Introductory Thinking on Jurisdiction of Internet Law

By Edgar Palomino

Edgar Palomino is a senior at the University of Pennsylvania studying political science.

The Internet is ubiquitous in our lives. It is increasingly crucial as an economic and social backbone. It is therefore important to pay some attention to the formation of law concerning the Internet. This series of posts will deal with selected topics in Internet law. The purpose of this initial post is to introduce some thinking about jurisdiction relating to the Internet.

In his “Declaration of the Independence of Cyberspace”, on Feb. 8, 1996, John Barlow unequivocally argues that the Internet is utterly and wholly separate from the physical world and the governments therein. Therefore, anything can happen on the Internet and have no accountability in the physical world; the Internet is its own sovereign space. What, then, are the laws in this domain? Where does order come from? Barlow insists that the rules of the Internet will be norms, established by webizens amongst themselves. Any issues that arise in the Internet will be dealt with using said norm [1].  Naturally, this view did not find any support among the many nations of the world. That is because it does not make any sense. Sovereign nations should, can, and do have control over the lives and protection of their citizens.  Servers reside somewhere.

It is true that defining territorial borders, in the geographic sense that we are most comfortable and familiar with, is extraordinarily difficult on the Internet.  However, the 2000 case LICRA v. Wu (which pitted Yahoo! against the French government) demonstrated that technology that is capable of geo tagging the Internet is possible and operable. The case used this technology to discover that relevant Yahoo! servers were based in Sweden, and noted that advertisements through Yahoo in France were only related to France; this implied a geographic filter, otherwise advertisements from the world over would have appeared to a web surfer in Paris.  Thus, while more modification and thought are certainly needed, physical borders are not moot as a basis for law and regulation of the Internet.

On the US domestic front, the law is, of course, shaped case by case. One of the most notable rulings came from the 2013 case of Overstock v. NY State Dept. of Taxation and Finance. The case arose over a tax dispute; New York wanted Overstock to pay taxes on operations in the state. Overstock argued that, since it lacked a brick and mortar store and official employees in the state, it did not have enough substantial contacts to warrant taxation. The court ruled in favor of the state, holding that, due to its Associate program and the commission from websites linked to its website, Overstock did indeed have substantial contacts (aka a “substantial nexus”, Quill Corp v North Dakota 1992) in New York and was thus subject to tax.  This theme of “substantial contacts” as a key factor in Internet jurisdiction cases is extremely important to note.  Future articles, and cases discussed therein, will highlight this theme.

[1]  Grimmelmann, James. 2016. “Internet Law: Cases & Problems” 6th Ed. Semaphore Press.com pg. 52
[2]  Ibid. 93

Photo Credit: Flickr User Marcie Casas

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