SOVEREIGNTY IN CYBERSPACE

1. A discussion of how international, federal, and state relations have been impacted SOVEREIGNTY IN CYBERSPACE

2. Definitions of cyberspace: • What is exactly the cyberspace? • The word "cyberspace" (from cybernetics and space) was coined by science fiction novelist author William Gibson in his 1982 story "Burning Chrome" and popularized by his 1984 novel “Neuromancer”. • It could be the world of information that travel through the Internet • It could be a computer network consisting of a worldwide network of computer networks • And more definitions exists • So which definition is relevant for this topic?

3. The relevant definition of cyberspace: • While cyberspace should not be confused with the Internet, the term is often used to refer to objects and identities that exist largely within the communication network itself, so that a website, for example, might be metaphorically said to "exist in cyberspace." According to this interpretation, events taking place on the Internet are not happening in the locations where participants or servers are physically located, but "in cyberspace". • This definition of cyberspace assume that some event can take place in a communication network that can not be spotted anywhere precisely but within the world itself. • How can we apprehend cyberspace activities in a world where all the nations were born out of a concept of territoriality?

4. Definitions of sovereignty: • Sovereignty is the quality of having supreme, independent authority over a territory. • It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided. The concept has been discussed, debated and questioned throughout history, from the time of the Romans through to the present day, although it has changed in its definition, concept, and application • The current notion of state sovereignty was laid down in the Treaty of Westphalia (1648), which, in relation to states, codified the basic principles of territorial integrity, border inviolability, and supremacy of the state (rather than the Church). • A sovereign is a supreme lawmaking authority.

5. The definition of the American Law Institute: • In the context of Rights and Duties of States, the Restatement of the Law Third states: • "'Sovereignty' is a term used in many senses and is much abused. As used here, it implies a state's lawful control over it's territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there." • As a consequence, “the character of an act as lawful... must be determined wholly by the law of the country where the act is done”.

6. How to locate in cyberspace? • Even though it is possible to spot the human actors of a crime in the cyberspace (i.e. one is in the USA, another one is in France)‏ • It is very difficult to know where the crime in itself happened • The information may have travel through different countries beside France and USA in our example • The victims can live in different countries than France or USA or both • It can have a substantial effect in another country than France or USA or both

7. Local and transnational cybercrime • The distinction arise from the comparison with the traditional model of crime. Indeed, the commission of the cybercrime effectively takes place entirely within the territory of a single sovereign • Both the perpetrator and the victim are physically in the sovereign's territory when the conduct constituting the offense is committed, so the « harm » to the victim is inflicted on the sovereign's territory

8. LOCAL CYBERCRIMEAND JURISDICTION

9. A good example of local cybercrime:cyberstalking • The perpetrator and the victim usually live within the same community • They know each other from encounters in the real world • The perpetrator then decides to use Internet in the aim to hide his identity and avoid apprehension • Although the perpetrator vectors his stalking activity through cyberspace, he and his victim are in the same localized area during the commission of his criminal activity • But his use of cyberspace will likely result in signals being transmitted into and out of the sovereign's territory. Can this have an impact on whether the crime should be prosecuted on the Federal or State level?

10. Local cybercrime: Federal or State jurisdiction? • That is to say, can the cyberworld qualify as a mean of interstate commerce as stated in the commerce clause? • The majority view in U.S. v. Sutcliffe (9th circuit, 2007) stated that the Internet in itself is an instrumentality of interstate commerce, thus subject to Federal jurisdiction • The minority view in U.S. v. Schaefer (10th circuit, 2007) supports that there must be a showing that the communication traveled interstate.

11. The majority view:U.S v. Sutcliffe (9th circuit, 2007)‏ • Facts: • Defendant, a computer technician, was hired by Global Crossing Development Company in August 2001. • Shortly thereafter, however, his employment was terminated because he refused to provide the Human Resources Department with his social security number, • Global Crossing discovered that he had failed to disclose past criminal convictions on his job application, and he threatened the director of Human Resources. • After his termination, Defendant began picketing outside the Global Crossing building with a sign referring to a website he had created. • On this website, Defendant displayed Global Crossing employees’ personal information, including payroll information, social security numbers, birth dates, and residential addresses, with some of this information hyperlinked to an article about identity theft.

12. The majority view:U.S v. Sutcliffe (9th circuit, 2007) [2] • Defendant also posted the name and vehicle license plate number of the process server who went to his place to deliver him a restraining order that Global crossing had obtained from the court • Here is a copy of what he wrote on his website: • “Our paths are now crossed and we are forever joined . . . to deal with that I am going to make you a one time offer. If I never see or hear from or of you again, I will forget you . . . . However, if I do ever hear your name mentioned against me ever again I will personally add you to my domain list. I think you understand the issues now enough to understand what this means. If I ever see you near my family again, and I know how to stalk too, I will kill you. That's my offer”

13. The majority view:U.S v. Sutcliffe (9th circuit, 2007) [3] • Opinion of the court: • We have previously agreed that “[i]t can not be questioned that the nation’s vast network of telephone lines constitutes interstate commerce,” [...], and, a fortiori, it seems clear that use of the internet is intimately related to interstate commerce. • “[t]he Internet engenders a medium of communication that enables information to be quickly, conveniently, and inexpensively disseminated to hundreds of millions of individuals worldwide.” [...] • It is “comparable . . . to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services,” [...], and is “a valuable tool in today’s commerce,”[...]. • We are therefore in agreement with the Eighth Circuit’s conclusion that “[a]s both the means to engage in commerce and the method by which transactions occur, ‘the Internet is an instrumentality and channel of interstate commerce.’

14. The majority view:U.S v. Sutcliffe (9th circuit, 2007) [4] • Decision of the court: • The court ended up sentencing Sutcliffe to the top end of the guidelines range. • Judge Matz tells Sutcliffe: "If there were a crime . . . that consisted of arrogance, I would depart upward to sentence you to a much longer sentence."

15. The minority view:U.S v. Schaefer (10th circuit, 2007)‏ • Facts: • Defendant possessed child pornography on his computer but also on burned CDs • Forensic testing on the computer revealed that Mr. Schaefer purchased at least five subscriptions to child pornography websites. • The testing also revealed images of child pornography in the computer’s “unallocated clusters” and on the temporary “Internet cache files.” The parties stipulated that one CD confiscated contained eight images of child pornography and the second contained three pornographic images. Authorities interviewed Mr. Schaefer after the search of his home, and he admitted to seeking out images of child pornography on the Internet.

16. The minority view:U.S v. Schaefer (10th circuit, 2007) [2] • Decision of the court: • « Exercising jurisdiction under 28 U.S.C. § 1291, we hold that the government failed to offer sufficient evidence to establish the requisite jurisdictional nexus of a movement across state lines (i.e., a movement in interstate commerce). Specifically, we conclude that the government’s evidence concerning Mr. Schaefer’s use of the Internet, standing alone, was not sufficient to establish that the child-pornography images at issue moved across state lines. » • Consequences: to establish Federal jurisdiction the government must present evidence that the images or other criminal content moved across state lines

17. TRANSNATIONAL CYBERCRIMEAND JURISDICTION

18. The rule for transnational conflictin general: • Rule stated in Banana Co. v. United Fruit Co., 213 US, 347, 356 (1909)‏ • Facts: An American company alleged violation of antitrust law and conspiracy in Panama. This conduct was not illegal in Panama • Court's decision: « [T]he general and almost universal rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done ». • Principle: Location is the criteria as to determine who has jurisdiction for the crime in question

19. The different scenarios: • For a cybercrime involving different countries there can be different results: • None of the countries involved decide to prosecute => lead to impunity for the cybercriminal • One country decide to prosecute and the other don't => problem of uniformity because country A and country B can have different sanctions for the same crime • Both countries involved decide to prosecute the same criminal => lead to the question of which rule will apply and how to decide

20. The exception of treaties • Treaties may exist between two countries involved in a conflict of jurisdiction with a cybercrime issue • Treaties address directly the problem and the only thing the countries have to do is to apply it • It often require dual criminality which means that generally the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested parties.

21. The Council of Europe on cybercrime: • The Convention on Cybercrime of the Council of Europe is the only binding international instrument on this issue. It serves as a guideline for any country developing comprehensive national legislation against Cybercrime and as a framework for international cooperation between State Parties to this treaty. • The Convention is supplemented by a Protocol on Xenophobia and Racism committed through computer systems.

22. International cooperation: Interpol • Interpol, whose full name is the International Criminal Police Organization – INTERPOL, is an organization facilitating international police cooperation. It was established as the International Criminal Police Commission in 1923 and adopted its telegraphic address as its common name in 1956. • Its membership of 188 countries provides finance of around $59 million through annual contributions. The organization's headquarters are in Lyon, France. It is the second largest intergovernmental organization after the United Nations. • If failure: Diplomatic relations

23. Another theory: cyberspace has its own sovereignty: • This idea was raised because of the similarities between the cyberspace and the lex mercatoria • body of trading principles used by merchants throughout Europe in the medieval. Meaning literally "merchant law", it evolved as a system of custom and best practice, which was enforced through a system of merchant courts along the main trade routes. It functioned as the international law of commerce.[1] It emphasised contractual freedom, alienability of property, while shunning legal technicalities and deciding cases ex aequo et bono. • A distinct feature was the reliance by merchants on a legal system developed and administered by them. States or local authorities seldom interfered, and surrendered some of the control over trade within their territory to the merchants. In return, trade flourished under the lex mercatoria, increasing tax revenues.

24. The Electronic Frontier Fundation • The Electronic Frontier Foundation (EFF) is an international non-profit digital rights advocacy and legal organization based in the United States. Its stated mission is to: • Engage in and support educational activities which increase popular understanding of the opportunities and challenges posed by developments in computing and telecommunications. • Develop among policy-makers a better understanding of the issues underlying free and open telecommunications, and support the creation of legal and structural approaches which will ease the assimilation of these new technologies by society. • Raise public awareness about civil liberties issues arising from the rapid advancement in the area of new computer-based communications media. • Support litigation in the public interest to preserve, protect, and extend First Amendment rights within the realm of computing and telecommunications technology. • Encourage and support the development of new tools which will endow non-technical users with full and easy access to computer-based telecommunications".

25. SOURCES: • Wikipedia for the definitions of cyberspace [http://en.wikipedia.org/wiki/Cyberspace] • Wikipedia for the definitions of sovereignty [http://en.wikipedia.org/wiki/Sovereignty] • “Cybercrime jurisdiction” by Susan W. Brenner • “The regulation of cyberspace and the loss of National Sovereignty” by Noel Cox • “Cyberspace, sovereignty, jurisdiction, and modernism” by Joel P. Trachtman • ”Cyberspace sovereignty? - The Internet and the international system” by Timothy S. Wu • Council of Europe convention on Cybercrime