International Internet Law Suffers Growing Pains

New Jersey Law Journal VOL. 215 - NO 1 MONDAY, JANUARY 6, 2014

By Jonathan Bick Bick is of counsel to Brach Eichler and is an adjunct professor of Internet law at Pace and Rutgers law schools. He is also the author of 101 Things You Need To Know About Internet Law (Random House 2000).

In November, a European court ruling forced an American Internet service provider to remove content from servers located in the U.S. and block the transfer of content to European and Asian users. See Mosley v. Google (Tribunal de Grande Instance, Paris, Nov. 6, 2013). This ruling resulted from the Internet search results of an Englishman who asserted that his French Internet privacy rights make it illegal to distribute Internet images of an individual in a private space without that person’s permission.

In international Internet matters, legal difficulties abound while the law languishes. The societal and economic impact of the Internet has been visible since the beginning of the 1990s, as evi­denced by the change in human rights and international economic and institu­tional policies instigated by the Inter­net. Yet, despite the current problems involving the administration of the In­ternet Domain Name System (DNS) by the Internet Corporation for Assigned Names and Numbers (ICANN), and the various nation states’ efforts to claim domestic jurisdiction over Internet content, few bilateral treaties addressing the Internet have been executed.

International Internet law may spring into existence via the enactment of bilateral agreements or via customs that are part of existing domestic law. Bilateral agreements regarding Internet law may be formed between sovereign countries in the form of agreements. Such agreements are a binding contract between the two sovereign countries that have agreed to mutually acceptable terms. The agreements help to systemize a set of legal rules regarding Internet transactions, which must be adhered to by those who conduct transactions involving the two sovereign countries.

Bilateral Internet law agreements also help to construe given rules of international law and to elucidate their object and purpose. Thus, international treaties may be interpreted in the light of their underlying legal principles.

Several issues have dominated bi-lateral Internet law agreements. These issues include Internet access rights, privacy, jurisdiction and interstate cooperation. Additionally, these are the most likely issues to collide. As exemplified by the Mosley v. Google ruling, such questions as “where does the protection of basic rights end and censorship begin?” have resulted from the application of International Internet law.

International Internet access rights be traced to international human rights law. Since evidence has been documented of the economic inequality between groups with and without access to the Internet, commonly known as the “digital divide,” Internet access has been viewed as a human right. Yet, it is questionable whether Internet access, which also comprises commercial Internet freedoms, is on par with other human rights.

It has been argued that freedom of expression is the essential freedom of the Internet. See Article 19(2) of the Covenant on Civil and Political Rights (CCPR), a U.N. multilateral treaty. The CCPR guarantees certain freedoms on a universal level, including freedom of expression, generally, and due to its worldwide use, the Internet by implication.

In Europe, a corresponding right is enshrined in Article 10 of the European Convention on Human Rights (ECHR). Article 19(2) of the CCPR expressly refers to expression “through any...media of his choice.” Although ECHR Article 10 is silent on this point, it is clear that the European Convention equally protects expression through the Internet. Information and ideas expressed on a webpage fall within the scope of ECHR Article 10.

The judicial basis for Internet protection may be found in the case of Times Newspaper Ltd. v. U.K. (Eur. Court H.R., Mar. 10, 2009), where the European Court of Human Rights found that Internet archives fall within the scope of ECHR Article 10. As freedom of expression comprises freedom of in-formation, it entitles not only content providers but access. In Fatullayev v. Azerbaijan, the European Court of Human Rights explicitly assimilated a popular Internet forum to the printed media in terms of effect. See Eur. Court H.R., Apr. 22, 2010, Application 40984/07). The court found that freedom of expression is neither geographical nor technology-dependent.

Internet privacy is an extension of the principle of privacy, which is an element of international human rights law. ECHR Articles 8 and 17 protect an individual’s privacy, family, home, correspondence, honor and reputation. Both articles have been applied to the Internet by the European Court of Human Rights.

In particular, ECHR Articles 8 and 17 have been used to protect emails, correspondence and Internet data transmissions. In Eur. Court H.R., Copland v. United Kingdom, Judgment of Apr. 3, 2007, Application 62617/00, the court found that an employee’s use of the Internet as part of her private life and correspondence was protected.

Internet privacy is applicable to both public authorities and private entities. Enterprises and social community platforms store large amounts of private data that may compromise and harm an individual if they are stolen or otherwise misused.

Due to the potential for cross-border transactions, Internet jurisdiction deals with the relationships among states. Under a regime of sovereign equality, as laid down in Article 2(1) of the U.N. Charter, the jurisdiction of one state finds its limits in the jurisdiction of others.

The claim of jurisdiction is normally related to the power the court claiming jurisdiction has to enforce its findings. In consequence, the exercise of jurisdiction requires a genuine link. A state will typically exercise territorial jurisdiction over a matter if it has the power to arrest the actors associated with the transaction, seize the objects associated with the transaction, or stop an element necessary for the transaction from continuing to function (such as padlocking a storefront or disabling an Internet server).

The principle of territorial jurisdiction is well established in public international law. Some legal conventions are specifically associated with the Internet. For example, Article 22 of the European Convention on Cybercrime (ECC) of Nov. 23, 2001, confirms the traditional principle of territorial jurisdiction. According to ECC Article 22(1)(a), each contracting party establishes jurisdiction over offenses committed on its territory. It is well established that an offense is committed at the place where the perpetrator acted. If a person places harmful content, such as pornography on a website, the state where the person has actually worked on the computer may intervene. Traditionally, however, it is accepted that an offense is also committed on the territory where the effects of a criminal act occur.

Accordingly, it is possible to “assert territorial jurisdiction if both the person attacking a computer system and the victim system were located within its territory,” but also “where the computer system attacked is within its territory, even if the attacker is not.” In this case, there would indeed be a genuine link between the attack and the state where the victim’s system is located because the targeted computer system exists in that country. The situation is less clear when harmful content is published through the Internet. A webpage is, in principle, accessible from any point in the world.

As found by Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119 (W.D. Pa. 1997), U.S. courts rely on a reasonable effects doctrine. Although court practice throughout the world is not uniform, there is a strong tendency to use several criteria in order to determine whether a webpage has a sufficient link to a given country.

It should be noted that nations that control the Country Code Top Level Domain may use said control to transfer domain names. This control effectively allows those nations to seize an asset, i.e., the domain name. Thus, they may claim jurisdiction over transactions involving entities they cannot arrest and transactions they cannot stop.

As in the case of trans-jurisdictional disputes generally, and Internet disputes particularly, state-to-state cooperation is paramount. Since Internet transactions regularly disregard national borders, most problems cannot be solved by one nation alone. For instance, Internet fraud and other Internet offenses are frequently committed by out-of-state offenders. Prosecuting such offenses requires investigations in different states and, thus, some level of cooperation.

Bilateral treaties executed prior to the use of the Internet contain promises of trans-jurisdictional cooperation. Additionally, certain duties to collaborate can be derived from multilateral treaties. For example, Article 1 of the U.N. Charter is: “To achieve international co‐operation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms.” Said declaration has regularly been used to justify cooperation among nations.

Specific duties to cooperate in the investigation and termination of Internet child pornography have been established in international treaties such as the Convention on the Rights of the Child (CRC). Article 34(c) of the CRC obliges states to “take all appropriate national, bilateral and multilateral measures to prevent... [t]he exploitative use of children in pornographic performances and materials.” Since pornographic materials are frequently exchanged through the Internet from one state to another, any effective response must be coordinated between two or more states.

But, there is no consistent pattern for duties to cooperate. This conclusion is evidenced by the fact that states are not obliged to maintain diplomatic relations, even though diplomacy is at the very basis of international cooperation.

However, the private sector has filled the international Internet governance void. Although the development of the Internet was funded by the U.S. government, its structures were determined by the scientific community, as were its governances. In particular, the administration of the DNS was neither conferred upon a state authority nor an international organization, but upon the private nonprofit organization, ICANN.

According to the Geneva Declaration of Principles of 2003, the management of the Internet, which “encompasses both technical and public policy issues... should involve all stakeholders and relevant intergovernmental and international organizations.” More than a decade later, Internet‐related public policy issues are still promulgated by the private sector through technological means.

While the aforementioned legal principles with respect to international Internet law may influence the evolution of international customary law, the private sector uses contracts such as terms of use agreements to regulate Internet access, privacy and jurisdiction. Interstate Internet cooperation is based on the relationship between the Internet service providers and the nation states that house their people, assets and storefronts. Such interstate cooperation is regulated and enforced by bilateral Internet law agreements. They tend to be enforced via Article 38(1)(c) of the Statute of the Inter-national Court of Justice (ICJ), assuming the states party to the agreement have recognized the ICJ in their respective domestic laws.

The ICJ, once recognized, may also be used to fill gaps in the treaty. Although some nation states will allow the ICJ as a result of custom, and no formal adoption of domestic law recognizing the ICJ is necessary.