This presentation examines the legal conflicts that can arise due to the Internet being borderless and different countries having different laws. Possible solutions are offered.

1. Internet Jurisdiction: Resolving
International Conflicts of Law
Presented by Prof. Mark Grabowski

2. Introduction
A French court
presiding over a
lawsuit in June 2013
directed Twitter to
reveal authors of
anti-Semitic and
racist tweets.
Twitter's lawyers are
evaluating the court
order.

3. • The controversial tweets
were made by someone
in U.S.A., which is also
where Twitter and its
servers are located.
• In the U.S.A., hate speech
is protected by free
speech laws.
• But, in France, where the
tweets were seen – and in
many European countries
– hate speech is illegal.

4. The issue
Consider the far-reaching
impacts of this attempt
to regulate Internet and
social media speech. Do
laws of one country
apply to a company
based in another country
whose laws differ? Can a
nation ever have global
jurisdiction over speech
on the Internet?

5. Such disputes are becoming more
common because…
1.Different countries have
differing ideas on internet
regulation
2.Our existing remedies for
resolving international conflicts
of law are inadequate for the
Internet
3.With 192 countries, there’s no
one-size fits all solution

6. The presentation
Courts and commentators have long recognized
these issues, yet there has been little progress
made toward finding a solution to the Internet
jurisdiction dilemma. Given this situation, it is
imperative to establish a workable framework
for resolving such conflicts among governments
with differing values and goals. This
presentation proposes some possibilities.

7. Consequences
The economy suffers as businesses are less likely to invest and
innovate due to legal uncertainties. Dot coms also waste
valuable resources handling international legal disputes. And
some users may find themselves facing legal claims for
activities that are legal in the users’ country. While others
must surf the web without any certainty that redress is
available for harms they might suffer online.

8. Presentation Overview
I. Examples of recent & ongoing conflicts
II. Differing views of Internet regulation
III. Inadequacy of existing remedies
IV. Possible solutions & my proposal

9. Examples of Int’l Conflicts

11. The U.S.A. often presents
itself as the bastion of
Internet free speech, but it
arguably oversteps its
bounds sometimes.
Consider the 2008 case of
a British citizen living in
Spain, with Internet
servers in the Bahamas,
selling holidays to Cuba,
and having his domain
name impounded by a
registrar located in the
U.S.A. because it appeared
to break the U.S.A.’s
embargo against Cuba.

12. A German court
could not seize the
Facebook account
of a German citizen
accused of burglary
as evidence
because, although
Facebook has an
office in Hamburg,
the data was
located on a server
in the U.S.A.

13. Even within the same country, there are sometimes
disagreements about internet jurisdiction. Two
Californian judges in the same district disagreed
about their jurisdictional competence to hear cases
between a Korean plaintiff and an Australian
defendant, who used US social media platforms.

14. Differing Models for Internet
Regulation (even within U.S.A.)

15. 1. Self-Governance
Insists that the Internet community is capable of
regulating itself and promulgation of domestic
or international laws is both unnecessary and
undesirable. But that ship has sailed; most
countries already regulate the Internet within
the framework of their political, legal, moral and
cultural values.

16. 2. Neo-mercantilism
It’s based on the premise that the Internet is
essentially a vehicle of commerce. The role of
government, therefore, is to ensure the free
flow of commerce along the information
superhighway and to remove any impediments.
This model is considered to be the American
approach to Internet regulation.

17. 3. Culturalism
Views cultural protection as the primary
objective of Internet regulation. Internet laws
and policies are enacted to reflect and protect a
nation’s intellectual, aesthetic and moral values,
with little consideration of their global impact.
The French ruling against Twitter illustrates the
culturalist perspective.

18. 4. Globalism
Requires multinational political, economic,
technological, and cultural cooperation in
regulating the Internet. This model relies on
treaties and international conventions to
achieve that goal. Although international
regulation of intellectual property and child
pornography on the Internet has made some
progress, there are no international agreements
resolving Internet jurisdiction.

19. Why
existing
remedies
are
inadequate

20. There’s no dispute that a sovereign state may
create and enforce laws concerning activities
within its borders.

21. … But the internet is a cross-border space.

22. In the traditional analog world, it is relatively easy
for courts to determine the geographical locations
of the persons, objects, and activities relevant to a
particular case. Even international sea law, such as
the United Nations Convention on the Law of the
Sea, is based on territory. However, as online
activities often involve actors and intermediaries in
multiple physical locations, diverse sets of
potentially incompatible laws and rules overlap and
frequently are in conflict. Virtual frontiers do not
map neatly into boundaries of national territories.

23. Content providers may physically reside in one
place, conduct their business in another place,
and locate their servers in a third location, and
their content is readily accessible from
anywhere in the world. As the French Twitter
case and Cuba travel case illustrate, cross-border
platforms can host user-generated content that
might be deemed illegal in certain jurisdictions,
but not in others.

24. Furthermore, attempts to identify the location
of a particular user over the Internet have
proven extremely difficult, and many Internet
users compound this problem by intentionally
hiding their location. Traditional principles of
international jurisdiction, particularly
territoriality, are poorly suited for this sort of
environment of geographic anonymity.

25. Towards a global standard
Courts have struggled to develop a satisfactory
solution, yet no progress has been made toward a
uniform global standard of Internet jurisdiction. Here
are some common proposals…

26. 1. A universal regulatory scheme?
An international convention would lead to a treaty
establishing substantive "universal standards” for
what’s legal and illegal. The treaty would also create
an international body that would promulgate civil
and criminal Internet regulations and jurisdictional
rules. However, getting 192 nations to agree on
standards and then adopt them into their domestic
legal codes seems daunting, if not impossible.
Attempts to do this with Outer Space and the Moon
haven’t worked well – either few countries adopt the
law or it’s so vague as to be toothless. Adoption of a
universal internet law could also create conflicts
between the universal Internet regulations and the
domestic laws regulating the same activities.

27. 2. A global standard for
determining jurisdiction?
A treaty would be signed by all nations that
creates a a single test for determining Internet
jurisdiction. It could, for example, be an effects
test. Under this principle, a state may assert
jurisdiction over conduct that has an effect, but
does not actually occur, within its border. As
with a universal standard, reaching a consensus
would be daunting.

28. 3. Filtering
Governments would regain control of their borders
by placing blocking and tracking technologies at
international access points or at the Internet
Service Provider's (ISP) servers to act as centurions.
Many governments have already implemented such
technologies to monitor and regulate Internet
activities of their citizens. However, such filters can
easily be circumvented and won’t solve issues such
as defamation and copyright infringement. In
addition, this could undermine the Internet’s
infrastructure and is antithetical to its founding
purpose of being a tool to share information.

29. 4. Choice of Laws Provisions
Content providers and users could agree to
resolve disputes in a particular forum via choice
of law provisions in terms of service contracts.
But there would need to be an international
consensus regarding the validity of such
agreements. This seems unlikely given that it
would limit governments power and the EU has
been reluctant to allow forum selection clauses.

30. 5. Do nothing
Not all of the issues of Internet regulation
require solutions. But, of course, conflict will
persist.

31. My proposal
The best model for Internet governance is a
hybrid that incorporate some elements from all
five models. Internet governance is a complex
task requiring a complex set of regulatory
mechanisms. As a result, the optimal system of
governance is a combination of regulation.
Various stakeholders – government officials,
tech companies and netizens – need to be
involved.

32. My proposal
Organizations like the Internet Governance
Forum and Internet & Jurisdiction have propped
up to tackle these issues. Progress may also be
achieved by using existing channels and devices.
Admittedly, this solution may seem like a bit of a
cop out. But, keep in mind, the reason for the
deadlock concerning Internet jurisdiction is
because each of the most common solutions
have significant drawbacks. There is no silver
bullet.

33. About the
Presenter
Mark Grabowski is an assistant
professor at Adelphi University
in New York, where he teaches
media law and Web journalism.
Previously, he worked as a
journalist, covering news and
politics for large newspapers
and popular websites around
the United States. He holds a
J.D. from Georgetown Law. His
research focuses on Internet
law, social media and media
ethics. For more information,
visit markgrabowski.com.

34. Sources
• Internet Jurisdiction, internetjurisdiction.net
• Internet Governance Forum: “The Transboundary
Internet: Jurisdiction, Control and Sovereignty”
• 31 B.C. Int'l & Comp. L. Rev. 345
• 29 Vand. J. Transnat'l L. 75
• University of Illinois Public Law Research Paper
No. 07-25
• New York Times
• Ars Technica