FC: In a borderless Internet, U.S. and Europe are most important?

From: Declan McCullagh (declanat_private)
Date: Fri Jun 28 2002 - 06:58:51 PDT

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    Date: Thu, 27 Jun 2002 08:16:57 -0400
    To: declanat_private
    From: Michael Geist <mgeistat_private>
    Subject: The New Borderless Internet
    My new Globe and Mail cyberlaw column may be of interest -- it takes a 
    fresh look at the issue of Internet jurisdiction, arguing that the 
    traditional notion of a borderless Internet and bordered laws is being 
    reversed.  Today, cyberlaw is increasingly governed by a bordered Internet 
    and borderless laws, shifting policy making power on issues such as 
    copyright, trademarks, and privacy almost exclusively toward the U.S. and E.U.
    Column at
    <http://makeashorterlink.com/?Y2C951521> [Globe and Mail]
      From globeandmail.com, Thursday, June 27, 2002
    New Net laws reach beyond borders
    The challenge of borders lies at the very heart of cyberlaw. Most observers 
    have long argued that the Internet presents lawmakers with a jurisdictional 
    dilemma: The Internet is viewed as "borderless," but law is best 
    characterized as "bordered" because national laws typically stop at the border.
    Last year, I suggested that the borderless Internet was gradually growing 
    into a bordered Internet, with new geo-identifying technologies emerging 
    that allow Web sites to identify the geographic location of their users. 
    Today, it is increasingly clear that a second trend is developing -- as the 
    borderless Internet is fast becoming the bordered Internet, borderless laws 
    are replacing bordered laws.
    The implication of the second development is particularly dramatic because 
    it suggests that Internet policy-making power lies primarily in the United 
    States and the European Union, leaving smaller countries such as Canada 
    unable to effectively develop independent policy.
    While the bordered Internet may attract increasing attention, borderless 
    laws deserve even greater scrutiny. Consider recent developments in three 
    of the most contentious legal areas -- copyright, domain names and privacy.
    As Canada debates digital copyright reforms (with many fearing the 
    introduction of a Canadianized version of the U.S. Digital Millennium 
    Copyright Act), the reality is that the DMCA may already be applicable in 
    Canada. Prosecutors in California, who are pursuing a DMCA criminal action 
    against Elcomsoft, a Russian software firm, have argued that the U.S. 
    Congress explicitly drafted the copyright law in an extra-territorial 
    manner so that it could be applied to activities that originate in Russia. 
    If true, the same logic could easily be applied to Canadian firms that run 
    afoul of the U.S. statute.
    In fact, at a Canadian copyright consultation in Ottawa the past spring, 
    direct-to-home satellite provider DirecTV lamented that "only" 43 per cent 
    of Canadian Internet service providers were responding to their DMCA 
    notices that require ISPs to take down alleged infringing content. Of 
    course, many Canadians may find it problematic that even 1 per cent of 
    ISPs, much less 43 per cent, would respond to legal requests that do not 
    reflect Canadian copyright policy.
    Similarly, U.S. legislation on domain name cybersquatting explicitly 
    applies outside the country. Recognizing that millions of domain name 
    registrants do not live in the United States, the U.S. Congress added an in 
    rem jurisdictional clause to the Anticybersquatting Consumer Protection Act 
    that allows complainants to sue the domain name rather than the domain name 
    registrant. This enables U.S. courts to assert jurisdiction over domain 
    name disputes even where traditional standards for personal jurisdiction 
    are not met.
    The impact of the clause was experienced last year by the Toronto-based 
    registrant of the technodome.com domain. The registrant faced the prospect 
    of a lawsuit in Virginia after the Canadian owner of the technodome 
    trademark (Heathmount A.E. Corp, which is developing entertainment projects 
    in Montreal and New York) sued there rather than in Canada. Heathmount was 
    able to sue in Virginia because that was the location of the root server. 
    This resulted in two Canadian parties battling in a U.S. court. Although 
    some Canadian policy makers have raised the prospect of Canadian 
    anticybersquatting legislation, it would appear that Canada already has 
    such a statute -- the U.S. Anticybersquatting Consumer Protection Act.
    Meanwhile, Canada may have its own private sector privacy legislation, but 
    it is not the only privacy law to which Canadian firms need to answer.
    The U.S. Children's Online Privacy Protection Act, which applies to the 
    collection of personal information from children under the age of 13, 
    provides that any Web site that targets U.S. children is subject to the 
    law, regardless of the site's location.
    The EU recently adopted the same privacy approach when, earlier this month, 
    its data protection working group released a decision on the applicability 
    of European privacy law to Web sites in non-member states, concluding that 
    the law applies to everything from software "cookies" to downloads.
    Interestingly, the Internet jurisdictional challenges created by borderless 
    laws actually mirrors the early -- and misguided -- approaches adopted by 
    In the mid-1990s, several courts in the United States and Canada asserted 
    jurisdiction over Web sites merely because they were accessible within the 
    jurisdiction, an approach that critics rightly noted would allow every 
    court everywhere to stake a similar claim.
    However, courts gradually set limits on their jurisdictional reach, first 
    by assessing whether a site was active or passive and more recently by 
    considering whether the site targeted the jurisdiction.
    The aggressive extra-territorial approach to Internet lawmaking indicates 
    that we are back to square one, where every country everywhere can 
    theoretically lay claim to regulating the same on-line activity.
    While a borderless Internet and bordered laws may have been challenging, 
    the thorny combination of a bordered Internet and borderless laws may be 
    even tougher to tame.
    Michael Geist is a law professor at the University of Ottawa Law School and 
    director of e-commerce law at the law firm Goodmans LLP. His Web site is 
    Professor Michael A. Geist
    University of Ottawa Law School, Common Law Section
    57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
    Tel: 613-562-5800, x3319     Fax: 613-562-5124
    mgeistat_private              http://www.lawbytes.ca
    BNA's Internet Law News - http://www.bna.com/ilaw
    G & M Cyberlaw column - http://www.globetechnology.com
    Internet Law Text - http://www.captus.com/Information/inetlaw-flyer.htm
    Canadian Internet Law Resource Page (CILRP) at: http://www.cilrp.org/
    ICANN UDRP Info at http://www.udrpinfo.com
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