We think you have liked this presentation. If you wish to download it, please recommend it to your friends in any social system. Share buttons are a little bit lower. Thank you!
Presentation is loading. Please wait.
Published byRolf Thomas Spencer
Modified about 1 year ago
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Determining the Applicable Law Governing Cyberspace
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Determining the Applicable Law Governing Cybercrimes Proper jurisdiction when cybercrimes occur Applicable U. S. and State laws Scope and relevance of International Law
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Jurisdiction Basics “Jurisdiction” refers to the power of governments to –Proscribe behavior –Adjudicate –Enforce Older notions of physical presence have inevitably given way to –fairness –reasonable nexus –adequate notice –opportunity to defend
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Whom to Call: The Jurisdiction Muddle Computer crime is a Federal offense when it involves: –theft or compromise of national defense, foreign relations, atomic energy or other classified information –a computer owned by the Government –a bank or other financial institution –interstate or foreign communications –people or computers in other states or countries –reproduction or distribution of copyrighted works
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Whom to Call: The Jurisdiction Muddle The FBI has jurisdiction over Federal cases involving –national security –terrorism –banking –organized crime The Secret Service has jurisdiction when –The Treasury Department is the victim –Violations of the Computer Fraud and Abuse Act In some cases, the Customs Department or a military organization (e.g. OSI) may have jurisdiction
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Whom to Call: The Jurisdiction Muddle All States now have computer crime laws –Revisions of older statutes –New statutes paralleling the Federal statutes BOTH Federal and State organizations may have jurisdiction over cybercrimes Other factors may also be considered –The nature and severity of the offense –The resources available to pursue the investigation International Laws may also be applicable
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Limitations on Jurisdiction Every government is subject to limitations on its authority to exercise jurisdiction in cases that involve foreign interests or activities –United States Constitutional limits power of Federal government at the expense of the States –International law also limits governments must exercise moderation and restraint in invoking jurisdiction over cases with foreign involvement must avoid undue encroachment on the jurisdiction of other states
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Jurisdiction to Legislate Does the state have the authority to make substantive laws applicable to particular persons and circumstances? –states have the authority to regulate activities within its territory, as well as conduct of its citizens abroad –but diplomats are exempted from most taxes
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Nationality Principle States may regulate: –the activities, –interests, –status, or –relations of its citizens outside of as well as within their territories
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Territoriality Principle States may regulate –conduct that takes place within their territories –status or persons, or interests in things, present in their territories CompuServe in Germany CompuServe was conducting business in Germany, and was therefore subject to German laws Extraterritorial application of national law is not permitted American Library Ass’n v. Pataki New York cannot hold Internet users responsible for posting of obscene or indecent material that New York children could access
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Effects Principle States may regulate: –Conduct outside their territories that have substantial impact or effect within their territories U. S. v. Thomas –California defendants tried in Memphis, TN for distribution of obscene materials to the Western District of Tennessee –Defendants knew the jurisdiction in which their files were being accessed and downloading could not have occurred without their approval Playboy v. Chuckleberry Publishing –US court could not prohibit distribution worldwide, but could ban access to customer sites in the US
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Effects Principle (continued) Distinguishing on-line approaches: –e-mail is no different from letters or phone calls e-mail correspondents may not be aware of the citizenship of those who receive their e-mail –Bulletin Boards imposition of criminal liability for postings would subject the poster to the unreasonable burden of knowing of criminal liability in hiundreds of jurisdictions when she cannot conrol the distribution –World Wide Web impossible for the owner of a web site to prevent access by users in a given jurisdiction
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Effects Principle and Targeting If a jurisdiction is “targeted”, it may regulate conduct that in a completely open situation could not be regulated Panavision v. Toeppen –Illinois defendant used a California company’s trademark in a website for the purpose of extorting money –Three-part test: non-resident defendant must purposively avail himself of the privilege of conducting activities in the forum the claim must arise out of or result from the defendant’s forum-related activites the exercise of jurisdiction must be reasonable
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Protective Principle States may regulate: –certain conduct outside their territories by persons not their citizens that is directed against the security of the state or against a limited class of other state interests –espionage –counterfeiting –falsification of official documents –network intrusions into state computers? –Software piracy?
© 2000 Wyndrose Technical Group, Inc, All rights reserved. General Requirement for Reasonableness Even when one of the bases for jurisdiction applies, the principles of territoriality, effects, nationality, and protection can be used to justify jurisdiction over persons or activities connected to another state only when the exercise of jurisdiction is reasonable
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Reasonableness –Factors to be considered include: the extent to which the activity takes place within the territory or has substanytial, direct and foreseeable effect upon the territory The connections (nationality, residence, economic activity) between the regulating state and the person responsible for the activity, or between the state and those the regulation is designed to protect the character of the activity to be regulated
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Reasonableness (continued) the importance of the regulation to the state the extent to which other states regulate such activities the extent to which the desirability of the regulation is generally accepted The extent to which justified expectations might be protected or hurt by the regulation The importance of the regulation to the political, legal, or economic system The extent to which the regulation is consistent with tradition
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Reasonableness (continued) The extent to which other states may have interests in regulating the activity the likelihood of conflict with regulation by another state States are supposed to defer to another state with a clearly greater interest if conflicts of prescriptions arise
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Universality Jurisdiction Any state has jurisdiction to prescribe punishment for offenses recognized by the community of nations as being of universal concern –piracy –slavery –attacks on or hijacking of aircraft –genocide –war crimes –certain acts of terrorism
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Jurisdictions to Adjudicate and Enforce Jurisdiction to Adjudicate does not exist if there is no jurisdiction to legislate –unless the forum is willing to apply the laws of a foreign state A state may not enforce rules that it has no jurisdiction to create –Conversely, the jurisdiction to legislate doesn’t confer the jurisdiction to enforce the rules in another state’s territory –Consent is required for physical arrest service of process discovery law enforcement investigations
© 2000 Wyndrose Technical Group, Inc, All rights reserved. But What About... Internet investigations where the investigator never enters the other jurisdiction –U. S. v. Romano Appellants, domiciled in Italy, were lured to the U. S. by telephone conversations The court said, “It must be stated at the outset that in this case no peace officer or officer of the United States ever entered Italian territory, Therefore, there was no violation of territorial sovereignity or offense to any state.” –But, the search of your hard drive by foreign law enforcement officers from abroad is more like a traditional search, presumably with legal consequences
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Conclusions States will increasingly seek to regulate “criminal” behavior on the Internet There are limitations on states ability to exercise legislative, adjudicative and enforcement jurisdiction –Legislative jurisdiction is limited to territoriality or nationality cases targeting where the universality principle applies –Jurisdiction to adjudicate is not triggered by mere web presence –Jurisdiction to enforce extraterritorially requires consent
© 2000 Wyndrose Technical Group, Inc, All rights reserved. Conclusions (continued) This is a very active area of the law, both domestically and internationally –Activities which are constitutionally protected in the United States may subject travelers to prohibitions The net is a wonderful place to acquire exposure to may different cultures, people and experiences It also can provide exposure to many different penal codes and judicial systems
JURISDICTION Arie Afriansyah. Definition The extent to which international law permits a state to exercise its jurisdiction over persons or things in.
Principal of Sovereignty the quality or state of being sovereign. the status, dominion, power, or authority of a sovereign; royalty. supreme and independent.
International Law: Summary of Unit 2 Fall 2006 Mr. Morrison.
International Law: Summary of Unit 2 Fall 2005 Mr. Morrison.
Chapter 5. It creates the three branches of government Executive Legislative Judicial It allocates powers to these branches It protects individual.
Inmate Rights, Privileges and Responsibilities An Annual Review Version 3 Oklahoma Department of Corrections Training Administration Unit.
Law for Business and Personal Use Unit One: Law, Justice, & You Chapter One: Our Laws.
Stephen G. Harvey November 14, 2006 PAYDAY LOAN BAR ASSOCIATION ANNUAL CONFERENCE Constitutional Issues Raised.
© 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license.
What is the principle of comity, and why do courts deciding disputes involving a foreign law or judicial decree apply this principle? What is the principle.
The Judicial System The Courts and Jurisdiction. Courts Trial Courts: Decides controversies by determining facts and applying appropriate rules Appellate.
Actg 6100 Legal Issues Chapter 3 Courts and Alternative Dispute Resolution.
1 By Marcus Harris The Rights, Responsibilities, and Advantages (Benefits) of being a U.S. Citizen.
The History of Law Vocabulary BMA-LEB-2: Compare and contrast the relationship between ethics and the law for a business.
Chapter 2 Legal Aspects of Investigation © 2009 McGraw-Hill Higher Education. All rights reserved. LEARNING OBJECTIVES Explain the historical evolution.
Internet Jurisdiction Law of e-Commerce Copyright, Peter S. Vogel,
E XTRATERRITORIAL A PPLICATION OF U.S. L AW - S ECTION 319 OF THE U.S.A. P ATRIOT A CT Alcides I. Avila Holland & Knight LLP FIBA/CSBS ANTI MONEY LAUNDERING.
Security Services Constitutional Issues in Private Security.
Issues for Computer Users, Electronic Devices, Computer and Safety.
Jurisdictional issues and international co-operation in combating cybercrime Anne Flanagan Institute for Computer and Communications Law Centre for Commercial.
Principles of LPSCS. Copyright © Texas Education Agency All rights reserved. Images and other multimedia content used with permission. Copyright.
The Other Expressed Powers Chapter 11 Section 2. Key Terms Copyright Copyright Patent Patent Territory Territory Eminent domain Eminent domain Naturalization.
Export Controls CBP is Turning up the Heat and the “ICE” is Not Melting April 2008 NCURA Western Regional Conference Adilia F. Koch.
Computers, Freedom and Privacy April 23, 2004 Identity Theft: Addressing the Problem in California Joanne McNabb, Chief CA Office of Privacy Protection.
Chapter 3. Federal court system Court systems of the 50 states, Washington, DC (District of Columbia), and territories of the United States 3-2Copyright.
EXAMINING CYBER/COMPUTER LAW BUSINESS LAW. EXPLAIN CYBER LAW AND THE VARIOUS TYPES OF CYBER CRIMES.
Thurs. Sept. 27. PERSONAL JURISDICTION IN STATE COURT.
Unit 2 Seminar Jurisdiction. General Questions Any general questions about the course so far?
Types of Laws Copyright © Texas Education Agency, All rights reserved.
Chapter Two Classifying Law. Key Terms and Concepts administrative law p. 43 administrative law p. 43 bylaws p. 37 bylaws p. 37 civil law p. 44 civil.
25-1 Chapter 4 Constitutional Law for Business and E-Commerce.
Chapter 19 - Congressional Authority for National Security Surveillance Part I.
Newsgathering: Access to Meetings & Records. Access and the First Amendment How has the U.S. Supreme Court responded to claims that the First Amendment.
Chapter 43 Administrative Law and Regulatory Agencies.
WEEK 2 EOC Review. Day 1 Citizenship All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the.
Chapter 4 The Federal System. Basic Principles Two levels of government – Each assumes power from the people (in a democratic form) – Each level is considered.
25-1 Chapter 1 Legal Heritage and the Digital Age.
Chapter 19 - Congressional Authority for National Security Surveillance Part II.
25-1 Chapter 17 E-Commerce and Digital Law. Internet Collection of millions of computers that provide a network of electronic connections World Wide.
Chapter 13 Administrative Responsibility Torts & Agencies ► What is a Tort? ► Generally, under the concept of “Sovereign Immunity” it is impossible to.
McGraw-Hill/Irwin Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved. BUSINESS PLUG-IN B19 Global Information Systems.
American Government and Politics Today Chapter 15 The Courts.
Jurisdiction Theories of Jurisdiction in International Law.
McGraw-Hill/Irwin Copyright © 2011 by The McGraw-Hill Companies, Inc. All rights reserved. Chapter 17 Administrativ e Law.
What distinguishes cyber crime from “traditional” crime? What distinguishes cyber crime from “traditional” crime? How has the Internet expanded opportunities.
Law, Justice, & You Unit 1. Types of Laws Goals: –Explain how constitutional, statutory, case, and administrative laws are created –Explain how to resolve.
© 2011 South-Western | Cengage Learning GOALS LESSON 1.1 LAW, JUSTICE, AND ETHICS Recognize the difference between law and justice Apply ethics to personal.
Have the Time? Steps to Deal with Cybercrime HFTP Annual Conference Bellevue, Washington October 23, 2015 Presented by: John D. Daum, CPA Scott Perry (Just.
Why the Data Protection Act was brought in The 1998 Data Protection Act was passed by Parliament to control the way information is handled and to give.
Chapter 1: Legal Ethics 1. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use.
© 2017 SlidePlayer.com Inc. All rights reserved.