Monday, March 28, 2005

Reidenberg on Technology & Internet Jurisdiction

Joel Reidenberg, who wrote about the Lex Informatica before Lessig coined Code as a technological regulator, has released a new paper on internet jurisdiction at SSRN: Technology and Internet Jurisdiction. Reidenberg's papers are thoughtful and have a keen eye for the diversities between American and European free speech law, of which the Yahoo! case is an example he analyses in greater detail (again). I may not agree with him on all points, but read Reidenberg.

Here's the abstract:
The current technology of the Internet creates ambiguity for sovereign territory because network boundaries intersect and transcend national borders. In this environment, jurisdiction over activities on the Internet has become a battleground for the struggle to establish the rule of law in the Information Society. This essay argues first that the initial wave of cases seeking to deny jurisdiction, choice of law and enforcement to states where users and victims are located constitutes a type of 'denial of service' attack against the legal system. In effect, the defenders of hate, lies, drugs, sex, gambling and stolen music use technologically based arguments to deny the applicability of rules of law interdicting their behavior. The essay next shows that innovations in information technology will undermine the technological assault on state jurisdiction. Innovation creates this counter-intuitive effect because more sophisticated computing enlists the processing capabilities and power of users' computers. This interactivity gives the victim's state a greater nexus with offending acts and provides a direct relationship with the offender for purposes of personal jurisdiction and choice of law. Some of these same innovations also enable states to enforce their decisions electronically and consequently bypass the problems of foreign recognition and enforcement of judgments. Finally, the essay argues that the exercise of state power through assertions of jurisdiction can and should be used to advance the development of more granular technologies and new service markets for legal compliance. Technologies should be available to enable Internet participants to respect the rule of law in states where their Internet activities reach. Assertions of state jurisdiction and electronic enforcement are likely to advance this public policy.
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Related: Reidenberg's Lex Informatica paper [PDF]

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