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Internet-related legal issues are still treated as fringe issues in both public and private international law. Anyone doubting this claim need only take a look at the tables of content from journals in those respective fields. However, approaching Internet-related legal issues in this manner is becoming increasingly untenable. Let us consider the following:

  • Tech companies feature prominently on lists ranking the world’s most powerful companies. For example, on Foreign Policy’s list of “25 Companies Are More Powerful Than Many Countries” ten of the listed companies are from the tech industry, and perhaps somewhat less importantly, six of the top ten companies on Forbes’ list of the world’s most valuable brands are tech companies (with the four top spots being Apple, Google, Microsoft and Facebook);
  • With its more than two billion users, Facebook alone has more ‘citizens’ than any country on earth; and
  • No other communications media comes even close to the Internet’s ability to facilitate cross-border interactions – interactions that may have legal implications.

While statistics may be used to prove just about anything, the message stemming from the above is clear and beyond intelligent dispute: cross-border Internet-related legal issues are central matters in society and need to be treated as such in public and private international law.

“Smartphone Screen” by TeroVesalainen. CC0 Public Domain via Pixabay.

A particularly relevant matter is that of Internet jurisdiction. The harms caused by the current dysfunctional approach that international law takes to jurisdiction are as palpable as they are diverse. The territoriality-centric approach to jurisdiction causes severe obstacles for law enforcement’s fight against both traditional and cyber-crime, it undermines the protection of important human rights, it amounts to an obstacle for e-commerce, and it creates uncertainties that undermine the stability online with an increased risk for cyber conflict as the result. Thus, Internet jurisdiction is one of our most important and urgent legal challenges. And we all need to get involved.

No more ‘regulatory sleep-walking’:

There are many notions regarding jurisdiction in general, and Internet jurisdiction in particular, that are widely relied upon in the academic community and beyond. The two key sources for those notions are the (in)famous 1927 Lotus case, and the widely cited, but poorly understood, Harvard Draft Convention on Jurisdiction with Respect to Crime 1935 – both seen to put the supremacy of the territoriality principle beyond question. With a somnambulant-like acceptance, these authorities are treated as clear, exhaustive, and almighty.

However, those who have truly studied jurisdiction in detail generally take a different view. For example, Ryngaert and Mann have both questioned whether the Lotus decision remains good law.

A new paradigm:

I believe that we must move beyond the current territoriality focused paradigm of how we approach jurisdiction and have advanced an alternative jurisprudential framework for jurisdiction: In the absence of an obligation under international law to exercise jurisdiction, a state may only exercise jurisdiction where:

  1. There is a substantial connection between the matter and the state seeking to exercise jurisdiction;
  2. The state seeking to exercise jurisdiction has a legitimate interest in the matter; and
  3. The exercise of jurisdiction is reasonable given the balance between the state’s legitimate interests and other interests. That work is, however, just a starting point for further discussions.
“Office” by StartupStockPhotos. CC0 Public Domain via Pixabay.

Not just a matter for Internet lawyers:

Internet jurisdiction is not just a matter for Internet lawyers, it is not just a matter for the public international law crowd, and it is not just a matter for those inhabiting the domain of private international law – Internet jurisdiction is a key issue in all of these fields. And, importantly, it is a matter we will only be able to address when the experts from these fields join forces and approach jurisdiction in an open-minded manner.

To this, we may add that addressing Internet jurisdiction is not just a matter for the academic or legal community. It is for us all— industry, government, courts, international organizations, civil society, and the academic community— to help achieve useful change. Furthermore, those engaged in capacity-building initiatives must recognize that they need to incorporate capacity building in relation to a sound understanding of the jurisdictional challenges and solutions.

Much work lies ahead. But it is crucially important work and we must now turn our minds to these issues to which we, for far too long, have turned a blind eye.

Source: This article was published blog.oup.com Dan Svantesson

Published in Internet Ethics

The Internet has created a culture where anybody – anybody – can go from obscurity to fame overnight. This notoriety doesn’t require consent. Often it’s uncontrollable, ruinous and impossible to stop.

Take Pizzagate. What began as a fake news story about a child sex ring at Comet Ping Pong ended with an armed man firing an assault rifle inside the pizza parlor. Even before the attack, lives had been turned upside down. For weeks, the restaurant had been receiving harassing phone calls and emails. It had been slandered online. Law enforcement said there was nothing that could be done.

That’s where I come in. My law firm represents victims of online harassment and sexual assault. We stand for the belief – and witness it anew multiple times a day – that everybody is a moment away from having their life destroyed by a jealous ex, an enemy or even a demented stranger. All the angry person must do is post a picture or rumor. The Internet’s relentlessly archiving memory and creeping search engine algorithms provide eternal life in cyberspace to the most humiliating information, true or not.

[How Anthony Weiner’s risque messages shaped our revenge-porn laws]

Here’s a fact pattern we see frequently: A client’s nude pictures, originally shared in a trusting relationship, get posted by her jilted ex to a website dedicated to hosting “revenge porn.” Thousands of men frequent these sites each day. They email our clients. Soon he or she is assaulted by hundreds of unwanted, threatening emails, texts and social-media requests from strangers who blindly accept that she is the “diseased whore” her ex describes her as. These strangers compete with one another in the site’s comment threads to unearth as much personal information about her as possible – her social-media accounts, phone numbers of her parent’s employers, email accounts of her underage sisters. They use that information to stalk and harass. With a click of a button, the angry ex has presented the victim on a platter for the Internet to devour. This is harassment by proxy; revenge has never been more efficient.

Just because you’ve never taken naked pictures or don’t have enemies doesn’t mean you’re safe. We have clients whose bikinis are photoshopped off and posted onto revenge porn sites, who are filmed getting dressed or engaging in a sexual act without their knowledge, whose faces are masterfully superimposed onto a porn star’s bodies, whose rape videos have gone viral. Other clients are advertised as prostitutes for sex on websites such as Craigslist and Backpage. In one case, more than 40 strangers showed up at our client’s home and workplace to intimidate her.

We’ve had cases where the offender is somebody with whom our client went on one online date. In one case, she was somebody with whom our client, a male, decided not to go on a date with after determining she seemed too emotionally unstable. Thereafter, his name and social media profile picture wound up on an online STD registry. In all cases, the mob is at the ready to ignore the truth and scare the bejesus out of the target.

[If we took ‘Gamergate’ harassment seriously, ‘Pizzagate’ might never have happened]

Victims often seek assistance from law enforcement, but return from precincts demoralized. Their plight is often not understood by the individuals taking their report, who have a limited grasp of social media. (That was the case for journalist Amanda Hess, who in 2014 was asked “what is Twitter?” by the police officers taking her report of death-threat tweets.)

The law must keep up with these kinds of crimes. While 34 states have revenge porn laws, they don’t cover the resulting online harassment from mob viewers. Harassment laws typically require direct contact with the victim and a course of conduct. So if the original offender simply uploads content onto a site and sits back while the mob attacks, neither of those requirements are met. Similarly, a thousand people may each anonymously send the victim one terrorizing communication – again, not a course of conduct by any single person. Plus, law enforcers are highly unmotivated to open a case in which the cyber forensics may eventually show that the offender lives in a country on the other side of the equator – or at least is logging in through an IP address suggesting that. Law enforcement officers shy away from investigating tech cases, especially when they are lowly misdemeanors with an anonymous offender, let alone a thousand anonymous offenders.

There is good news: A combination of legislation, technology, law and advocacy can improve online life. We need laws that acknowledge harassment by proxy and that attribute actions of the incited mob to the original upstream offender. Rep. Katherine M. Clark (D-Mass.) is in the vanguard, introducing legislation stopping some of the most formidable online acts. One bill criminalizes the malicious publication of private information, another prevents blackmailed demands for sexual acts, and a third punishes people who falsely report emergencies causing SWAT teams to be dispatched.

Other important proposed legislation penned by Clark is focused on the infrastructure of law enforcement – one requiring the Justice Department to publish statistics related to cybercrimes and funding, another providing funding to hire and train law enforcement officers to investigate cybercrimes and to procure advanced computer forensic tools.  Meanwhile, Rep. Jackie Speier (D-Calif.) introduced the Intimate Privacy Protect Act this year, to criminalize non-consensual pornography, with co-sponsors from both sides of the aisle.

Although it’s a no-brainer that tech companies must stop the abuses on their platforms, angel investors and venture capitalists must refuse to fund new companies that don’t build community safety standards into their earliest designs. We must also support the efforts of the grass-roots change-makers such as the Cyber Civil Rights Initiative and Without My Consent.

Never before has there been such a license for maliciousness. Tweets from our highest elected official have led to online harassment. To prevent a trickle-down effect of cruelty, we must take action. Nobody is trying to sanitize the Internet into a place exclusively for compliments and happy unicorns birthing sparkly glitter hearts. But if we do nothing, the Internet’s ruling class will be comprised of those with the most demented psyches and not enough to do.

Author : Carrie Goldberg

Source : https://www.washingtonpost.com/posteverything/wp/2016/12/21/my-clients-get-stalked-doxxed-and-humiliated-online-all-for-turning-down-a-date/?utm_term=.0053c58ac224

Published in Science & Tech

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