Posted by Orin Kerr:
Cyberspace Jurisdiction and the Dormant Commerce Clause:
http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1179860792
In response to my initial post on [1]Hageseth v. Superior Court, [2]my
co-blogger David P. writes:
The court is probably correct that the "traditionally applicable
legal principles" permit it to assert jurisdiction over the
defendant; the harder question is whether those "traditionally
applicable legal principles" become utter nonsense in a networked
world.
The "traditionally applicable legal principle" here is what the
court calls the "detrimental effects theory" of extraterritorial
jurisdiction: if your actions outside the jurisdiction have harmful
effects inside the jurisdiction, you're subject to the
jurisdiction's criminal laws.
This principle, I submit, doesn't make sense in a world in which
the "effects' of all actions are felt instantaneously everywhere on
the network; applying that principle leads to the conclusion that
everyone is subject to everybody's criminal jurisdiction
simultaneously, and I don't think that is a sensible conclusion for
a global legal system.
I disagree. In my view, "traditionally applicable legal principles"
already consider David's policy argument. As I alluded to in my
initial post, Hageseth was free to (but did not) make an argument that
extending the jurisdiction of the California courts to his conduct
violated the Dormant Commerce Clause.
Existing dormant commerce clause doctrine largely traces David's
policy concerns, as it looks at the effect of one state's regulation
on other states and considers the need for a single consistent
regulatory scheme. If a state statute that regulates computer usage is
read to have such broad extraterritorial scope, it may be invalided on
dormant commerce clause grounds. See, e.g., American Libraries Ass'n.
v. Pataki, 969 F.Supp. 160 (S.D.N.Y.1997). Notably, several defendants
in Californian state computer crime cases have used such arguments.
Examples testing the extraterritorial scope of California state
Internet luring statutes include People v. Hsu, 82 Cal. App.4th 976
(Cal. App. 2000) and Hatch v. Superior Court, 94 Cal. Rptr. 2d 453
(Cal. Ct. App. 2000).
In my view, the real issue in Hageseth isn't whether traditional
legal principles become "utter nonsense" when applied to conduct "in
cyberspace." The issue is whether we recognize the right traditional
legal principles, which in this case are dormant commerce clause
principles that I think make a lot of sense when applied to online
conduct.
References
1. http://www.courtinfo.ca.gov/opinions/documents/A115390.PDF
2. http://volokh.com/posts/1179838180.shtml
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