Who Will Guard the Web?

The American Bar Association discusses how to make laws for the Internet. Although self-regulation is encouraged, basic standards on topics such as privacy are needed. Since most laws are national, but the Internet is International, no single authority can rule the Web. Worldwide cooperation will be necessary.

The more corrupt the state, the more numerous the laws.
— Tacitus (c.55-c.117 AD)

by Patricia Fusco
of internetnews.com

The issue of legal jurisdiction for laws governing the Internet may not be the most difficult of international issues, but the American Bar Association used an army of lawyers to study the issue of governing the tangled Web we've woven.

Thomas P. Vartanian, chairman of the American Bar Association Committee on the Law of Cyberspace, is charged with directing a two-year transnational project on the jurisdiction in Cyberspace for the ABA.

Vartanian and a fleet of lawyers tried to show what it will take for governments to regulate the Web. The group's attempt to answer these questions, or at least establish the academic and industry initiated boundaries for their sojourn on Web jurisdiction is very interesting.

The ABA established its Transnational Jurisdiction Project in April 1998. More than 100 lawyers in approximately 20 countries worked together to release a report this week at the July 2000 meeting of the ABA in London.

Thud factor
The nearly-200-page report explains how rules of jurisdiction have traditionally operated, and how the Internet has rendered many national laws useless and enforcement impossible.

Vartanian contends that anyone doing business on the Internet needs to know what laws to obey, and where.The Web broadens the geographic reach of commerce, washing national borders away in a tide of commerce that can only be countered by cooperative global legislation.

To address this fundamental issue requires uncommon sense and a diverse cultural sensibility. Someone must determine consumer protection guidelines, tax issues, transaction reporting, as well as privacy and encryption standards, all of which have yet to be consistently established on the Web.

What is the Web?
Ignorance is not bliss when it comes to real liabilities that Web enterprises must face in order to do business on a global scale. The new dynamics of e-commerce demands that we define the Internet, which is no small task unto itself. It this simple: Regulate? Regulate what?

Vartanian purports that in order to establish jurisdiction for Net laws, we must treat the Internet as merely another means to communicate. From there, predictable guidelines for Web-based businesses may evolve to embrace jurisdictional matters and consumer protection on a global scale.

So far, the U.S. courts have established the precedent that e-commerce is pushed by vendors, rather than pulled by consumers. This is a critical because it implies that a Net business should be governed by laws that apply at its base of operations or corporate headquarters.

Competing nations
It's an important distinction. For example, let's say I push pornography on the Web. If my I were located in a state or territory that permits such activities, it would be difficult for consumers to sue me when I deliver the goods to their computers.

Enter the reality of operating a business one the Web. I may push porn from Peru, but my offices are in Palau, and my Web server is in Portugal. Which country's laws govern my business and who will enforce these laws?

The ABA's Vartanian notes that the issue of push versus pull technology was originally addressed in a four-year-old 6th Circuit Court ruling in the case United States v. Thomas. A similar set of issues were raised in Minnesota v. Granite Gate Resorts, which applied the laws of Minnesota to an online gambling business located in Las Vegas that operated through a server in Belize.

"There is no clear answer to this question even in this country, never mind throughout the world," Vartanian said. "Indeed, that is the reason for the 2-year study that produced the ABA report."

Go to page 2: The states are small, the Web is big