June 22 2009 12:00 AM

As Internet crime becomes more intrusive, annoying, viral and widespread, the problem of governing Internet conduct likewise becomes more problematic, particularly in the area of law enforcement, which always starts with a determination of legal jurisdiction. Although there is extensive cooperation among countries for settling international legal battles — for example, global cooperation through Interpol in fighting kiddie porn — each country addresses Internet violations by applying its own laws.

But what about jurisdiction when Internet disputes cross international borders? France has a law against selling Nazi memorabilia within its boundaries. US-based ISP Yahoo! posted Nazi items for sale on its auction website. On November 20, 2000, the Tribunal de Grande Instance de Paris reissued a preliminary injunction that ordered Yahoo! to take all measures within its power to stop or inhibit access in France of webpages stored on Yahoo!'s US server that auction Nazi objects or that present any Nazi sympathy or holocaust denial. Enforcement by Yahoo! meant that it would have to develop special lters that prohibited French "netizens" from accessing the particular part of the auction site that violated French law. Yahoo!, after failing to get an American federal court to declare the French judgment unenforceable, chose instead to remove the offensive postings.

France's ruling sparked controversy regarding the rule of law and the Internet, out of which emerged factions that can be grouped into two categories: separatists and federalists. Internet separatists believe that cyberspace is a separate jurisdiction that transcends national borders and the control of nation-states, so that, ideally, the Internet should be treated as a legal sovereign with its own policies, laws and regulations. To a separatist, a websurfer in France who pays a visit to a US site is on an American sector of cyberspace while they are at that site. If what they see offends them, then they are free to leave the site.

Visitors to China soon notice that certain Internet queries are redirected to government-sponsored websites, either directly by the Chinese government or by their hotel collaborating with the Chinese government. While reprehensible to free-thinkers, the "Chinese wall" approach puts the burden on the offended country to provide protection from the tastelessness of the outside cyber-world, which, while representing censorship in its most blatant form, at least does not potentially force the rest of the world to filter or otherwise change its method of content delivery.

Perhaps the solution that would be most fair for governing the Internet would be some form of Internet federalism in which the governance units would be individual network systems rather than territorially based sovereigns. This governing process would require that ISP administrators voluntarily comply with a codified set of laws and dispute resolution systems created by an Internet congress. The system would evolve in much the same manner as current international laws, with the attendant glitches and imperfections.

Because the Internet is a relatively new phenomenon that presents a unique set of issues, both behavioral and legal, it is diffcult to fit current laws to their governance, and new laws are being created to cope with issues that arise specifically through Internet usage. A truly unified system for settling Internet legal matters may eventually come into being, but in the meantime, the issue of who should decide how to govern the Internet must be settled by the judiciary of the countries of the netizens who use it.

ARTHUR GINGRANDE [arthur@imergeconsult.com], ICP, is cofounder and partner of IMERGE Consulting, a document-centric management consulting firm.


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