Most states have not enacted laws regulating internet operations and its contents. The laws governing the use of internet communication, transaction and distribution can generally be termed as cyber laws. The term internet can be defined as a collection of interconnected electronic data network around the world. It has been difficult for majority of states to have legal framework serving to regulate internet applications because of the less distinctiveness of cyberlaw as a branch of Law. However, cyberlaw covers several aspects of privacy, intellectual property law, jurisdiction and freedom of expression. The complexity and the sensitivity of matters related to the internet have sparked a heated debate about the whole process of jurisdiction (Saco, 2002, p.16).
Internet applications do not have any geographical and jurisdiction borders although the users in few states, if any, are subject to physical jurisdiction and the authority of the law independent of their existence on the internet. Usually, internet transactions may involve three types of jurisdictions the state or national laws applicable where the individual lives, the state laws of the server hosting the transaction and the state laws which apply to the business or individual in question. Theoritically, this means that an internet user in the US carrying out a transaction with another internet user in German but using the same server located in Canada could be subject to the three state laws governing internet usage.
The states aspect of sovereignty is the jurisdiction system and this refers to the legislative, administrative and judicial competence. These laws are often extended beyond borders when considering matters of the internet which do not recognize the territorial and sovereignty borders. This is problematic when designing uniform laws governing internet usage and as such, state laws do not provide enactments for internet usage. The conflict between international and private laws is not unusual, making states to find it very hard to enact any statute governing internet applications (Jerremy, 2000, p.23).
For instance, web site contents could be legal in one country but illegitimate in another country. The lack of uniformity in the code of jurisdiction makes it difficult for courts to make decisions and thus state laws in most cases do not apply to internet.
Cyberlaws in addition have a problem when considering whether the internet is a physical space which can be subject to laws of jurisdiction. Sometimes the interne can be thought of being a world of itself and therefore not subject to any jurisdiction laws.
Proponents of a self regulated internet community feel that the governments should leave alone matters related to the internet for enhanced technological development. The argument why state laws should not intrude into matters of the internet emanates from the free nature human beings to inhabit the mind and any technological invention derived from such thinking and such inhabitation should never be constrained by legal factors (Sims, 2002, p.13).
Despite such reasoning mainly coming from cybersecession initiatives, internet users are always subject to the laws of the state within which he or she gets connected or networked. It has happened in many cases that individuals become responsible to answer court charges related to internet usage. One such example is Jake Baker who faced criminal charges in court for irresponsible usage of the internet which may be called an e-misconduct. The case, United States v. Baker was brought against Jake Baker, the University of Michigan undergraduate which linked numerous incidents of snuff stories written by him while still a student at the University. Jake Baker violated the 18 U.S.C. 875(c) by communicating through interstate threat to kidnap andor injure another individual (Hoffman, et al, 2004, p.27).
Baker, in October 1994 began submitting sexually charged stories that depicted fantasies of torture, murder and rape to an internet group, alt.sex.stories. Particularly, Baker on 9th January, 1995, submitted a story to the group giving details about the fantasies entailed in torture, murder and rape of one of his classmates (Hoffman, et al, 2004, p.30). After Bakers story got brought to the attention of the authorities of the University of Michigan, he was arrested by the FBI and was charged with six counts of communicating via interstate or foreign trade threats to kidnap or injure another individual. The FBI used the e-mails between Baker and another Canadian, Arthur Gonda to determine five of the counts to arrest Baker and the sixth count was determined by the story of his classmate on torture, murder and rape (Devine, 2000, p.35). The court declaration of Bakers case saw no criminal act in Bakers actions and Judge Avern Cohn dismissed the case for lack of evidence since Baker would act due to fantasies. Although the Government appealed the decision by the lower court, the 6ht US Court of Appeals on the 29th January, 1997 upheld this decision and Baker was set free to this date.
The prosecution of Baker was due to six counts of communicating a threat via interstate network and not the violation of obscenity. The FBI was later involved in the investigation of Baker with permission from the authorities of the University of Michigan. The FBI recommendation was that Baker be charged with the violation of the internet since it is a form of interstate commerce provided by the United States Code.
The decision by the government to charge Baker of writing pornographic stories was criticized by free speech advocates who claimed that the Government violated the First Amendment right to freedom of expression. At the same time, some other people supported the Governments decision claiming that the stories by Baker were snuff and filth and that he was planning to attack them (Paul, 2001, p.28).
The most important part of Bakers case was the transmission of his stories in a wide medium and that his pornographic content was watched by several internet advocates. The state and even at the federal level could not have any law against Baker since the internet is a medium touching diverse spheres not restricted by definite borders. The charge of Bakers case of communicating a threat over interstate lines set a precedent for freedom of speech on the internet. Otherwise, the charge may not have been able to find Baker guilty were it not that baker published the so called snuff and filth stories and made an internet correspondence. The case of Baker shows that state laws do not fully provide for the regulation of internet usage.
In another case, several users of the software, peer to peer (P2P) which enables internet file sharing were subject to civil law suit for infringement of copyright. The jurisdiction of internet regulation often leads into a conflict especially when the lawsuits are international in nature. State laws do not totally apply in these situations where the internet which is a medium without borders is involved. Jurisdiction problems always arise due to the different state standards concerning the burden of proof in any civil lawsuit. For instance, it may seem difficult for an American celebrity to win a lawsuit against an online magazine claiming that he was insulted by the magazine for defamation (George, 1992, p.20). This is however not the case in England where the standards for libelous speech is much lesser than in the US. Therefore, if the same celebrity has economic ties or any relationship to England, he or she can win the suit if the claim if filed in the British court system.
Another aspect making state laws not to apply to internet is the net neutrality. Net neutrality is a system proposed by the user access networks which are participating in the advocacy of putting no regulation on internet content, platforms, sites and all kinds of equipments enhancing the use of internet. This factor has affected the regulation of internet infrastructure. The lack of regulation of internet infrastructure has been regarded as the most important aspect of cyberlaw with direct implications on the jurisdiction system. Normally, the laws existing in one jurisdiction should have an effect in another jurisdiction when there is an effect on the telecommunication companies or host servers (Franda, 2006, p.32). The irrelevance of state laws is seen in the charge against Comcast which is the largest US cable company by high speed internet users applying the software of file sharing.
The FCC (Federal Communication Commission) on the 1st august, 2008 officially supported the complaint by the file sharing software users against Comcast. The FCC declared that the company, Comcast, had illegitimately restricted users from using its service that was high speed from using the software of file sharing. The ruling, according to Kevin J. Martin, the FCC chairman, was to set a precedent that the ISP (Internet Service Providers) and all communication companies do not deter their customers from using their networks unless a reasonable argument was tabled (George, 1992, p.58). This case is controversial to the infringement laws which are always vulnerable to be broken by users of Peer to Peer or file sharing software. Therefore, the FCC ruling clearly showed that state laws do not apply at all to the regulation and usage of the internet.
A controversial part of irrelevance of state laws to matters relating to internet, arise from the Governments investigation process into cybercrimes. Cybercriminals are ever getting trickier and the Government computer searches are getting extensively high. The reason attributed to this is because when cybercriminals discover novel techniques of conducting their activities, the governments have to find other novel possibilities to gather round computer evidence. An example is a case where a certain group of the US law enforcement agents using the P2P software to dig out evidence from the computers of the criminals (Herrington, 1992, p.45). In order to extract information from the criminals, one needs special software and obviously an Internet connection at both sides (the criminal and the investigator).
The defendants of this Government activity have alleged infringement of their constitutional privileges and acted to hold back evidence collected from such investigations using the P2P. The courts have however held that the Government searches are constitutional and that no infringement of any human rights as provided by the constitution. In particular, the courts, almost unanimously claim that they do not violate the Fourth Amendment to the United States Constitution. The Fourth Amendment to the United States Constitution safeguards the individuals against ill mannered searches and attacks. The Amendment provides for people the right to be safe and sound in their houses, papers, themselves and effects against awkward searches and attacks (Sims, 2002, p.61). The Amendment hence requires prior to searching, a probable cause and a pledge of confirmation explaining the place to be searched and the persons or things to be apprehended when issuing a warrant order.
The case laws of the United States require that the accused claiming that the Fourth Amendment has been violated must be in a position to prove that there is a substantial anticipation of privacy in the place that was searched or the things that were apprehended. This has led to the development of a number of circuit court tests to find out whether a substantial anticipation of privacy is real in an individual case. For instance, the U.S. Court of Appeals for the tenth Circuit, has held that the accused claim of substantial anticipation of privacy will involve two inquires. The first enquiry will examine if the defendant is able to show a prejudiced anticipation of privacy in the area that was searched. The second enquiry looks at if the prejudiced anticipation of privacy is one that the society is geared up to recognize as substantial (Franda, 2006, p.59). This means that the court holds that ones anticipation of privacy from the government infringement is levelheaded in light of all surrounding state of affairs.
An example of this observation is the case that was filed as U.S. v. Brese, case No. CR-08-52-D. This case shows clearly hoe the court interpreted the Fourth Amendment claims when peer-to-peer software was used by law enforcement agents to gather evidence to track criminals. The law enforcement agents, without permission, accessed Breses computer files using the P2P computer software. The specific type of P2P software that was used was called LimeWire. The investigation of Brese by the law enforcement agents came due to the suspicion that Breses computer had pornographic files which was against the law (Devine, 2000, p.78).
The law enforcement agents, through some tool that LimeWire provides, searched for the files in the computer of Brese. The agents successfully found the pornographic files and downloaded them to serve as evidence or rather a confirmation of their suspicion. The law enforcement agents employed a governmental subpoena to determine the identity of the allied person to the Internet Protocol (IP) address where the computer was situated. The next step was to obtain a warrant order for suspects (Breser) home where he was putting up with some other family members. When the time of trial came, Breser(defendant) decided to hold back the evidence that was obtained all the way through the P2P software claiming the government violation of the Fourth Amendment (George, 1992, p.104).
Bresers suppression of the evidence that was obtained by the law enforcement agents through the P2P software was highly opposed by the government. The government side claimed the file sharing function was never render inoperative and any person with an Internet connection could easily have the right of entry to the files in the computer of the defendant. Further, the government put in plain words that the P2P software allowed direct connection through the Internet between two computers. This, the government claimed, led to the sharing of files between the two computers since they used compatible P2P software. In its defense, the government referred to two similar P2P software cases where the court declared that they do not violate the US Constitutions Fourth Amendment (Hoffman, et al, 2004, p.86).
These cases were United States v. Shafer (2007) and United States v. Perrine, (2008). The decision by the court concerning the case of Breser held that in spite of Bresers prejudiced anticipation of privacy in his computer and the files it contained, the anticipation was not practical since anyone with an Internet connection and was using LimeWire or any compatible software could have gotten the right of entry to the files of the defendant. The court ruling found therefore no violation of the defendants constitutional right in the side of the government because there was no practical anticipation of privacy in the sharing of the file over the internet since the internet goes beyond borders (Jerremy, 2000, p.43).
The internet revolution has provided a lot of possibilities especially the ease of communication and transacting business. Information sharing problems can be called a thing of the past. An individual in the US can share information with an individual in Germany or Canada. These enhanced possibilities have merits and demerits. Used properly, any technology can be beneficial to great extent. The need to enact laws regulating the use of the internet is essential in all states but this always meets so many stumbling blocks. The main reason being attributed by the nature of the internet technology itself (Paul, 2001, p. 33). It may not be compared to the trading of a good which is particularly produced in a certain country. Internet cuts across all geographic boundaries making every state to have different laws. Generally, these state laws are never applicable when it comes to issues of internet.
Internet applications do not have any geographical and jurisdiction borders although the users in few states, if any, are subject to physical jurisdiction and the authority of the law independent of their existence on the internet. Usually, internet transactions may involve three types of jurisdictions the state or national laws applicable where the individual lives, the state laws of the server hosting the transaction and the state laws which apply to the business or individual in question. Theoritically, this means that an internet user in the US carrying out a transaction with another internet user in German but using the same server located in Canada could be subject to the three state laws governing internet usage.
The states aspect of sovereignty is the jurisdiction system and this refers to the legislative, administrative and judicial competence. These laws are often extended beyond borders when considering matters of the internet which do not recognize the territorial and sovereignty borders. This is problematic when designing uniform laws governing internet usage and as such, state laws do not provide enactments for internet usage. The conflict between international and private laws is not unusual, making states to find it very hard to enact any statute governing internet applications (Jerremy, 2000, p.23).
For instance, web site contents could be legal in one country but illegitimate in another country. The lack of uniformity in the code of jurisdiction makes it difficult for courts to make decisions and thus state laws in most cases do not apply to internet.
Cyberlaws in addition have a problem when considering whether the internet is a physical space which can be subject to laws of jurisdiction. Sometimes the interne can be thought of being a world of itself and therefore not subject to any jurisdiction laws.
Proponents of a self regulated internet community feel that the governments should leave alone matters related to the internet for enhanced technological development. The argument why state laws should not intrude into matters of the internet emanates from the free nature human beings to inhabit the mind and any technological invention derived from such thinking and such inhabitation should never be constrained by legal factors (Sims, 2002, p.13).
Despite such reasoning mainly coming from cybersecession initiatives, internet users are always subject to the laws of the state within which he or she gets connected or networked. It has happened in many cases that individuals become responsible to answer court charges related to internet usage. One such example is Jake Baker who faced criminal charges in court for irresponsible usage of the internet which may be called an e-misconduct. The case, United States v. Baker was brought against Jake Baker, the University of Michigan undergraduate which linked numerous incidents of snuff stories written by him while still a student at the University. Jake Baker violated the 18 U.S.C. 875(c) by communicating through interstate threat to kidnap andor injure another individual (Hoffman, et al, 2004, p.27).
Baker, in October 1994 began submitting sexually charged stories that depicted fantasies of torture, murder and rape to an internet group, alt.sex.stories. Particularly, Baker on 9th January, 1995, submitted a story to the group giving details about the fantasies entailed in torture, murder and rape of one of his classmates (Hoffman, et al, 2004, p.30). After Bakers story got brought to the attention of the authorities of the University of Michigan, he was arrested by the FBI and was charged with six counts of communicating via interstate or foreign trade threats to kidnap or injure another individual. The FBI used the e-mails between Baker and another Canadian, Arthur Gonda to determine five of the counts to arrest Baker and the sixth count was determined by the story of his classmate on torture, murder and rape (Devine, 2000, p.35). The court declaration of Bakers case saw no criminal act in Bakers actions and Judge Avern Cohn dismissed the case for lack of evidence since Baker would act due to fantasies. Although the Government appealed the decision by the lower court, the 6ht US Court of Appeals on the 29th January, 1997 upheld this decision and Baker was set free to this date.
The prosecution of Baker was due to six counts of communicating a threat via interstate network and not the violation of obscenity. The FBI was later involved in the investigation of Baker with permission from the authorities of the University of Michigan. The FBI recommendation was that Baker be charged with the violation of the internet since it is a form of interstate commerce provided by the United States Code.
The decision by the government to charge Baker of writing pornographic stories was criticized by free speech advocates who claimed that the Government violated the First Amendment right to freedom of expression. At the same time, some other people supported the Governments decision claiming that the stories by Baker were snuff and filth and that he was planning to attack them (Paul, 2001, p.28).
The most important part of Bakers case was the transmission of his stories in a wide medium and that his pornographic content was watched by several internet advocates. The state and even at the federal level could not have any law against Baker since the internet is a medium touching diverse spheres not restricted by definite borders. The charge of Bakers case of communicating a threat over interstate lines set a precedent for freedom of speech on the internet. Otherwise, the charge may not have been able to find Baker guilty were it not that baker published the so called snuff and filth stories and made an internet correspondence. The case of Baker shows that state laws do not fully provide for the regulation of internet usage.
In another case, several users of the software, peer to peer (P2P) which enables internet file sharing were subject to civil law suit for infringement of copyright. The jurisdiction of internet regulation often leads into a conflict especially when the lawsuits are international in nature. State laws do not totally apply in these situations where the internet which is a medium without borders is involved. Jurisdiction problems always arise due to the different state standards concerning the burden of proof in any civil lawsuit. For instance, it may seem difficult for an American celebrity to win a lawsuit against an online magazine claiming that he was insulted by the magazine for defamation (George, 1992, p.20). This is however not the case in England where the standards for libelous speech is much lesser than in the US. Therefore, if the same celebrity has economic ties or any relationship to England, he or she can win the suit if the claim if filed in the British court system.
Another aspect making state laws not to apply to internet is the net neutrality. Net neutrality is a system proposed by the user access networks which are participating in the advocacy of putting no regulation on internet content, platforms, sites and all kinds of equipments enhancing the use of internet. This factor has affected the regulation of internet infrastructure. The lack of regulation of internet infrastructure has been regarded as the most important aspect of cyberlaw with direct implications on the jurisdiction system. Normally, the laws existing in one jurisdiction should have an effect in another jurisdiction when there is an effect on the telecommunication companies or host servers (Franda, 2006, p.32). The irrelevance of state laws is seen in the charge against Comcast which is the largest US cable company by high speed internet users applying the software of file sharing.
The FCC (Federal Communication Commission) on the 1st august, 2008 officially supported the complaint by the file sharing software users against Comcast. The FCC declared that the company, Comcast, had illegitimately restricted users from using its service that was high speed from using the software of file sharing. The ruling, according to Kevin J. Martin, the FCC chairman, was to set a precedent that the ISP (Internet Service Providers) and all communication companies do not deter their customers from using their networks unless a reasonable argument was tabled (George, 1992, p.58). This case is controversial to the infringement laws which are always vulnerable to be broken by users of Peer to Peer or file sharing software. Therefore, the FCC ruling clearly showed that state laws do not apply at all to the regulation and usage of the internet.
A controversial part of irrelevance of state laws to matters relating to internet, arise from the Governments investigation process into cybercrimes. Cybercriminals are ever getting trickier and the Government computer searches are getting extensively high. The reason attributed to this is because when cybercriminals discover novel techniques of conducting their activities, the governments have to find other novel possibilities to gather round computer evidence. An example is a case where a certain group of the US law enforcement agents using the P2P software to dig out evidence from the computers of the criminals (Herrington, 1992, p.45). In order to extract information from the criminals, one needs special software and obviously an Internet connection at both sides (the criminal and the investigator).
The defendants of this Government activity have alleged infringement of their constitutional privileges and acted to hold back evidence collected from such investigations using the P2P. The courts have however held that the Government searches are constitutional and that no infringement of any human rights as provided by the constitution. In particular, the courts, almost unanimously claim that they do not violate the Fourth Amendment to the United States Constitution. The Fourth Amendment to the United States Constitution safeguards the individuals against ill mannered searches and attacks. The Amendment provides for people the right to be safe and sound in their houses, papers, themselves and effects against awkward searches and attacks (Sims, 2002, p.61). The Amendment hence requires prior to searching, a probable cause and a pledge of confirmation explaining the place to be searched and the persons or things to be apprehended when issuing a warrant order.
The case laws of the United States require that the accused claiming that the Fourth Amendment has been violated must be in a position to prove that there is a substantial anticipation of privacy in the place that was searched or the things that were apprehended. This has led to the development of a number of circuit court tests to find out whether a substantial anticipation of privacy is real in an individual case. For instance, the U.S. Court of Appeals for the tenth Circuit, has held that the accused claim of substantial anticipation of privacy will involve two inquires. The first enquiry will examine if the defendant is able to show a prejudiced anticipation of privacy in the area that was searched. The second enquiry looks at if the prejudiced anticipation of privacy is one that the society is geared up to recognize as substantial (Franda, 2006, p.59). This means that the court holds that ones anticipation of privacy from the government infringement is levelheaded in light of all surrounding state of affairs.
An example of this observation is the case that was filed as U.S. v. Brese, case No. CR-08-52-D. This case shows clearly hoe the court interpreted the Fourth Amendment claims when peer-to-peer software was used by law enforcement agents to gather evidence to track criminals. The law enforcement agents, without permission, accessed Breses computer files using the P2P computer software. The specific type of P2P software that was used was called LimeWire. The investigation of Brese by the law enforcement agents came due to the suspicion that Breses computer had pornographic files which was against the law (Devine, 2000, p.78).
The law enforcement agents, through some tool that LimeWire provides, searched for the files in the computer of Brese. The agents successfully found the pornographic files and downloaded them to serve as evidence or rather a confirmation of their suspicion. The law enforcement agents employed a governmental subpoena to determine the identity of the allied person to the Internet Protocol (IP) address where the computer was situated. The next step was to obtain a warrant order for suspects (Breser) home where he was putting up with some other family members. When the time of trial came, Breser(defendant) decided to hold back the evidence that was obtained all the way through the P2P software claiming the government violation of the Fourth Amendment (George, 1992, p.104).
Bresers suppression of the evidence that was obtained by the law enforcement agents through the P2P software was highly opposed by the government. The government side claimed the file sharing function was never render inoperative and any person with an Internet connection could easily have the right of entry to the files in the computer of the defendant. Further, the government put in plain words that the P2P software allowed direct connection through the Internet between two computers. This, the government claimed, led to the sharing of files between the two computers since they used compatible P2P software. In its defense, the government referred to two similar P2P software cases where the court declared that they do not violate the US Constitutions Fourth Amendment (Hoffman, et al, 2004, p.86).
These cases were United States v. Shafer (2007) and United States v. Perrine, (2008). The decision by the court concerning the case of Breser held that in spite of Bresers prejudiced anticipation of privacy in his computer and the files it contained, the anticipation was not practical since anyone with an Internet connection and was using LimeWire or any compatible software could have gotten the right of entry to the files of the defendant. The court ruling found therefore no violation of the defendants constitutional right in the side of the government because there was no practical anticipation of privacy in the sharing of the file over the internet since the internet goes beyond borders (Jerremy, 2000, p.43).
The internet revolution has provided a lot of possibilities especially the ease of communication and transacting business. Information sharing problems can be called a thing of the past. An individual in the US can share information with an individual in Germany or Canada. These enhanced possibilities have merits and demerits. Used properly, any technology can be beneficial to great extent. The need to enact laws regulating the use of the internet is essential in all states but this always meets so many stumbling blocks. The main reason being attributed by the nature of the internet technology itself (Paul, 2001, p. 33). It may not be compared to the trading of a good which is particularly produced in a certain country. Internet cuts across all geographic boundaries making every state to have different laws. Generally, these state laws are never applicable when it comes to issues of internet.
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