Across all Borders

The Internet has always a place without legal regulations, but now, a number
of countries are trying to get together and flex their muscles to legally
regulate the World Wide Web.

Gone are the days when governmental restrictions did not exist, when people
used the Internet as a medium to express anything they wanted to with absolute
freedom and no regulation from the state. The September 11 attacks seem to have
changed all that. Today, the Internet is being made the jurisdictional arena for
numerous national and global legislations, understandings and agreements.

A critical issue being debated now is–where does the Internet exist,
legally speaking? Logically, the Internet comprises numerous computers networked
across the globe. A large number of these computers are based in the US. And
that has been the singular reason why America, as a legal jurisdiction, has been
very proactive in assuming jurisdiction over Internet-related matters and
issues.

The recent case of Dmitri Sklyarov has raised an issue. In this case, the
main case has been instituted in America against Elcomsoft, the Moscow-based
software firm which created software to circumvent Adobe’s e-book format. Due
to the conduct of the company, it’s programmer Sklyarov, who had come to the
US for a conference, was arrested and detained... America witnessed the first
criminal prosecution under the Digital Millennium Copyright Act.

As the case is being argued in an American court, Elcomsoft, the Russian
company, has taken up a unique defense. It’s main argument is that it offered
encryption-breaking software on the Internet and that Elcomsoft’s actions
occurred in Russia or on the Internet, and that the Internet is a place which is
outside of US’ jurisdiction. The company has further argued that it was not
specifically targeting the software at Americans, and that the software was
available to anyone on the Internet, regardless of nationality.

The US government has controverted this argument on the ground that the
Internet has a physical presence of thousands of computers in America. As a
corollary, it has every right to stop contraband on those machines, the US has
argued.

However, the Russian company’s stand that the Internet is a place outside
of US jurisdiction is novel, in the sense that it seeks for the first time to
dwell on the ground that not everything on the Internet can come within US
jurisdiction. Over the last few years, the number of Net-users in Asia has risen
manifold. If the Internet is made amenable to US jurisdiction, even acts
committed outside the US jurisdiction could be tried in that country, and this
is likely to have far-reaching and complicated legal implications.

But the fact of the matter is that till date, we do not have one accepted
norm or international agreement on jurisdiction. The International Cybercrime
Treaty does aim to facilitate exchange of information constituting cyber-crime
and cyber-criminals among signatory member nations, but that does not throw much
light on jurisdiction. Unless we have uniform standards to determine
jurisdiction, it will be difficult to evolve a coherent legal approach towards
jurisdiction in the context of the Internet.

It will also be interesting to see how the Elcomsoft case progresses, as its
decision can have a huge impact upon the issue of determination of jurisdiction
in Net-related cases. Governments across the world need to understand that the
Internet today has developed to such an extent and has fuelled such creation,
innovation and ingenuity only because there were no laws restricting usage and
unbridled creativity.

Cyberlaws are still being developed on the complicated issue of jurisdiction.
In the Indian context, while some courts (in domain name cases) have assumed
jurisdiction purely on the ground of mere access to the Internet, many US
decisions have now given the ‘mere access to the Internet’ principle the go
by. Today, US courts look at something more than mere Internet access in order
to assume jurisdiction over an Internet-related case.

Minimal regulation is the need of the hour and not over-enthusiastic
legislation to throw legal monkey wrenches in the way of logical growth and
development of the Internet.

The author is a Supreme Court advocate pduggal@vsnl.com