ABA Takes on Jurisdictional Law Enforcement

While more than four months have passed since the release of an American Bar Association committee's report on Internet Jurisdictions, its chief author admits little of the recommendations put forth in the report have been enacted, and she doesn't see that changing anytime soon.

"The report makes a bunch of suggestions," said Margaret Stewart, a law professor at Chicago-Kent College of Law who was also the Project Director and Reporter. "Among many of its suggestions was that there be a global conference to address the issues, and that would probably be the first step in getting any type of global regulations."

The report, "Transnational Issues in Cyberspace: A Project on the Law Relating to Jurisdiction," was the result of two years of studies and meetings conducted by the ABA and its committee on cyberspace law. It was released in July at meetings both in New York and London and Stewart admits that, while little action has been taken, the response from the public has been overwhelming.

"The law community has been very supportive of the report," she said. "It opened up a lot of discussion that businesses hadn't really thought of before. Since its release there have been a lot of people that want to talk about it, I think that is a sing of how important these issues are."

Among the issues discussed in the report are consumer protection, privacy, banking, securities, taxes and gaming.

The biggest proposal to come out of the report is the call for a multinational commission to be set up to create global Internet rules.

Stewart, a jurisdictional expert, says the Internet has created new problems and issues with laws. "Any jurisdiction question is always about borders," she said. "In the United States we have the sanctity of state laws to address jurisdictional questions. This isn't true in the rest of the world, and it really never was an issue until the Internet."

In addressing the issue of a global world, the report feels both the U.S., and agencies abroad, must change to adapt to a new world of electronic commerce that is not dependent on physical location.

Jurisdictional issues come up frequently with commerce and gaming. Regulators have long debated over whose laws should take precedent, those that exist where the user is or where the site's operator is. Stewart said she recognizes that not one state or nation can answer these questions alone. It is going to take a multinational commission to work with governments to establish new rules.

Other ABA officials have equated the issue to starting a commercial and business operation on Mars. There has to be new rules of engagement and people have to get used to dealing with the new rules. The study offered a menu of solutions a global commission could undertake. Among the suggestions was the creation of a cybertribunal and voluntary industry councils to develop private sector methods of resolving e-commerce disputes.

Another suggestion was that global industry regulatory authorities be encouraged to reach agreement about how laws will be applied to financial products and services offered in an electronic environment.

Stewart isn't too concerned that no actions have been taken in relation to the report.

"This isn't a really pressing matter," she said. "Many of these jurisdictional questions are resolved privately. If it is a business-to-consumer issue it is usually addressed outside of court and if it is a business-to-business question it is addressed contractually."

Stewart said the report was more to raise awareness of what could be a pressing issue in the future as the Internet continues to grow instead of a quick fix to the situation.

The ABA has made the report available for viewing at www.abanet.org/buslaw/cyber/initiatives/draft.rtf.