Technology and Internet Jurisdiction by Joel R. Reidenberg (University of Pennsylvania Law Review, Jun 2005)
This Essay argues that the initial wave of cases seeking to deny jurisdiction, choice of law, and enforcement to states where users and victims are located constitutes a type of “denial-of-service” attack against the legal system. Internet separatists use technology-based arguments to deny the existence of sufficient contacts for jurisdiction and the applicability of rules of law interdicting certain behavior. From this perspective, the attackers seek to disable states from protecting their citizens online. The Essay next shows that innovations in information technology will undermine the technological assault on state jurisdiction. This counterintuitive effect is born out of the fact that more sophisticated computing enlists the processing capabilities and power of users’ computers. This interactivity gives the victim’s state a greater nexus with offending acts and provides a direct relationship with the offender for purposes of personal jurisdiction and choice of law. Some of these same innovations also enable states to enforce their decisions electronically and consequently bypass the problems of foreign recognition and enforcement of judgments. Finally, the Essay argues that the exercise of state power through assertions of jurisdiction can and should be used to advance the development of more granular technologies and new service markets for legal compliance. Technologies should be available to enable Internet participants to respect the rule of law in states where their Internet activities reach. Assertions of state jurisdiction and electronic enforcement are likely to advance this public policy.
http://www.pennumbra.com/issues/article.php?atid=57