46 Pages Posted: 25 Aug 2005
Cybercrime is a primary example of cross-border crime, and so, it raises the issue of jurisdiction. This is a tricky issue. Acts on the Internet that are legal in the state where they are initiated may be illegal in other states, even though the act is not particularly targeted at that state. Jurisdiction conflicts abound, both negative (no state claims jurisdiction) and positive (several states claim jurisdiction at the same time). Above all, it is unclear just what constitutes jurisdiction: is it the place of the act, the country of residence of the perpetrator, the location of the effect, or the nationality of the owner of the computer that is under attack? Or all of these at once?
It turns out that countries think quite differently on this issue. The cybercrime statutes of numerous countries show varying and diverging jurisdiction clauses. In this article, these varying approaches are outlined, by indicating when states claim jurisdiction and which factors influence that claim. The survey of jurisdiction provisions includes several US states and federal US law, Belgium, Germany, the Netherlands, Malaysia, Singapore, and the Australian state of Tasmania, as well as the Council of Europe's Cybercrime Convention. This - eclectic - collection of states is chosen for having interesting jurisdiction clauses with respect to cybercrime.
The article starts with a general description of jurisdiction (Section 2). Then, jurisdiction clauses in cybercrime statutes are surveyed, based on territorial claims (Section 3), on personality claims (Section 4), or on other claims, such as the protection principle and universality (Section 5). Jurisdiction does not only require a connection with the crime; it also demands that this connection be sufficiently close to warrant the exercise of jurisdiction - the reasonableness standard (Section 6). Particularly with cybercrimes connected with many countries, the various jurisdiction clauses will clash, resulting in positive or negative jurisdiction conflicts (Section 7). The articles concludes with summarizing the various approaches in cybercrime jurisdiction and the problems that this variation poses, and indicates issues that merit further study (Section 8).
Keywords: Jurisdiction, cybercrime, sovereignty, Internet, criminal law
Suggested Citation: Suggested Citation
Brenner, Susan W. and Koops, Bert-Jaap, Approaches to Cybercrime Jurisdiction. Journal of High Technology Law, Vol. 4, No. 1, 2004. Available at SSRN: https://ssrn.com/abstract=786507
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