.pdf.

↵140 Australian Faces Trial for Holocaust Denial, Reuters (Dec. 14, 2000), available at
http://www.zdnet.com.au/news/dailynews/story/0,2000020833,20107617,00.htm

↵141 Citron v. Zündel, Canadian Hum. Rts. Comm (Jan. 18, 2002), available
athttp://www.chrt-tcdp.gc.ca/decisions/docs/citron-e.htm