Certainly, conflicts over jurisdiction have been around for centuries, but the Internet introduces a new set of questions about how to apply cross-border laws. In the physical world, the ground rules are relatively well established, bolstered by years of international treaties, case law and agreements between specific nations that dictate how such laws are applied and enforced. For example, a person hawking girlie calendars in a conservative Muslim land is clearly violating the laws there, as is someone who knowingly ships wine to a dry county. Generally, laws governing such issues have considered whether the seller was actively trying to promote products to a population that's banned from buying them. But the Web changes the dynamics. When you put up a Web site, virtually anyone can stop by and shop. And often, sites aren't selling items but are merely posting speech that some might find objectionable. Without treaties or consistent case law, the question remains: what constitutes doing business on the Web? Is putting up a Web site enough to warrant prosecution? Or must you target it to specific populations? What about disclaimers? Is it a deterrent to plaster a warning across your site saying "these pages are for US residents only"? So far, such questions have for the most part gone unanswered. But the legal tangle will surely be unravelled as conflicting laws governing issues such as gambling, obscenity and copyright clash on the borderless Web. Perhaps no case highlights the confusing thicket of jurisdictional issues on the Web more than the Yahoo! imbroglio. The saga began two years ago when two French human rights groups sued Yahoo!, arguing that the posting of historical Nazi items on the company's US-based site violated French law prohibiting the display of racist material. A French judge sided with the groups, ordering Yahoo! to block French citizens from accessing the site or face steep fines. However, Yahoo! turned to the US courts and asked a judge to declare the French law unenforceable in America. He did. Now, the company is facing another set of charges that it, along with former chief executive Koogle, violated the country's war crime laws by displaying the items. In perhaps the most curious aspect of the case, the American Yahoo! site at issue had no physical presence in France. That's in contrast to ElcomSoft, whose employees travelled to the United States, and which allegedly was offering the disputed software via some US-based servers. Yahoo! has pulled the disputed items from its site and says it will no longer allow such postings. Furthermore, the company has a host of local sites tailored to many countries -- including France -- that obey the laws of each land and have never allowed posting of items illegal in those countries. The case is scheduled to go to trial early next year. Koogle could face jail time as a result of the charges. He did not return calls seeking comment. Having it both ways
Some fear jurisdictional disputes could set off a firestorm of recrimination, where prosecution of a foreign company in one country prompts retaliatory laws in another, escalating isolated scuffles into all-out war. "If we do it with the DMCA, another country is going to do it with another law," said Joseph Burton, an attorney with Duane Morris who's representing ElcomSoft. "It's a pretty horrible situation." Meanwhile, some countries seem to want to have it both ways. Take the United States, for example. Courts and law enforcement in America have repeatedly reached across borders and clamped down on foreign companies accused of violating US copyright law on the Web. In addition to US prosecutors filing criminal charges against ElcomSoft, a US judge ordered Canadian company iCraveTV.com to shutter its site after American broadcasters complained it was stealing their copyrighted works. An Italian Web site had to block US citizens' access to its site on orders from a US court. However, when the shoe is on the other foot, US courts have sometimes said foreign laws do not apply, such as when a US judge decided that the French ruling ordering Yahoo! to block French citizens' access to its site is not enforceable in America. "There is a certain hypocrisy," said Doug Isenberg, an Atlanta-based Internet lawyer who publishes the GigaLaw.com site and is not involved in the cases. "I don't know that you can ultimately have it both ways." Many of those who track such jurisdictional issues think the problems prompted by the borderless Web eventually could be resolved by treaty, but how such a pact will look is anyone's guess, given the conundrums already posed by the Hague and the Council of Europe's cybercrime treaty. Some have argued that the Web should be regulated as an international resource. "Indeed, the places most analogous to the Internet, in a jurisdictional sense, are outer space and the international waters," ElcomSoft attorneys wrote in one of their briefs. While parties on both sides of such cases wage debates over whose laws apply, there is one thing they can agree on: The confusing snarls over jurisdiction will continue for years. Indeed, most of the cases so far have involved the United States, France and Canada, regions hardly known for restrictive laws governing speech and commerce. What happens when countries with harsher laws -- such as those governed by dictators or strict religious rules -- weigh in with judgments of their own and reach across borders to try to enforce them? "These things are going to continue around the world because, as near and dear as the First Amendment is to us, other countries have different histories and different cultural sensitivities," said Richard Jones, an attorney with Coudert Brothers representing French human rights groups that have sued Yahoo! over the Nazi paraphernalia. Organisations including the American Civil Liberties Union wrote in their brief supporting Yahoo!: "The French court's order is but one example of the sort of judgment that this and other American courts can expect to see with increasing frequency as Internet use expands throughout the world."
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