text:
Cite As: Darrel Menthe, Jurisdiction In Cyberspace: A Theory
of International Spaces 4 MICH.TELECOMM.TECH.L.REV.
69 (1998),
available at <http://www.mttlr.org/volfour/menthe.html>.
Comments about this article should be sent to firstname.lastname@example.com.
I. Principles of Jurisdiction
II. The Theory of the Uploader and the Downloader
III. Rejecting Territoriality: The Problem with Minnesota
IV. Rejecting Territoriality: "The Law of the Server"
V. The Theory of International Spaces
A. Overview
B. Evolution of International Law
C. The Case for International Spaces
1. History
2. Jurisdiction in Antarctica
3. Jurisdiction in Outer Space
4. Jurisdiction in Cyberspace: The Vessel of Nationality
VI. Jurisdiction in Cyberspace: A Preview
A. Copyright Law
B. Libel
VII. Conclusion
{1}Where is cyberspace?[1]
The answers to this question seem to approach the metaphysical: it is everywhere
and nowhere; it exists in the smallest bursts of matter and energy and
is called forth only by the presence of man through the intercession of
an Internet provider. If the answers are useless, it only shows that we
are asking the wrong question. We should first ask: what is cyberspace?
To this question at least a functional answer is possible. Functionally,
cyberspace is a place. It is a place where messages and webpages are posted
for everyone in the world to see, if they can find them.[2]
The United States Supreme Court's first opinion about the Internet contains
language that makes one hopeful that U.S. courts will accept the legal
metaphor of cyberspace as a place outside national boundaries: "Taken together,
these tools constitute a unique medium -- known to its users as 'cyberspace'--
located in no particular geographical location but available to anyone,
anywhere in the world, with access to the internet."[3]
{2}Unfortunately, when the law confronts cyberspace the usual mode of
analysis is analogy, asking not "What is cyberspace?" but "What
is cyberspace like?" The answers are varied: a glorified telephone,
a bookstore, a bulletin board. I propose that we look at cyberspace not
in these prosaic terms, but rather through the lens of international law
in order to give cyberspace meaning in our jurisprudence.[4]
{3}The thesis of this paper is that there exists in international law
a type of territory which I call "international space." Currently there
are three such international spaces: Antarctica, outer space, and the high
seas. For jurisdictional analysis, cyberspace should be treated as a fourth
international space.
{4}In cyberspace, jurisdiction is the overriding conceptual problem
for domestic and foreign courts alike. Unless it is conceived of as an
international space, cyberspace takes all of the traditional principles
of conflicts-of-law and reduces them to absurdity. Unlike traditional jurisdictional
problems that might involve two, three, or more conflicting jurisdictions,
the set of laws which could apply to a simple homespun webpage is all
of them. Jurisdiction in cyberspace requires clear principles rooted
in international law. Only through these principles can courts in all nations
be persuaded to adopt uniform solutions to questions of Internet jurisdiction.
I. Principles of Jurisdiction
{5}There are three types of jurisdiction generally recognized in international
law. These are: (1) the jurisdiction to prescribe; (2) the jurisdiction
to enforce; and (3) the jurisdiction to adjudicate.[5]
The jurisdiction to prescribe is the right of a state to make its law applicable
to the activities, relations, the status of persons, or the interests of
persons in things.[6]
This paper deals almost exclusively with the jurisdiction to prescribe.
It is useful at this point, however, to note the distinction between the
jurisdiction to prescribe a rule of law for a particular action and the
jurisdiction to enforce that rule. This paper will not discuss extradition.
{6}Under international law, there are six generally accepted bases of jurisdiction or theories under which a state may claim to have jurisdiction to prescribe a rule of law over an activity. In the usual order of preference, they are:
1. Subjective Territoriality
2. Objective Territoriality
3. Nationality
4. Protective Principle
5. Passive Nationality
6. Universality
As a general rule of international law, even where one of the bases of jurisdiction is present, the exercise of jurisdiction must be reasonable.[7]
{7}Subjective territoriality is by far the most important of the six.
If an activity takes place within the territory of the forum state, then
the forum state has the jurisdiction to prescribe a rule for that activity.
The vast majority of criminal legislation in the world is of this type.
{8}Objective territoriality is invoked where the action takes place
outside the territory of the forum state, but the primary effect of that
activity is within the forum state. The classic case is that of a rifleman
in Canada shooting an American across Niagara Falls in New York. The shooting
takes place in Canada; the murder -- the effect -- occurs in the United
States. The United States would have the jurisdiction to prescribe under
this principle. This is sometimes called "effects jurisdiction" and has
obvious implications for cyberspace which will be discussed below.
{9}Nationality is the basis for jurisdiction where the forum state asserts
the right to prescribe a law for an action based on the nationality of
the actor. Under the law of the Netherlands, for example, a Dutch national
"is liable to prosecution in Holland for an offence committed abroad, which
is punishable under Netherlands law and which is also punishable under
the law of the country where the offence was committed."[8]
Many other civil law countries have similar laws.
{10}Passive nationality is a theory of jurisdiction based on the nationality
of the victim. Passive and "active" nationality are often invoked together
to establish jurisdiction because a state has more interest in prosecuting
an offense when both the offender and the victim are nationals of
that state. Passive nationality is rarely used for two reasons. First,
it is offensive for a nation to insist that foreign laws are not sufficient
to protect its citizens abroad. Second, the victim is not being prosecuted.
A state needs to seize the actor in order to undertake a criminal prosecution.
{11}The Protective principle expresses the desire of a sovereign to
punish actions committed in other places solely because it feels threatened
by those actions. This principle is invoked where the "victim" would be
the government or sovereign itself. For example, in United States v.
the defendants were charged with making false statements in immigration
applications while they were outside the United States. This principle
is disfavored for the obvious reason that it can easily offend the sovereignty
of another nation.
{12}The final basis of jurisdiction is universal jurisdiction, sometimes
referred to as "universal interest" jurisdiction. Historically, universal
interest jurisdiction was the right of any sovereign to capture and punish
pirates. This form of jurisdiction has been expanded during the past century
and a half to include more of jus cogens: slavery, genocide, and
hijacking (air piracy).[10]
Although universal jurisdiction may seem naturally extendable in the future
to Internet piracy, such as computer hacking and viruses, such an extension
is unlikely given the traditional tortoise-like development of universal
jurisdiction. Just as important, universal jurisdiction traditionally covers
only very serious crimes.[11]
As a result, all nations have due process type problems with convictions
under this principle.
{13}The general mode of international conflict of law analysis is to
weigh the interests of competing states in determining whether jurisdiction
to prescribe exists. Although subjective territoriality usually trumps
other interests, a strong state interest in protecting its nationals can
outweigh a weak state interest in prosecuting the crime on its own soil.
{14}It is not always clear what the result will be for an individual
defendant if a state lacks the jurisdiction to prescribe law. Under some
domestic legal systems, a defendant will be released if the court convicted
the defendant where it had no jurisdiction to prescribe. In the United
States, this question is intertwined with due process analysis and presumptions
about the intent of Congress not to violate international law.[12]
At a minimum, under international law a claim will accrue to the state
whose sovereignty is offended by the conviction of its national.
II. The Theory of the Uploader and the Downloader
{15}The public interacts with cyberspace in two primary ways: either
putting information into cyberspace or taking information out of cyberspace.
At law in cyberspace, then, there are two distinct actors: the uploader
and the downloader.[13]
Under this theory, the uploader and the downloader act like spies in the
classic information drop -- the uploader puts information into a location
in cyberspace, and the downloader accesses it at a later time. Neither
need be aware of the other's identity. Unlike the classic information drop,
however, there need not be any specific intent to communicate at all. Some
areas of the Internet are accessed by hundreds of thousands of people from
all over the world, while others languish as untrodden paving stones on
the seemingly infinite paths of cyberspace.
{16}In both civil and criminal law, most actions taken by uploaders
and downloaders present no jurisdictional difficulties. A state can forbid,
on its own territory, the uploading and downloading of material it considers
harmful to its interests. A state can therefore forbid anyone from uploading
a gambling site from its territory, and can forbid anyone within its territory
from downloading, i.e. interacting,[14]
with a gambling site in cyberspace. For example, the Supreme Court recently
declared the "Communications Decency Act" (CDA) unconstitutional for overbreadth
and vagueness on a facial challenge[15],
but therefore did not have a chance to address its international implications.
Quite apart from the internal limitations of the U.S. Constitution, there
is little doubt that, under international law, the United States has the
jurisdiction to prescribe law regulating the content of what is uploaded
from United States territory. Had the Supreme Court been presented with
an actual case or controversy concerning the application of the CDA to
a foreign national resident abroad, the Supreme Court would have had to
consider the extraterritorial application of the law as written, and could
have been expected to apply the presumption against extraterritoriality
and to have circumscribed the CDA in that regard.
{17}Two early American cases demonstrate how this theory would be manifest.
The Schooner Exchange[16]
held that a French war vessel was not subject to American law, although
it was in an American port. Similarly, a webpage would be ascribed the
nationality of its creator, and thus not be subject to the law of wherever
it happened to be downloaded.
{18}The Cutting Case[17]
provides an example of how an uploader should be viewed in a foreign jurisdiction
that is offended by material uploaded into cyberspace. Mr. Cutting published
an article in Texas which offended a Mexican citizen. When Mr. Cutting
visited Mexico he was incarcerated on criminal libel charges. The United
States Secretary of State instructed the U.S. ambassador in Mexico to inform
the Mexican government that, "[T]he judicial tribunals of Mexico were not
competent under the rules of international law to try a citizen of the
United States for an offense committed and consummated in his own country,
because the person offended happened to be a Mexican."[18]
As a general proposition, where uploading certain material is a crime,
it is an offense "committed and consummated" in the state where the uploader
is located.
III. Rejecting territoriality: The Trouble with Minnesota
{19}What many states want to do is altogether more troubling. Several
states seek to exercise jurisdiction over uploaders (and to a lesser extent,
downloaders) outside their own territorial boundaries. Minnesota is one
of the first jurisdictions to attempt a general exercise of such jurisdiction.
Minnesota's Attorney General, Hubert Humphrey III, issued a memorandum
stating that "Persons outside of Minnesota who transmit information via
the Internet knowing that information will be disseminated in Minnesota
are subject to jurisdiction in Minnesota courts for violations of state
criminal and civil laws."[19]
{20}Since Hubert Humphrey III's memorandum was issued, a federal district
court and the Minnesota Court of Appeals have applied his rationale and
found personal jurisdiction based merely on the fact that information placed
on the Internet was downloadable in the state in question.[20]
The opinion in Minnesota v. Granite Gate Resorts (a case argued
for the state by the very same Hubert Humphrey III), accepted the Attorney
General's argument and asserted jurisdiction over the website owner based
in part on the fact that "during a two-week period in February and March
1996, at least 248 Minnesota computers accessed and 'received transmissions
from' appellant's websites."[21]
While this disturbing and poorly thought out result may eventually be overturned
by federal legislation or case law defining due process,[22]
the federal case from Missouri, Maritz v. Cybergold, is more troubling.
In Maritz, a federal district judge accepted the plaintiff's "downloadable"
argument most likely because of its conceptual simplicity, and additionally
because of the traditional preference of courts and choice of law schemes
to find jurisdiction in the domestic forum. Fortunately, no federal appellate
court has made a binding determination, and no case involving in personam
jurisdiction and the Internet has yet been decided by the Supreme Court.
Therefore, these judicial missteps have not yet become formidable law.
{21}Minnesota's concerns are no doubt sincere, but the memorandum itself
is not. Everybody "knows" that all information in cyberspace may be downloaded
in Minnesota, and such an eventuality is always forseeable. Minnesota's
rule thus makes all of cyberspace subject to Minnesota law. If every state
took this approach (and following the initial success of Minnesota's reasoning,
there is no reason why every state could not), the result would be unbearable,
especially for multinational corporations with attachable assets located
all over the world. Nonetheless, Minnesota's law lays out a simple syllogism
that is easy for lawyers to grasp: anyone who "being without the state,
intentionally causes a result within the state prohibited by the criminal
laws of this state," is subject to prosecution in Minnesota.[23]
Since anyone who puts up a webpage knows that it will be visible from Minnesota,
"downloadable" in Minnesota's Attorney General's memorable words, then
every Internet actor intentionally causes a result in the state of Minnesota
and is subject to Minnesota's criminal laws. This simple approach, conceivably
appealing at first, dissolves upon a sufficiently detailed international
legal analysis.
{22}A much more sensible view is that of the Florida Attorney General:
"the resolution of these matters must be addressed at the national, if
not international, level."[24]
An interesting question for strict constructionists is whether, under the
federal system, Minnesota has any obligations under international law.
As a practical matter, Minnesota, as well as all states and nations, will
be constrained by international law. Where possible, the Supreme Court
always interprets congressional mandates in accordance with international
and that presumption is possibly stronger against state legislatures.[26]
Indeed, most provisions of U.S. foreign relations law are designed to keep
international questions in federal hands. Of course, treaties are the "supreme
law of the land," superior to any state law.[27]
At any rate, considerations of comity, which are underdeveloped and often
thinly conceived in relations between the United States and foreign sovereigns,
will be important if Minnesota attempts to assert this jurisdiction internationally.[28]
{23}Minnesota's approach has several problems. First, Minnesota has
ignored the presumption against extraterritorial in application of U.S.
laws. It seems that the Minnesota Attorney General was under the impression
that, because the mode of analysis for conflicts of law is the same for
conflicts between U.S. states as for conflicts between a U.S. state and
a foreign country, the results will also always be the same. The sovereignty
of individual American states, however, is not as easily offended (or defended)
as the sovereignty of nation-states. In other words, courts will accord
France's interest in its sovereignty greater weight than Delaware's. (This
is especially true of French courts.) Under the theory of international
spaces outlined below, Minnesota has no jurisdiction to prescribe law over
objects in cyberspace because under the federal system, Minnesota has no
"nationality" to assert. Nationality is a function of national sovereignty,
and the jurisdiction predicated thereon is federal.
{24}Second, Minnesota has conflated in personam jurisdiction
with the jurisdiction to prescribe law. The former is subject to the "minimum
analysis, the latter is not. A nexus with Minnesota territory sufficient
to establish in personam jurisdiction over a defendant may not be
sufficient to give Minnesota the jurisdiction to prescribe a rule of law
for the action. Indeed, Minnesota courts may have in personam jurisdiction
over a defendant but may, according to their own choice of law statutes,
choose to apply foreign law in the case at hand.
{25}Although the analysis conducted in Granite Gate looks like
a standard in personam jurisdiction decision, the court really decided
the case while assuming it had the jurisdiction to prescribe law for actions
in cyberspace. The court looked no further than its own state's long-arm
statute in finding in personam jurisdiction without considering
issues of federalism, comity, or international law, i.e., without considering
whether jurisdiction to prescribe existed or not. From an international
law perspective, what Minnesota's Court of Appeals and its Attorney General
have actually done is chosen to rely on "effects" jurisdiction or "objective
territoriality" to find implicitly the jurisdiction to prescribe, where
it is the territoriality of the object state, rather than (or in addition
to) that of the subject actor, which prescribes the rule of law. The Restatement
(Second) of Foreign Relations described objective territoriality as the
A state has jurisdiction to prescribe a rule of law attaching legal consequences to conduct that occurs outside its territory and causes and effect within its territory if either -
(a) the conduct and its effect are generally recognized as constituent elements of a crime or tort under the law of states that have reasonably developed legal systems, or
(b)(i) the conduct and its effect are constituent elements of activity to which the rule applies; (ii)the effect within the territory is substantial; (iii) it occurs as a direct and foreseeable result of the conduct outside the territory; and (iv) the rule is not inconsistent with the principles of justice generally recognized by states that have reasonably developed legal systems.[30]
Minnesota's rule misses the connotations of this description. None of these cyberspace "crimes" can meet part (a) of the test, because none of them is a traditional crime, generally recognized, and because the act of uploading is not currently a constituent element of any crime anywhere. Part (b) of the test is more important for analyzing jurisdiction to prescribe conduct in cyberspace. Part (b) speaks of substantial effect and principles of justice "generally recognized." However, laws about pornography and gambling fail to meet either or both of these tests. Moreover, considerations of comity always play a major role in a basis of jurisdiction so offensive to foreign sovereignty. Objective territoriality is not a blanket to be thrown over cyberspace, but is appropriate only in unusual circumstances, where (as in the hypothetical example of the Canadian shooting an American) the state asserting jurisdiction on this principle is somehow the target state, uniquely or particularly affected by an action intended to cause such an effect. In short, under international law, Minnesota needs to find another basis for asserting prescriptive jurisdiction over actions in cyberspace.
IV. Rejecting territoriality: "The law of the server"
{26}Another approach to jurisdiction in cyberspace is to treat the server
where webpages are physically "located" (i.e. where they are recorded as
electronic data) as the situs of a criminal action for the purposes of
asserting territorial jurisdiction. Under this theory, a webpage "located"
on a server at Stanford University is subject to California law. Where
the uploader is also in the forum state, or is a national of the forum
state residing abroad, this approach is consistent with the theory of jurisdiction
in international spaces. But where the uploader is in a foreign jurisdiction,[31]
this analysis displays fatal shortcomings. To say that a webpage is "located"
at the server means redefining downloading and uploading as a communication
between two physical places, the location of the uploader and the "location"
of the webpage. As a practical matter, we know that data sent from an uploader
to even a nearby server can travel in data packets through nodes around
the world, thus being sent and received through several jurisdictions on
its journey to the downloader. This territorialization of cyberspace through
its servers would create jurisdictional mayhem and may produce strange
results if applied literally. For example, could an uploader be subject
to the jurisdiction of a state where a randomly assigned routing node momentarily
held a packet of contraband data?
{27}One could envision a system in which we accept the theory of the
uploader and the downloader and insist on exercising territorial jurisdiction
over webpages "located" at a server. Under the theory of the uploader and
the downloader, the act of uploading is performed entirely at the computer
terminal of the uploader, within one and only one state. Naturally, if
that state is the same state as the server, then asserting jurisdiction
over a webpage based on a territorial theory of the server's "location",
rather than on the location of the uploading, will produce no difference
except in doctrine.
{28}The ramifications of this doctrine will become apparent when the
uploader and the server are in different states. When this is the case,
in order to apply the law of the state where the server storing the webpage
is located, one must assert that the act of uploading had an effect in
the server's state. This effect must be substantial enough to provide a
basis for jurisdiction under the theory of objective territoriality or
"effects" jurisdiction. The theory of objective territoriality, however,
can provide the basis for jurisdiction to prescribe acts in cyberspace
only under unusual circumstances. As a general rule, it will not function
for ascribing criminal liability to foreign uploading because all states
have an equal interest in uploading since they are all equally affected
by the universally accessible data. Objective territoriality requires a
unique interest.
{29}The natural response is to point to the computer files which create
a webpage and say that it would be false to claim that the webpage was
anywhere else but on the server. This narrow approach ignores the
interactivity of cyberspace in four important ways. The first can be best
stated in the following question: does a webpage really exist before it
is accessed and constituted on the screen of the downloader? Surely a single
file containing pornography cannot be "obscene" until compiled and displayed
on the downloader's machine in the community whose standards must be applied
to define it as such. This has more than metaphysical implications. It
is not difficult to figure out who put garbage into cyberspace, but it
is very difficult to say what happens to it once it is there. If a webpage
is located at Stanford, it is difficult to decide for jurisdictional purposes
whether a Bolivian accessing it comes to Stanford or the webpage "travels"
to Bolivia.
{30}Second, constituent parts of a webpage are often called from other
servers, with the source code for the page consisting mostly of images
called up from other places. We do not know what the future will bring,
but we can only suppose that "sites" consisting of data pulled from around
the world at the downloader's request will become more common. Thus, the
"illegal" portion of a webpage may exist on a server in another country,
where the materials are completely legitimate.
{31}Third, a webpage consists in large part of links to other pages
which may be "located" in other countries. Even if the data is not called
up by the webpage itself, links to other data are presented to the downloader
for him to "click" on. It becomes irrational to say that a webpage with
links to gambling and pornography "located" in twenty different countries
is subject to the law of any or all of those countries. A government could
criminalize the creation of links to certain sites, but this would create
jurisictional bedlam.[33]
I would like to believe that this analysis of cyberspace would fail the
Restatement test of reasonableness.[34]
{32}Fourth, as it is often overlooked, such interactivity is complicated
by randomness and anonymity. William Byassee argues persuasively that territoriality
should refer only to the "physical components of the cyberspace community",
who are the "sender and recipient."[35]
The terms "sender" and "recipient" imply the intent of two (and only two)
parties to communicate with each other. These are not the same people as
the "uploader and downloader." The uploader and the downloader do not necessarily
know who or where the other is. The substantive results of this analysis
would lead to a considerable amount of seemingly random criminal liability,
without really adding anything to a state's ability to control the content
of cyberspace. Persons traveling around cyberspace need to know what set
of laws applies to their actions. If we reject the territorialization of
cyberspace and accept the theory of the uploader and the downloader, we
must reject the broad form of the "law of the server."
{33}By contrast, the theory of international spaces developed below
creates a clear rule. The state where a server is located retains jurisdiction
over the acts performed in that state's territory, i.e. the creation of
the Internet account for the foreign persona non grata, and the
tolerance of that account (and its potential offensive content) by whoever
exercises control over the server (typically a sysop).[36]
The rule of nationality in cyberspace means that United States nationals
and corporations[37]
cannot circumvent domestic law by uploading from foreign jurisdictions,
assuring the United States government a distinct slice of control over
the cyberspace content contributed by its citizens.[38]
{34}The theory of international spaces thus converts the "law of the
server" into the law of the sysop. It may be a law of vicarious liability,
but it would be a law concerning only a sovereign and its territorial jurisdiction
over a sysop, which presents no problems in international law. A sysop
could be criminally liable for the content over which he has some measure
of control, regardless of the nationality or location of the uploader,
but an uploader would only be criminally liable if he was located within
the territory of the forum state, or was a national of that forum state.
{35}Fortunately for the future of sysops, this result has three main
drawbacks. First, it may prove impossible to determine where the material
was uploaded from, or the nationality of the uploader. Second, this would
create a two class system of servers in cyberspace, those "located" within
the territory of the forum state, and those without, while all are equally
accessible. Third, and perhaps worst for those in favor of free speech
on the Internet (a principle soundly upheld in Reno[39]),
making a sysop liable for any "crimes" committed on his or her system means
putting the onus on the sysop to regulate content or suffer the consequences.
This would spawn a regime of private, unregulated censorship, based on
fear of litigation. It is difficult to imagine that such a system would
be effective in promoting the state's interests or the value of free speech
that is fundamental to democracy. In addition, monitoring systems for content
is virtually impossible given the sheer amount of data that can be put
up overnight. A victim of a single incident of "spamming"[40]
will understand that a single person often cannot read his or her own email
in a single day, never mind the practicality of monitoring thousands of
email accounts. Moreover, such a system seems ultimately so unjust for
the poor overworked sysop; it is the equivalent of holding a homeowner
liable for obscenity if, come morning, teenagers have spray-painted obscene
language on the house during Devil's Night. As a consequence, national
governments are likely to make very little use of the "law of the sysop,"
and instead concentrate on regulating downloaders and uploaders.
V. The Theory of International Spaces
A. Overview
{36}The theory of international spaces begins with one proposition:
nationality, not territoriality, is the basis for the jurisdiction to prescribe
in outer space, Antarctica, and the high seas. This general proposition
must be assembled through observations. In outer space, the nationality
of the registry of the vessel, manned or unmanned, is the relevant category.
In Antarctica, the nationality of the base governs.[41]
Other informal arrangements (for instance, the United States providing
all air traffic control in Antarctica)[42]
weigh heavily in decisions about jurisdiction.
{37}On the high seas, the nationality of the vessel -- the "law of the
flag" -- is the primary rule A competing view is emerging positing that
jurisdiction at sea is really "floating island" jurisdiction, a subspecies
of territorial jurisdiction.[43]
This theory posits that vessels at sea are really "floating islands," and
that the jurisdiction predicated upon them is territorial in nature.[44]
The Supreme Court has weighed in against this interpretation, pointing
out that stepping onto a U.S.-flagged vessel is not legally the same as
entering the United States.[45]
The "floating island" theory appears to derive from the obsolete notion
that vessels must somehow possess territoriality because "the right of
protection and jurisdiction . . . can be exercised only upon the territory."[46]
{38}One approach is to treat these three areas as sui generis
treaty regimes. Some scholars see international law as no more than the
sum of various international agreements -- a purely positivist approach.[47]
This has the veneer of theoretical consistency, but only if we fail to
recognize an evolving organic international legal system.
{39}The sui generis conception of international law is out of
touch with the treatment of the respective international regimes in American
courts. It is usual for American courts to treat these regimes as analogs
to one another. Smith v. United States is typical in this regard:
. . . Antarctica is just one of three vast sovereignless places where the negligence of federal agents may cause death or physical injury. The negligence that is alleged in this case will surely have its parallels in outer space. . . . Moreover, our jurisprudence relating to negligence of federal agents on the sovereignless high seas points unerringly to the correct disposition in this case."[48]
{40}In Hughes Aircraft,[49] the U.S. Court of Federal Claims held that U.S. patent law did not apply to foreign spacecraft in outer space and relied on the decision in Smith v. United States that barred the application of the Federal Tort Claims Act to claims arising in Antarctica.[50] The governing treaties are also similar in their conception and design.[51]
{41}The next theoretical and conceptual hurdle is physicality. These
three physical spaces are nothing at all like cyberspace which is a nonphysical
space. The physical/nonphysical distinction, however, is only one of so
many distinctions which could be made between these spaces. After all,
one could hardly posit three more dissimilar physicalities -- the ocean,
a continent, and the sky. What makes them analogous is not any physical
similarity, but their international, sovereignless quality. These three,
like cyberspace, are international spaces. As a fourth international space,
cyberspace should be governed by default rules that resemble the rules
governing the other three international spaces, even in the absence of
a regime-specific organizing treaty, which the other three international
spaces have.
B. Evolution of International Law
{42}International law is neither a code nor an international common
law. Its sources are many and varied, and they rely heavily on tradition
and custom. The statute of the International Court of Justice is illustrative:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. . . . [J]udicial decisions and the teachings of the most highly qualified publicists of the various nations, as a subsidiary means for the determination of rules of law.[52]
Under this scheme, treaties are only one, albeit the primary, source of law. Customary international law is often the most important part of international law. International conventions generally codify customary law, rather than create brand new law. Central to the nature of securing the signatures of a hundred or more nations to broad multilateral treaties is the formulation of a broad consensus, and this consensus is often expressed in customary international norms. This reliance on custom contrasts with both civil law systems, in which the code is paramount, and with common law systems, in which statutes and judicial decisions together form the core of the law. International law, then, is not a model of positive law. Elements of natural law, including notably jus cogens, are mixed into positive law and custom without a grand conceptual framework or meta-narrative.[53]
{43}Two concepts of particular importance in the disputes over international
spaces demonstrate the point: res nullius and res communis.
Under res nullius (literally, "a thing of no one"), a theory grounded
in Roman law and Lockean concepts of natural law, any state can assert
sovereignty if the traditional tests of the validity of a territorial claim
are met.[54]
The debate over the sea bed in international waters, Antarctica, and the
moon, revolved around just such a possibility of a nation asserting territorial
jurisdiction. Other nations, especially former colonies who correctly identified
nullius with imperialism, asserted that these areas were res communis
(a common thing). This argument won the day and is echoed in lofty provisions
in treaties such as the Law of the Sea Convention,[55]
and the Outer Space Treaty[56]
calling these places "the common heritage of mankind." Res communis
owes its origin to Roman law, natural law theories, arguments of customary
international law, and general principles of equal sovereignty embodied
in the League of Nations and United Nations charters.[57]
{44}Therefore, we see that international law is a system of mixed heritage,
overlapping sources of authority, and disparate, varied, and even inconsistent
modes of legal reasoning. This diversity of legal authority is what makes
international law so wonderful: it flows from the full experience of human
history and legal traditions, and despite theoretical inconsistencies that
would give a libertarian a headache, it works. There is simply no single
standard method for arguing within the framework of international law.
All we have are the sources of international law outlined by the International
Court of Justice, which amount to custom, tradition, and treaty.
{45}Given the diffused, decentralized nature of international law, it
is entirely appropriate to urge the recognition of a general principle
of law derived from custom, treaty, and existing general principles of
international law. No argument about what international law should be is
inherently invalid. One simply tries to line up as much authority on one's
side, however disperse and contradictory. If the ultimate argument makes
sense to supernational courts (including the International Court of Justice
and the European Court of Justice) and to powerful or influential national
governments, the proposed policy will become policy-in-fact, and perhaps
thence custom and even treaty. It is on this basis that this article proceeds.
How each state or court deals with arguments about international law is
up to it, and the various treatments are, not surprisingly, always varied
and inconsistent. Because of international law's lack of consistent centralized
sources, it is a sound methodology to recognize a general principle of
law from various sources, including custom, treaty, and the current existing
principles of international law.
C. The Case for International Spaces
1. History
{46}The history of international spaces begins at sea. Modern admiralty
law and the law of the High Seas began in large part with Grotius[58]
in the 17th Century.[59]
The Law of the Sea remains the dominating voice in the discussion of international
spaces, and the oceans have long been the most important of the international
spaces. Antarctica was not discovered until about 1820, and it did not
become the subject of serious international attention until the 1950s,
especially during the International Geophysical Year (1957-58). Although
visible since time immemorial, outer space remained similarly unexplored
until 1957, when Sputnik introduced man to a new international space.
Cyberspace emerged during the 1970s and 1980s as the apparatus of the Internet
took root, but it was not until the early 1990s that an explosion in users
and uses, including commercial uses, introduced a worldwide virtual community
to another international space.[60]
{47}In each international space, the specter of international conflict
has been a prime factor in forming treaty regimes. Concerns over the Antarctic
"pie" during the Cold War led to a treaty regime that, in effect, froze
the national claims to polar wedges.[61]
These competing national claims will be discussed in greater detail below.
Some scholars regard the 1982 Falklands War as a war over Antarctic resources.[62]
Humanity's entrance into outer space was also attended at its outset by
international conflict, primarily surrounding the Cold War, though also
encompassing the ambitions of tertiary powers such as France.
{48}Similar pressures will soon come to bear in cyberspace. Computer viruses and the "munitions" status of cryptography[63] ensure that international confrontation will enter cyberspace even if human beings cannot. Cyberspace is as much a space for traditional public international law as for private international law.
2. Jurisdiction in Antarctica
{49}The Antarctic Treaty does not itself prescribe a complete system
of jurisdiction. Instead, questions relating to the exercise of jurisdiction
in Antarctica were included in the illustrative list of matters which may
be taken up by Antarctic Treaty Consultative Meetings.[64]
So far, no measures dealing specifically with jurisdictional questions
have been adopted.[65]
However, the treaty does contain some minor jurisdictional provisions.
It provides for open observation of all bases and the exchange of scientific
personnel between these bases. The treaty also provides that such observers
and scientific personnel be subject to jurisdiction based solely on their
nationality, and not on either strict territorial jurisdiction or "floating
island" jurisdiction (i.e. the notion that the nationality of the base
would grant jurisdiction to that state over all persons thereon).[66]
{50}Subsequent treaties have addressed nationality more directly. The
Convention for the Conservation of Antarctic Seals provides expressly that,
"Each Contracting Party shall adopt for its nationals and for vessels
under its flag such laws, regulations and other measures, including
a permit system as appropriate, as may be necessary to implement this convention."[67]
It does not endorse a territorial or universalist approach.
{51}One reason for avoiding questions of territorial jurisdiction in
Antarctica is that seven nations have made overlapping claims to various
polar wedges of Antarctic territory (Argentina, Chile, the United Kingdom,
France, Norway, Australia, and New Zealand). All of these claims are suspended
while the treaty is operational.[68]
Several nations, including the United States and the Soviet Union, deny
all claims, but during the Cold War, both superpowers made a point of maintaining
bases in all seven claimed areas. The United States accomplished this the
easy way, by maintaining a base directly on the South Pole.
{52}It is essential that we recognize that Antarctica is not just governed
by a set of treaties, but by a regime or system.[69]
This sytemic nature is acknowledged in several of the treaties themselves.
For example, the Convention on the Regulation of Antarctic Mineral Resource
Activities describes the regime as follows: "This Convention is an integral
part of the Antarctic Treaty system, comprising the Antarctic Treaty, the
measures in effect under that Treaty, and its associated separate legal
instruments. . . ."[70]
It is the established practice of the parties to the various treaties to
consider them as part of a single whole.[71]
{53}To date there are forty signatories to the Antarctic treaty, and
all those nations involved in Antarctica are signatories. For this reason,
it is somewhat academic whether the regime applies to non-treaty parties.
Commentators argue, however, that the Antarctic Treaty system constitutes
an "objective regime, such that it is valid for, and confers rights and
imposes obligations upon third states."[72]
Although the treaty does not by its own terms apply erga omnes,[73]
general acquiescence can establish a regime. In addition, the Vienna Convention
on Treaties (which makes clear that a single treaty does not create obligations
on third states without their consent)[74]
provides, "Nothing in Articles 34 to 37 precludes a rule set forth in a
treaty from becoming binding upon a third state as a customary rule of
international law, recognized as such."[75]
It is reasonable to conclude that the Antarctic Treaty Regime has, like
the law of the sea, ripened into full international customary law.
{54}There are several American cases dealing with Antarctica that illustrate
the texture of international law in action. Beattie v. United States[76]is
a fascinating case about international law, comity, and international spaces.
The facts are tragic: an Air New Zealand jet crashed into Mount Erebus,
Antarctica, on December 28, 1979, killing all 257 passengers and the crew.
Families of the passengers sued the United States government, claiming
negligence by the U.S. air traffic controllers at McMurdo Station, Antarctica.
The question before the court was whether, under the Federal Tort Claims
Act (FTCA), Antarctica fell under the "foreign country" exception to the
waiver of sovereign immunity under the FTCA. The court held that, for these
narrow purposes, Antarctica was not a foreign country, and allowed the
lawsuit to proceed.[77]
In allowing the suit, the American court must have noticed that this accident
"in terms of loss of human life and family bereavement was the worst disaster
to strike New Zealand since the end of the 1939-45 war."[78]
{55}Environmental Defense Fund v. Massey[79] contains an exposition on the domestic presumption against extraterritorial application of U.S. law. Again, the case deals with the McMurdo base, which is an American base near the Ross Ice Shelf. As is typical, the court notes that "Antarctica is generally considered to be a 'global common' and frequently analogized to outer space."[80] In declining to apply the presumption, the court holds that "[w]here there is no potential for conflict between our laws and those of other nations, the purpose behind the presumption [against extraterritoriality] is eviscerated, and the presumption against extraterritoriality applies with significantly less force."[81] The court seems to suggest that it would also likely endorse the corollary that where, as in cyberspace, the potential for conflicts of law is tremendous, the presumption against extraterritoriality is very forceful. Taken together, these cases show that domestic law has absorbed the notion of an international regime in Antarctica and analogized it to outer space.
3. Jurisdiction in Outer Space
{56}The fundamental document in outer space law is the Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer
The treaty was adopted pursuant to a United Nations General Resolution
which contains verbatim much of the text of the treaty.[83]
The resolution and the treaty explicitly state that States have jurisdiction
over objects bearing their registry. Remarkably, this resolution of the
General Assembly was unanimous.[84]
{57}There is also no doubt that the Outer Space Treaty was based on
the Antarctic Treaty. Hearings held before the Senate Committee on Foreign
Relations in 1967 actually include a copy of the Antarctic Treaty.[85]
In the hearings, the committee noted that the Outer Space Treaty was specifically
based on the Antarctic Treaty.[86]
{58}The treaty states that outer space, including the moon, is not subject to claims of sovereignty.[87] Therefore, no territorial jurisdiction is possible. Article III provides that all activities shall be in accordance with international law.[88] This article assures us that international law is not merely a terrestrial phenomenon, but includes all non-sovereign spaces, whether on this earth or beyond it. The treaty skirts many jurisdictional problems through Article VI, which declares that all activities are to be authorized by a State. States are to assure "national activities" are carried out in conformity with the treaty. Article VII makes a state responsible for damage caused by objects that it launches or causes to be launched, thus embracing the state of registry and the state of the launcher. Jurisdiction as set forth in Article VIII is then an easy matter: the national registry of an object gives the state of registry jurisdiction over that object and over any personnel thereof. This national status functions like the "temporary presence" doctrine announced in The Schooner Exchange[89] and Brown v. Duchesne.[90] When the objects return to earth, their special national status for jurisdictional purposes is not affected.[91] Thus, jurisdiction in outer space, as in Antarctica, is predicated on the nationality principle.
4. Jurisdiction in Cyberspace: The Vessel of Nationality.
{59}Making nationality work as a principle in cyberspace requires an
analysis appropriate to cyberspace. It is too easy to fall into the trap
of analogy by asking how nationality would play out on the open sea, in
outer space, or in Antarctica, and then trying to make direct applications
to cyberspace. As we have seen, the nationality principle is firmly entrenched
in these areas, but its implications are different for each.
{60}For example, if we are applying the "law of the flag" from maritime
law, we can get bogged down in the analysis of how the nationality of a
ship is determined. There is, of course, an international regime in place
which determines the registry of a ship, and there are such things as "flags
of convenience," under which U.S. nationals may fly a Panamanian flag and
then be subject to Panamanian law at sea. The obvious question might be,
"What is the nationality of a vessel in cyberspace?" But we are at a loss
to find a ship or plane in cyberspace. Thus, we must ask first, what is
the vessel of nationality in cyberspace, i.e. what carries nationality
into cyberspace?
{61}Registry will not suffice as it does not currently exist. International
treaties may at a later date specify that all files and messages be "registered"
with a nationality. Until such time, however, we must discover the default
rules. Before there was registry at sea, there was still nationality. Justice
Stevens recently referred to the principle as the personal sovereignty
of the nation over its citizens.[92]
In cyberspace, persons bring nationality into the international space of
cyberspace through their actions. An uploader marks a file or a webpage
with his nationality. We may not know "where" a webpage is, but we know
who is responsible for it. The nationality of items in cyberspace could
be determined by the nationality of the person or entity who put them there,
or perhaps by the one who controls them.
{62}This analysis is relatively easy to undertake with regard to webpages.[93]
Generally, determining the nationality of a webpage is not a problem. The
creator of a webpage is usually listed on the webpage, and is typically
an individual or an organization. However, webpages are now also created
by individuals and companies for others. This makes us ask who "owns" the
page for jurisdictional purposes -- the creator or the person on whose
behalf it is maintained? International law is not displeased with either
answer. If a nation wishes, it can ascribe nationality to all webpages
maintained "on behalf of" its citizens, as well as any webpages actually
created (i.e. uploaded) by its citizens. Either solution essentially solves
the conflict of laws problem by reducing the conflict to two states at
the most. Courts will have to make their own judgments about what level
of connection between a cyberspace item and an individual is reasonable
for the nationality of that person to dictate the jurisdiction to prescribe
law. The theory of international spaces turns cyberspace from a place of
infinitely competing jurisdictions into a place where normal jurisdictional
analysis can continue.
{63}Similarly, links to pages in cyberspace will follow the same jurisdictional
analysis. The person who creates the link is subject to his or her own
national laws governing what links he or she may create. Also, a person
is subject to the territorial jurisdiction from which he or she uploads
data (data that may include a link), and that jurisdiction's law may be
used to dictate which links are permissible and which are not.[94]
A person who follows a link is simply a downloader, and is subject to the
territorial jurisdiction of the keyboard at which he or she sits, as well
as the laws governing persons of his or her nationality in cyberspace.
What the theory of international spaces avoids is the downloader having
to be aware of following links that were illegal for the uploader to make
based on the uploader's territorial presence or nationality. There is no
basis under this theory for the uploader's state to prescribe laws governing
the foreign downloader's actions.
{64}The following scenario is an example of how the proposed system
might work: a webpage, commissioned by a U.S. citizen, is uploaded from
Moldova by a Moldovan citizen. If the webpage contains advertising considered
fraudulent under U.S. law, that U.S. citizen could be subject to prosecution
by U.S. authorities.[95]
Additionally, the Moldovan could be subject to the laws of Moldova that
regulate uploading. Moreover, a U.S. citizen in Moldova is not immune from
U.S. law simply because he uploads from Moldova (into cyberspace) rather
than from the United States.[96]
What the United States cannot do is prescribe a law for a webpage created
and uploaded by a Moldovan who lacks any reasonable connection to an American
national (i.e. a connection cognizable at international law as a basis
for the jurisdiction to prescribe), merely because the webpage is "downloadable"
in the United States.
{65}Some of the other complexities of cyberspace deserve a little attention
here. One of these complexities is a "mirror" site -- a website set up
to contain identical information to another site in order to alleviate
overburdening of the servers or allow faster downloading to websurfers
in different geographic locations. Mirror sites are intentionally placed
at internet addresses that are in different parts of the network, often
on servers in different countries. While the location of the server should
be of no importance, it often means that a mirror site involves an international
alliance. For example, suppose a software company in Japan maintains a
mirror site for a German software company, and allows the German company
access to its ftp (file transfer protocol) site. In this situation, the
content is controlled by the German company, but the Japanese company is
involved in the production of the page. The question then becomes a highly
factual inquiry, requiring the court to determine the extent to which the
person maintaining the foreign mirror site is involved in the uploading
and downloading of material. Two general results are possible. First, if
the Japanese national takes an active role in creating and maintaining
the site, then the Japanese government will have jurisdiction to prescribe
law governing material on that site. If, however, the Japanese national
takes an entirely passive role, simply providing available space for the
German national to store data, then the extent to which Japan has the jurisdiction
to prescribe law regulating the content of that site is directly related
to the "law of the sysop" analysis discussed above.[97]
{66}However, a site maintainer is also different from the sysop. Unlike
the hapless sysop, a site maintainer may often (a) play a role in determining
the content of the site, (b) easily be able to control that content, and
(c) have a specific intent to control the content of the site. When this
is true, a nexus exists between the actions of the foreign national (the
Japanese national in the above example) and the contents of the "mirror"
site, a nexus that does not exist between an ordinary downloader and a
website maintained by an unrelated individual in another jurisdiction.
Under these circumstances, it may then be altogether "reasonable" for the
foreign state to assert jurisdiction over the site. This, too, will be
a highly subjective and factual inquiry for a court in addressing each
mirror site, and local law alone will determine the amount of control over
a mirror site that is sufficient to make the person wielding that control
liable for the site's content. Nonetheless, it is my sincere hope that
the principle of nationality will be established firmly enough that states
will not attempt to regulate this corner of cyberspace based on subjective
{67}Of course, cyberspace is more than the world wide web. There are
bulletin boards, USENET groups, and electronic mail (email), portions of
cyberspace that contain messages sent by individuals. These individual
message senders may be anonymous, but since anonymity is as much a practical
problem for any municipal law as for international law, the problems presented
by the anonymity issue are not addressed in this article. Once a person
is identified, his nationality will provide the basis for the jurisdiction
to prescribe rules for his actions in cyberspace. For example, the United
States government may make it illegal to post to alt.sex.bestiality (a
USENET group), but this cannot provide the basis for holding a Korean citizen
in Korea (without connection to a United States national) criminally liable
for posting to alt.sex.bestiality.
{68}A problem also arises when the line between cyberspace and normal
telecommunications is blurred. Despite its transnational routes, email
is probably not properly considered to be in the international space of
cyberspace. Cyberspace is a virtual community, and international law applies
because it is readable by the world. When private email is sent from one
individual to another across jurisdictional lines, the jurisdictional analysis
is different. An email from an Arizonan to an Italian is always subject
to Arizona law, but could also be subject to Italian law -- just as a telephone
call would be. In the case of private email communication, the Arizonan
"purposely availed himself" (to use the resounding formulation of World-Wide
Volkswagen v. Woodson[98])
to the benefits of the Italian jurisdiction. This private, one-time email
does not share the essential characteristics of an item in international
cyberspace; rather, it is a mere international communication.
{69}Naturally, we need a clearer definition of when we enter cyberspace.
Is a message sent "cc:otherfolks" to several jurisdictions subject to the
laws of all of those jurisdictions? Can a message intended to defame a
Mexican citizen, as in the 1887 Cutting Case,[99]
and actually emailed to that citizen, be saved from liability by also being
sent to a hundred other individuals? When is an electronic communication
international enough to be cyberspace? Ultimately, this conundrum will
resolve itself through a focus on the intent of the sender to cause an
effect in a given country. The relevant question under international law
is whether it is reasonable for the state in question to exercise jurisdiction
based on objective territoriality. Given the properties of cyberspace
discussed in this article, the burden will clearly be on the prosecuting
state to prove that an item in cyberspace was targeted to that state, giving
that state a special interest above others. We cannot forget the importance
of the test of reasonableness of the jurisdiction to prescribe, a question
that will be litigated in the courts of the prosecuting state. Because
of the nature of cyberspace, and the great potential for conflicts of law,
a fairly strong connection between the emailer and the target state will
be necessary for the target state to assert the jurisdiction to prescribe
based on the principle of objective territoriality.
VI. Jurisdiction in Cyberspace: A Preview
{70}In this final section, this article shall discuss how the theory of international spaces would apply to two burgeoning topics in cyberspace law: copyright and libel.
A. Copyright Law
{71}As the world wide web fills with easily replicable written, visual,
and aural information, it will be the source of considerable copyright
litigation. Two American cases which have dealt with Internet copyright
issues, Religious Technology Center v. Netcom,[100]
and Playboy Enterprises v. Frena[101],
international jurisdictional problems. Both were cases brought by American
nationals against American nationals, all of whom were also clearly subject
to American territorial jurisdiction. As the adage goes, there can be no
conflict of laws unless there is an actual conflict.
{72}Of course, we can propose a hypothetical situation in which one
of the parties is not subject to U.S. territorial and national jurisdiction.
Suppose that in the Netcom case, Scientology's religious books were
copyrighted in the United States, but were not copyrighted in Latvia. In
this instance, a Latvian uploads a web site containing a link to a file
that contains the religious work. All the downloader needs to do is click
on the appropriate icon, and the copyrighted work will appear on his computer.
{73}At its greatest extent under international law, American copyright
law could reach a webpage created by an American and uploaded in Latvia.
It could also reach a webpage created for an American, by a Latvian
national, and uploaded in Latvia. However, as a matter of international
law, the United States would not have jurisdiction to prescribe copyright
law for a webpage uploaded by a Latvian national in Latvia whose only connection
with the United States was a wish[102]
that Americans should download this material. In this situation, there
would be no American nationality on which to predicate such jurisdiction,
nor would there be territorial jurisdiction. Objective territoriality,
or "effects" jurisdiction, is per se unreasonable without more.[103]
An American court should throw out this suit for want of jurisdiction or
apply Latvian law based on the Latvian nationality of the uploader and
controller, and likewise dismiss the suit.[104]
{74}A more complicated problem arises in the context of contributory infringement, where the crime is predicated upon the defendant's inducing infringement. As with many jurisdictional questions in cyberspace that are apt to arise, it is important to remember that exercise of jurisdiction on the basis of objective territoriality is merely disfavored, not forbidden, and the time to exercise that jurisdiction might arise when a particular state has a special interest in asserting jurisdiction. The theory of international spaces posits that uploading copyrighted information in cyberspace, without more, would not be sufficient for a state to prosecute the uploader for contributory infringement on the basis of objective territoriality. To exercise jurisdiction to prescribe on the basis of objective territoriality, a state would have to demonstrate a special interest, requiring a fact-specific inquiry. It is my hope that U.S. courts will refrain from exercising jurisdiction except where a peculiar and special interest is involved.[105] In the hypothetical example above, this would mean that unless the Latvian directed the webpage explicitly at United States citizens, the United States would not bring in absentia charges against the Latvian national, or alternatively that those charges would be rejected by a court as violative of international law through the application of the presumption against extraterritoriality. However, to date, such issues have not arisen, and the only cases in the United States involving in personam jurisdiction over the Internet[106] have not involved international issues where international law might be tested, although those cases do show a disturbing lack of interest in any international ramifications of their decisions.
B. Libel
{75}Unlike the criminal copyright violations cited above, libel in the
United States is purely a civil matter. In this instance, we see a somewhat
different result. In any civil case, especially as regards libel, we can
assume that plaintiff and defendant have a closer relationship than merely
uploader and downloader. Libel requires some measure of intent, usually
{76}A recent case in the Supreme Court of Western Australia[108]
allowed a U.S. national to sue an Australian defendant over a bulletin
board (BBS) posting which the U.S. national claimed was defamatory. The
result did not offend the sovereignty of any state except Australia, and
thus while the result was perhaps unjust, it was unlikely to encounter
international sanction. The Australian court probably had little theoretical
difficulty reaching its result. Under traditional conflict of law rules,
if the publication were in a newspaper in Australia, the analysis would
be fairly straightforward: if the place of the tort (lex loci
delicti) was Australia, then Australia would have the jurisdiction
to prescribe a rule for that action under the principle of subjective territoriality.[109]
{77}By contrast, under the theory of international spaces, cyber-libel
would be defined as the uploading of tortious material and its subsequent
publication in cyberspace. For Australian law to apply under the principle
of subjective territoriality, the place of the uploading would have to
be Australia.
{78}Had the Australian court applied this analysis, it would have discovered
that in this case the lex loci delicti of the tort of libel is difficult
to find. The act (uploading) occurred in the uploader's physical location
(the United States), subject to the territorial jurisdiction of that United
States, but the libel was published in cyberspace. Since publication is
a necessary element of defamation, libel must in this instance be viewed
as having been consummated in cyberspace. Under the nationality principle,
Australia has the jurisdiction to prescribe law for libels committed by
Australian nationals in cyberspace. An Australian cannot escape the long
arm of Australian libel law simply by uploading from a different jurisdiction.
Since the uploading did not occur in Australia and the libeler was not
an Australian national, the Australian court could have declined jurisdiction
on the grounds that none was for this act committed by a foreign national
in cyberspace.
{79}Once again, objective territoriality rears its ugly head. We simply
must assume, as with the Cutting Case,[110]
that libel does not allow invocation of this "effects" jurisdiction where
the publication is not in the forum state trying to exercise jurisdiction.
The closer Australia can get to defining the publication as occurring in
Australia, rather than in cyberspace, the more likely it can be to exercise
jurisdiction to prescribe law on the basis of objective territoriality.
Again, in this situation, no one will pressure Australia (save the defendant)
to do otherwise because no foreign state is offended when Australia allows
its own national to be liable to suit by a foreign national.
{80}If it were the American who had libeled the Australian, the situation
would be quite different. The Australian could sue the American in U.S.
courts for uploading the libel, if uploading libel were actionable under
U.S. law. In this instance, jurisdiction to prescribe is based simply on
subjective territoriality. Naturally, the Australian would most likely
prefer to sue in an Australian court. Here, we discover that Australia
has no jurisdiction to prescribe law based on either subjective territoriality
or nationality, and the presence of the libel in cyberspace makes objective
territoriality an impossibility. The suit could still proceed if Australian
courts apply conflict of law principles and apply U.S. law to the American's
action in cyberspace. If U.S. law does not so provide,[111]
an Australian may have no remedy at all for libel committed by an American
national in cyberspace.
{81}The lack of reciprocity would be troublesome. Comity might urge towards the exercise of jurisdiction on grounds similar to that in Beattie[112] if the case were sufficiently important and the case from the Supreme Court of Western Australia were clearly stated state policy. More likely, however, this is a perfect situation for the United States to endorse the theory of international spaces and thus guarantee that its citizens will not be hauled into court for libel suits brought in nations with freedom of speech laws that are more restrictive than those guaranteed by the First Amendment. As always with international law, the law gains strength from court decisions in which international law favors the sovereign who might be offended by its breach, and is tested when sovereigns must exercise restraint and accept an adverse outcome. In order for this system to be worked out rationally by international law rather than by some jurisdictional equivalent of the law of the jungle (the stronger state wins), we can only hope that states offended by excessive exercise of jurisdiction by (in all likelihood) the United States resist on the grounds of international law, prompting the United States to adopt a similar, reciprocal stance towards suits brought against American nationals on those grounds. The case in Western Australia provides little in the way of hope, but the European Union might well engage the United States over international law, as it is doing with the Helms-Burton law[113].
VII. Conclusion
{82}The survey of international law and the treatment of the jurisdiction to prescribe in vast sovereignless regions provided in this article supports the theory of international spaces. Antarctica, outer space, the high seas, and cyberspace are four international spaces that share the unusual characteristic, for jurisdictional purposes, of the lack of any territorial jurisdiction. In these four places, nationality is, and should be, the primary principle for the establishment of jurisdiction. Such a rule will provide predictability and international uniformity. It strikes a balance between anarchy and universal liability, and it works. Recognition of cyberspace as an international space is more than overdue. It is becoming imperative.
{83}I will conclude with a final hypothetical situation, which may serve
as a warning to national courts not yet aware of the international character
of cyberspace. A Danish citizen posts lurid photographs on his personal
web page that is "located" on a server in Denmark. However, the government
in Copenhagen has not taken any action to forbid the uploading of such
material. Indeed, Danish courts or the European Court of Justice may already
have deemed such a law unconstitutional or violative of basic human rights.
The unsuspecting Dane meanwhile goes to visit a cousin in the United States
over Thanksgiving weekend. Learning of his arrival, the FBI telephones
local law enforcement. Local law enforcement, intent on enforcing state
obscentity laws, perhaps based on some local cause celebre regarding this
website and some teenagers, immediately contacts a magistrate, giving her
the URL,[114]
and requests a warrant for his arrest. The magistrate soon downloads the
offensive material, finds that it is clearly obscene under Miller v.
in the community where the magistrate sits, and after reading Maritz
v. Cybergold,[116]
and the local long-arm statute, issues the warrant without a further thought
to jurisdiction to prescribe. Local law enforcement makes the arrest Wednesday
{84}On Monday morning, the court-appointed lawyer for the somewhat melancholy
Dane files a petition seeking a writ of habeas corpus. "My client is Danish
national," argues the lawyer, "and furthermore he uploaded the obscene
material while in Denmark." Neither the United States nor any of them has
jurisdiction to prescribe a law for this action under either the nationality
principle or the territoriality principle. Exercise of jurisdiction would
violate international law. The state's obscenity law and jurisdictional
statutes should be construed to conform to international law, in the absence
of Congressional permission for states to violate international law.[117]
{85}The case requires immediate attention; the judge must decide whether to continue to hold the man who has been in jail for three days already. No doubt an international incident is already brewing.[118] This article provides the Dane's lawyer with an argument, and the judge with an answer.


text:
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As of September 1, 2014, all Pampered Chef® rubs, seasoning mixes, oils, vinegars, vanilla extract and savory sauces are gluten-free and easily identified by a red starburst on the label that reads "Gluten Free". If you are unsure if your Pantry Product is gluten-free, we recommend that you review the ingredient list on the label of your bottle.
Use & Care
How to Use
- Prior to first use, remove bottle cap by turning counterclockwise.
- Remove inner freshness seal; replace cap by turning clockwise.
- The cap has a flip top for sprinkling.
How to Store
- Store in a cool, dry place.
Korintje cinnamon, nutmeg, allspice, ground orange peel, cloves, ginger. GLUTEN-FREE.
No salt, sugar or preservatives added.
Serving size: ½ tsp (1 g)
Servings per container: about 11 tbsp
Nutrients per serving: Calories 0, Fat 0 g, Sodium 0 mg, Carbohydrates 0 g, Protein 0 g
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Thu June 12, 2014
Islamist Militants Gain Ground In Northern Iraq
Originally published on Thu June 12, 2014 5:41 am
Sunni Islamist militants have seized control of the Iraqi cities of Mosul and Tikrit and appear to be preparing an assault on Baghdad. Americans fought and died trying to prevent that from happening.


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Scholarships for Filipinos Students in USA
Filipino in USA presents a large group among the minorities. Scholarships for Filipino exist from different universities and organizations as a way to back up students to bear out the expenses of college tuition fees, books and other college expenses.
It is been found that every year, college expenses goes on increasing. As scholarships/ fellowships are free money, it help students to have enough finances to pay for college education .
Scholarshipfellowship.com search offers you a catalog to access the desired scholarship fellowship which can match your skills set and interest. Scholarships for Filipinos are available at various levels and stream. We hope this piece of scholarship information will help you in achieving your career goal and future endeavors. If you have any question then please feel free to post questions in the comment sections.
- HSF/ ALPFA Scholarship Program for Undergraduates and Master's
Hispanic Scholarship Fund (HSF) and ALPFA
- HSF/ Atrisco Heritage Foundation Scholarship-Undergraduates and Graduates
Hispanic Scholarship Fund (HSF) and Atrisco Heritage Foundation
- HSF/ExxonMobil Scholarship Program for Undergraduate Students
Hispanic Scholarship Fund (HSF) and ExxonMobil, For Undergraduates
- LITA / OCLC Minority Scholarship in Library and Information Technology
American Library Association, For Masters
- Fulbright-Philippine Agriculture Scholarship Program
Fulbright, For Doctoral Students
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Hispanic Scholarship Fund, For Undergraduates
- Advanced Research and University Lecturing Program
Philippine-American Educational Foundation
- Hispanic Scholarship Fund and the Verizon Foundation for Undergraduates
Hispanic Scholarship Fund (HSF) and the Verizon Foundation
- The Manny Pacquiao Foundation Scholarship – Graduate
The Manny Pacquiao Foundation, For Graduates
- The McGuire Woods/NLF Internship Program for Undergraduates
McGuire Woods LLP, the National Asian Pacific American Bar Association (NAPABA), NAPABA Law Foundation
- CJB Scholarship for Undergraduate Students
Calfoundation, For Undergraduates
- Filipino American Organization of Central Texas Scholarship for Undergraduates
The Filipino American Organization of Central Texas
- FALSD/PALSD Scholarship for Graduate Students
Filipino American Lawyers of San Diego and Pan Asian Lawyers of San Diego
- Rhonyll Seballos Scholarship for Undergraduate Students
Virginia Tech Filipino American Student Association
- Filipino Community, Inc. Scholarship Program – High School Seniors
Filipino Community, Inc. Juneau,Alaska


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Home > Home Entertainment > Laptops and Netbooks > Laptop Computers
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Awana is a Bible-centered children's ministry providing weekly clubs, programs, and training for students in preschool through Sixth Grade. Their goal is to equip churches to reach kids, and their families, with the gospel of Christ and train them to serve Him. Look for the calendar on the right side of this page that lists weekly themes and events. The acronym Awana comes from the first letters of Approved Workmen Are Not Ashamed as taken from
2 Timothy 2:15.
When & Where
Fall 2015-Spring 2016
Wednesday nights
6:30 pm-8:00 pm in the Family Center
$35 per child; $20 after first three children
(Uniforms and books not included in registration)
Registration for Riverpark families begins August 24. Registration for non-Riverpark families begins September 8.
Awana Clubs
Only available for preschoolers who regularly attend Riverpark.
(Must be 3 by September 1)
Director: Diane Blickenstaff
Sparks (Kindergarten-2nd grade)
Directors: Julie Buller and Gail Neufeld
T & T – Girls (3rd-4th grade)
Directors: Janie Wilson
T & T – Girls (5th-6th grade)
Directors: Mary Sale
T & T – Boys (3rd-6th grade)
Director: Aaron Sale
Julie Buller
559-435-0190, julie (at) riverpark dot org


text:
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As a working professional I would not have been able to complete the admission process in the time that I had without the Academy's help.


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Living in Japan(266 Posts)
Hi all, not quite sure this has sunk in yet so excuse the exclamation marks! My DP has been offered a job in Japan and we are taking it! We will be going end July-mid August which isn't really very long at all. We'll be gone for at least a year but hopefully longer. I know there's so much we have to do, and organise, any tips or advice would be brilliant. Oh and one more thing we don't get to find out exactly where in Japan for another couple of weeks. I guess that just adds to the
lunacy excitement.
I am a (quiet but prolific) regular but I have namechanged for good now as, well, it's a new chapter, innit!
Bumpy, I'm sure there must be some Japan mnetters out there!
Rang the embassy earlier to start the visa process for me, it's a good thing I don't mind paperwork as I think there'll be a lof of it in the new few months!
*next few months....
Hi Mirai
I'm an ex-Japan MNer.
I lived there for 9 years up until 2008, when we moved here to Belgium.
My DH is Japanese though so we are still tied to the country and will go back this summer for a month.
Advice? Tips? I have no idea where to start!!!
Do you have any questions?
It would be really helpful to know where you might be going too. Does your husband's company have offices in a lot of different places?
By the way, do you have children?
If so, how old are they? That will have a big influence on your life there!
I was in Japan for over ten years (Tokyo, but know some other bits of Japan quite well too), left a few years ago but was last back there a few weeks ago and am still fairly plugged in.
It's hard to give any tips without knowing where you're going, whether you have DCs, what age etc, but the standard advice for any western women going to live in Japan is to stock up on bras (hard to find bigger sizes and anything unpadded), shoes (unless you are size 5 or less), clothes if you are more than size 10, favourite skincare and over-the-counter medicines, and contraception unless you are happy with Japanese-brand condoms (they still don't really 'do' the pill over there, nor things like mirena).
Feel free to ask anything on here or via PM.
Morning, thank you for your replies, it has been a hectic weekend! I'll come back on later to update - ironically I feel like I get more free time at work than I do at home right now!
Right then, we have no children (yet!), and in terms of location it literally could be anywhere from Okinawa up to Hokkaido... We have talked and really we would be quite up for anything/anywhere, but I wouldn't be too happy with anywhere near/in the nuclear exclusion zone (and yes, that could happen).
Ideally it would be somewhere where I could find (some form of) work but we will just have to see how and if that can be achieved once we find out where he's going. I'm going to apply for a Working Holiday Visa which will afford me entry and the right to work (with some conditions) for a year. After that then I will need to get an employer to sponsor me for a proper job... or DP will have to pop the question!
We did a huuuge to-do list yesterday which we based on the many 'emigration check-lists' you find on the net, so that has helped focus my mind a little.
That said I am still not sure it's sunk in yet!!
Thanks for the extra info.
Having no children will make your life easier actually.
You won't have to worry about schools etc and you will be freer to explore and enjoy the country once you're there.
I would really recommend taking some Japanese lessons, starting as soon as possible.
I couldn't speak a word before I went. It wasn't actually a problem, and daily life is perfectly possible without it. However, once I learned to speak life really opened up and I was able to meet and communicate with all sorts of different people. Having even just a little of the language makes a huge difference. Most Japanese people speak very little English and really appreciate foreigners who make an effort.
It's good that you're going to get a working holiday visa.
That will give you more limited employment options than a full working visa, but as you said, it will give you prolonged access to the country and should help you to find work without much difficulty. There are many jobs for English teachers and most require a degree, but not a TEFL qualification. Don't worry if you're not experienced yet. If you are interested in other areas of work, you may find your choices limited unless your Japanese is quite fluent.
The area to which you are sent will have a huge effect on the experience you have. Being sent to Tokyo will bring you into contact with lots of foreigners and lots of very cosmopolitan people in a very bright and energetic city. Being in smaller cities will be slightly less so. Being in the countryside will possibly mean that there are no other foreigners and that you are in a much quieter and more traditional community. There are great opportunities to enjoy wherever you are, but the experience will vary enormously.
Do you have any specific questions?
I've lived in Japan twice - once on the JET programme teaching English. It sounds like that's what your other half is about to do? If so do feel free to ask any specific JET related questions, even though you're not on the programme.
All the advice so far is really good - especially the Japanese lessons. The other tip I would have is start looking round for a few gifts ('omiyage') that are inexpensive, small, light and ideally typically British as they really come in handy during those first few weeks for employers/colleagues, neighbours, anyone who helps you set up home etc. And don't forget to wrap them! Very important in Japan!
sorry, missed this over the weekend.
I am in Japan, south of Tokyo...been here 20 years now.
Lots of good tips so far, you'll be fine!
I worked on and for the JET programme, if that is what your DH will be doing, so feel free to ask me stuff.
There are a few of us out here, keep in touch, and let us know where you will be living
Hello again, rushed off my feet here! Thanks for your replies. Koeda and TanteRose, yes you have hit the nail on the head! (was it that obvious?! ) We are both so excited, we are still waiting to find out where we'll be placed though.
I started learning Japanese at the start of this year and DP started last year, thank goodness. He has been absorbing it like a sponge, whereas it takes me a little longer to get to grips with it. But I know my hiragana now and hopefully will do my katakana before we go. I've been downloading some apps for my ipod today, I do struggle but at least I'm trying... We started thinking about omiyage this weekend in fact, DP's face as the realisation dawned that it was all going to take up some significant luggage space was a bit of a treat We're going to look into shipping some items over once we know a little bit more about what kind of things we'll need (as in ski boots or bikinis!!)
Personally my main concern is what I'll be doing for a job. We have discussed that there may be a chance DP will have to support me, for a year or maybe more, but of course I will be trying my hardest to find a job. I'm also aware that once my WH visa runs out after a year I need either an employer-sponsored visa or a husband to stay on in Japan, but I won't worry about that just yet
We are trying to decide on the best length of time for me to follow him over, he is thinking a month later whereas I'm not sure I'd be happy being apart for that length of time. It's meant to be our big adventure so I want to settle in together! I'm thinking two weeks, but.... we'll see!
The 'needing a husband' was meant to come across as a little more-tongue-in-cheek than it did, it sounds a bit matter of fact!! Oops
I'd definitely think about doing a CELTA TEFL qualification if I were you, especially if you're planning to stay out there for a few years. Lots of teaching jobs don't require this, but it will give you the edge over people who don't have it. And there are one or two employers who wouldn't take you seriously without it. It's unlikely you'll find any other type of work initially, assuming that you don't really speak the language.
Agree that you should invest some time in learning Japanese - it will make a huge difference to your overall experience. Also second the suggestions re omiyage and stuff to take with you.
It's a wonderful country with wonderful people. DH and I spent many happy years there and we still miss it dreadfully. Go in with an open mind and make the very most of it - and please try not to hang around too much with expats who spend all their time moaning that japan is too japanese! Let us know when you know where you're
going, and do pop back with any questions you might have.
We did consider the CELTA for me - DP already has it and I would have liked to have taken it before we left. Unfortunately by the time we knew we were definitely going, the local CELTA courses were booked up I've been looking into doing it in Japan, this could be an option, I think in Tokyo and a couple of the other big cities there are centres where I can take the course - but again we are waiting on placement info - if we end up in Hokkaido or Okinawa then it might not be possible! However in the meantime I have DP's course notes and textbooks to look through and learn
I'm happy that (so far) no one has mentioned anything and I've gone "oh crap!!", it's all stuff that has been thought about... touch wood!!!
You could always do an intensive course somewhere in Europe - usually takes about a month.
You'll have a fab time in Japan. The people are amazing. I'm very jealous....
JET rocks. You will have a great time. Get ready for the rural life though! Very few people are placed in cities. Do tell us where they send you
I would definitely bother with learning a little bit of the language before you go. I met some people who never learnt more than a few phrases. Madness.
Ime, in Okinawa at least you wouldn't need a qualification to get work. Maybe in Tokyo or Osaka (although I have taught in both without) but as I said, think rural! One of my friends travelled to some of her schools by fishing boat and water buffalo!
We are totally prepared for rural, it's all about the inaka! Of course I will let you know where we're going...
I know what you mean about not bothering to learn the language, it's like people who go away then only want to eat British food, why?? Travelling to school by fishing boat and WATER BUFFALO?? Where was that?
She was on Ishigaki-jima, and covered some teeny tiny islands. Okinawa is lush! I learnt to scuba dive.
[natsukashii emoticon]
Sorry to crash, but what is JET?
is it the same as this?
(there's a reason I'm asking, I'm not just a random mad person.. mostly
It's this.
Ok, sorry... there's a bit JET thing near us that has links with Japan and wondered if it was the same thing.
Hi Mirai,
I've been in Japan for 16 years now.
The first 5.5 were in Osaka - I originally came to see my brother for a few months who was on the JET scheme at the time, then met my DH (Japanese) and one year turned into another....
We've been in Tokyo for the past 10.5 years and I worked for a chain of English Language schools as Director of Recruitment for a number of years, so please ask / PM me if you need any advice.
Good luck!
Hi all, just to say I haven't forgotten the thread... We are still waiting to find out where will be, which is why I haven't really updated! For now we have a huuge to-do list of things like sorting out tax, pensions, student loans, it all seems like rather a mountain to scale right now, and less than 7 weeks til DP flies out!
Penny - thanks for your offer, I am sure I will be in contact in due course (most likely while I am trying to find a teaching job myself once out there!) We did wonder if I might be able to squeeze in my Celta in July but it seems they are fully booked across the UK, oh well...
Back to waiting for the postman then!
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By Jim GaramoneAmerican Forces Press Service
WASHINGTON, Feb. 6, 2003 Defense Secretary Donald H. Rumsfeld will leave today for Europe to consult with allies and meet American troops, DoD officials announced Feb. 6.
The secretary will stop in Rome and Aviano Air Base, Italy, and Munich, Germany. He's scheduled to return Feb. 9.
"Italy has been a key ally in the global war on terrorism and has also been a strong supporter of U.S. efforts more broadly -- including taking a leadership role in the recent letter in support of the U.S. position on Iraq," a senior defense official said on background. "The Italian government understands the need to keep up the pressure on Iraq in the context of where we are today."
The secretary will meet with Prime Minister Silvio Berlusconi and Defense Minister Antonio Martino. "In addition to Iraq, they will focus on Italian contributions to the global war on terrorism," the official said. Italy is scheduled to deploy a 1,000-man brigade to Afghanistan in March.
After Rome, the secretary will travel to Aviano to hold a town hall meeting at Aviano, home of the 31st Fighter Wing. He will speak to service members, family members and Italian allies.
The last stop is Munich, where Rumsfeld will be the lead speaker at Europe's premier security conference, the Munich Conference on Security Policy, also called the Wehrkunde Conference. He is to speak on the role of NATO in the security environment, and also weapons of mass destruction and the problem of Iraq.
The Wehrkunde Conference attracts wide ranges of senior officials from Europe, North America, the Indian subcontinent and Asia. Rumsfeld will use the conference to meet with Russian Defense Minister Sergei Ivanov and with German Defense Minister Peter Struck. Other bilateral meetings are possible.
The senior official said the Wehrkunde meetings will emphasize Iraq and the next steps the world must take to ensure Saddam Hussein is disarmed of weapons of mass destruction.