International cyber-jurisdiction: a comparative analysis

(2) In another case, a British court held a British subject liable for posting photographs on an American web server considered obscene in Britain but not in the United States. (3) Still another, an American court held the president of a gambling company organized and headquartered in Antigua liable for soliciting and accepting bets from Americans over the Internet. (4)

The challenge in determining if and when courts have jurisdiction over activities conducted on the Internet would not be great if the Internet were confined to a single geographical area, or if it were neatly divisible along territorial boundaries into distinct local networks. By its nature, however, the Internet is international: it disrespects local and national jurisdiction. The challenge, therefore, is to create rules that work smoothly across local, national, and international boundaries.

In devising new jurisdictional rules for cyberspace, judges, legislators, and treaty draftsmen are using analogy–the tried-and-true tool of legal reasoning–to modify existing rules to fit this new paradigm. Reasoning by analogy can have its problems, however, especially when differences in context are not taken into account. (5) Nevertheless, analogy is the reasoning tool of choice for creating new law, and existing analogous rules have to be considered in any description of cyber-jurisdiction as it currently stands. (6)

Jurisdiction, of course, defines three kinds of power: the power to prescribe, the power to adjudicate, and the power to enforce. (7) The first of these relates principally to the power of a government to establish and prescribe criminal and regulatory sanctions

Although prescriptive jurisdiction is exercised by legislatures and executive agencies (through the making of laws, rules, and regulations), it is most commonly challenged and tested in the courts. Similarly, legislatures and executive agencies can exercise adjudicative jurisdiction and enforcement jurisdiction (through hearings, arrests, and the like), but once again the scope of this power is usually challenged and tested in the courts. That being so, the discussion here will examine how the courts have defined and treated jurisdiction and, in particular, international jurisdiction in the realm of cyberspace.

The discussion begins with an examination of the traditional bases of international criminal and regulatory jurisdiction, with examples of how this jurisdiction is exercised in cyberspace. The discussion continues with an examination of international civil jurisdiction, followed by an examination of the jurisdiction to enforce, again with examples of how each of these sorts of jurisdiction applies in cyberspace. It concludes with consideration of the jurisdictional problems, or issues, that have arisen with the advent of the Internet.

I. INTERNATIONAL CRIMINAL AND REGULATORY JURISDICTION

In order for a national court to adjudicate criminal and regulatory sanctions internationally, there must be some connection, or nexus, between the regulating nation (the forum) and the crime or criminal. This, as we shall see, is true whether the regulated conduct takes place in the physical world or in cyberspace.

Four nexuses have been invoked by courts to justify their exercise of jurisdiction. (10)

1. The territoriality nexus holds that the place where an offense is committed–in whole or in part–determines jurisdiction. (11)

2. The nationality nexus looks to the nationality or national character of the person committing the offense to establish jurisdiction. (12)

3. The protective nexus provides for jurisdiction when a national or international interest of the forum is injured by the offender. (13)

4. The universality nexus holds that a court has jurisdiction over certain offenses that are recognized by the community of nations as being of universal concern, including piracy, the slave trade, attacks on or the hijacking of aircraft, genocide, war crimes, and crimes against humanity. (14)

It is not enough that these nexuses exist

* the extent to which the criminal or regulated activity takes place, or has a substantial, direct, and foreseeable effect, within the territory of the forum

* the extent to which the defendant or the injured party has a “genuine link” (i.e., an ongoing and real relationship) with the forum

* the character of the activity (that is, its importance to the forum, whether other countries regulate it, and the extent to which countries generally regard it as appropriate for regulation)

* the extent to which justified expectations will be protected or harmed by the regulation

* the extent to which another country has an interest in regulating the activity and the likelihood of a conflict with those regulations, (20)

* the importance of the regulation to the international community, (21) and

* the extent to which the regulation is consistent with the traditions of the international community. (22)

There is one final preliminary matter to note before we look at examples of cases in which the different nexuses have been used. That is: the nexuses are not mutually exclusive. Courts routinely rely on more than one in assuming jurisdiction. (23)

A. The Territoriality Nexus

The most basic and common jurisdictional nexus is the territoriality nexus. (24) Originally, it was based on the idea that a “territorial sovereign has the strongest interest, the greatest facilities, and the most powerful instruments for repressing crimes committed … in his territory.” (25) In other words, crime traditionally was a local matter that was best punished locally.

But crime is no longer exclusively a local concern. As the Harvard Law School faculty observed in 1935, in a statement that seems even more relevant today, “with the increasing facility of communication and transportation, the opportunities for committing crimes whose constituent elements take place in more than one State have grown apace.” (26)

Today, accordingly, the territoriality nexus allows courts to assume jurisdiction over crimes and regulatory offenses committed or consummated “in part” within the forum’s territory. (27) That is, jurisdiction can exist whenever “any essential element of the crime is accomplished” within the forum’s territory. (28)

This development has created two subcategories of the territoriality nexus: the commencement nexus and the effects nexus. The first gives courts jurisdiction over crimes undertaken within the forum’s territory but completed or consummated abroad. (29) The second allows courts to assert jurisdiction over crimes planned and plotted abroad, the effects of which take place locally. (30)

The effects nexus has become especially popular with U.S. courts as a mechanism for extending jurisdiction extraterritorially over foreign actors. (31) It is important to recognize, however, that it is really only one aspect of the territoriality nexus. That is, the territoriality nexus can be invoked whenever any “element” of a crime occurs within a forum’s territory–from the planning and commencement of a crime to its final effect–and it is not limited to crimes that take place entirely within one territory. (32) Accordingly, in analyzing cases that involve conduct in cyberspace, it is especially important to consider every contact a defendant has with the forum territory and not just those that have effects there.

The importance of looking at all the elements that make up a criminal or regulatory offense is illustrated by the case of Crown v. Waddon. (33) That case involved an attempt by the defendant to escape the application of Britain’s Obscene Publications Act at 1959, which imposes criminal sanctions on offenders who publish obscene materials in the United Kingdom. To avoid liability, Waddon posted pornographic materials on a server located in the United States. A British court, however, found that publication had occurred in the United Kingdom. It did so, the court said, because the defendant transmitted the pornographic materials from his computer in the United Kingdom to the U.S. server, and those materials were downloaded from the U.S. server for viewing on a computer in the United Kingdom.

Similarly, a New York court assumed jurisdiction in People v. World Interactive Gaming Corp., (34) which involved a New York-based (35) company’s attempt to offer gambling service contrary to New York law by setting up an Antigua-based subsidiary and creating an online service hosted on a server in Antigua. Using much the same rationale as the British court in Crown v. Waddon, the New York Court held that the gambler’s “act of entering the bet and transmitting the information from New York via the Internet” meant that there had been “gambling activity within New York state” in violation of state law. (36) Moreover, aside from the use of a subsidiary (which the New York-based parent company wholly dominated) and a Web server in Antigua, the defendant “operated its entire business from its corporate headquarters in Bohemia, New York.” (37)

Territoriality was also a jurisdictional nexus for a German court in a suit against the head of CompuServe’s German subsidiary for distributing child pornography. Neither CompuServe, an American Internet service provider, nor its officers were tried because CompuServe was not doing business in Germany. Instead, the court found that it had jurisdiction over Felix Somm, a Swiss national, because he was domiciled in Germany, because he was the head of CompuServe’s wholly owned German subsidiary, and because the pornography was posted on the subsidiary’s web servers located in Germany. Finding that it had jurisdiction, the court convicted Somm. (38)

The German Federal Supreme Court reached a similar conclusion in a suit against Frederick Toben, an Australian, who was prosecuted for violating a post-World War II German law outlawing the Nazi Party and forbidding any glorification of it. (39) Prior to 1999, Toben sent leaflets through the mails to Germany denying that the Nazis had ever perpetrated the Holocaust. He also posted the same information on an Australian Internet Web site. (40) On visiting Germany in April 1999, Toben was arrested and charged with inciting racial hatred and “defaming a segment of the national population.” A trial court found Toben guilty of sending leaflets by mail to Germany. It dismissed the charges of posting materials on the Internet, however, holding that German law could not be applied to content on a foreign Web site. Both Toben and the prosecution appealed. On appeal, the German Federal Supreme Court (the Bundesgerichtshaf) not only upheld Toben’s conviction for mailing leaflets to Germany, it reversed the trial court’s finding that Germany’s anti-Nazi law does not apply to the Internet. The fact that material glorifying the Nazi Party–material that Germany considers highly offensive to its national interest–could be accessed from within Germany, was sufficient, the Federal Supreme Court held, to give German courts jurisdiction. (41) In other words, there was a sufficient nexus with German territory for the court to hear the case.

B. The Nationality Nexus

The right of a country to exercise jurisdiction based on the nationality of a defendant is universally recognized. A country is assumed to have nearly unlimited control of its nationals, so its “treatment of its nationals is not ordinarily a matter of concern to other States or to international law.” (42)

In the context of cyberspace, however, the courts have yet to directly rely on nationality as a nexus for asserting jurisdiction. Nationality, nevertheless, may have been an important factor in several cases. In the Somm case, for example, CompuServe’s German subsidiary was incorporated in Germany and subject to German law. (43) In World Interactive Gaming, the defendant was headquartered in New York, incorporated in Delaware, and therefore a U.S. national company. As a consequence, the company’s argument, that its wholly dominated Antiguan subsidiary was a foreign entity exempt from local jurisdiction, was rejected. (44)

Nationality was likely used as a jurisdictional nexus in the trial of Jay Cohen in United States v. Galaxy Sports. (45) Cohen, the president of World Sports Exchange (WSE), an online gambling organization headquartered in Antigua, was convicted of soliciting and accepting bets from Americans via WSE’s Internet Web site. The federal District Court for the Southern District of New York refused to hear arguments that the court lacked jurisdiction. (46) Nevertheless, because Cohen was an American residing in the United States, the court seems to have concluded that he was subject to the court’s jurisdiction based on his nationality. (47)

C. The Protective Nexus

Continental European courts, as well as courts in other civil law countries, regularly rely on the protective nexus (48) in assuming jurisdiction over foreign defendants. By comparison, U.S. courts and courts in common law countries generally look for a territoriality nexus, and especially the effects nexus, which is one of its subordinate forms. (49) This is due to differing definitions of the protective nexus. In common law countries, the protective nexus is limited to “acts done abroad which affect the security of the state….” (50) In civil law countries, however, the nexus is defined more expansively to include nearly all actions that injure the forum and “which concern it more than they concern other states….” (51)

As is the case for the nationality nexus, the courts have yet to directly identify the protective nexus as a source they need to rely on to exercise jurisdiction. Even so, the protective nexus could properly have been asserted in several cyberspace cases.

In the Toben case (the case involving the Australian charged with inciting racial hatred for posting materials on a web site that denied the existence of the Holocaust) the German Federal Supreme Court could have assumed jurisdiction on the basis of a protective nexus. It could have done so because of Germany’s avowed interest in protecting a substantial “segment of the national population” from being defamed. (52)

Furthermore, in the Galaxy Sports case, (53) which involved the New York-based company that operated an online gambling service through an Antigua-based subsidiary, the trial court, in addition to asserting jurisdiction based on territoriality, may also have relied on a protective nexus. The statute the defendant was charged with violating was the federal Wire Wager Act. That act, which imposes criminal liability on anyone who “knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers,” (54) is based on a substantial national interest in “suppress[ing] … organized gambling activities.” (55) That being so, the court’s assumption of jurisdiction, based on a protective nexus, would be logical. (56)

D. The Universality Nexus

Ordinarily, international law only applies to relations between nations. It is, first and foremost, “inter”-national law, law between nations. As such, it normally does not establish regulations or criminal sanctions that apply directly to individuals. The exception to this rule is for the small category of crimes that are covered by the universality nexus

Because these crimes are established by international law (delicta juris gentium), and not national law, any court with competence to apply international law has jurisdiction to hear them. (57) There is no requirement that the crime be related to the forum or its territory. The only requirement is that the forum must properly have the defendant in its custody. (58)

The crimes covered by the universality nexus include, at least: piracy, the slave trade, attacks on or the hijacking of aircraft, war crimes, genocide, and crimes against humanity. (59) This list, however, has been expanding since the end of the World War II. (60) For example, the 1996 Draft Code of Crimes Against the Peace and Security of Mankind prepared by the International Law Commission includes an extensive list of acts that make up crimes against humanity, including murder, extermination, enslavement, torture, persecution (on political, racial, religious, or ethnic grounds), rape, enforced prostitution, and sexual abuse “when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group,” (61) and a lengthy list of war crimes, including murder, torture, and terrorism. (62)

To date there have been no cases in which the universality nexus has been applied to criminal conduct in cyberspace. There has been a great deal of interest, however, in the topic, especially since the terrorist attacks on September 11, 2001, and the U.S. government’s assertion of a global war on international terrorism. (63) The Federal Bureau of Investigation, for example, is developing a tracking program named Magic Lantern in part to ferret out online terrorists

E. The Effect of Multiple Criminal and Regulatory Nexuses

The decisions in the Waddon, CompuServe, World Interactive Gaming, Galaxy Sports, and Toben cases highlight a dilemma for governments trying to control crime on the Internet. The existence of multiple and overlapping criminal regulatory nexuses give courts in many countries overlapping and conflicting jurisdictions. This puts online entrepreneurs at risk for committing a crime somewhere. This risk could adversely impact the growth of the global economy (67) and Internet commerce that governments everywhere are trying to promote. (68)

The conflict is especially apparent in the multiple and overlapping regulations that apply to online gambling. At least three Australian states have adopted laws legalizing, regulating, and taxing Internet gambling. (69) In Europe, several countries allow gambling operators to offer their services online, but only to residents of their own countries. (70) In the United Kingdom, the Gaming Board has stated that measures to outlaw online gambling would be futile and it has recommended that the government adopt legislation legalizing Internet gambling sites. (71) In the United States, the Wire Wager Act makes Internet gambling illegal except when the state where the gambler resides and the state where the gambling facility is located have both made it legal. (72)

It seems clear that conflict and confusion are the order of the day. Indeed, following the conviction of Jay Cohen in the Galaxy Sports case, a Costa Rican-based Internet gambling site, Betmaker.com, owned by U.S. nationals, sold out to Sportingbet.com, an online bookmaker located in the United Kingdom, for about fifteen million pounds. The sale was said to have progressed quickly because of concerns by Betmaker’s U.S. owners that they could face prosecution in the United States. (73) Following the sale, Mark Blandford, the managing director of the U.K. bookmaker, said that he believed that his ownership of Betmaker.com, which targets the U.S. market, would not leave him open to prosecution. “I am wholly confident and that is not a view I have come to lightly,” he said. “It’s based on legal advice that the U.S. only has jurisdiction over its own citizens on what is actually taking place in the U.S.” (74) Blandford should not be surprised, however, if a U.S. court chooses to assume jurisdiction on the basis of a territorial nexus (which only requires that some element of the crime take place within the forum’s territory), the nexus that the Galaxy Sports trial court seems to have relied upon. Nor should he be surprised if a U.S. court chooses to find a protective nexus (based on the country’s declared interest, set out in the Wire Wager Act, of suppressing illegal gambling), which the courts in both Galaxy Sports and Toben could have relied upon.

The solution, of course, would be for the international community to adopt a treaty harmonizing criminal jurisdiction in cyberspace. Indeed, on November 23, 2001, the Council of Europe (75) promulgated (76) for ratification its Convention on Cybercrime. (77) The treaty, however, is not especially satisfactory in resolving jurisdictional conflicts. It grants courts in signatory states jurisdiction over offenses committed “in its territory” (78) or by “one of its nationals, if the offence is punishable under criminal law where it was committed or if the offence is committed outside the territorial jurisdiction of any State,” (79) but it does not exclude those courts from using alternative jurisdictional nexuses. Indeed, it provides that “[t]his Convention does not exclude any criminal jurisdiction exercised in accordance with domestic law.” (80) As a consequence, rather than clearing up confusion about conflicting jurisdictional claims, it perpetuates and promotes them.

II. INTERNATIONAL CIVIL JURISDICTION

In order for a national court to exercise jurisdiction over international civil (noncriminal) disputes, there must be a nexus between the persons or property involved and the forum. That is, a court must have either in personam jurisdiction or in rem jurisdiction. (81)

A. Jurisdiction over Persons

In personam jurisdiction is the power of a court to hear disputes involving natural (82) and juridical (83) persons. The universally recognized basis for a court to assume in personam jurisdiction is consent. This may be actual or implied.

1. Actual Consent

A person may give actual consent to a court’s jurisdiction by incorporating or otherwise registering to do business in a forum, or by appearing before a court. Actual consent may also be given in a forum selection or choice-of-law clause. (84) For example, Netscape Communications includes the following forum selection and choice of law provisions on its Web site:

This web site (excluding linked sites) is controlled by Netscape from its
offices within the state of California, United States of America. It can be
accessed from all 50 states, as well as from other countries around the
world. As each of these places has laws that may differ from those of
California, by accessing this web site both you and Netscape agree that the
statutes and laws of the state of California, without regard to the
conflicts of laws principles thereof, will apply to all matters relating to
use of this web site.
You and Netscape also agree and hereby submit to the exclusive personal
jurisdiction and venue of the Superior Court of Santa Clara County and the
United States District Court for the Northern District of California with
respect to such matters. Netscape makes no representation that materials on
this web site are appropriate or available for use in other locations, and
accessing them from territories where their contents are illegal is
prohibited. Those who choose to access this site from other locations do so
on their own initiative and are responsible for compliance with local laws.
(85)

2. Implied Consent in Common Law Countries

The criteria for determining if a party has impliedly consented to a court’s jurisdiction differs between common law and civil law countries. The two approaches are similar enough, however, that delegations from both groups are currently working, under the auspices of The Hague Conference on Private International Law, on a draft international convention that would harmonize the law in the area.

In common law countries, a person’s consent to a court’s assumption of jurisdiction can be implied from the person (1) having the nationality of the forum, (2) being domiciled in the forum, (3) having general contacts with the forum, or (4) having specific contacts with the forum. The first two of these implied forms of consent are based on the physical presence of a person and they have been recognized by the common law since ancient times. (86) The last two, which are “based upon a kind of `virtual’ presence,” (87) are a more recent creation.

The establishment of implied consent based on a person’s “virtual” contacts with a forum was brought about by legal and technological developments that occurred at the beginning of the twentieth century. At that time, corporations–“virtual” entities that lack a physical presence–became commonplace, (88) as did stocks, bonds, and other “virtual” properties. Likewise, automobiles and airplanes made populations mobile and more likely to be absent from their domiciles. (89)

In response to these developments, the U.S. Supreme Court, in its landmark International Shoe Co. v. Washington opinion, (90) recognized that implied consensual jurisdiction could be based on contacts other than nationality and domicile. As long as a person has sufficient contacts with a forum, the Court said, the exercise of jurisdiction by a court in that forum would not offend “traditional notions of fair play and substantial justice.” (91)

From the Supreme Court’s opinion in International Shoe, two modern forms of implied consensual jurisdiction have evolved. (92) One is based on “general contacts” with the forum. That is, the contacts with the forum must be systematic and continuous. (93) In such a case, a court may exercise general jurisdiction over a person, even when the proceeding is unrelated to the person’s specific contacts with the forum. (94) For example, if a company maintains a branch office in a forum, a court there will have jurisdiction over the company even if the dispute has nothing to do with the branch office.

A second modern form of implied consensual jurisdiction is based on “specific contacts” with the forum. In this circumstance, a court will have jurisdiction only if the facts giving rise to the proceeding arise out of the person’s specific contacts with the forum. The contacts may be isolated or occasional, but they must be directed at the forum. (95) They also must be more than “minimum contacts” such that the person could anticipate having to participate in the particular type of proceeding within the forum. (96) Finally, the assumption of jurisdiction must be reasonable

The unilateral activity of those who claim some relationship with a
nonresident defendant cannot satisfy the requirement of contact with the
forum State. The application of that rule will vary with the quality and
nature of the defendant’s activity, but it is essential in each case that
there be some act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State, thus invoking
the benefits and protections of its laws.” (99)

For example, a court would have jurisdiction over a foreign driver involved in an automobile accident within the forum, even if the driver had no other contacts with the forum. It would be enough that the driver availed him- or herself of the privilege of driving an automobile in the forum. By comparison, a court would not have jurisdiction over the manufacturer of a defective car if someone other than the manufacturer or its agents brought the car into the forum state–the factual situation in Hanson v. Denckla–because the manufacturer would not have availed itself of doing business in the state.

In the last few years, U.S. courts have extended the reach of their implied consensual jurisdiction based on specific contacts to persons whose contacts with the forum are confined to transactions made over the Internet. The leading Internet case is Zippo Manufacturing Co. v. Zippo Dot Com, Inc. (100) In Zippo, which involved a dispute over the ownership of an Internet domain name, the District Court for the Western District of Pennsylvania applied the criteria set out in International Shoe to determine if the defendant had “specific contacts” with Pennsylvania. It reformulated the criteria as follows:

A three-pronged test has emerged for determining whether the exercise of
specific personal jurisdiction over a non-resident defendant is
appropriate: (1) the defendant must have sufficient “minimum contacts” with
the forum state, (2) the claim asserted against the defendant must arise
out of those contacts, and (3) the exercise of jurisdiction must be
reasonable. (101)

In applying this test, the Zippo court observed that the proper exercise of personal jurisdiction “is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.” (102) After examining the decisions in other Internet cases, it concluded that commercial activity on the Internet can be arranged along a sliding scale.

At one end of the spectrum are situations where a defendant clearly does
business over the Internet. If the defendant enters into contracts with
residents of a foreign jurisdiction that involve the knowing and repeated
transmission of computer files over the Internet, personal jurisdiction is
proper…. At the opposite end are situations where a defendant has simply
posted information on an Internet Web site which is accessible to users in
foreign jurisdictions. A passive Web site that does little more than make
information available to those who are interested in it is not grounds for
the exercise [of] personal jurisdiction…. The middle ground is occupied
by interactive Web sites where a user can exchange information with the
host computer. In these cases, 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…. (103)

In other words, there are three sorts of online activity that will determine whether a person has impliedly consented to the jurisdiction of a foreign forum:

1. A person intentionally transmits files over the Internet to a resident within the forum–consent to the forum’s jurisdiction will be implied.

2. A person creates an interactive Web site that exchanges information with a resident within the forum–consent to the forum’s jurisdiction will arise if the exchange is commercial and more than minimal.

3. A person creates a passive Web site that only provides information about a person–no consent to the jurisdiction will be implied.

Examples of each of these situations can be found in Zippo and in cases adopting and applying its three-part test.

In the CompuServe, Inc. v. Patterson (104) case, for instance, the Sixth Circuit Court of Appeals found that it had jurisdiction because the defendant intentionally sent information directed to the forum. In this case, Patterson, a Texas resident, entered into a contract to distribute trademarked shareware through CompuServe’s Internet server located in Ohio and then electronically uploaded thirty-two master software files to the server. When CompuServe later began to market a product that Patterson believed to be similar to his own, he threatened to sue for trademark infringement. CompuServe brought an action in Ohio seeking a declaratory judgment that it had not infringed Patterson’s trademarks. Patterson asked that the case be dismissed, contending that he had no contact with Ohio. On appeal, the Sixth Circuit denied Patterson’s request for dismissal, reasoning that Patterson had sufficient contact with Ohio because he had intentionally directed his business activities toward that state. He had knowingly entered into a contract with an Ohio resident, the Sixth Circuit said, and then deliberately and repeatedly transmitted files to Ohio. (105)

In the Zippo case itself, the court held that it was “a doing business over the Internet’ case in the line of CompuServe.” The court said:

We are being asked to determine whether [the defendant] Dot Com’sconducting of electronic commerce with Pennsylvania residents constitutes the purposeful availment of doing business in Pennsylvania. We conclude
that it does. Dot Com has contracted with approximately 3,000 individuals
and seven Internet access providers in Pennsylvania. The intended object of
these transactions has been the downloading of the electronic messages that form the basis of this suit in Pennsylvania. (106)

Several courts have examined the extent of commercial activity on interactive Web sites in determining if personal jurisdiction existed. In Euromarket Designs Inc. v. Crate & Barrel Ltd., (107) a federal district court in Illinois held that it had personal jurisdiction over an Irish retailer using the Crate & Barrel name. It declined to assert general consent jurisdiction, but found specific consent from the high level of interactivity on the defendant’s Web site, which included an online catalog that allowed consumers to place orders online. Because this activity solicited all users, including Illinois residents, to buy goods, the court concluded that defendant was doing sufficient business over the Internet to establish jurisdiction in Illinois. (108)

By comparison, in Dagesse v. Plant Hotel NV, (109) the federal District Court for New Hampshire declined to find jurisdiction. In that case, Dagesse brought a personal injury suit against Plant Hotel, an Aruban company, after being injured in a fall at a resort owned by Plant Hotel in Aruba. Dagesse claimed the Plant Hotel’s interactive Web site, which allowed for online reservations and listed a 1-800 telephone number, established sufficient contacts with New Hampshire for the court to assume jurisdiction. The court disagreed. It held that the contacts were not the factual and legal cause of Dagesse’s injuries and that the defendant did not deliberately use its site for commercial transactions with New Hampshire residents. (110)

In Soma Medical International v. Standard Chartered Bank, (111) the Tenth Circuit Court of Appeals, affirming the Zippo test, found that the defendant’s maintenance of a purely passive Web site did not give rise to personal jurisdiction in Utah. (112) The same result, based on similar facts, has been reached in Nutrition Physiology Corp. v. Enviros Ltd., (113) Bedrejo v. Triple E Canada, Ltd., (114) Cybersell, Inc. v. Cybersell, Inc., (115) Copperfield v. Cogedipresse, (116) and in Weber v. Jolly Hotels. (117)

The criteria used in Zippo were recently adopted in Canada in Braintech, Inc. v. Kostiuk. (118) In that case, the British Columbia Court of Appeal found that a Texas court did not have jurisdiction to award a judgment against a Canadian company based solely on the fact that the company had a passive Web site accessible in Texas. (119)

Currently, the courts of other common law countries have not addressed the exercise of personal jurisdiction in civil proceedings based on transactions conducted on the Internet. However, the jurisdictional rules followed in all common law countries are essentially the same, so it is likely that they will–like the Canadians–adopt the rules set out in the U.S. cases.

3. Implied Consent in Civil Law Countries

In civil law countries, the rules for determining implied consent are set out in codes of civil procedure. Unlike the common law world, where statutory provisions must meet the due process requirement of minimum contacts, there is no similar judicial rule limiting the scope of the statutory codes.

The European Union’s Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, which came into effect in January 2001, harmonizes the E.U.’s jurisdictional rules. (120) It provides a good example, as a consequence, of jurisdictional provisions applicable in some of the most developed civil law countries.

The Regulation provides that “persons domiciled” in an E.U. Member State are only to be “sued in the courts of that Member State” (121) unless the Regulation provides otherwise. (122) The circumstances in which the Regulation provides for suits to be brought elsewhere are these:

1. (a)in matters relating to a contract, in the courts for the place of performance of the obligation in question

2. in matters relating to maintenance, in the courts for the place where the maintenance creditor is domiciled or habitually resident …

3. in matters relating to tort, delict [(123)] or quasi-delict, [(124)] in the courts for the place where the harmful event occurred or may occur

4. in as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seized of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings

5. as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated…. (125)

In addition, special rules apply to consumer contracts. (1) A consumer contract can be concluded by “any means” including contracts made over the Internet. (126) (2) The consumer may sue the other party to a consumer contract (the merchant) “either in the courts of the Member State in which [the merchant] is domiciled or in the courts for the place where the consumer is domiciled.” (127) (3) The merchant, however, may sue the consumer “only in the courts of the Member State in which the consumer is domiciled.” (128) (4) A merchant is subject to the consumer contract rules if it is domiciled or has a branch, agency, or establishment in any Member State. (129) Finally, (5) a forum selection clause is only valid if it is entered into “after the dispute has arisen” or it specifies additional places where the consumer may sue. (130)

The E.U. approach to consumer contracts, as one can see, is dramatically different from the U.S. approach. Unlike the U.S. jurisdictional rules, which require a court to find that there is a nexus between the transaction and the forum, the E.U. Regulation entirely abandons the requirement of a transactional nexus. Instead, it looks solely to the domicile of the parties to determine jurisdiction. So, regardless of where the contract was made, the merchant can sue a consumer only in the Member State where the consumer is domiciled. Furthermore, the consumer can sue the merchant in the consumer’s place of domicile or in any Member State where the merchant is domiciled, or has a branch, agency, or establishment. In effect, nearly every suit is going to be brought in the Member State where the consumer is domiciled

For non-consumer sales, the E.U. Regulation takes just the opposite approach, completely ignoring the parties’ place of domicile and looking to the primary transactional nexus: the place where the contract is to be performed. (131) In tort cases, the same transactional approach is taken: the place where the injury occurs is the place where jurisdiction exists. (132)

This tort rule was important in two recent Internet-related cases. In Mecklermedia Corp. v. DC Congress GmbH, (133) an English Chancery court held that it had jurisdiction to hear a dispute brought by an American company and its English subsidiary against a German company alleging that the defendant had committed the tort of “passing off” in misusing a trademarked name (“Internet World”) on an Internet Web site accessible from England.

A French court assumed jurisdiction in the case of Ligue Contre la Racisme et l’Antisemitisme v. Yahoo (134) when Yahoo was sued for posting Nazi memorabilia on Web pages accessible from France. Yahoo argued that it was an American company and that the materials it had posted were not in violation of American law. The judge responded that the materials were in violation of a provision of the French Penal Code (under which a private person is authorized to prosecute in France as a delict or tort), and concluded that because “the harm is suffered in France, our jurisdiction is therefore competent over this matter pursuant to Article 46 of the New Code of Civil Procedure.” (135)

4. Implied Consent under the Draft Hague Convention

The Hague Conference on Private International Law, (136) which is an intergovernmental organization with fifty-seven member states (including all the E.U. Member States and the United States) (137) organized to promote “the progressive unification of the rules of private international law,” (138) is in the process of drafting a Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters. (139) This convention is closely related to the E.U.’s Regulation on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, as one can tell–in part–from its title. (140)

Like the E.U. Regulation on Jurisdiction, the draft Hague Convention would allow a person to bring an action in contract–other than a consumer contract–in the country where the contract was to be performed (141) and an action in tort or delict in the country where the act or omission happened or where the injury occurred. (142) In the case of a consumer contract, a consumer could sue the in the country where he or she is “habitually resident” unless the contract was concluded and the goods or services delivered in another country

While the draft Hague Convention is similar to the E.U. Regulation, it is an evolving document that clearly demonstrates many of the differences between common and civil law approaches to jurisdiction in civil and commercial cases. One of the main points of disagreement (145) has to do with the use of forum selection clauses. One proposed alternative would copy the E.U. Regulation on Jurisdiction word-for-word (that is, a forum selection clause would be ineffective unless it was entered into after a suit was commenced or it granted the consumer additional places in which to sue). (146) A second alternative is identical to this, except that a country, on signing the Convention, could declare that it would enforce forum selection clauses. (147) A third alternative would give effect to forum selection clauses, but allow countries to declare that they would not enforce them. (148)

The goal of the Conference, of course, is to produce a convention that will harmonize national jurisdictional laws. As the negotiations currently stand, however, this may prove to be difficult. Indeed, if either the second or third alternatives–which reflect the reality that there are differing common and civil law views as to the legitimacy of forum selection clauses–is adopted, the Convention will not harmonize international jurisdictional rules, but perpetuate the existing differences.

B. Jurisdiction over Property

In rem jurisdiction, which is the second basis on which courts assume civil jurisdiction, gives courts the power to determine the ownership rights of persons with respect to a property located within the territory of the forum. Thus, the ownership of real property (i.e., immovable property, such as land and buildings) is determined in an in rem court proceeding. Similarly, if the ownership of personal property (or movable property, such as computers, software, and title to intellectual property) is contested, it can be determined in an in rem court proceeding in the state where the property is physically located.

Two German cases show how courts use in rem jurisdiction. In Epson v. Engelke, (149) a trial court in Dusseldorf held that it had in rem jurisdiction to resolve disputes concerning the ownership of a domain name–a property right–ending with “.de”. Accordingly, it ordered a cybersquatter who had registered the domain name of “epson.de” to relinquish ownership. Similarly, in Case 659/ 97, (150) a court in Berlin held that it had in rem jurisdiction to resolve a domain name dispute for names ending in “.com” and “.de” even though the defendant was an American company that had registered the disputed names (concertconcept.com and concertconcept.de) in the United States. For these courts, the mere fact that a domain name ended in .de (the country code extension for names having an affiliation with Germany (151)) was sufficient for them to assume in rem jurisdiction.

C. Refusal to Exercise International Civil Jurisdiction

Although a court may have in personam or in rem jurisdiction, it may choose not to assume that jurisdiction. The common way that courts do so in international disputes is by invoking the doctrine of forum non conveniens. In essence, this allows a court to decline to hear a case that can also be heard elsewhere if it is either inconvenient or unfair for the forum court to do so. In determining this, a court will consider (1) the private interests of the parties (i.e., the ease and cost of access to documents and witnesses) and (2) the public interests of the forum (i.e., the interests of the forum in the outcome of the dispute, the burden on the court to hear the case, and whether another forum has a much greater interest in the outcome of the dispute). (152)

Not all courts, however, recognize the doctrine of forum non conveniens. For example, the state of Texas has forbidden its courts from applying this doctrine. (153) When that is the case, a court must hear every dispute brought before it, so long as it has jurisdiction. This may in part explain the decision of the Texas court in Braintech, Inc. v. Kostiuk, to hear a dispute involving a Canadian plaintiff and a Canadian defendant. Because the Texas court believed it had jurisdiction, it had to hear the case. (154)

III. JURISDICTION TO ENFORCE

Jurisdiction to enforce is the power of a government “to induce or compel compliance or to punish noncompliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other nonjudicial action.” (155) As a practical matter–and in terms of court proceedings–it involves (1) the power to investigate and apprehend

A government’s enforcement jurisdiction, whether pre- or post-adjudicatory, is almost exclusively territorial. (156) That is, the power to investigate and apprehend or to carry out a judgment is generally confined by the territorial boundaries of the forum. One government’s law enforcement offices may exercise their functions in the territory of another nation only with the nation’s authorization. (157) Absent that authorization, attempts to investigate, apprehend, or impose a judgment in another country are a violation of international law.

A. Jurisdiction to Investigate and Apprehend

While it is clear that a law enforcement officer may not travel to another country to investigate a crime without that country’s authorization, what if the investigation is conducted remotely? As mentioned earlier, the Federal Bureau of Investigation is developing a tracking program named Magic Lantern to ferret out online terrorists and other criminals. (158) The program works by installing a Trojan Horse virus on a suspect’s computer that records and transmits keystrokes typed into the computer. This means that the FBI does not have to physically access the machine and the machine can be anywhere in the world. (159) May the FBI deploy the program outside the United States without violating international law? In the United States the answer is yes

For example, in United State v. Romano (162) an informant working for the U.S. Drug Enforcement Agency called an Italian national in Palermo, Italy several times by telephone from New York and convinced him to come to New York to take part in a drug sale. After the Italian arrived in the United States, the government arrested him. The U.S. Second Circuit Court of Appeals rejected the Italian’s motion to dismiss the case on the basis of government misconduct, holding that the government’s conduct was “not `the kind of outrageous conduct which would violate the defendant’s [U.S.] due process rights.'” (163)

Compare this U.S. case with X v. Swiss Federal Prosecutor’s Office, (164) which involved a German attempt to apprehend X, a Belgium national. A German undercover agent contacted X in Belgium by telephone and induced him to go to the Switzerland for a business deal. When the suspect arrived in Switzerland, Germany requested his extradition. (165) The Swiss Federal Tribunal in Lausanne in 1982 refused to grant Germany’s request, stating that Germany had acted improperly in contacting X without the authorization of Belgium, and that it would not condone the misconduct by ordering X’s extradition.

While these two cases do not involve disputes concerning the use (or misuse) of the Internet, they do suggest how the courts will resolve such disputes. As the Romano case points out, a U.S. law enforcement agent may investigate and apprehend a foreign suspect unless in so doing the agent acts in such reprehensible manner as to “shock the conscience” of civilized society. (166) The question then is: how reprehensible must the manner be in order to shock the conscience of civilized society in the United States? The answer is: “truly egregious.” In only one case–United States v. Toscanino (167)–has a court’s conscience been shocked. In that case, the defendant, an Italian, was kidnapped in Uruguay by American agents, blindfolded, tortured, beaten, and interrogated for several weeks before being brought to the United States for trial. Even in United States v. Noriega, (168) the Eleventh Circuit Court of Appeals found nothing to shock its conscience when the U.S. military invaded Panama to apprehend and put on trial for trafficking in drugs the sitting president of the country. This being so, one can only conclude that the use of the FBI’s Magic Lantern program, or other equivalent programs, to investigate or even apprehend foreign criminal suspects, will not limit a U.S. court’s assertion of jurisdiction.

In no other country, however, will such investigatory conduct be tolerated. As the X v. Swiss Federal Prosecutor’s Office (169) case makes clear, a foreign state’s investigation of a criminal suspect without the consent of the local government will not be condoned anywhere (except in the United States). Moreover, should a suspect be apprehended as a consequence of such misconduct, a court will decline jurisdiction in a proceeding brought against the suspect (except in the United States). (170)

Of course, if a suspect freely enters a country on his or her own accord he or she will be subject to arrest for a criminal or regulatory violation committed abroad, even if he or she was acting lawfully overseas. This was the holding of the German court in the Toben case, discussed earlier. (171) It was also the U.S. Justice Department’s rationale for arresting Dmitry Sklyarov in June 2001 while he was visiting the United States. (172) Sklyarov, a Russian citizen, helped design a software product for his Russian employer, ElcomSoft, (173) that circumvents the copyright protection measures used on Adobe Systems, Inc.’s e-book. The ElcomSoft product is legal in Russia (174) but violates the U.S. Digital Millennium Copyright Act. (175)

B. Jurisdiction to Enforce Judgments

Once a court has handed down a judgment, the judgment is enforceable anywhere within the territory of the forum. (176) Additionally, a judgment is directly enforceable overseas as long as this is not “unreasonable” (177) or contrary to local law. (178) For example, a lien judgment against a defendant’s assets in a bank also applies to the defendant’s assets in the bank’s overseas branches, unless this is forbidden by the law in the countries where the branches are located. (179)

This same rule applies in cyberspace, as the case of Ligue Contre la Racisme et l’Antisemitisme v. Yahoo (180) makes clear. As previously mentioned, a French trial court assumed jurisdiction over Yahoo, an American company, for posting Nazi memorabilia on the Internet that was accessible in France contrary to French law. The court’s judgment ordered Yahoo to either remove the memorabilia from its American web sites or to make those web sites inaccessible in France. (181) Yahoo argued that it was unable to make its web sites inaccessible to French viewers, so it removed the memorabilia. (182) Yahoo then brought suit in a U.S. court requesting a declaratory judgment that the French court’s orders are unenforceable in the United States. (183) The U.S. District Court for the Northern District of California granted Yahoo’s request. It did so because the French court’s order “chilled Yahoo!’s First Amendment rights” in the United States. (184) To reiterate, a court’s judgment is enforceable in the forum’s territory and it is enforceable abroad to the extent that it is reasonable and not contrary to local law.

IV. JURISDICTIONAL ISSUES CREATED BY THE ADVENT OF THE INTERNET

The cases we have examined so far (in the context of the jurisdictional bases on which courts assume jurisdiction), also highlight a variety of new jurisdictional issues that have appeared following the creation of the Internet. Among the more important are forum avoidance, retailer entrapment, tax cheating, and the infringement of free speech.

A. Forum Avoidance

Merchants like to avoid the pitfall of defending themselves in every place where they offer a product or service. To do so, they commonly include a forum selection clause in their contracts specifying the particular courts in which they may be sued. Indeed, this is standard practice in the United States (185) and in most countries outside the European Union. Virtually every online, non-European merchant has a forum selection clause that attempts to avoid the liability outside of a chosen forum, Netscape’s forum selection clause, quoted earlier, (186) being a case in point. (187)

The rationale for enforcing these clauses was set out by the U.S. Supreme Court in The Bremen v. Zapata Off-Shore Co. (188) Overruling the longstanding practice in U.S. courts of holding such clauses to be contrary to public policy, (189) and citing the then-current practice in English courts of enforcing forum selection clauses, (190) the Court said that “in light of present-day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside.” (191) Considering that England, as an E.U. Member State, no longer will enforce forum selection clauses in consumer contracts, and considering the current “present day realities” of cyberspace, which puts distant consumers at a decided disadvantage in dealing with both scrupulous and unscrupulous merchants, one has to wonder if the Supreme Court will long continue to uphold its decision in The Bremen. It seems to this author–at least with respect to consumer contracts–that it should not.

As mentioned earlier, the E.U. Regulation on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters (192) makes forum selection clauses ineffective, not only for online transactions, but for all consumer transactions in the European Union. (193) Also, as mentioned earlier, The Hague Conference on Private International Law is attempting to reconcile the differing approaches to forum selection clauses in its Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters. (194) Two of the Draft’s proposed Alternatives that are now under discussion, however, would allow ratifying countries to choose between giving effect to forum selection clauses or making them ineffective. (195) The matter, clearly, is yet to be decided.

B. Retailer Entrapment

Retailer entrapment involves consumers who attempt to acquire products or services that they are forbidden to purchase. It is not the consumer, however, who is prosecuted, but the retailer. The two most obvious examples of this are minors who want to view adult materials and gamblers who want to place bets from territories where gambling is illegal. The usual defense to retailer entrapment is a licensing agreement that requires consumers to certify that they are adults or that they are domiciled in a territory that does not outlaw the product or service they seek to buy. This defense, however, is decidedly inadequate.

For example, in the New York v. World Interactive Gaming Corp. case discussed earlier, (196) the defendant required users to enter a home address before they could enter bets, and it refused to deal with customers whose addresses were in a state where gambling was illegal. (197) A New York deputy attorney general, however, was able to use a fictitious Nevada address to gain access to the defendant’s site from New York and place bets. (198) Additionally, because he was able to do so through a simple deception, the court held that ordinary consumers were able to do so, too, and that the defendant therefore had not made a good-faith effort to comply with New York’s gamblers’ laws. (199) In other words, asking individuals to certify that they are legitimate consumers of a product or service is not going to protect retailers from criminal liability because consumers are too likely to cheat.

This being so, is there a way for an online retailer to determine the consumer’s domicile? In the Ligue Contre la Racisme et l’Antisenitisme v. Yahoo, Inc. case, discussed earlier, (200) the French Court gave Yahoo the option of electronically screening visitors to its Web sites and excluding French residents from viewing pages with Nazi memorabilia. (201) Yahoo claimed that this was impossible to do. The Court then appointed a panel of experts to ascertain whether Yahoo was correct. The experts reported that Yahoo, with technology available in November 2000, could determine the physical location of ninety percent of the users accessing its web site and that it could deny access to particular pages to those who were physically located in France. (202)

Is this technology the answer? One has to think so. Since November 2000, the technology for identifying online users–known as geo-location software–has improved dramatically. By the summer of 2001, geo-location software could trace “backwards the connection route established by an on-line user” and locate “down to the city where a person is logging on” (203) and it could do so with ninety-eight to ninety-nine percent accuracy. (204)

As the U.S. court in World Interactive Gaming Corp. and the French court in Yahoo point out, online merchants can avoid liability for providing products or services in locations where they are illegal by making a “good-faith” effort to keep those products and services from being accessed from places where they are illegal. (205) Indeed, geo-location software seems to be precisely the way that online merchants can demonstrate their good faith and this author has to suspect that court orders mandating its use will become commonplace in the future. (206) In fact, cautious merchants–including Amazon.com, ic|net, net2phone, (207) CCN, the Financial Times, Microsoft, Network Associates, (208) and VeroTrust (209)–have already begun to deploy geo-location software.

C. Tax Cheating

Online tax cheating is not a problem at present because of current moratoriums on collecting sales and other kinds of consumption taxes (e.g., value added taxes) on online sales. (210) But when the moratorium expires, (211) it could well be a problem. It will not be a problem for the sale of tangible goods, because the place of shipment and the place of delivery are identifiable and no different from those of off-line sales. It will be a problem for intangible goods, because the place of shipment and the place of delivery are in cyberspace. Either or both of the parties to such a transaction can lie as to their actual physical location. Neither, as things stand now, can ascertain if the other is telling the truth.

No matter whether the consumption tax is collected, in the territory of the buyer or in the territory of the seller (and this is still being debated (212), the attraction for buyers and sellers to cheat is strong. For example, if State X has a five percent sales tax and State Y has no sales tax on online transactions, both the consumer and the seller may purport to be from State Y.

So how is this predicament to be avoided? The answer appears to be, as with retailer entrapment, through the use of geo-location software. Using this software, a merchant dealing with a consumer can identify the consumer’s location and both merchants in a non-consumer transaction can identify each other’s location. The merchants can then direct payment (using online banking) to the appropriate government authority.

D. Free Speech

The Yahoo, Toben, and Waddon cases demonstrate that free speech is not uniformly protected worldwide. In Yahoo, (213) as noted earlier, a French court assumed jurisdiction over Yahoo, an American company–even though the company had no business contacts with France–because Yahoo posted online items of Nazi memorabilia that French law regards as defamatory to a substantial segment of the French population. (214) In Toben, (215) the German Federal Supreme Court held that an Australian defendant could be criminally prosecuted in Germany for posting materials on the Internet denying the Holocaust, in violation of a German law forbidding the glorification of the Nazi party. And, in Waddon, (216) a British court convicted a British defendant who posted materials on a U.S. web site because the materials were obscene according to British, but not U.S., standards.

In Waddon, the British court was able to assert its jurisdiction because the defendant was a British national domiciled in Britain. (217) In Toben, a German court was able to assert jurisdiction over the defendant, an Australian national, because the defendant chose to voluntarily visit Germany. (218) In Yahoo, the French court attempted to extend its jurisdiction over a U.S. defendant that was not domiciled in France. (219) The defendant in Yahoo responded by getting a judgment from a U.S. court declaring that the French court’s order is unenforceable in the United States. (220)

The conclusion to be drawn from these cases seems clear. Individuals and juridical entities may speak out on the Internet to the extent allowed to do so by their country of domicile, even if this violates the censorship laws of other countries. However, if they choose to travel or to establish foreign branches, agencies, or establishments, they will be subject to prosecution abroad.

V. CONCLUSIONS

The criteria for courts to assert jurisdiction over crimes and civil actions in cyberspace have begun to take concrete form. In criminal and regulatory cases, the traditional nexuses used by courts to assume jurisdiction over international defendants–the territoriality nationality, protective, and universality nexuses–all apply in cyberspace. At present, however, only the territoriality nexus has been directly invoked by the courts. This is likely to change as the number of cyber cases increases. Treaty drafters, such as those working on the Council of Europe’s Convention on Cybercrime, (221) as well as the great majority of commentators writing on cyber crime, (222) are encouraging courts to assume jurisdiction using any of the traditional nexuses. Furthermore, this is so despite the possibility that the exercise of overlapping jurisdiction may adversely impact global trade, global travel, and international human rights.

In civil cases, both the common law world and the European Union are moving to assert in personam jurisdiction over merchants and consumers who consummate transactions over the Internet. In the common law world, this requires a showing of a connection between the transaction and the forum. In the European Union, suits in consumer disputes are ordinarily brought in the consumer’s state of domicile, while non-consumer disputes are heard in the forum where the contract was to be performed.

Civil in rem jurisdiction, which is consistently defined worldwide, is presently being used in German courts to assert jurisdiction over domain names, software, and other kinds of intellectual property. It seems likely that it will be used in the same way in other courts in the future.

While the criteria for courts (both national and international) to assume jurisdiction are quickly taking shape–and the pattern worldwide is reasonably consistent–the decisions that have defined those criteria have created problems, especially with respect to forum avoidance, retailer entrapment, tax cheating, and free speech.

Forum selection clauses are enforceable worldwide for almost all kinds of transactions. The exception is for consumer contracts. In the European Union, the clauses are unenforceable

Improved geo-location software looks to be the mechanism that courts and merchants will adopt for dealing with retailer entrapment and tax cheating. As for free speech, individuals and juridical entities may exercise it to the extent they are allowed to do so in their country of domicile provided they do not travel or establish overseas branches, agencies, or establishments. Travelers and overseas investors who choose to speak freely on the Internet are well advised to heed that ancient warning: caveat peregrinator, (223) and choose carefully their foreign destinations. If they fail to do so, they may end up arrested, like Dmitry Sldyarov, for conduct that was legal in their home jurisdiction but illegal in the place they visit.

(1) In addition to headlines in the popular press, the issue of jurisdiction in cyberspace has also become a popular topic in law reviews and journals. Recent articles include: American Bar Association Section Report: Achieving Legal and Business Order in Cyberspace: A Report on Global Jurisdiction Issues Created by the Internet, 55 BUS. LAW. 1801 (2000) [hereinafter ABA Section Report]

(2) “Ligue Contre la Racisme et l’Antisemitisme v. Yahoo, Inc. See Yahoo Ordered to Bar French from Nazi Web Sites, (Nov. 20, 2000), at http:/ / news.zdnet.co.uk/ story/ 0,,t269s2082683,00.html.

(3) Crown v. Waddon. See Chris Nuttal, Police Hail Net Porn Ruling, BBC News (July 1, 1999), at http:/ / news. bbc. co. uk / hi/ english / sci/tech / new. zdnet_382000/ 382152.stm.

(4) United States v. Galaxy Sports. Press Release, U.S. Department of Justice, (Feb. 28, 2000), at http:/ / www. usdoj. gov/ criminal/ cybercrime/ cohen.htm.

(5) See the criticism of the use of analogy in Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway. The Case against Copyright Liability of Bulletin Board Operators, 13 CARDOZO ARTS & ENT. L.J. 345, 349 (1995).

(6) The ABA Section Report, supra note 1, examines traditional American case law and analogizes it to Internet-related jurisdictional issues. This useful study is limited by its decidedly American perspective.

(7) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. [section] 401 (1987).

(8) Id. [section] 402

(9) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. [section] 431 (1987).

(10) Id. [subsection] 402, 404

(11) An offense does not have to be consummated within the forum’s territory for the forum to have jurisdiction. If an offense is commenced within the forum, even if it is completed or consummated abroad, the forum will have jurisdiction. Harvard Law School, Jurisdiction with Respect to Crime, supra note 8, at 484-87. Logically, jurisdiction based on the place where an offense was commenced is the converse of jurisdiction based on the effects nexus, which focuses on the place where the offense is consummated. See id. at 487-94.

(12) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. [section] 404 (1987).

(13) Id. [section] 404.

(14) The Restatement states that the universal nexus may “perhaps” include “certain acts of terrorism.” Id. Section 404, comment b, asserts that “[u]niversaljurisdiction is increasingly accepted for certain acts of terrorism, such as assaults on the life or physical integrity of diplomatic personnel, kidnapping, and indiscriminate violent assaults on people at large,” id. [section] 404 cmt. b, but it cites no cases or commentaries in support of its contention. It seems more likely, in light of the terrorist attacks on September 11,2001, and the ensuing military action in Afghanistan, that the courts and commentators will treat terrorist acts as crimes against humanity. Crimes against humanity were originally defined in Article 6(c) of the Charter of the International Military Tribunal established after World War II (the Nuremberg Tribunal) as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population.” Charter of the International Military Tribunal, Nuremberg Trial Collection, The Avalon Project, Yale Law School, at http:/ / www.yale.edu/ lawweb/ avalon/ imt/ proc/ imtconst.htm. Because this broad definition includes the usual definition of terrorism (which is typically described as “the sustained clandestine use of violence, including murder, kidnapping, and bombings, for a political purpose) it seems unnecessary to separately define terrorism as one of the crimes covered by the universality nexus. See RAY AUGUST, PUBLIC INTERNATIONAL LAW 345-46 (1995).

(15) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. [section] 403 (1987).

(16) Id. [section] 403(2)(b). The Draft Convention on Jurisdiction with Respect to Crime, supra note 10, art. 3, describes this same idea in terms of an “attempt” to commit a crime from outside the forum’s territory. This attempt must be focused on conduct having its effect within the forum’s territory.

(17) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. [section] 403 cmt. e. The classic discussion of the genuine link requirement appears in the Nottebohm Case (Liech. v. Guat.), 1955 I.C.J. 4 (Second Phase–Judgment of April 6) in the context of a country’s right to sponsor a national’s suit before an international court.

(18) RESTATEMENT (THIRD) OF FOREIGN RELATION LAW OF THE U.S. [section] 403(2)(c).

(19) Id. [section] 403(2)(d).

(20) Id. [section] 403(2)(g), (h).

(21) Id. [section] 403(2)(e).

(22) Id. [section] 403(2)(f).

(23) For example, in the landmark international jurisdictional case of Attorney General of the Government of Israel v. Eichman, 36 I.L.R. 5 (Jm. D.C. 1968) (Isr.), the court relied on the protective and the universality nexuses in exercising jurisdiction to try an official of the Austrian Nazi party for war crimes committed in the course of duty on behalf of a foreign country outside the boundaries of the forum (Israel), before the forum came into existence, and against persons who were not citizens of the forum.

(24) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. [section] 403 cmt. c.

(25) GEORGE C. LEWIS, FOREIGN JURISDICTION AND THE EXTRADITION OF CRIMINALS 30 (1857).

(26) Harvard Law School, Jurisdiction with Respect to Crime, supra note 8, at 484.

(27) Draft Convention on Jurisdiction with Respect to Crime, supra note 10, art. 3.

(28) Harvard Law School, Jurisdiction with Respect to Crime, supra note 8, at 494.

(29) Id. at 484.

(30) Id. at 487-88.

(31) See United States v. Aluminum Co. of Am., 148 F.2d 416 (2d Cir. 1945) (establishing an effects nexus for violations of U.S. antitrust laws)

(32) Harvard Law School, Jurisdiction with Respect to Crime, supra note 8, at 494.

(33) BBC News (July 1, 1999), at http:/ / news. bbc. co. uk/ hi/ english/ sci/ tech/ newsid_382000/ 382152.stm.

(34) 714 N.Y.S.2d 844 (N.Y. App. Div. 1999).

(35) The company was headquartered in New York and incorporated in Delaware. Id. at 846.

(36) Id. at 850.

(37) Id. at 849.

(38) People v. Somm, Case 8340 Ds 465 Js 173158/ 95 (Amtsgericht, Munich, Bavaria 1999). An English translation of the court’s judgment is available at http:/ / www. cyberrights. org/ isps/ somm-dec.htm.

On appeal, Somm’s conviction was overturned because of a German law that exempts Internet service providers from liability if they have no reasonable mechanism for excluding illegal Web pages from being posted on their servers. The trial court’s exercise of jurisdiction, however, was not questioned. See Defense Counsel’s Remarks, at http:/ / www.apnic.net/ mailing-lists/ apple/ archive/ 1999/ 11/ msg00010.html (last visited Dec. 30,2001).

(39) Toben’s arrest warrants, translated into English, are available on the Institute for Historical Review’s Web site at http:/ / www. ihr. org/ other/ 990409warrant.html and http:/ / www. ihr. org/ other/ 990503warrant.html (last visited Dec. 30, 2001).

(40) The Web site at http:/ / www.adelaideinstitute.org/ (last visited Dec. 30, 2001) is maintained by Toben’s Adelaide Institute in Adelaide, Australia.

(41) Toben, who returned to Australia after serving seven months of a ten-month sentence, is not inclined to return to Germany to serve any additional time. Steve Kettmann, German Hate Law: No Denying It, WIRED NEWS, (Dec. 15, 2000), at http:/ / www. wired. com/ news/ politics/ 0,1283,40669,00.html.

(42) Harvard Law School, Jurisdiction with Respect to Crime, supra note 8, at 519.

(43) People v. Somm, supra note 38.

(44) People v. World Interactive Gaming Corp., 714 N.Y.S.2d 884, 849 (N.Y. App. Div. 1999).

(45) See Press Release, U.S. Department of Justice (Feb. 28, 2000), at http:/ / www.usdoj.gov/ criminal/ cybercrime/ cohen.htm.

(46) Mike Brunker, Net Betting Operator Isn’t Wavering, MSNBC, at http:/ / www.msnbc.com/ news/ 369978.asp (Aug. 10, 2000).

(47) See Perkins Coie Internet Case Summary at http:/ / www.perkinscoie.com/ casedigest/ icd_results.cfm? keyword1=gambling&topic=Gambling (last visited Dec. 30, 20 01). The Second Circuit Court of Appeals affirmed, but it did so without discussing the issue of jurisdiction. United States v. Galaxy Sports, 260 F.3d 68 (2d Cir. 2001).

(48) The protective nexus includes the passive personality nexus: the right of a nation to exercise jurisdiction when one of its nationals is injured. The passive personality nexus was affirmed as a jurisdictional basis recognized in international law in the classic international law case of The Lotus (Fr. v. Tur.) 1927 P.C.I.J. (ser. A) No. 10 (1927).

(49) See supra note 31 and accompanying text.

(50) IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 304 (4th ed. 1990). The same language (“against the security of the state”) also appears in RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. [section] 402(3) (1987). The Draft Convention on Jurisdiction with Respect to Crime, supra note 10, art. 7, defines the protective nexus as extending to “any crime committed outside [the forum’s] territory by an alien against the security, territorial integrity or political independence of the [forum]….”

(51) GEORG DAHM, ZUR PROBLEMATIK DES VOLKERSTRAFRECHTS 28 (1956).

(52) See supra notes 39-41 and accompanying text.

(53) See supra notes 45-47 and accompanying text.

(54) 18 U.S.C. [section] 1084(a) (1994).

(55) Letter from United States Attorney General Robert F. Kennedy to Speaker of the House of Representatives, Apr. 6, 1961, 2 U.S. CODE & CONGR. NEWS, 87th Congr., 1st Sess., pp. 2631, 2633.

(56) As noted earlier, the Second Circuit affirmed the trial court’s judgment, but it did so without discussing the issue of jurisdictional basis. See supra note 47.

(57) BROWNLIE, supra note 50, at 304

(58) If the forum abducted the defendant from another nation, the general rule is that it may try the defendant so long as the nation from which the defendant was abducted does not protest. See, e.g., Attorney General of the Government of Israel, 36 I.L.R. 5, [paragraph] 112 (I.M.D.C. 1961) (Is.)

(59) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. [section] 404.

(60) Id. [section] 404 cmt. a

(61) International Law Commission, Draft Code of Crimes Against the Peace and Security of Mankind, 1996, art. 18, at http:/ / www.un.org / law/ ilc/ texts/ dcodefra.htm.

The Draft Code was prepared by the International Law Commission at the direction of U.N. General Assembly. See Current Development: Draft Code of Crimes Against the Peace and Security of Mankind, 75 AM.J. INT’L L. 674 (1981).

(62) International Law Commission, Draft Code of Crimes Against the Peace and Security of Mankind, 1996, art. 20.

(63) Press Release, White House, Global War on Terrorism: The First 100 Days (Dec. 20, 2001), at http:/ / www. whitehouse. gov/ news/ releases/ 2001/ 12/ 100dayreport.html.

(64) Statement of Donald M. Kerr to U.S. House of Representatives on Internet and Data Interception Capabilities Developed by FBI (July 24, 2000), at http:/ / www. fbi. gov/ congress/ congress00/ kerr072400.htm. The program, originally called “Carnivore,” has been renamed “Magic Lantern.” Elinor Mills Abreu, Reuters, FBI Confirms ‘Magic Lantern’ Project Exists, (Dec.12,2001), at http:/ / dailynews.yahoo. com / htx / nm / 20011212 /tc / tech_magiclantern_dc_1.html.

(65) Associated Press FBI Looking to Internet for Terrorism Clues, (Sept. 12,2001), at http:/ / www. siliconvalley. com/ docs/ news/ tech/ 018876.htm.

(66) H.R. 2896, 107th Cong. (1st Sess. 2001).

(67) For efforts of the international community to promote global commerce, see the World Trade Organization web site in general and the “WTO in Brief” page in particular, at http:/ / www. wto. org/ english /thewto_e/ whatis_e/ inbrief_e/ inbr00_e.htm (last visited Dec. 30, 2001).

(68) On the effort to promote Internet commerce, see U.S. Information Infrastructure Task Force, A Framework for Global Electronic Commerce, at http:/ / iitf.doc.gov/ eleccomm/ execsu.htm (last visited Dec. 30,2001) and Tony Blair, The Knowledge Economy and Government Interact Policy, (Sept. 13, 1999), at http:/ / www.techlawjournal.com/ internet/ 19990913sp.htm.

(69) Parliament of Australia, Senate Information Technologies Committee, Netbets: A Review of Online Gambling in Australia, 26, n.48 (Mar. 2000), at http:/ / www. aph. gov. au/ senate/ committee/ it_ctte/ gambling/ index.htm.

(70) Id.

(71) Id.

(72) 18 U.S.C. [section] 1084(b) (1994), available at http:/ / caselaw.lp.findlaw.com/ casecode/ uscodes/ 18/ parts/ i/ chapters/ 50/ sections/ section_1084.html.

(73) U.S. Gets Online Gambling Boost, FIN. TIMES, Aug. 10, 2000, at 4, http:/ / news. ft. com/ ft/ gx.cgi/ ftc? pagename =View&c=Article&cid=FT34TA2PQ.BC.

(74) Id.

(75) The Council of Europe, which is not to be confused with the European Union, is an intergovernmental organization founded in 1949 to promote the protection of human rights and the harmonization of its member states’ laws. Currently it has forty-one members including all fifteen European Union member states. Its home page is http:/ / www.coe.int/ (last visited Dec. 30, 2001).

(76) The drafting effort began in the late 1980s with the cooperation of the United States. See Reuters, U.S. Embraces European Cybercrime Proposal, (Dec. 4, 2000), at http:/ / www. cnn. com/ 2000/ TECH/ computing/ 12/ 04/ crime .tech. reut/ index.html.

(77) Convention on Cybercrime, Nov. 23,2001, Europ. T.S. No. 185, http:/ / conventions.coe.int/treaty/ EN/ WhatYouWant.asp?NT=185.

(78) Id. art. 24(1)(a).

(79) Id. art. 24(1)(d).

(80) Id. art. 24(4).

(81) Another jurisdiction basis, which is a combination of both in personam and in rem jurisdiction, is quasi-in rem jurisdiction. This type of jurisdiction is based on a person’s interest in property within the forum’s territory, but unlike in rem jurisdiction it is used as a means to collect a money judgment against the person. In the last quarter-century, most countries have imposed the same kinds of fairness requirements for assuming quasi-in rem jurisdiction that apply to in personam cases. See, e.g., Shaffer v. Heitner, 433 U.S. 186 (1977)

(82) Natural persons are human beings.

(83) Juridical persons are legal entities created by national or international law and granted the privilege of carrying on many of the functions of natural persons, such as engaging in business, suing, and being sued. They include business firms, nonprofit organizations, international organizations, and governmental agencies.

(84) In civil law countries, codes of civil procedure recognize that parties may expressly consent to the jurisdiction of a court or agency. See, e.g., CODIGO FEDERAL DE PROCEDIMIENTOS CIVILES, art. 23, (Mex.) http:/ / www. juridicas. unam. mx/ ijure/ fed/ 6/ 24.htm?s= (last visited Dec. 30, 2001).

(85) See Netscape, Applicable Laws, at http:/ / home. netscape. com/ legal_notices/ laws.html (last visited Dec. 30, 2001).

(86) See Burnham v. Superior Court of Cal., 495 U.S. 604, 608-09 (1990) (discussing English common law rules)

(87) Dan L. Burk, Jurisdiction in a World Without Borders, 1 VA. J.L. & TECH. 3, [paragraph] 26 (Spring 1997), at http:/ / vjolt. student. virgnia. edu/ graphics/ vol1/ home_art3.html.

(88) See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316-20 (1945).

(89) See Burk, supra note 87, [paragraph] 25.

(90) 326 U.S. 310.

(91) Id. at 316.

(92) Although the International Shoe case involved an international dispute, most of the case decisions in the United States involving a court’s assumption of jurisdiction based on implied consent have involved disputes in which the parties were from different U.S. states. The same rules, nonetheless, apply to international disputes.

(93) 26 U.S. at 318.

(94) See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 n.9 (1984).

(95) 326 U.S. 317-18.

(96) Id.

(97) Id. at 316.

(98) 357 U.S. 235 (1958).

(99) Id. at 253 (emphasis added).

(100) 952 F. Supp. 1119 (W.D. Pa. 1997).

(101) Id. at 1122-23.

(102) Id. at 1124.

(103) Id.

(104) 89 F.3d 1257 (6th Cir. 1996).

(105) Id. at 1265.

(106) 952 F. Supp. at t 126-27.

(107) 96 F. Supp. 2d 824 (N.D. Ill. 2000). Euromarket Designs, Inc., an Illinois company, owned the “Crate and Barrel” trademark in the United States and the European Union and it operated several stores in the United States using that name. For a non-internet version of the same dispute in a U.K. court see Euromarket Designs Inc v. Peters (Crate & Barrel) [2000] E.T.M.R. 1025 (Ch. 1999), (U.K.) http:/ / www. hrothgar. co. uk/ YAWS/ reps/ eurom.htm.

(108) 96 F. Supp. 2d at 834-35.

(109) 113 F. Supp. 2d 211 (D.N.H. 2000).

(110) Id. at 218.

(111) 196 F. 3d 1292 (10th Cir. 1999).

(112) Id. at 1299.

(113) 87 F. Supp. 2d 648 (N.D. Tex. 2000). The U.K. defendant, which was sued for patent infringement, maintained a web site that described the company and its products and directed those interested in obtaining more information to contact the company’s local distributors. The court held that the web site did not establish minimum contacts with the State of Texas and dismissed the case.

(114) 984 P.2d 739 (Mont. 1999). The Canadian defendant, sued for product liability, maintained a passive web site that provided information about the motor homes it sold. The court held that the site did not establish minimum contacts with the State of Montana and dismissed the suit.

(115) 130 F.3d 414 (9th Cir. 1997). The Florida defendant, which was sued for trademark infringement, maintain a web site that directed interested parties to contact it by e-mail. The court held that this passive web site did not create minimum contacts with the State of Arizona and dismissed the case.

(116) 26 Med. L. Rptr. 1185 (C.D. Cal. 1997). A California court declined to assume jurisdiction over the French publishers of the Paris Match magazine in a defamation action, holding that the magazine’s web site was merely passive advertising.

(117) 977 F. Supp. 327 (D.N.J. 1997), A New Jersey court refused to assumed jurisdiction over an Italian hotel operator in a personal injury case, holding that its web site amounted to mere passive advertising.

(118) [1999] BCCA 0169 (Can.), http:/ / www.canlii.org/ bc/ cas/ bcca/ 1999/ 1999bcca169.html.

(119) [1999] BCCA 0169 [paragraphs] 61-62.

(120) Council Regulation (EC) No. 44/ 2001 (Dec. 22, 2000), at http:/ / europa.eu.int/ smartapi/ cgi/ sga_doc? smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32001R0044&model=guichett [hereinafter Council Reg. No. 44/ 2001]. The Regulation replaces the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters [hereinafter Brussels Convention], which was last amended in 1990. The consolidated text is published in European Union, OFFICIAL JOURNAL C 027, 26/ 01/ 1998 p. 0001-0027 at http:/ / europa.eu.int/ eur-lex/ en/ lif/ dat/ 1968/ en_468A0927_01.html (last visited Dec. 30, 2001).

The Regulation does not apply in Denmark. Council Reg. No. 44/ 2001, pmbl. [paragraph] 21. However, Denmark continues to be subject to the Brussels Treaty vis-a-vis the other E.U. member states. Id. at pmbl. [paragraph] 22.

(121) Council Regulation 44/ 2001, supra note 120, art. 2.

(122) Id. art. 3.

(123) A delict, in civil law countries, is a wrong that may be prosecuted by the state or by a private person.

(124) A quasi-delict is a delict committed without malice

(125) Council Regulation 44/ 2001, supra note 120, art. 5.

(126) Id. art. 15(1)(c). As originally proposed, the Regulation stated that it applied specifically to “consumer contracts concluded via an interactive website accessible in the State of the consumer’s domicile.” Commission Proposal for a Council Regulation (EC) on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (E.U. Commission Doc. 599PC0348) [section] 6. However, “[t]he fact that a consumer simply had knowledge of a service or possibility of buying goods via a passive website accessible in his country of domicile [would] not [have] trigger[ed] the protective jurisdiction.” Id. The final language of the Regulation does not mention interactive websites, but the words “any means” clearly cover such transactions.

(127) Council Regulation 44/ 2001, supra note 120, art. 16(1).

(128) Id. art. 16(2). The same rule is found in the Brussels Convention except that (1) the sale must take place in the consumer’s country of domicile

(129) Council Regulation 44/ 2001, supra note 120, art. 15(2).

(130) Id. at art. 17. The Brussels Convention, supra note 120, art. 15, makes all forum selection clauses pertaining to consumer contracts void.

(131) Council Regulation 44/ 2001, supra note 120, art. 5(1). The same rule appears in the Brussels Convention, supra note 120, art. 5(1). For an example of a similar provision in a non-European code of civil procedure, see the Law of Civil Procedure of the People’s Republic of China, art. 243, at http:/ / www. qis. net/ chinalaw/ prclaw34.htm#chap25 (last visited Dec. 30, 2001).

(132) Council Regulation 44/ 2001, supra note 120, art. 5(3)

(133) 1998 Ch. 40, [1998] 1 All E.R. 148, [1997] 3 W.L.R. 479, 1997 F.S.R. 627 (Eng. Ch. 1997). A summary description is at http:/ / www. rhysroberts. co. uk/ articles/ copy.html.

(134) Summary orders of May 22, 2000 and Aug. 11, 2000 (Pads T.P.I.). English translations are at http:/ / www. gyoza. com/ lapres/ html/ yahen.html and http:/ / www. gyoza. com/ lapres/ html/ yahen8.html. The permanent order was issued on Nov. 20, 2000. See Crispian Balmer Review, Reuters, Yahoo Ordered to Bar French from Nazi Web Sites, (Nov. 20, 2000), at http:/ / dailynews.yahoo.com/ h/ nm/ 20001120/ wr/France_yahoo_dc_2.html.

(135) Summary order of May 22, Council Regulation 44/ 2001, supra note 120, art. 2.2000.

(136) The Conference’s home page is at http:/ / www.hcch.net/ index.html (last visited Dec. 30, 2001).

(137) The membership as of December 6, 2001 was: Argentina, Australia, Austria, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Chile, China, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, The former Yugoslav Republic of Macedonia, France, Georgia, Germany, Greece, Hungary, Ireland, Israel, Italy, Japan, Jordan, Republic of Korea, Latvia, Lithuania, Luxembourg, Malta, Mexico, Monaco, Morocco, Netherlands, Norway, Peru, Poland, Portugal, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Turkey, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Venezuela, and Yugoslavia. Hague Conference on Private International Law: Member States, at http:/ / www.hcch.net/ e/ members/ members.html (last visited Dec. 30, 2001).

(138) Statute of The Hague Conference on Private International Law, 1955, art. 1, at http:/ / www.hcch.net/ e/ conventions/text01e.html.

(139) The Conference’s work program for drafting the Convention is available at http:/ / www.hcch.net/ e/ workprog/ jdgm.html (last visited Dec. 30, 2001). An October 1999 Draft, which is the latest complete draft, is at http:/ / www.hcch.net/ e/ conventions/ draft36e.html. A June 2001 Working Revision with proposed changes to the October 1999 Draft is at ftp:/ / hcch.net/ doc/ jdgm2001draft_e.doc (last visited Dec. 30, 2001).

(140) The draft Hague Convention and the E.U. Regulation on Jurisdiction were both based on the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 27, 1968, 1968 O.J. (L 299) 32, at http:/ / www.curia.eu.int/ common/Recdoc/ convention/ en/ c-textes/ _brux-textes.htm. The E.U. Regulation replaces the Brussels Convention in all of the E.U. Member States except for Denmark. See discussion supra note 120

(141) The Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, art. 6, Oct. 1999 (Draft) [hereinafter Hague Convention 1999].

(142) Id. art. 10.

(143) The Hague Convention on Jurisdiction and Foreign Judgements in Civil and Commerical Matters, art. 7(2), June 2001 (Working Revision) [hereinafter Hague Convention 2001]. The June 2001 Working Revision is cited because of the cumbersome and confusing language of the October 1999 Draft.

(144) Hague Convention 1999, supra note 141, art. 7(2). The October 1999 Draft is cited because this provision is omitted (apparently unintentionally) from the June 2001 Working Revision.

(145) For additional difficulties the delegations are facing in drafting a “harmonizing” convention, see Dreyfuss, supra note 1.

(146) Hague Convention 1999, supra note 141, art. 7(3).

(147) Hague Convention 2001, supra note 143, art. 7, alternative B, variant 2.

(148) Id. art. 7, alternative B, variant 1. An Alternative A was included in the June 2001 Working Revision as a matter of reference, although it had no support from the participants at the June 2000 meeting.

(149) Amstgericht Dusseldorf, OLGZ, 340 (1997) 191/ 96. A summary is posted on the Perkins Coie Internet Case Digest at http:/ / www.perkinscoie.com/Resource/ ecomm/ netcase/ Cases- 15.htm.

(150) LG Berlin, OLGZ, 97 (1997) 193/ 96. A summary is posted on the Perkins Coie Internet Case Digest at http:/ / www.perkinscoie.com/Resource/ ecomm/ netcase/ Cases- 15.htm.

(151) Following the establishment of the Internet Corporation for Assigned Names and Numbers (ICANN) in 1999, the responsibility for assigning domain names with country codes shifted from Network Solutions, Inc., in the United States to country code managers.

(152) Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)

(153) See Dow Chem. Co. v. Alfaro, 786 S.W.2d 674 (Tex. 1990).

(154) [1999] BCCA 0169 (Can.). See supra text accompanying notes 118-19. In Braintech, the British Columbia Court of Appeal found that a Texas court did not have jurisdiction to award a judgment against a Canadian company based solely on the fact that the company had a passive web site accessible in Texas.

(155) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. [section] 401(c) (1987).

(156) Id. [section] 432(2).

(157) Id.

(158) See supra text accompanying note 64.

(159) Elinor Mills Abreu, Reuters FBI Confirms ‘Magic Lantern’ Project Exist, (Dec. 12, 2001), at http: / / dailynews. yahoo. com/ htx/ nm/ 20011212/ tc/tech_ magiclantern_dc_1.html.

(160) The rule, which is known as male captus bene detentus (improperly arrested, properly detained), was first adopted in the United States in Ker v. Illinois, 119 U.S. 436 (1886). In that case, the U.S. Supreme Court held that a U.S. citizen who was abducted by a U.S. official from a foreign country for trial in a U.S. state court could not challenge his indictment or conviction on grounds that he was improperly brought within the jurisdiction of the court. The male captus bene detentus rule was affirmed, most recently, in United States v. Alvarez-Machain, 504 U.S. 655 (1992), which was a case involving an abduction by U.S. officials in violation of an international treaty provision prohibiting such conduct. The same rule was followed in Attorney-General of the Government of Israel v. Eichmann, 36 I.L.R. 5 (Jm. D.C. 1961) (Isr.) and stated there to be a rule followed in common law countries.

(161) The United Kingdom’s House of Lords, in a decision applicable throughout the British Commonwealth, rejected the rule in Regina v. Horseferry Road Magistrates’ Court (Ex parte Bennett), [1994] 1 App. Cas. 42 (H.L. 1993).

A number of commentators have discussed the male captus bene detentus rule and its rejection outside the United States as a violation of international human rights law. See, e.g., Abraham Abramovsky, Extraterritorial Abductions: America’s “Catch and Snatch” Policy Run Amok, 31 VA. J. INT’L L. 151 (1991)

(162) 706 F.2d 370 (2d Cir. 1983).

(163) Id. (quoting United States v. Nunez-Rios 622 F.2d 1093, 1097 (2d Cir. 1980)).

(164) 10 EuGRZ 435 (Judgment of 15 July 1982) (Swiss Federal Tribunal, Lausanne, P1201/ 81/Fs 1983)

(165) Because Belgium, like most countries, will not extradite its own nationals, Germany was unable to seek the defendant’s extradition from Belgium and had to resort to the subterfuge of inducing him to travel to Switzerland. See Wilske & Schiller, supra note 1, at 173 n.327.

(166) 706 F.2d at 372. Additionally, investigations must be conducted “consistent with … the law of international human rights.” RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. [section] 433(2)(a) (1987).

(167) 500 F.2d 267 (2d Cir. 1974), reh’g denied, 504 F.2d 1380 (2d Cir. 1974).

(168) 117 F.3d 1206 (11th Cir. 1997). The Court cited Ker v. United States, 119 U.S. 436 (1886) in affirming that the United States properly exercised jurisdiction. 117 F.3d at 1214.

(169) See supra note 164 and accompanying text.

(170) See Regina v. Horseferry Road Magistrates’ Court (Ex parte Bennett), [1994] 1 App. Cas. 42 (H.C. 1993)

(171) See supra notes 39-41 and accompanying text.

(172) See Free Dmitry Sklyarov web site, at http:/ / www.freesklyarov.org/ (last visited Dec. 30, 2001). The D.O.J. complaint is at http:/ / www.eff.org/ IP/ DMCA/ US_v_Sklyarov/ 20010707_complaint.html.

(173) The ElcomSoft web site is at http:/ / www.elcomsoft.com (last visited Dec. 30, 2001).

(174) Jennifer Lee, In Digital Copyright Case, Programmer Can Go Home, N.Y. TIMES (Dec. 14, 2001), at http:/ / www.nytimes.com/ 2001/ 12/ 14/technology/ 14HACK.html.

(175) 17 U.S.C. [section] 1201(b)(1)(A) (1998). For a critique of the problems with this provision of the Digital Millennium Copyright Act, see Niels Ferguson, Censorship in Action: Why I Don’t Publish my HDCP Results, at http:/ / www.macfergus.com/ niels/ dmca/ cia.html (last visited Dec. 30, 2001). In December 2001, following intense public opposition as well as abandonment of the case by Adobe, the Justice Department dropped its case against Sklyarov and ElcomSoft and allowed Sklyarov to return to Russia. Lisa Rein, Dmitry Sets the Record Straight, O’REILLY NETWORK WEBLOGS (Dec. 21, 2001), at http:/ / www.oreillynet.com/ cs/ weblog/ view/wlg/ 983.

(176) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. [section] 431(1) (1987).

(177)Id. [subsection] 403(1), 431.

(178) See Libyan Arab Foreign Bank v. Bankers Trust Co., 1 Lloyd’s Rep. 259 (Q.B. 1988) (Eng.)

(179) RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE U.S. [section] 431 (1) reporter’s notes n.4 (1987).

(180) See sources cited supra note 134.

(181) See sources cited supra note 134.

(182) George A. Chidi, Jr. & Rick Perera, Yahoo’s Nazi Ban Draws Free Speech Concerns, PCWORLD.COM, at http:/ / www.pcworld.com/ news/ article/ 0,aid,37524,00.asp (Jan. 4, 2001).

(183) Yahoo, Inc. v. La Ligue Contre la Racisme et l’Antisemitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001).

(184) Id. at 1194. The two defendants in the case, La Ligue Contre la Racisme et l’Antisemitisme and L’Union des Etudiants Juifs de France, promptly announced that they would appeal the decision. French Humanitarian Organizations Appeal Yahoo/ Decision on Nazi Memorabilia, (Dec. 5,2001), at http:/ / globalarchive.ft.com/ globalarchive/ article.html?id=011205006245.

(185) Section 110 of the Uniform Computer Information Transactions Act of 1999 specifically recognizes the validity of choice-of-forum clauses. The Act, posted at http:/ / www.law.upenn.edu/ bll/ ulc/ ucita/ ucita1200.htm, is currently in force only in Maryland and Virginia. See National Conference of Commissioners on Uniform State Laws Legislative Fact Sheet, at http:/ / www.nccusl.org/ nccusl/ uniformact_factsheets/ uniformacts-fs-ucita.asp (last visited Dec. 30, 2001). The ABA Section Report similarly advocates the use of choice-of-forum clauses. See ABA Section Report, supra note 1, [paragraph] 1.2.1.

(186) See supra note 85 and accompanying text.

(187) Another example is the forum selection clause posted on the Brazilian InterNAU.com. br web site at http:/ / www.internau.com.br/ dom_contrato.asp (last visited Dec. 30, 2001).

(188) 407 U.S. 1 (1972).

(189) Id. at 9.

(190) Id. at 11, n. 12.

(191) Id. at 15.

(192) Council Regulation 44/ 2001, supra note 120.

(193) Id. art. 17

(194) See supra notes 136-48 and accompanying text.

(195) See supra notes 147-48 and accompanying text.

(196) 714 N.Y.S.2d 844 (N.Y. App. Div. 1999)

(197) 714 N.Y.S.2d at 855.

(198) Id.

(199) Id. at 861.

(200) See supra notes 134-35, 180-84 and accompanying text.

(201) Summary Order of May 22, 2000 supra note 134.

(202) Interim Court Order, No. RG: 00/ 05308 (Nov. 20, 2000) at http:/ / www.cdt.org/ speech/ international/ 001120yahoofrance.pdf.

Yahoo, of course, declined to use the technology. Instead it removed the Nazi memorabilia from its web site and then it brought suit in the United States and got a declaration that the French judgment was unenforceable. See supra notes 182-84 and accompanying text.

(203) Matthew Leising, New Software Pinpoints Location of Web Users, FIN. TIMES, Aug. 1, 2001, at http:/ / globalarchive.ft.com/ globalarchive/ articles.html?id=010801007388. Companies offering geo-location products include Digital Envoy, at http:/ / www.digitalenvoy.net (last visited Dec. 30, 2001)

(204) Geography and the Net: Putting It in Its Place, THE ECONOMIST, Aug. 9, 2001, at http:/ / www.quova.com/ article.cfm?ID=97

(205) 714 N.Y.S.2d 844, 855 (N.Y. App. Div. 1999)

(206) One author has suggested two alternative solutions to the retailer entrapment problem: (1) user registration of anyone who wants to do business online, including both merchants and consumers, and (2) the establishment of an online international cybercourt. Susan Nanss Exon, A New Shoe Is Needed to Walk Through Cyberspace Jurisdiction, 11 ALB. LJ. SCl. & TECH. 1,49-53 (2000). In light of the fact that the U.S. Congress has traditionally been unwilling to mandate a national identification card for U.S. citizens, it seems highly unlikely that it would warm to an online system that would do the same thing. Similarly, given the U.S. government’s longstanding opposition to international courts, the creation of an online international cybercourt seems to be equally unlikely.

(207) Amazon.com, c|net, and net2phone are Quova customers. See http://www.quova.com/customers.htm (last visited Dec. 30, 2001).

(208) CCN, The Financial Times, Microsoft, and Network Associates are Digital Envoy customers. See http://www.digitalenvoy.net/customers.shtml (last visited Dec. 30, 2001).

(209) VeroTrust is a NetGeo customer. See http://www.netgeo.com/aboutus/customers.html (last visited Dec. 30, 2001).

(210) In the United States the moratorium was created by the Internet Tax Freedom Act, Pub. Law 105-277 (Oct. 21, 1998), at http://cox.house.gov/nettax/law.html. Internationally, a moratorium was implemented by the World Trade Organization at its 1998 Ministerial Meeting. WTO Ministerial Declaration on Electronic Commerce, WT/Min(98)/DEC/2, at http:// www. wto. org/english/ tratope/ecom_e/mindec1_e.htm (last visited Dec. 30, 2001).

(211) The U.S. moratorium is scheduled to expire on Nov. 1, 2003. Pub. Law No. 107-75, extending expiration date of Internet Tax Freedom Act, Pub. Law 105-277, 112 Stat. 2681-719 (1998). The WTO moratorium expired in November 1999 when the Ministerial Meeting in Seattle failed to issue a new declaration. WTO Ministerial Declaration on Electronic Commerce, WT/Min(98)/DEC/2, supra note 210.

(212) See Organization for Economic Cooperation and Development Work Program on Taxation of Electronic Commerce, at http://www1.oecd.org/daf/fa/e_com/e_com.htm (last visited Dec. 30, 2001). On February 12, 2002, the European Union adopted a regulation requiring that value added taxes be collected in the jurisdiction of the buyer. Virtual VAT, FIN. TIMES, Feb. 13, 2002, at 12, at http://globalarchive.ft.com/globalarchive/ article.html?id=020213001851.

(213) See sources cited supra notes 134-35, 180-84.

(214) Crispian Balmer, Reuters, Yahoo Ordered to Bar French from Nazi Web Sites, (Nov. 20, 2000), at http://dailynews.yahoo.com/h/nm/20001120/ wr/france_yahoo_dc_2.html.

(215) See sources cited supra notes 39-41 and accompanying text.

(216) See sources cited supra note 33 and accompanying text.

(217) See sources cited supra note 33 and accompanying text.

(218) See supra note 41.

(219) See supra note 135 and accompanying text.

(220) Yahoo, Inc. v. La Ligue Contre la Racisme et l’Antisemitisme, 169 F. Supp. 2d 1181 (N.D. Cal. 2001).

(221) See supra note 77 and accompanying text.

(222) See sources cited supra note 1.

(223) Latin for “be wary foreign traveler.”

Ray August, Professor of Business Law, Washington State University J.D., University of Texas at Austin